ATTORNEY GENERAL
Under provisions set out in the Texas Constitution, the Texas Government Code, 
Title 4,  402.042 and numerous statutes, the attorney general is authorized to 
write advisory opinions for state and local officials. These advisory opinions 
are requested by agencies or officials when they are confronted with unique or 
unusually difficult legal questions. The attorney general also determines, under 
authority of the Texas Open Records Act, whether information requested for 
release from governmental agencies may be held from public disclosure. Requests 
for opinions, opinions, and open record decisions are summarized for publication 
in the Texas Register. The Attorney General responds to many requests for 
opinions and open records decisions with letter opinions. A letter opinion has 
the same force and effect as a formal Attorney General Opinion, and represents 
the opinion of the Attorney General unless and until it is modified or overruled 
by a subsequent letter opinion, a formal Attorney General Opinion, or a decision 
of a court of record. To request copies of opinions, phone (512) 462-0011. To 
inquire about pending requests for opinions, phone (512) 463-2110.

Letter Opinions

LO-#98-019. Request from William R. Archer,
 III, M.D., Commissioner of Health, Texas Department of Health, 1100 West
 49th Street, Austin, Texas, 78756-3199, regarding request for reconsideration
 and clarification of Letter Opinion No. 96-103 (RQ-965).


SUMMARY. Article 4512e, V.T.C.S. is not pre-empted
 by federal law. Accordingly, the profession of kinesiotherapy is regulated
 generally in Texas by the Board of Physical Therapy Examiners. Therefore,
 the Texas Department of Health may not register kinesiotherapists pursuant
 to section 12.014(a) of the Health and Safety Code. The conclusion of Letter
 Opinion No. 96-103 (1996) is reaffirmed.


LO-#98-020. Request from the Honorable Steven
 C. Hilbig, Bexar County Criminal District Attorney, Bexar County Justice
 Center, 300 Dolorosa, Suite 5072, San Antonio, Texas, 78205-3030, regarding
 fee for filing and indexing a restitution lien with county clerk under article
 42.22 of the Code of Criminal Procedure (ID# 39580).


SUMMARY. The victim of a criminal offense
 or the state may file an affidavit to perfect a restitution lien with a county
 clerk of the county in which the crime was committed or where the defendant
 resides, or where property owned by the defendant is located. When a 
restitution
 lien is filed with a county clerk, the county clerk is to immediately record
 it in the judgment records of the county. Real property record's filing fees
 are not to be assessed when a victim or the state files a restitution lien.
 The $5.00 fee, established under article 42.22 of the Code of Criminal 
Procedure,
 for filing and indexing a restitution lien in a county clerk's office is not
 an exclusive fee. A "Records Management and Preservation" fee of $5.00 is
 assessed by a county clerk for filing any document. If the county commissioners
 court has set a security fee, a $1.00 security fee is assessed when a 
restitution
 lien is filed with the county clerk. Fees other than the "Records Management
 and Preservation" fee and security fee may be applicable if a statute so 
prescribes.

LO-#98-021. The Honorable Mark F. Pratt,
 Hill County Attorney, Courthouse Annex, P. O. Box 253, Hillsboro, Texas, 76645,
 regarding whether a judge who has issued a warrant of arrest for a defendant
 under article 42.12(10)(c), Texas Code of Criminal Procedure, is authorized
 to set bail for that defendant (ID# 39565).


SUMMARY. Any court having geographical jurisdiction
 where a defendant is residing or where a violation of the conditions of 
community
 supervision occurs may issue a warrant for arrest under Code of Criminal 
Procedure
 article 42.12, section 10(c), and set bail for the defendant.


LO-#98-022. The Honorable Michael P. Fleming,
 Harris County Attorney, 1001 Preston, Suite 634 Houston, Texas 77002-1891,
 regarding whether the Board of Directors of the Harris County Appraisal 
District
 may contract with the board of directors of an overlapping appraisal district
 to designate a single appraisal review board to hear taxpayer protests about
 the appraisal of property located in areas common to both districts (RQ-994).

