Attorney General Opinions

KP-0529

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Whether a school district trustee is required to resign upon becoming a candidate for justice of the peace and whether both offices may be held simultaneously

KP-0528

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KP-0527

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Whether a home-rule municipality’s expenditure of public funds to fulfill an intergovernmental support agreement subject to section 793.002 of the Texas Government Code achieves a “municipal purpose” to comport with the Texas Constitution.

KP-0526

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Considering whether a deputy constable assigned as a School Resource Officer is still subject to Local Government Code chapter 120.

KP-0525

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Whether a juvenile probation officer may release a child from custody without a detention hearing or send an email to a presiding judge regarding the legality of a prosecutor’s disposition recommendation, and whether a juvenile prosecutor is required to disclose such an email under Brady v. Maryland and article 39.14 of the Code of Criminal Procedure.

KP-0524

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Considering authority to adopt a policy addressing the use of county-owned vehicles by a deputy sheriff or deputy constable for private employment outside the county and whether such a policy violates article III, subsection 52(a) of the Texas Constitution.

KP-0523

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Whether the Board of Chiropractic Examiners has authority to adopt a rule permitting a licensed chiropractor to use a nonincisive needle to perform a needle electromyography procedure.

KP-0522

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Though it may be legally advisable, we find no statute that requires all county elected officials to publicly advertise for job openings in their offices. Whether any particular employment practice adopted by a commissioners court as to an elected official’s employee is permissible depends on (1) whether the action taken is within the authority of the commissioners court and, if so, (2) whether the action usurps or unreasonably interferes with the performance of the elected official’s constitutional or statutory duties. A commissioners court must restrict the amount of time that an employee may contribute to and withdraw from a county sick leave pool as provided in chapter 157, subchapter E of the Local Government Code.

KP-0521

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Subsection 181.903(b) of the Utilities Code prohibits the City of Austin from adopting or enforcing a code that has “the purpose, intent, or effect of directly or indirectly . . . discriminating against” a utility service based on the type or source of energy. As such, the City of Austin’s Energy Code cannot lawfully memorialize opposition to the use of natural gas utility services and is invalid to the extent that it does so.

KP-0520

AG

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An amusement machine that offers both a chance-based game mode as well as a skill-based mode is a gambling device under Penal Code Chapter 47 so long as chance plays any role in determining whether the player receives something of value, regardless of the presence of skill.

KP-0519

AG

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State inspectors are not prohibited, as a matter of law, from taking photographs and videos while observing election activities. Neither are poll watchers prohibited, as a matter of law, from observing election activities related to mail-in ballots.

H-0876

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KP-0518

AG

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The applicability and scope of Senate Bill 14 of the 88th Legislature to mental health professionals licensed by the Texas Behavioral Health Executive Council.

KP-0517

AG

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The phrase “death of a prisoner in a county jail” in Government Code subsection 511.021(a) requires appointment of an independent law enforcement agency to investigate a prisoner death that occurred in the county jail itself. However, this does not mean the Commission lacks statutory authority to promulgate a rule requiring independent investigation of prisoner deaths while in custody.

KP-0516

AG

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Family Code subsection 231.302(c)(1) unambiguously requires that occupational licensing authorities request and each applicant provide their social security number. As such, agencies cannot solicit or accept attestations that an applicant does not have a social security number. Prior reliance on the nonbinding federal guidance in PIQ‍-‍99‍-‍05 is misplaced, and Attorney General Opinion JC-0409 as well as its progeny are overruled.

KP-0515

AG

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Construing Tax Code section 26.07’s requirement that a taxing unit secure voter approval before raising ad valorem taxes above a certain rate and Hood County Hospital District’s authority to impose property tax under Special District Local Laws Code chapter 1042.

KP-0514

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Government Code subsection 2253.021(a) imposes a mandatory duty or obligation on a governmental entity to require a prime contractor to execute a performance and payment bond.

KP-0513

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KP-0512

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Chapter 111, subchapter A, of the Local Government Code does not authorize a county commissioners court to wholly rescind and adopt a different budget after approval of the annual budget. Whether a county commissioner refuses to comply with subchapter A and thereby commits an offense under Local Government Code section 111.012 involves questions of fact that we do not resolve in an Attorney General opinion. Pursuant to Local Government Code subsection 152.013(a), the commissioners court may not reduce the salary of an elected county officer once the budget hearing and adoption proceedings are complete and a budget is approved. Local Government Code subsection 111.009(a) provides that the commissioners court—not the county auditor—shall file the approved budget with the county clerk. As such, it is unclear how a county auditor would run afoul of subchapter A by refusing or failing to file the approved budget with the county clerk.

KP-0511

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KP-0510

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A constable’s authority to employ an automated traffic-enforcement system to issue speeding citations by mail.

KP-0509

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Texas Education Code section 29.358(h)(2)’s “other relevant law” provision incorporates by reference other laws that govern the lawful operation of educational service providers and vendors that aspire to participate in the Texas Education Freedom Accounts program. This includes the prohibition on property ownership by transnational criminal organizations as well as the categorical bar on providing material support to foreign terrorist organizations, both of which govern educational service providers and vendors alike. But the Legislature has charged the Comptroller with the exclusive duty of finding facts on which such “relevant law” can be applied.

KP-0508

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KP-0507

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Subsection 11.13(n-1) of the Tax Code prohibits a school district, municipality, or county from reducing the local option homestead exemption from the amount that was adopted for the 2022 tax year through the 2027 tax year.

KP-0506

AG

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Whether the Office of Independent Ombudsman may interview a child adjudicated and committed to the Department while the child is located at a county pre-adjudication facility and whether the Office may also inspect the county facility.

KP-0505

AG

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Our nation was founded on the radical notion that all are created equal. Though we have often failed to live up to that promise, it remains as a constitutional lodestar—both in the U.S. and Texas Constitutions. The race-and sex-based, public sector preferences discussed in this opinion cannot survive strict scrutiny and are therefore unconstitutional. Furthermore, a large body of DEI practices in the private sector triggers liability under Title VII, the Texas Commission on Human Rights Act, and Section 1981 in addition to state and federal securities law.

