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-#98-034. Request from the Honorable Delwin
 Jones Chair, Redistricting Committee, Texas House of Representatives, P.O.
 Box 2910, Austin, Texas 78768, regarding whether the executive director of
 the Lubbock Housing Authority may serve as a member of the City of Lubbock
 Civil Service Commission (RQ-1022).


SUMMARY. Because the executive director of
 the Housing Authority of the City of Lubbock is not an "officer" for purposes
 of subsection 143.006(c), Local Government Code, that provision presents
 no obstacle to his appointment as a member of the City of Lubbock Civil Service
 Commission.


LO-#98-035. Request from the Honorable James
 M. Kuboviak, Brazos County Attorney, 300 E. 26th St., Suite 325, Bryan, Texas
 77803, regarding whether a district clerk may also serve as a reserve deputy
 sheriff (RQ-977).


SUMMARY. As a general matter, a district
 clerk may serve as a reserve deputy sheriff without violating either article
 XVI, section 40 of the Texas Constitution or the common-law doctrine of 
incompatibility.

LO-#98-036. Request from Mr. Willard L. Jackson,
 Jr. Chairman, Board of Regents, Texas Southern University, 3100 Cleburne
 Avenue, Houston, Texas 77004, regarding whether a member of the Texas Southern
 University Board of Regents may serve as a volunteer, uncompensated coach
 (RQ-1025).


SUMMARY. A member of the Texas Southern University
 Board of Regents does not violate the common-law doctrine of incompatibility
 by performing unpaid volunteer coaching services for a section of the football
 team, nor does this service constitute a violation of Government Code section
 572.051 or of the common-law conflict of interest rule. Any voluntary 
assistance
 provided by the regent must be consistent with any rules, regulations, and
 guidelines established by the regents under chapter 106 of the Education
 Code or chapter 2109 of the Government Code, concerning volunteer programs
 established by governmental entities, as well as any other applicable laws
 or regulations.


LO-#98-037. Request from the Honorable Scott
 W. Rosekrans, Criminal District Attorney, San Jacinto County, P.O. Box 430,
 Coldspring, Texas 77331, regarding whether a commissioners court is required
 to fill a vacancy in the office of justice of the peace (RQ-1061).


SUMMARY. A commissioners court is required
 to fill a vacancy in the office of justice of the peace.


LO-#98-038. Request from Brigadier General
 Daniel James, III, Adjutant General, Texas Air National Guard, P.O. Box 5218,
 Austin, Texas 78763-5218, regarding whether the Texas National Guard is subject
 to the Hazard Communication Act, chapter 502 of the Health and Safety Code
 (RQ-951).


SUMMARY. The Texas National Guard is not
 subject to the Hazard Communication Act, chapter 502 of the Health and Safety
 Code.


TRD-9805650



Opinions

DM-471(RQ-988). Request from Bruce A. Levy,
 M.D., J.D., Executive Director, Texas State Board of Acupuncture Examiners,
 P.O. Box 2018, Austin, Texas 78768-2018, regarding whether the performance
 of acupuncture is within the scope of practice of a licensed Texas chiropractor
.
SUMMARY. The practice of acupuncture, as
 defined by V.T.C.S. article 4495b, is not an "incisive or surgical procedure"
 excluded from the scope of the practice of chiropractic. The conclusion reached
 in Attorney General Opinion DM-415 with respect to the practice of acupuncture
 by chiropractors is superseded by statute.


DM-472 (RQ-925). Request from the Honorable
 Hugo Berlanga, Chairman, Committee on Public Health, Texas House of 
Representatives,
 P.O. Box 2910, Austin, Texas 78768-2910; Oliver R. Smith, Jr., D.C., President,
 Texas Board of Chiropractic Examiners, 333 Guadalupe, Tower III, Suite 825,
 Austin, Texas 78701, regarding use of injectable substances by licensed 
chiropractors,
 and related questions.


SUMMARY. The use of a needle to inject substances
 or for any purpose other than the drawing of blood for diagnostic testing
 or for the practice of acupuncture is not within the scope of practice of
 a licensed Texas chiropractor. A chiropractor may be found to be in violation
 of V.T.C.S. article 4512b, prohibiting the prescription by a chiropractor
 of dangerous drugs, if the chiropractor prescribes a drug that does not bear,
 but is required to bear, a legend stating that federal law prohibits dispensing
 the drug without a prescription. A drug that bears a prescription legend falls
 within the definition of "dangerous drug" found in Health and Safety Code
 section 483.001(2).


DM-473 (RQ-952). Request from the Honorable
 Steven D. Wolens, Chair, Committee on State Affairs, Texas House of 
Representatives,
 P.O. Box 2910, Austin, Texas 78768-2910, regarding validity of Dallas City
 Council rule that requires request by five council members or majority of
 a city council committee to place items on agenda for council meeting.


SUMMARY. A rule of Dallas City Council on
 preparing the agenda of a city council meeting requires five members (one-
third)
 of the city council or a majority of a city council committee to request
 the mayor to include an item on the agenda of a meeting. The City of Dallas,
 as a home-rule city, is authorized to adopt reasonable rules of procedure
 for its meetings as long as they are not inconsistent with the constitution,
 statutes, or city charter provisions. We see no basis for finding the rule
 invalid under the Open Meetings Act or inconsistent with the constitution,
 general laws, or city charter provisions. Whether a particular rule is 
reasonable
 cannot be determined in the opinion process. It is a matter for the discretion
 of the city council, subject to judicial review for abuse of discretion.

DM-474 (RQ-975). Request from Mr. Barry R.
 McBee, Chair, Texas Natural Resource Conservation Commission, P.O. Box 13087,
 Austin, Texas 78711-3087, regarding whether Water Code section 5.123, as
 enacted by Act of May 24, 1997, 75th Leg., R.S., ch. 1203, 1, violates the
 suspension of laws and separation of powers provisions of the Texas 
Constitution.

SUMMARY. Water Code section 5.123, as enacted
 by Act of May 24, 1997, 75th Leg., R.S., ch. 1203, 1, does not violate article
 I, section 28 or article II, section 1 of the Texas Constitution.


DM-475 (RQ-1030). Request from Mr. Don A.
 Gilbert, Commissioner, Texas Department of Mental Health and Mental 
Retardation,
 P.O. Box 12668, Austin, Texas, 78711-2668, regarding whether chapter 597
 of the Health and Safety Code expired on August 31, 1997, and a related 
question
.
SUMMARY. Chapter 597 of the Health and Safety
 Code was adopted in 1993 to provide for "surrogate decision-makers" to consent
 to major medical or dental treatment for certain clients of community-based
 ICF-MR facilities. Section 597.055 of the Health and Safety Code provided
 that the chapter would expire on August 31, 1997. Senate Bill 85 of the 
Seventy-fifth
 Legislature, which repealed the expiration clause and amended other portions
 of chapter 597, became effective on September 1, 1997. Senate Bill 85 complied
 with article III, section 36 of the Texas Constitution, which provides that
 no law shall be revived or amended by reference to its title, but the act
 revived or sections amended shall be reenacted and published at length. 
Compliance
 with article III, section 36 is to be determined as of the bill's adoption
 by the legislature and not as of its effective date. When Senate Bill 85
 was adopted on May 16, 1997, it affected an existing statute. Senate Bill
 85 had the effect of removing section 597.055 from chapter 597 of the Health
 and Safety Code and of amending various other provisions of this chapter.
 Accordingly, chapter 597 continues to exist as amended by Senate Bill 85
 of the Seventy-fifth Legislative session.


TRD-9805583