SUMMARY. The Board of Directors of the Harris
 County Appraisal District may not contract with the board of directors of
 an overlapping appraisal district to designate a single appraisal review board
 to hear taxpayer protests about the appraisal of property located in areas
 common to both districts. Section 6.025 of the Tax Code, which relates to
 the appraisal of property that lies in two or more tax appraisal districts,
 provides that the owner of property "is entitled to file a protest in relation
 to the property with the appraisal review board of any appraisal district
 in which the property is located." This provision authorizes the owner of
 such "overlapping property" to choose which of two or more appraisal review
 boards with jurisdiction over the property will hear his or her protest. The
 Harris County Appraisal District may not enter into a contract that attempts
 to nullify this statute.


LO-#98-023. Request from Ms. Kay Warren Winkler,
 County Auditor, P.O. Drawer O, Kermit, Texas, 79745; The Honorable Tim Curry,
 Criminal District Attorney, Tarrant County, 401 West Belknap Street, Fort
 Worth, Texas, 76196-0201, regarding whether the food service contract for
 a county jail is subject to competitive bidding and related questions (RQ-955).

SUMMARY. The sheriff of Winkler County may
 not purchase food for the prisoners in the county jail out of his personal
 funds and be recompensed by receipt of per diem funds from the county. Rather,
 as an expense of his office, the feeding of prisoners must be subject to the
 ordinary county budgeting process pursuant to sections 152.011 and 152.013
 of the Local Government Code. If a contract for food services with a value
 in excess of $15,000 is let, it must be competitively bid. Such a contract
 is not a personal services contract, nor, even if professionals play some
 part in its execution, is it a professional services contract.


LO-#98-024. Request from the Honorable Michael
 P. Fleming, Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas,
 77002-1891, regarding authority of the Harris County Hospital District to
 expend funds for the temporary housing of visiting army medical personnel
 (RQ-1067).


SUMMARY. The Harris County Hospital District
 may agree with the United States Army to have army medical personnel on active
 military duty render surgical and other trauma health care to indigent patients
 at a district hospital for a period of 60 days, if the hospital district board
 of managers considers it "advisable for the district's efficient operation. "
The army would pay the salary and traveling expenses of the visiting personnel.
 Article III, section 52 of the Texas Constitution would not prevent the board
 from paying for the temporary housing expenses of the visiting army medical
 personnel, if the payment is for the direct accomplishment of a legitimate
 public purpose, if the district receives adequate consideration for its 
expenditure,
 and if appropriate controls are in place to assure that the public purpose
 will be carried out. This determination is for the board of the hospital 
managers
 of the hospital district in the first instance, subject to judicial review
 for abuse of discretion. Charges for patient care provided by the hospital
 district are to be in proportion to the patient's financial ability and may
 not exceed "the actual per capita cost of maintenance." The board of managers
 has authority to establish how patient charges are to be determined and to
 decide whether employees' work-related expenses, such as the housing charges
 of the visiting army medical personnel, is a component of the "actual per
 capita cost of maintenance" of patients in the hospital.


LO-#98-025. Request from the Honorable Rene
 O. Oliveira, Chair, Committee on Economic Development, Texas House of 
Representatives,
 P.O. Box 2910, Austin, Texas 78768-2910, regarding construction of section
 3.05(c) of the Medical Practice Act (RQ-1042)

.
SUMMARY. The Texas State Board of Medical
 Examiners is not prohibited from requiring applicants for licensure by 
reciprocity
 to have passed an accepted licensing examination within three attempts. A
 statute and board rules establishing an examination limit may lawfully be
 applied to an applicant for licensure by reciprocity who took the examination
 and became licensed in another state before the statute and rules became 
effective.

TRD-9804248



General Opinions

DM-468. Mr. Ray Farabee, Vice Chancellor
 and General Counsel, The University of Texas System, 201 West Seventh Street,
 Austin, Texas, 78701-2981, regarding whether Education Code section 54.203
 violates the Equal Protection Clause of the United States Constitution by
 exempting from dues, fees, and charges at an institution of higher education
 only those veterans who were Texas citizens at the time they entered the 
service,
 and related questions (RQ-937).