KP-0504

AG

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Whether Fort Bend County’s commissioners court is authorized to hire an outside law firm of its own choice to assist it in fulfilling its redistricting duties under Chapter 42 of the Election Code.

KP-0503

AG

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State Board of Education duty to adopt and implement essential knowledge and skills regarding religious literature

KP-0502

AG

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Whether a county clerk or district clerk may destroy juvenile matter records without a court order pursuant to a records retention schedule prepared and distributed by TSLAC

KP-0501

AG

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Whether a court has authority to prohibit a district attorney and assistant district attorneys from carrying a concealed handgun in a courtroom where Penal Code section 46.15 excepts them from section 46.03, which prohibits lawful carry in a courtroom

KP-0500

AG

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Whether a board member has a conflict of interest where the board discusses and votes on plans and negotiations that may impact the board member’s brother-in-law’s employee position or employer.

KP-0499

AG

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Concerning the scope of county authority over and liability involving cables buried by a telegraph or telephone corporation in the county road rights-of-way.

KP-0498

AG

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Concerning owners (1) entitled to individual written notice of a hearing before the zoning commission under Local Government Code subsection 211.007(c), and (2) who counts toward the protest calculation under Local Government Code subsection 211.006(d)

KP-0497

AG

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The Health and Human Services Commission’s statutory authority to license and regulate Individualized Skills and Socialization providers under chapter 103 of the Human Resources Code, as well as whether administrative penalties assessed on DAHS facility-licensed ISS providers is capped by the amounts in subsections 103.012(b) and 103.013(c)

KP-0496

AG

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Addressing the permissible use of a records management and preservation fee collected by a county clerk under section 118.0216 of the Local Government Code

KP-0495

AG

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Revenue from phone cards sales derived from the exercise of inmate telephone privileges provided under the Texas Commission on Jail Standards’ rule concerning inmate telephone plans must be deposited in the county’s general fund. Revenue derived from the purchase of phone cards as a jail commissary item, bearing no correlation to the provision of inmate telephone privileges, are commissary funds under the exclusive control of the sheriff. It follows that phone card revenue must be deposited in the general fund where the ordering, fulfillment, and fund allocation of phone cards are separate from the commissary operation. The separate treatment of inmate commissary and telephone privileges could result in a situation where some telephone service or item is offered under both privileges. The Cherokee County Commissioners Court may reinstate the PIN debit system, through its contracting and jail authority, so long as the chosen method complies with the requirements in the Commission’s rule concerning inmate telephone privileges.

KP-0378

AG

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Effect of amendments to Government Code chapter 2254 regarding amendments to a contingent fee contract

KP-0494

AG

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Based on the plain text of Family Code subsection 157.318(a), child support liens on accounts with financial institutions have no uniform ending date but continue until all current support and arrearages (including interests, costs, and fees) are paid or the lien is otherwise released pursuant to Chapter 157 of the Family Code. Family Code subsection 157.317(a-1) addresses property to which a child support lien attaches. The plain text of that subsection reveals that a lien attaches to all property of the obligor in the possession or control of a financial institution from the date the child support lien notice is delivered to the financial institution, which includes property acquired after deliver of the notice. Compliance with a child support levy may, but does not necessarily, lead to the release of a lien.

KP-0493

AG

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Local Government Code section 351.0415 authorizes the sheriff or the sheriff’s designee to use commissary proceeds only for the enumerated statutory purposes. To the extent the county commissioners’ court would be using the commissary proceeds for the salary of a particular county employee who will staff a county jail operated by a private vendor, such an expenditure would not be permissible under section 351.0415. Assuming the sheriff or sheriff’s designee would use the commissary proceeds, the question of whether those proceeds may be used for the salary of that particular county employee pursuant to the enumerated statutory purposes detailed in subsections 351.0415(c)(1) and (c)(5) requires the resolution of fact questions that are beyond the scope of this opinion.

KP-0492

AG

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A commissioners court has authority to delegate to any appropriate county official a function that is not a core duty of another county official. To the extent the duties of the contract and procurement specialist position are not core duties of the Aransas County Attorney’s Office, the position and its associated funding may be transferred from the County Attorney to another appropriate county office. The specific office to which this position and funding may be reassigned is a determination for the Commissioners Court in the first instance, as long as other conflicts are not created with the transfer of duties. A commissioners court has authority to hire legal counsel to assist with county responsibilities so long as the statutory duties of other county officials are not thereby usurped. To the extent it does not usurp or interfere with the statutory duties of other county officials, including the County Attorney, the Aransas Commissioners Court is authorized to create a new attorney position concerning the affairs of Aransas County. To the extent it does not usurp or interfere with the County Attorney’s core duties, the Commissioners Court has, in some circumstances, authority through the exercise of its budgetary power to defund an existing civil attorney position to finance the new attorney position.

KP-0491

AG

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A county commissioners court does not possess authority to enact an order penalizing a dog owner for a “public nuisance” due to the dog’s excessive barking where, as here, no statute confers such authority to the commissioners court.

SearchTX, the Court’s approved electronic filing system. The Court’s order is also within the scope of the judicial power to implement rules for efficient and uniform administration of the various cou

AG

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The Texas Supreme Court has authority under Government Code section 74.024 to order county and district clerks to integrate their case management systems with re:SearchTX, the Court’s approved electronic filing system. The Court’s order is also within the scope of the judicial power to implement rules for efficient and uniform administration of the various courts; thus, it does not violate the separation of powers between the judicial and legislative branches.

KP-0489

AG

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The “judicial power” endowed to district courts does not countenance ex parte orders directing state agencies to amend a person’s biological sex on driver’s licenses or birth certificates. The underlying proceedings are coram non judice , and the resulting orders are void. State agencies must immediately correct any unlawfully altered driver’s licenses or birth certificates that were changed pursuant to such orders.

