Attorney General Opinions

July 01, 2016

Legislative News

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

Attorney General Opinions

KP-0094 The extent to which a judge may refuse to apply the law of a jurisdiction outside of the United States in certain family law disputes. (RQ-0083-KP) Summary: Under Texas law, a court is not required in family law disputes to enforce a foreign law if enforcement would be contrary to Texas public policy or if it would violate a party's basic right to due process.

KP-0098 Requirements for a municipality’s posting of notice regarding the carrying of handguns. (RQ-0087-KP) Summary: Subsection 46.035(c) of the Penal Code makes it an offense to carry a handgun "in the room or rooms where a meeting of a governmental entity is held and if the meeting is an open meeting subject to Chapter 551, Government Code" and the entity provided the requisite notice. By specifically limiting the offense to carrying a handgun in "the room or rooms," the Legislature made it clear that it did not intend to prohibit the carrying of handguns throughout an entire building but instead only in the specific room or rooms where an open meeting of a governmental entity is held.

Governmental entities should place their notices that entry with a handgun is prohibited at the entrance to the room or rooms where an open meeting is held. A governmental entity may not provide notice that excludes the carrying of handguns when the room or rooms are used for purposes other than an open meeting.

KP-0099 Whether a school district board of trustees may enter into a contract for legal services under a flat fee arrangement. (RQ-0088-KP) Summary: Under the test articulated by the Texas Supreme Court, a school district's contract for legal services would violate article III, section 52(a) of the Texas Constitution if (1) the expenditure's predominant purpose does not accomplish a public purpose, but instead benefits private parties; (2) sufficient control over the expenditure is not retained to ensure that the public purpose is accomplished; (3) the school district does not receive a return benefit; and (4) the expenditure fails to provide a clear public benefit in return. Whether a public purpose is served by a particular expenditure raises fact questions that cannot be answered in an attorney general opinion and would be a decision for the school district in the first instance, subject to judicial review.

In utilizing this test to evaluate public expenditures, Texas courts have suggested that (1) an incidental benefit to individual trustees does not invalidate the expenditure if the contract is predominantly for the direct accomplishment of a legitimate public purpose of the school district; (2) the principal constitutional concern regarding control measures is not who is implementing them but whether such controls are put into place to begin with; and (3) what constitutes an adequate return benefit depends on a variety of specific circumstances but is called into doubt if there is such a gross disparity in the relative values exchanged as to show unconscionability, bad faith, or fraud.

To the extent that circumstances forming the basis for an alleged violation of the Texas Disciplinary Rules for Professional Conduct suggest that an expenditure does not comport with the requirements of article III, section 52(a), a court would rely on the test articulated by the Texas Supreme Court to make that determination. However, it is unlikely that a court would consider conduct subsequent to a contract's execution in determining whether the contract itself violates article III, section 52(a).

Requests for Attorney General Opinions

RQ-0108-KP: The Honorable Rodney W. Anderson, Brazos County Attorney, The effect of section 130.0827 of the Education Code on the simultaneous service of an individual as a board trustee of Blinn College and a Brazos County commissioner.

RQ-0109-KP: The Honorable Abel Herrero, Chair, Committee on Criminal Jurisprudence, Authority of a junior or community college to prohibit the carrying of handguns in classrooms or other areas where minors attend class or are routinely present.

RQ-0111-KP: Ms. Jennifer Robison, Brown County Auditor, Authority of county attorneys regarding payments made in conjunction with pretrial diversion agreements.

RQ-0112-KP: The Honorable Rebecca R. Walton, Hardin County Attorney, Simultaneous service as a municipal police chief and a constable.

RQ-0113-KP: The Honorable Byron Cook, State Representative, Whether the Texas Central Railroad and Infrastructure, Inc. possesses the power of eminent domain to condemn property for the Texas High Speed Railway.

RQ-0114-KP: Mr. Lloyd B. Tisdale, President, San Jacinto River Authority, Whether certain financial transactions of the San Jacinto River Authority comply with the Public Funds Investment Act and the Public Funds Collateral Act.