SUMMARY. A court examining Education Code
 section 54.203(a), which exempts from the payment of tuition all honorably
 discharged, resident veterans who were Texas citizens at the time they 
enlisted,
 probably would find that the statute unconstitutionally discriminates against
 honorably discharged, resident veterans who did not reside in Texas when they
 entered the service. To remedy the unconstitutionality, the court probably
 would strike only the fixed-point residence requirement, thereby extending
 tuition exemption to all honorably discharged, resident veterans. A court
 probably would evaluate the extent to which section 54.203(a), judicially
 modified to delete the unconstitutional fixed-point residence requirement,
 should be applied retrospectively using a three-part test. First, the court
 would examine whether the holding decided an issue of first impression not
 clearly foreshadowed by prior decisions. Second, the court would consider
 whether retrospective operation will further or retard the holding in question.
 Third, the court would determine whether a retrospective application could
 produce substantial inequitable results. A court would decide whether an 
honorably
 discharged veteran who meets section 54.203(a)'s durational residence 
requirement
 is entitled to a refund of tuition paid under protest after the court had
 established the extent to which the judicial modification of section 54.203(a)
 would apply retrospectively.


DM-#469. The Honorable Rene O. Oliveira,
 Chair, Committee on Economic Development, Texas House of Representatives,
 P.O. Box 2910, Austin, Texas, 78768-2910, regarding whether Government Code
 section 2258.021 requires Midwestern State University to pay the prevailing
 wage rate to electricians performing work on Bolin Science Hall, and related
 questions (RQ-957).


SUMMARY. Assuming that the Bolin Science
 Hall remodeling project is subject to Government Code chapter 2258, Midwestern
 State University must require the contractor and subcontractors to pay no
 less than the local, prevailing wage rate to electricians working on the 
project
 unless the work is limited to maintenance. Government Code chapter 2258 does
 not as a matter of law prohibit a contractor from paying one worker two 
different
 wage rates. So long as a public body has in place a system whereby, prior
 to the hiring, it reviews a contractor's request to hire a craft or type of
 worker not specified in the contract and determines the local, prevailing
 wage rate, we do not believe a contractor who complies with that system 
violates
 Government Code chapter 2258. A contractor may not, however, hire a craft
 or type of worker that the public body has not approved and determined the
 prevailing wage rate in advance. A contractor who pays workers less than the
 prevailing wage rate set out in the contract must, not may, pay a sixty-dollar
 penalty to the public body. It is not a defense that the underpaid worker
 agreed to accept a wage rate below the listed, prevailing wage rate. Chapter
 2258 permits a worker to seek a judicial remedy only in one circumstance:
 where the public body, having received the worker's complaint and adjudging
 the allegations substantiated, withholds an insufficient amount of money to
 make the underpaid worker whole. In any other situation, chapter 2258 requires
 an aggrieved worker and the contractor to try to settle the issue or submit
 to binding arbitration.


DM-#470. The Honorable James M. Kuboviak,
 Brazos County Attorney, 300 East 26th Street, Suite 325, Bryan, Texas, 77803,
 regarding whether the tax collector of a county that contracts under section
 6.24(b) of the Tax Code to have its taxes collected by another entity must
 register with the Board of Tax Professional Examiners (RQ-971).


SUMMARY. When the commissioners court of
 a county contracts under section 6.24(b) of the Tax Code to have its taxes
 collected by another entity and the county tax assessor-collector approves
 the contract pursuant to that provision, the contract would not be subject
 to approval by an individual who assumes the office of tax assessor-collector
 during the term of the contract. The tax assessor-collector of a county that
 contracts under section 6.24(b) of the Tax Code to have its taxes collected
 by another entity is not actively engaged in assessing or collecting taxes
 within the meaning of section 15 of article 8885, V.T.C.S., and therefore
 is not required or permitted to register with the Board of Tax Professional
 Examiners under article 8885, V.T.C.S.


TRD-9804222



Request for Opinions

RQ-1093. Request from the Honorable Tim Curry,
 Tarrant County Criminal District Attorney, 401 West Belknap Street, Fort
 Worth, Texas, 76196-0201, regarding applicability of competitive bidding
 statutes to a single supplier that operates a county jail commissary.


RQ-1100. Request from the Honorable Bill
 Moore, Johnson County Attorney, 2 North Main Street, First Floor, Cleburne,
 Texas, 76031, regarding whether a sheriff may require a transfer of real
 or personal property as collateral for bails bonds, and related questions.

RQ-1101. Request from the Honorable Janelle
 M. Haverkamp, District Attorney, 235 Judicial District Attorney, Cooke County
 Courthouse, Gainesville, Texas, 76240, regarding whether a county may use
 the proceeds of the Courthouse Security Fund to purchase clip-on microphones
 for portable radios carried by deputy sheriffs.


TRD-9804221