KP-0488

AG

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Whether the unenacted provision in Section 3 of SB 763 allows school boards and charter school governing bodies to pass a resolution that certain individuals may fill any position or requires voting on a resolution about individuals serving as a school chaplain.

KP-0487

AG

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Simultaneous service as a fire chief of a local volunteer fire department and a county commissioner in the same county.

KP-0486

AG

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KP-0485

AG

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Whether a court with probate jurisdiction may authorize guardians to require a mentally incapacitated ward who wishes to act as a pro se defendant to instead use legal counsel in criminal or civil proceedings or may themselves proceed pro se on the ward’s behalf, as well as whether an attorney who aids non-attorney guardians in acting as a ward’s pro se alter ego improperly assists in the unauthorized practice of law.

KP-0484

AG

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The Texas Ethics Commission’s authority to adopt rules tolling the deadline in subsection 571.1242(g).

KP-0483

AG

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Under section 33.48 of the Property Tax Code, a taxing unit may recover attorney’s fees paid to a contract attorney

KP-0482

AG

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Addressing county commissioners court authority to enter an interlocal cooperation agreement with a cemetery organization, authority to dispose of the body of a deceased pauper on property owned by a private cemetery association, and authority to establish a perpetual trust fund to open or close graves in a private cemetery.

KP-0481

AG

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A “valid medical purpose” under Education Code section 33.091 does not contemplate the provision of steroids to a minor for transitioning the minor’s biological sex. Suspected use of steroids for this purpose is a basis to question the student-athlete’s eligibility to participate in University Interscholastic League (UIL) activities and obligates UIL to investigate as well as require the student-athlete prove by a preponderance of the evidence that they are eligible. A student-athlete may not take part in UIL competitions until their eligibility is proven by a preponderance of the evidence.

KP-0480

AG

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Enacted by House Bill 1763 and House Bill 1919, subchapter M and subchapter L of chapter 1369 of the Texas Insurance Code regulate certain contracts with pharmacists and pharmacies and certain referral and solicitation practices concerning affiliated providers. This opinion addresses whether any of the provisions are preempted by ERISA and whether they are enforceable against health benefit plan issuers or pharmacy benefit managers administering a health benefit plan domiciled outside of Texas.

KP-0479

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KP-0478

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Addressing access to documents underlying social history reports prepared by a local juvenile probation department for use in a disposition hearing for a child adjudicated as engaging in delinquent conduct

KP-0477

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Whether misdemeanor traffic violation cards containing a QR code for accessing complete citation information satisfy the notice provisions of Transportation Code sections 543.003 and 543.004 and related provisions

KP-0476

AG

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KP-0475

AG

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Addressing whether boilerplate language listing potentially applicable closed meeting provisions provides sufficient notice by itself under the Open Meetings Act and whether a governmental body may consult with an attorney about potentially retaining the attorney’s law firm to perform professional legal services in a closed meeting.

KP-0474

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KP-0473

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Addressing the calculation of average land value for each area or portion of an area designated by the municipality that is located in an appraisal district under Local Government Code section 212.209

KP-0472

AG

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Responsibility for preparation of an abstract of judgment rendered by an appellate court under certain circumstances

KP-0471

AG

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The continued employment of a chief appraiser whose sibling is elected county tax assessor-collector and, as a result, begins serving as a member of the appraisal district board of directors

KP-0470

AG

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Considering the calculation of the school tax ceiling for a tax exemption for a disabled person or person who is sixty-five or older under Tax Code section 11.26.

KP-0469

AG

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Addressing the transportation of low-THC cannabis inventory by a licensed dispensing organization between approved locations prior to a prescription being issued and filled

KP-0468

AG

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Consideration of the following issues with respect to a municipal utility district: the legality of a board meeting, a vacancy on the board, applications for a place on the ballot, filling vacancies on the board, alleged misconduct by the board, and the role of the commissioners court in the appointment or removal of board directors.

KP-0467

AG

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Considering the requirement of a license under Occupations Code chapter 1101 for persons engaged in transactions involving wind leases.

KP-0466

AG

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Reconsidering and overruling Opinion JM-671 and concluding that a court would likely determine that Government Code subsection 572.058(a) includes contract formation and abrogates rule in Meyers v. Walker. Considering application of section 2261.252 to the Texas Opioid Abatement Fund Council.

KP-0465

AG

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As part of the Public Information Act, Government Code section 552.008 affords a Legislator a special right of access to governmental information sought for legislative purposes. But Government Code chapter 571, governing the Texas Ethics Commission, expressly provides that documents and evidence relating to the processing, preliminary review, preliminary review hearing, or resolution of a sworn complaint are not subject to the Public Information Act. Accordingly, a court giving effect to this plain language would likely conclude that the Texas Ethics Commission may not release confidential sworn complaint information to a Legislator pursuant to a request under section 552.008.

KP-0464

AG

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The Mental Health Code assigns responsibility for costs associated with court-ordered mental health services. Pursuant to Health and Safety Code subsections 571.018(a) and (b), counties generally are responsible for paying filing fees for an application for court-ordered mental health services. However, subsection 571.018(i) authorizes a county to require that “a person” pay filing fees if the county first determines the fees relate to services from a private mental hospital. Under the Mental Health Code, a “person” does not include governmental entities. Accordingly, where services relate to a private mental hospital, a county may require medical facilities that are not governmental entities to pay application filing fees. Where a county is responsible for paying filing fees for an application for court-ordered mental health services, it need not pay such fees at the time the application is filed. However, where a county instead requires payment from a “person” pursuant to subsection 571.018(i)(1), that person must pay the fees at the time of filing.

KP-0463

AG

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KP-0462

AG

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Constitution and conflicting-loyalties incompatibility preclude a municipal judge from simultaneous serving as a constable.

