Attorney General Opinions Issued

GA-0713: Honorable Rodney W. Anderson, Brazos County Attorney, authority of a justice of the peace in a proceeding under section 25.094, Education Code.

Summary A justice court may use an electronic monitoring device as a condition of deferment of final disposition or probation for an individual found to have committed an offense under section 25.094, Education Code, if the justice court determines that the use of the device in a given proceeding is reasonable.

GA-0714: Honorable Jeff Wentworth, Chair, Committee on Jurisprudence
Texas State Senate, authority of a county to contract with a private entity for the collection of delinquent fines, fees, and court costs.

Summary Code of Criminal Procedure article 103.0031, which authorizes the commissioners court of a county to enter into a contract with a private attorney or a public or private vendor for the provision of collection services, does not violate article V, section 21 of the Texas Constitution by depriving the criminal district attorney of the authority to prosecute suits by the state.

GA-0715: Honorable Joseph D. Brown, Grayson County Criminal District Attorney, whether members of a county juvenile board may participate in the county's group health insurance program.

Summary A district judge serving as a juvenile board member and who is paid a supplemental income by the county for service on the board may be provided county medical insurance pursuant to Local Government Code section 157.002. A commissioners court, however, has discretion to discontinue, by rule, coverage for board members. Moreover, the Grayson County Commissioners Court has authority to determine whether members of the Juvenile Board of Grayson County are provided medical insurance because of the Commissioners Court's express authority to set the compensation of Board members.

GA-0716: Honorable Armando R. Villalobos, Cameron County District and County Attorney, whether an assistant county or assistant district attorney may lawfully and ethically practice as a criminal defense attorney in federal court and in the state courts of a neighboring county.

Summary Article 2.08 of the Code of Criminal Procedure does not prohibit an assistant county or assistant district attorney from practicing as a criminal defense attorney in federal court or in the state courts of a neighboring county, although, under certain circumstances, section 46.005 of the Government Code bars such practice by an assistant county attorney. Rules 1.06 and 1.10 of the Texas Disciplinary Rules of Professional Conduct caution against any such representation of a private client, although such inquiries must ultimately be addressed to the Committee on Professional Ethics.

GA-0717: Honorable Kenda Culpepper, Rockwall County Criminal District Attorney, validity of a city charter provision that permits a majority of council members to call a special meeting.

Summary We cannot conclude, as a matter of law, that a charter provision of the City of Rockwall permitting a majority of members of the city council to call a special meeting violates the Open Meetings Act on its face.

GA-0718: Honorable Don Allee, Kendall County Attorney, authority of justice of the peace and county court at law to cause the amendment of a death certificate concerning the cause of death.

Summary A justice of the peace's decisions in carrying out discretionary duties under chapter 49 of the Code of Criminal Procedure are subject to an abuse of discretion standard and, in the proper case, a writ of mandamus may issue to correct a clear abuse of discretion. Whether a county court at law has jurisdiction to issue an order to the Texas Department of State Health Services, Vital Statistics Unit, cannot be determined without reference to the pleadings and proceedings in the particular case. It is unlikely that a court order that is not directed to a justice of the peace could be enforced against the justice of the peace.

GA-0719: Honorable Mike Jackson, Chair, Committee on Nominations
Texas State Senate, whether an attorney who acts as an unpaid advisor to the board of trustees of an independent school district may also represent the district for compensation in the collection of delinquent taxes.

Summary The attorney's services to the Pasadena Independent School District as an unpaid advisor and collector of delinquent taxes do not appear, in this instance, to implicate laws pertaining to dual office holding, the common-law doctrine of incompatibility, or the general conflict of interest provisions contained in chapter 171 of the Local Government Code.

However, the provision of free legal services to a school district by an attorney under or in conjunction with a contract for the collection of delinquent taxes may contravene Tax Code section 33.07. Whether a donation of legal services by an attorney under a particular contract violates section 33.07 is a question of fact not appropriate for the attorney general opinion process.
The Texas Disciplinary Rules of Professional Conduct also may need to be considered in relation to the attorney's services to the school district. Questions about any potential conflicts of interest arising from the attorney's conduct must be addressed by the Committee on Professional Ethics.

GA-0720: Mr. Charles G. Cooper, Banking Commissioner, Texas Department of Banking, whether an agent under a statutory durable power of attorney may alter the method of disposition of a person's body previously specified by that person in a prepaid funeral contract.

Summary Where an individual specifies the method of disposition of his or her remains in a fully paid funeral contract of which he or she is the purchaser and beneficiary, the individual's agent under a statutory durable power of attorney may not change the method of disposition. If the agent under a statutory durable power of attorney cancels a prepaid funeral contract purchased by the principal for him or herself, the principal's written directive in the contract regarding disposition of his or her remains is not canceled.