Attorney General Opinions

June 03, 2016

Legislative News

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

KP-0083 Whether a county is responsible for costs associated with transporting a body from an autopsy to its final destination. (RQ-0069-KP) Summary: A commissioners court is authorized to pay the cost of transporting a body to its final destination following an autopsy ordered by a justice of the peace only if a body is not claimed for burial or is to be buried at public expense and if the Anatomical Board of the State of Texas does not require the body. Otherwise, the cost of transporting the body to its final destination is the responsibility of the person with the legal duty to inter the deceased, or that person's agent.

KP-0084 Questions related to an emergency services district’s sales and use tax election that failed to exclude territory where the sales tax was already capped at two percent. (RQ-0070-KP) Summary: No relevant statutory provision authorizes the Montgomery County Emergency Services District #7, the East Montgomery County Improvement District, or the Economic Development Zone #4 to retroactively exclude from the May 2015 election territory with a tax rate that, when combined with the increased tax rate from the election, exceeds the two percent statutory cap on sales and use tax rates. The Texas Comptroller is without authority to selectively collect the sales tax in only the territory in which the combined sales tax rate does not exceed the cap.

Any of the districts are authorized to conduct a future election to, upon approval of its voters, abolish the sales and use tax or change the rate of a sales and use tax.

KP-0086 The effect of section 113.054 of the Natural Resources Code on a political subdivision’s authority to adopt ordinances relating to the liquefied petroleum gas industry. (RQ-0073-KP) Summary: Section 113.054 of the Natural Resources Code preempts and supersedes existing local ordinances, orders, or rules without regard to their level of restriction or date of enactment, and without regard to whether the Texas Railroad Commission has adopted rules or standards governing a particular aspect or phase of the liquefied petroleum gas ("LPG") industry, absent the Commission's permission as otherwise provided by section 113.054.

A political subdivision may petition the Commission under section 113.054 for permission to promulgate local provisions relating to any aspect or phase of the LPG industry only when such local provisions would be more restrictive than the rules or standards adopted by the Commission.

KP-0088 Whether a criminal district attorney may use forfeiture funds to investigate operations of a juvenile detention center. (RQ-0075-KP) Summary: An attorney representing the State may expend forfeiture funds to investigate a juvenile detention center only to the extent the expenditure is for an official purpose of the attorney's office under article 59.06 of the Code of Criminal Procedure. Whether a particular expenditure is authorized under article 59.06 involves a question of fact that cannot be answered in an attorney general opinion.

KP-0089 Whether river authorities may adopt regulations that prohibit the possession of firearms on river authority parklands. (RQ-0077-KP) Summary: Chapter 25 of the Parks and Wildlife Code does not authorize a river authority to adopt regulations that prohibit the open carry of handguns on river authority parklands.

KP-0090 What qualifies as a “judicial function” of a county judge such that the judge may claim a state salary supplement under section 26.006 of the Government Code. (RQ-0078-KP) Summary: When a county judge is exercising criminal or civil jurisdiction as authorized by chapter 26 of the Government Code, the county judge is performing a judicial function for purposes of section 26.006.

To the extent that a county auditor has concerns regarding an improperly requested salary supplement under Government Code section 26.006, the auditor should confer with the Comptroller of Public Accounts regarding disbursing the supplement.

KP-0091 Whether article III, section 52 of the Texas Constitution prohibits a county from providing financial assistance to a nonprofit organization. (RQ-0079-KP) Summary: A county entering into an agreement with Boys and Girls Clubs to provide the organizations funding will not violate article III, subsection 52(a) of the Texas Constitution as long as the county (1) ensures that the transfer is to accomplish a public purpose of the county, not to benefit private parties; (2) retains public control over the funds to ensure that the public purpose is accomplished and to protect the public's investment; and (3) ensures that the county receives a return benefit.

To the extent that the Boys and Girls Clubs of Bandera County provide services and support to children in need of protection and care, section 264.006 of the Family Code authorizes Bandera County to provide financial assistance to the organizations in furtherance of a statutory public purpose of the county, so long as the other constitutional requirements are met

KP-0092 Ownership of interest earned on county taxes held by the appraisal district. (RQ-0080-KP) Summary: Interest earned on county taxes collected by an appraisal district pursuant to a contract under subsection 6.24(b) of the Tax Code belongs to the county and, as such, must generally be remitted to the county.

The accounting and remittance of funds belonging to the county from a particular tax year would depend at least in part on the terms of any contract entered into pursuant to subsection 6.24(b) then in place.

The personal liability of the tax assessor-collector for funds held in the custody of the appraisal district is ultimately a question of fact, dependent on various factors that cannot be ascertained in the opinion process of this office.