KP-0461

AG

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Section 1069.211, Special District Local Laws Code, authorizes the Nacogdoches County Hospital District to allocate for economic development up to one-fourth of one percent of its annual sales and use tax revenue.

KP-0460

AG

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Concluding that refunds of court costs under Health and Safety Code subsection 571.018(j) are not limited by subsection 571.018(h) to costs associated with hearings and proceedings involving commitment.

KP-0459

AG

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Water Control and Improvement District’s use of surplus moneys in its interest and sinking fund to reduce indebtedness related to a potential, future bond issuance

KP-0458

AG

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A deputy sheriff from Aransas County may not operate a fixed commercial vehicle weigh station directing all commercial vehicles to exit a highway to be weighed.

KP-0457

AG

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Authority of a rural fire prevention district converted to an emergency services district by section 775.026 of the Health and Safety Code to provide ambulance service.

KP-0456

AG

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Considering a single county commissioner’s authority to maintain an outfall ditch with his or her precinct and whether the expenditure of public funds to maintain the ditch lying on private property complies with Texas Constitution article III, subsection 52(a).

KP-0455

AG

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KP-0454

AG

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A school district board of trustees may designate an individual to carry a handgun for the protection of students and staff by implementing a guardian plan or utilizing a school security officer. Education Code section 37.0811 provides another option for accomplishing this purpose by generally allowing a school board to appoint one or more school marshals for each campus in the district. Subsection 37.0811(c) authorizes a school marshal to possess a handgun on the physical premises of a school, but only in the manner provided by written regulations adopted by the board of trustees. A school marshal possesses a handgun when it is openly carried on the marshal’s duty belt. Therefore, a court would likely conclude that Education Code subsection 37.0811(c) authorizes a board of trustees to adopt regulations that allow a school marshal to duty belt carry a handgun.

KP-0453

AG

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Addressing the appointment of a court coordinator and support staff in a multi-county judicial district.

KP-0452

AG

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Texas State Library and Archives Commission authority to receive a donation of repair, rehabilitation, or construction work for a specific purpose where a donor pays a third-party to perform the work.

KP-0451

AG

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As the more specific provision, Texas Occupations Code section 201.5065 prevails over sections 53.021 and 201.502. Accordingly, the Board of Chiropractic Examiners does not have discretion regarding whether to suspend or revoke a chiropractor’s license if the licensee has been convicted of an offense within the purview of Texas Occupations Code section 201.5065.

KP-0450

AG

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Addressing whether a county development district may add a sixth director to its board under Local Government Code subsection 383.048(d).

KP-0449

AG

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A commissioners court may delegate to the county judge its implied authority to employ persons. A court would likely conclude that a county judge who is delegated such authority is prohibited by the anti-nepotism prohibition in Government Code section 573.041 from appointing the spouse of a county commissioner to a paid county position.

KP-0448

AG

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Under Code of Criminal Procedure article 102.017, a building in which no adjudicatory activity occurs likely does not house the operations of a district, county, or justice court.

KP-0447

AG

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Whether an elected constable may serve an independent school district as a school resource officer under particular circumstances

KP-0433

AG

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Commencement of the terms of city council positions after an election under Texas Constitution article XI, section 11, and the validity of the election in particular circumstances.

KP-0446

AG

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Addressing whether a city may exercise control over HOT funds allocated to a park board pursuant to Tax Code subsection 351.105(f) or impose other limitations on a park board’s authority under Local Government Code chapter 306.

KP-0445

AG

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Considering whether a constable’s office is a law enforcement agency subject to application of Local Government Code chapter 120

KP-0444

AG

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Addressing the authority of a municipality to utilize a maintenance and operations tax increase authorized in an election under Tax Code section 26.07 for use other than on maintenance and operations.

KP-0443

AG

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The Texas Behavioral Health Executive Council’s rulemaking authority likely includes authority to adopt a rule allowing a person licensed as a Licensed Specialist in School Psychology to use the title School Psychologist or Licensed School.

KP-0442

AG

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The dual service contemplated under Local Government Code section 21.003 is prohibited without a resolution adopted by the city council

KP-0441

AG

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Simultaneous service of a magistrate appointed under Government Code chapter 54 as staff legal counsel for the appointing judge or judges and for the other appointed magistrates

KP-0440

AG

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Education Code subsections 29.153(d-1) and (g), concerning the solicitation of public-private partnerships in connection with the provision of free prekindergarten by school districts, are mandatory in certain instances. The stringent eligibility criteria in Education Code section 29.171 for a provider to enter into a public-private partnership agreement for prekindergarten should not be used as a condition for the provider to submit a proposal for such a partnership under subsection 29.153(g). A court could conclude under certain circumstances that Texas Education Agency guidelines should be promulgated through formal rulemaking under the Administrative Procedure Act. A court would likely conclude that neither the Governor’s COVID-19 Disaster Declaration nor any related Executive Order authorize the suspension of Education Code subsections 29.153(d-1) or (g).

KP-0439

AG

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An education savings account program that provides education assistance payments to program participants that can be directed to sectarian schools is not unconstitutional under the Texas or the federal Constitutions.

KP-0438

AG

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A court could conclude that section 363.113 of the Health and Safety Code authorizes the City of Escobares to provide solid waste disposal service in the extraterritorial jurisdiction as a means of assuring solid waste management service is provided to all persons in the City’s jurisdiction.

KP-0437

AG

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Authority of a public facility corporation sponsored by a municipal management district created under chapter 375 of the Local Government Code to act outside its geographical territory

KP-0436

AG

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Authority of a county under Transportation Code chapter 251 to abandon or rename a public road not included in the county maintenance system.

KP-0435

AG

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KP-0434

AG

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A person simultaneously volunteering as a fire fighter for an emergency services district and a commissioner on the ESD’s board of commissioners.

KP-0377

AG

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KP-0432

AG

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A court would likely conclude that Tax Code subsection 6.43(c) does not authorize the county attorney to serve as legal counsel to the tax appraisal district.

