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Attorney General Opinions and Requests

TAC has highlighted recent Attorney General Opinions and Requests for Opinions of interest to counties.

Attorney General Opinions 

KP-0197 Whether Proposition 1 and Proposition 7 funds may be used on toll projects: (RQ-0192-KP) Summary: The Texas Transportation Commission may not spend state highway funds received pursuant to Propositions 1 and 7 to fund any toll road. Furthermore, the Commission may not withdraw Proposition 1 and Proposition 7 funds from the state highway fund and place them into a general fund for a partially tolled project with no mechanism for ensuring that it spends the funds as constitutionally required. The absence of a definition of "toll road" in the constitutional provisions, statutes, or case law leaves us unable to determine whether the Commission may use Proposition 1 and Proposition 7 monies on non-tolled portions of toll projects.

KP-0200 Use of civil asset forfeiture funds to purchase property insurance pending appeal (RQ-0195-KPSummary: A court would likely conclude that an attorney representing the State may use civil asset forfeiture funds accrued under article 59.06(c)(l) of the Texas Code of Criminal Procedure to purchase property insurance protecting real property that is the subject of an appeal from a forfeiture judgment under article 59.05(e).

KP-0201 Authority of a Justice of the Peace to hire and supervise a bailiff-and-warrant officer (RQ-0197-KPSummary: Sections 151.001 and 151.002 of the Local Government Code authorize a justice court to appoint and supervise an employee to perform the traditional duties of a court bailiff for the court, although any duties that require additional qualifications, such as duties performed as a peace officer, may be subject to other law.

Employees of a justice court are not peace officers by virtue of that employment, although the statute does not prevent those employees from qualifying as a peace officer in some other capacity recognized by article 2.12 of the Code of Criminal Procedure.

A court is likely to conclude that a constable in one precinct does not possess the authority to employ, appoint, and commission a deputy to primarily perform peace officer duties for a justice court located in a different precinct.

KP-0203 County authority to collect or delegate the collection of money owed to the county (RQ-0200-KPSummary: Article 103.003(b-l) of the Code of Criminal Procedure authorizes a county commissioners court to collect amounts payable under title 2 of the code independently of the officials listed in article 103.003(a).

A court would likely conclude that article 103.003(b-1) authorizes a commissioners court to create a county department to assist the commissioners court to collect such payables.

A court would likely conclude that a commissioners court may contract with a collections firm, permitting the firm to collect payables into its own account, retain the additional collections fee, and deposit county money with the county treasurer, provided that the firm does so within the time permitted by statute.

KP-0204 Whether an independent school district may contribute funds to a scholarship program for graduates of the district to attend a community college (RQ-0202-KP) Summary:  Section 45.105 of the Education Code authorizes an expenditure of an independent school district's funds for "other purposes necessary in the conduct of the public schools determined by the board of trustees." Accordingly, the Amarillo Independent School District's trustees must determine whether the proposed scholarship program is appropriate or conducive to the conduct of its public schools.

Article III, section 52(a) of the Texas Constitution prohibits the expenditure of public funds for private purposes. A school district's expenditure for a scholarship program does not violate article III, section 52(a) provided that the school district: (1) ensures the expenditure is to accomplish a public purpose of the school district, not to benefit private parties; (2) retains sufficient control over the public funds to ensure the public purpose is accomplished; and (3) ensures the school district receives a return benefit. Whether a particular expenditure satisfies this three-part test is a determination for the school district in the first instance, subject to judicial review.

KP-0206 Authority of a magistrate to designate a specific peace officer or law enforcement agency to execute an emergency detention warrant under subsection 573.012(d) of the Health and Safety Code (RQ-0204-KP) Summary:  A magistrate may direct an emergency detention warrant issued pursuant to subsection 573.012(d) of the Health and Safety Code to any on-duty peace officer listed in article 2.12 of the Code of Criminal Procedure, regardless of the location within the county of the person who is the subject of the warrant. A peace officer executing an emergency detention warrant has a duty to ensure the transport of a person subject to the warrant to an appropriate facility pursuant to subsection 573.012(e). Subsection 573.012(d) contains no jurisdictional element that would determine whether municipal or county law enforcement bears the responsibility for transporting a person to an appropriate facility pursuant to subsection 573.012(e). A peace officer refusing to transport a person to an appropriate facility pursuant to subsection 573.012(e) is liable for contempt. Such an action for contempt could likely be brought by a court having specific jurisdiction over mental health proceedings.

KP-0207 Whether an employee of a district attorney’s office is eligible to execute and serve a subpoena under article 24.01(b)(2) of the Code of Criminal Procedure if the employee is not, at the time of issuance, involved in the proceeding for which the appearance is sought (RQ-0207-KP) Summary: Article 24.0l(b)(2) of the Code of Criminal Procedure allows service of a subpoena in a criminal matter by an attorney or other employee of a district attorney's office who, at the time of the subpoena's issuance, is not involved in the prosecution of the case in any capacity.

KP-0208 Whether the Harris County Department of Education may establish a relief fund to provide grant funding to independent school districts located in Harris County impacted by Hurricane Harvey (RQ-0208-KP) Summary: Under former chapter 18 of the Education Code, the Harris County Department of Education's property tax revenues may be expended only for the advancement of public free schools, the equalization of educational opportunities, administration expenses, and superintendent salary and office expenses.

Assuming any tax revenues used meet the statutory requirements of former chapters 17 and 18 of the Education Code, the Department may use its public funds to establish a Harvey Relief Fund consistent with Texas Constitution article III, section 52(a), if the Department: (1) ensures the expenditure is to accomplish a public purpose of the Department, not to benefit private parties; (2) retains sufficient control over the public funds to ensure the accomplishment of the public purpose; and (3) ensures the Department receives a return benefit.

Requests for Attorney General Opinions

RQ-0228-KP: The Honorable Sarah Davis, Chair, Committee on General Investigation & Ethics, Texas House of Representatives, Whether a legislator may receive payment from a unit of local government for lobbying activities.

RQ-0229-KP: The Honorable Sarah Davis, Chair, Committee on General Investigation & Ethics, Texas House of Representatives, Whether a state legislator may simultaneously serve as president of a municipal management district operating under chapter 375 of the Local Government Code (confirmation and clarification of Attorney General Opinion GA-0386).

RQ-0230-KP: The Honorable Marco A. Montemayor, Webb County Attorney, Whether a member of an independent school district board of trustees may simultaneously serve as a county judge.

RQ-0232-KP: Mr. Tony Sims. Chambers County Auditor, Whether a commissioners court may fund certain county departments through revenue generated by a sales and use tax imposed pursuant to chapter 324 of the Tax Code.

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