KP-0431

AG

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Considering whether two exemptions to the Texas Minimum Wage Act, Labor Code sections 62.151 (persons covered by the Fair Labor Standards Act) and 62.158 (employer that is an amusement or recreational establishment in certain instances) apply in the context of minor league baseball.

KP-0430

AG

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The mental states of reckless, knowing, or intentional suffice for the prosecution of the criminal offense in Local Government Code section 111.012

KP-0429

AG

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KP-0428

AG

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Employment of an attorney who is the son-in-law of the city manager and whether it constitutes a conflict of interest under chapter 176 of the Local Government Code or the Texas Disciplinary Rules of Professional Conduct.

KP-0427

AG

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Whether a person under the physician’s control, supervision, or direction is exempt from regulation under Occupations Code subsection 351.005(a)(2)(B) does not turn on whether the person is an employee or independent contractor. And whether a physician’s specific degree of supervision of an optometrist or treatment and care of a patient will impact the Board’s action against an optometrist involves fact questions that are outside the purview of an attorney general opinion. A legal entity wholly owned and controlled by at least one licensed physician that is also a manufacturer, wholesaler, or retailer of ophthalmic goods is exempt from Occupations Code section 351.408 only if the legal entity has offices at three or fewer locations.

KP-0426

AG

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A court would likely conclude that the Council may not readopt, modify, or repeal a rule that concerns one of the subjects in Occupations Code subsection 507.153(a) unless the examining board for the profession first proposes readoption, modification, or repeal.

KP-0425

AG

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A court would unlikely conclude that subsection 47.01(4) of the Penal Code excludes an amusement machine where the amount awarded from play is partially determined by chance.

KP-0424

AG

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Corporate entity serving as a substitute trustee for purposes of conducting a mortgage foreclosure sale under Property Code chapter 51

KP-0423

AG

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A court would likely conclude that the law does not prohibit a notary public from including additional information while performing an online notarization if it does not interfere with the notary’s obligations under subsections 406.108(b)(1) and 406.109(d) of the Government Code, or the Texas Secretary of State’s rules. Additionally, a court would likely conclude that a notary public may not charge the $6 fee under subsection 406.024(a)(11). Lastly, a court would likely conclude that a notary public may not release an image of the identification card used by email or otherwise without the consent of the individual whose identity is being established.

KP-0422

AG

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Procedure for numbering election ballots and which officials are authorized to select the method for numbering ballots

KP-0421

AG

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A court would likely define the term “retired judge” for purposes of Government Code subsection 26.023(a) by reference to its definition in Government Code subsection 74.041(6). Under that construction, a former constitutional county judge who does not otherwise satisfy subsection 74.041(6) is not eligible to be appointed as a visiting judge under Government Code subsection 26.023(a).

KP-0411

AG

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Public information status of anonymous voted ballots during 22-month preservation period set in Election Code section 66.058

KP-0410

AG

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KP-0420

AG

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Section 263.152 of the Local Government Code authorizes a county to periodically sell the county’s surplus or salvage property by competitive bid or auction. “Salvage property” is personal property, other than items routinely discarded as waste, that because of use, time, accident, or any other cause is so worn, damaged, or obsolete that it has no value for the purpose for which it was originally intended. When a county attempts to sell salvage property by competitive bidding or auction but receives no bids, the county may dispose of the property through a recycling program under which the property is collected, separated, or processed and returned to use in the form of raw materials in the production of new products. A commissioners court possesses implied authority to utilize recycling programs for the disposition of routinely discarded county waste, subject to other applicable law. Whether culverts the county removes from real property are “routinely discarded as waste” presents fact questions for the commissioners court to determine and cannot be resolved in an attorney general opinion.

KP-0419

AG

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The shopkeeper’s privilege in section 124.001 of the Civil Practice and Remedies Code authorizes a merchant to detain a person suspected of shoplifting to investigate ownership of the property. While that statute does not supply authority for a merchant to offer a theft deterrent course in lieu of referral to law enforcement for arrest and prosecution, we find no other Texas law that specifically prohibits such a practice.

KP-0418

AG

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The common-law doctrine of incompatibility bars a councilmember of the City of Freeport from simultaneously serving as a member of the City’s police reserve force.

KP-0417

AG

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A court would likely conclude that a magistrate who issued an arrest warrant executed in another county may, until charges are filed in the appropriate court, modify a bond set by a magistrate from the arresting county pursuant to article 17.09, section 3, of the Code of Criminal Procedure. Article 17.09 does not expressly condition the authority to modify bonds on whether new bond conditions sought are mandatory or discretionary under the law.

KP-0416

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A county commissioners court generally may not amend its budget to grant a salary increase to the employees in the sheriff’s office in the middle of a budget year in the absence of a finding of an emergency. But a commissioners court may amend the budget without an emergency to transfer funds from one budget item to another, subject to limitations in other law. To adopt a midyear budget amendment due to an emergency, the commissioners court must make a finding of fact about the existence of a “grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention.” Section 111.0106 of the Local Government Code authorizes a commissioners court to adopt a special budget for grant or aid money that is available for disbursement in the fiscal year but was not included in the budget for that fiscal year, for the limited purpose of spending the grant or aid money for its intended purpose. Whether funds from a particular grant may be used to give a prospective raise to employees of the sheriff’s office will depend on the “intended purpose” of the grant itself, as well as its terms and conditions.

KP-0415

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Section 51.221 of the Water Code authorizes a person who meets certain qualifications to vote in an election conducted by the Maverick County Water Control & Improvement District No. 1. A court would likely conclude that section 51.221 of the Water Code does not authorize the representative of a limited liability company to vote on behalf of the company in an election conducted by that District. To vote in such an election, a person must meet the eligibility requirements of section 51.221 in the person’s individual capacity.

KP-0414

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Article XVI, subsection 40(b) expressly permits a state employee or an individual who receives compensation from the state to serve as a member of the governing body of a city but prohibits the person from receiving a salary for the latter unless the person receives compensation from the state for work performed in certain capacities. Because of the multiple possible meanings of these terms, we cannot predict with certainty whether a court would conclude the Legislature equates the term “salary” with “compensation” in subsection 40(b). Whether the per meeting payment provided under section 3.04 of the Hutto City Charter may be construed to constitute the reimbursement of expenses rather than “salary” for purposes of subsection 40(b) is left to the discretion of the appropriate City officials in the first instance, subject to judicial review.

KP-0413

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A court could conclude that “premium pay” funds given to elected county officials by Tyler County in 2021 through the federal American Rescue Plan Act under an interim final rule were akin to hazard pay and thus did not constitute salary increases requiring advance public notice under section 152.013 of the Local Government Code.

KP-0412

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Permissible uses and distributions of escrowed purse funds by the Texas Greyhound Association under section 2028.202 of the Occupations Code

JC-0145

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KP-0409

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Authority of a licensed professional engineer to certify a subdivision plat in specific circumstances

KP-0408

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Interpretation of 2021-22 General Appropriations Act Rider 32 in relation to unexpended funds locally collected and maintained by a community supervision and corrections department

KP-0407

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Applicability of common-law doctrine of incompatibility and conflict of interest laws to Nueces County Commissioner who simultaneously serves as South Texas Water Authority general manager

KP-0406

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Chapter 26 of the Education Code expressly provides that parents are entitled to the health information of their child, and the Family Educational Rights and Privacy Act grants parents the right to inspect and review the education records of their children, including health information. Parents possess a fundamental right to make decisions concerning the care, custody, and control of their child, and school districts and officials must work in partnership with parents in furtherance of the child’s education. Failing to work with parents and provide requested information about a student could subject the school district to legal challenges, civil liability, and financial loss. Title IX prohibits educational institutions from discriminating against students on the basis of sex. Nothing in the text of Title IX, nor in the regulations adopted pursuant to that federal statute, discusses parental access to information or authorizes a school district to withhold medical or health information about a minor child from the child’s parent or legal guardian.

KP-0405

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Proper method for distribution of Coronavirus Relief Funds in a jurisdiction with a population under 500,000, but within a county with a population over 500,000

KP-0404

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Analysis of Texas Constitution article V, section 1-a, and whether it prohibits a candidate from running for state judicial office if the candidate is 74 on the date of the election but turns 75 before the term begins

KP-0403

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KP-0402

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Analysis of Code of Criminal Procedure article 55.01(a)(1)(C) providing for the expunction of records of person convicted of unlawfully carrying certain weapons

KP-0401

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KP-0400

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Authority of attorney in private practice who represents parents and children in child protection cases in a particular county to also be employed as an assistant county attorney in a different county to represent the Texas Department of Family and Protective Services

KP-0399

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County authority to erect signage in a state highway right-of-way under Transportation Code chapter 394

KP-0398

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Texas Windstorm Insurance Association is not a state agency for purposes of Government Code chapter 556 prohibition on using appropriated funds for lobbying activities

KP-0397

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Application of Education Code section 37.122 prohibition to banquet facility used for noneducational events and located in district owned stadium

KP-0396

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Analysis of National Collegiate Athletic Association’s transgender student-athlete policies in relation to Title IX of Education Amendments of 1972

KP-0395

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Texas medical school compliance with federal Coats-Snowe Amendment that prohibits discrimination for refusal to provide or undergo training for induced abortion

KP-0394

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Municipal authority to adopt ordinance relating to Local Government Code subsection 22.008(a) prohibiting official custodian of municipal funds from holding office when in default to municipality

KP-0393

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Pursuant to section 418.108 of the Government Code, a county judge may declare a local state of disaster. Local disaster powers of a county are limited by any existing state law, including any executive orders or proclamations issued by the Governor. The county judge may terminate a local disaster declaration at any time, and the commissioners court may prevent the extension of the declaration beyond seven days or revoke consent for its continuation thereafter. A county judge lacks authority to declare a new disaster for the same underlying circumstances without the consent of the commissioners court following the first seven-day period. A surge of individuals crossing the border into the county could and has created circumstances warranting emergency action and a local disaster declaration. A county judge lacks authority to pay bills incurred by the county out of the contingent and uncommitted fund without the commissioners court’s approval.

KP-0392

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KP-0391

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County compliance with Local Government Code competitive bidding procedures before renewing or extending a county facility management contract

KP-0390

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KP-0389

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Authority of a conservation district to change the directors’ terms of office from two to four years

KP-0388

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Effect of Lone Star Infrastructure Protection Act on generation interconnection agreements between a Texas transmission service provider and certain entities

KP-0387

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Use of parent-teacher association donations to school district under Education Code section 11.156(c)

KP-0386

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Executive Order GA-38 generally prohibits a governmental entity, including a county, city, school district, or public health authority, from requiring any person to wear a face covering or to mandate that another person wear a face covering. Section 39.03 of the Penal Code makes it an offense for a “public servant acting under color of his office or employment” to intentionally deny or impede “another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful.” Executive Order GA-38 creates immunity for Texans to be free from enforcement of most local governmental mandates that require face coverings. A court could find under certain facts that a governmental official intentionally denying that immunity to an individual by enforcing an unlawful face covering mandate is in violation of section 39.03 of the Penal Code.

KP-0385

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Authority of district attorney to represent State in municipal court in litigation pertaining to Code of Criminal Procedure article 17.292 emergency protective order

KP-0384

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KP-0383

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Maximum allowable term of deferred adjudication community supervision for third degree felonies under Penal Code, title 7 and Health and Safety Code chapter 481

KP-0382

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KP-0381

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Authority of a peace officer to force entry into a residence or dwelling to enforce a parole revocation warrant for the arrest of a releasee

KP-0380

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Effect of the Governor’s executive orders on the federal requirements related to face coverings on public transit

KP-0379

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Whether access to a government facility can be conditioned upon obtaining a vaccine issued under emergency usage authorization

KP-0376

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Applicability of conflict-of-interest provisions in Local Government Code chapter 171 and nepotism provisions in Government Code chapter 573 to county attorney

KP-0375

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KP-0374

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Criminal Justice Division of Governor’s Office determines applicability of federal Justice Assistance Grant funds to pay overtime to constable serving as deputy sheriff

KP-0373

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KP-0372

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The Legislature authorized the Behavioral Health Executive Council to take disciplinary action against social workers who refuse to perform an act or service within the scope of their licenses solely because of the recipient’s age, sex, race, religion, national origin, color, or political affiliation. The Council adopted a rule changing the word “sex” to “gender” and authorizing disciplinary action for refusal of service based on disability, sexual orientation, and gender identity and expression. In doing so, the Council exceeded the authority granted to it by the Legislature by rewriting the language chosen by the Legislature and imposing additional restrictions in excess of the relevant statutory provisions. A court would likely conclude that the rule is invalid to the extent that it is inconsistent with and exceeds the Council’s statutory authority. No Texas statute prohibits discrimination based on sexual orientation or gender identity or expression, and the U.S. Supreme Court has emphasized that religious and philosophical objections to categories of sexual orientation are protected views and in some instances protected forms of expression under the First Amendment. If the Legislature intends otherwise, it may expressly amend the statute to so provide. A Council rule prohibiting that expression conflicts with the longstanding constitutional protection for an individual’s free exercise of religion. While a social worker may not discriminate based on disability in contravention of state and federal law, the Council lacks statutory authority to discipline a licensee for discrimination based on disability.

KP-0371

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Application of Natural Resources Code section 81.066 to Railroad Commission’s authority to address oil and gas equipment noise in annual strategic plan

KP-0370

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Application of Government Code section 3000.002 to paint color and pattern requirements adopted by political subdivisions

KP-0369

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Application of Texas Constitution article XVI, section 40 and the common-law doctrine of incompatibility to simultaneous service as county sheriff and municipal fire marshal

KP-0368

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Property Code chapter 203 authorizes the county attorney to independently enforce land use restrictions in counties with populations over 200,000

KP-0367

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Application of Business and Commerce Code subsection 20.05(a)(5) to a self-funded plan with a reference-based-pricing program that does not utilize a provider network

KP-0366

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KP-0365

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Ector County’s compliance with chapter 387 of the Local Government Code, regarding creation of a county assistance district

KP-0364

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KP-0352

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KP-0363

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The Utilities Code gives “complete authority” to the Public Utility Commission to adopt and enforce rules relating to reliability and accounting for the production and delivery of electricity among market participants. Specifically, subsection 39.151(d) of the Utilities Code authorizes the Public Utility Commission to oversee and investigate the independent organization (ERCOT) as necessary to ensure ERCOT’s accountability and to ensure that it adequately performs its functions and duties. Within the regulatory timelines, ERCOT can also revise pricing on the wholesale electricity market if certain events occur. Under the plain language of subsection 39.151(d), the Public Utility Commission has complete authority to act to ensure that ERCOT has accurately accounted for electricity production and delivery among market participants in the region. Such authority likely could be interpreted to allow the Public Utility Commission to order ERCOT to correct prices for wholesale electricity and ancillary services during a specific timeframe. A court would likely find that such corrective action by the Public Utility Commission under subsection 39.151(d) does not raise constitutional concerns, namely under article 1, sections 16 and 17 of the Texas Constitution, provided that such regulatory action furthers a compelling public interest.

KP-0362

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Application of the Texas Religious Freedom Restoration Act on an individual’s right of access to clergy due to the COVID-19 pandemic

KP-0361

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Constitutionality of paying a one-time bonus to administrative staff of county’s justices of the peace

KP-0360

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County judge’s brother’s candidacy for sheriff does not violate nepotism or conflict-of-interest statutes in described circumstances

KP-0359

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Pursuant to subsection 38.001(f) of the Education Code, the Legislature provided that a student who has not received the immunizations required by law “for reasons of conscience, including because of the person’s religious beliefs, may be excluded from school in times of emergency or epidemic declared by the commissioner of public health.” Read in context, a court likely would conclude that this exception does not permit exclusion of students who lack vaccinations unrelated to an existing "epidemic" contemplated by subsection 38.001(f). Depending on the particular facts at issue, a court could find exclusion from school for refusal to obtain a vaccine unrelated to the existing epidemic to be arbitrary and unreasonable and overturn the exclusion for this purpose. Further, to the extent a school was to exclude a student who had declined required immunizations unrelated to an existing epidemic due to a sincere religious belief, a court could find this to be a substantial burden on the student’s religious freedom and potentially a violation of the U.S. and Texas constitutions. Accordingly, subsection 110.003(a) of the Civil Practice and Remedies Code requires that only the least restrictive means of furthering a compelling government interest may be utilized in placing such a substantial burden. If less restrictive means exist to accomplish that objective, a court could find that a specific student’s exclusion in such circumstances from school under Education Code subsection 38.001(f) violates the Texas Religious Freedom Restoration Act.

KP-0358

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KP-0357

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Determining whether authority exists to prosecute in any specific situation requires multiple factual determinations, which are outside the scope of the opinion process of this office. The Sixth Amendment to the U.S. Constitution and article 33.03 of the Code of Criminal Procedure establish a right of the accused to be present in the courtroom through the conclusion of trial proceedings. Under article 33.03, an accused’s right to be present at his trial is unwaivable even by the accused until such a time as the jury has been selected.

KP-0356

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KP-0355

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Local Government Code section 171.004(a) conflict-of-interest requirements do not apply to a city council member voting on a county matter even though the council member is married to the county tax assessor-collector.

KP-0354

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Punishment for a violation of the maximum vehicle weight limit established under Transportation Code section 621.102

KP-0353

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KP-0351

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Article XVI, section 65 of the Texas Constitution provides that certain district or county officers automatically resign from office upon announcing their candidacy for any other office of profit or trust under the laws of this State or the United States. Article XI, section 11 applies this provision to officers of a home-rule city that hold a term longer than two years. To qualify as an announcement under these provisions, the person’s statement must be made in a public setting and be clear and unequivocal. Whether any given statement satisfies these requirements will involve questions of fact, but to the extent a person posts campaign signs on public property, visible to the general public, urging his or her election, a court would likely conclude that such acts constitute an announcement for purposes of article XVI, section 65. Article XI, section 11 of the Texas Constitution requires that any vacancy in a home-rule municipal office with a term exceeding two years be filled by majority vote of the qualified voters at a special election. If a city councilmember automatically resigned within 120 days of the general election in November, the special election to fill the vacancy should be held on the same day as the general election. Article XVI, section 17 of the Texas Constitution provides that all officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified. Pursuant to this provision, office holders subject to the automatic resignation provision hold over in office until a successor is duly qualified. A city councilmember may not rescind an announcement for candidacy to avoid application of the automatic resignation provision.

KP-0350

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Chapter 351 of the Tax Code authorizes an expenditure of hotel occupancy tax revenue in the direct promotion of tourism and the convention and hotel industry, provided the expenditure is for one of the specified uses listed in the statute. To the extent the particular agreement about which you ask expressly provides that the public space is intended to benefit the residents of the apartment complex and does not promote tourism and the convention and hotel industry, it does not satisfy section 351.101. While it is ultimately a fact question, a court is unlikely to determine that the expenditure as described is an authorized expenditure of hotel occupancy tax revenue.

KP-0349

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Sections 212.0091 and 232.0026 of the Local Government Code require local jurisdictions to provide specific reasons and legal citations for denying or conditionally approving a plan or plat.

KP-0348

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The application of Government Code section 552.143 to investment information published in a media source of general circulation is determined by specific facts.

KP-0347

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Article III, section 16 of the Texas Constitution requires that sessions of each House be open, except when the Senate is in executive session. Thus, when the Legislature meets for session in the Capitol, it must be open and accessible to the public. The First Amendment of the U.S. Constitution prohibits laws that abridge the freedom of speech or the right of the people to petition the government for a redress of grievances. However, to the extent that the Capitol is a limited public forum, the Legislature may impose reasonable content-neutral conditions for the time, place, and manner of access. Article III, section 10 establishes a quorum of two-thirds of each House to do business, and it ties quorum to “attendance.” A court could construe this term and others in the Texas Constitution to require physical presence in the chamber in order to attend and be counted for purposes of a quorum. Article III, section 11 of the Texas Constitution provides that each “House may determine the rules of its own proceedings.” However, the House and Senate must determine procedures, consistent with the Texas and U.S. Constitutions, for providing public access, conducting public testimony, debate, and voting on legislation during the legislative session. The rules set by the House and Senate have historically conformed to constitutional restraints requiring voting and debate to occur in person.

KP-0346

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Discussing Governor Abbott’s suspending provisions of the Election Code to allow political subdivisions to postpone their May 2, 2020 elections to November 3, 2020

KP-0345

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A court would likely conclude that the removal of a county auditor rests within the sole discretion of the district judges, subject to judicial review.

KP-0344

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Education Code subsections 11.151(c) and 11.154(a) authorize the Blinn College District to convey the Star of the Republic Museum’s real and personal property to the Texas Historical Commission so long as the transfer complies with Texas Constitution article III, subsection 52(a).

KP-0343

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Potential civil and criminal consequences exist for a Texas peace officer who fails to intervene when observing another officer using force in a way that may violate a person’s constitutional rights.

KP-0288

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Education Code subsection 11.060(d) applies to the Harris County Department of Education and requires the board to fill the vacancy not later than 180-days after it occurs if more than one year remains in the term.

KP-0342

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A rule exempting an appraiser licensed under Occupations Code chapter 1103 from complying with the Uniform Standards of Professional Appraisal Practice when performing an evaluation as allowed under the federal Interagency Appraisal and Evaluation Guidelines would conflict with section 1103.405.

KP-0341

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Nothing in the language of Transportation Code chapter 706 authorizes a political subdivision to require the Department of Public Safety to lift previously-requested drivers’ license renewal holds for reasons other than those articulated in subsection 706.005(b).

KP-0340

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The common-law reserved powers doctrine could limit whether a home-rule municipality may enter a contract that would prohibit decertification of a special utility district’s certificate of convenience and necessity in the future.

KP-0339

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The minimum salary of a county court at law judge with twelve or more years of accrued service under subsection 25.0005(a) of the Government Code is calculated in conjunction with Government Code sections 659.012 and 659.0445.

KP-0338

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The Texas Constitution, common law, and the property’s status as surplus must be considered by an independent school district in determining whether the district may enter a long-term ground lease with a private entity that intends to develop the district’s surplus property for noneducational purposes that are expected to yield financial benefits that exceed the property’s current sale-value.

KP-0337

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Paycheck Protection Program loans fully guaranteed by the Small Business Administration generally satisfy the statutory requirements of an authorized investment under section 2256.009(a)(4).

KP-0336

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A professional employer organization’s performance of its statutory duties under chapter 91 of the Labor Code pursuant to a professional employer services agreement does not constitute money transmission for which a separate license is required under chapter 151 of the Finance Code.

KP-0335

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The Texas Code of Criminal Procedure governs access to a search warrant, warrant return, and property inventory, and a court would likely conclude that these documents are subject to public disclosure by a district clerk.

KP-0334

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The separation of powers provisions of article II, section 1 of the Texas Constitution do not apply to municipal government.

KP-0530

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Whether Code of Criminal Procedure Article 49.25 subsection 11(d) makes next-of-kin information confidential and not subject to disclosure under the Public Information Act