Attorney General Opinions

May 05, 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-0076 Whether Texas law allows photographic insurance enforcement systems. (RQ-0062-KP) Summary: A court is likely to conclude that counties are not authorized to utilize an automated photographic or similar system to enforce the financial responsibility laws in chapter 601 of the Transportation Code.

KP-0077 Authority of the Texas Department of Transportation to enter into design-build contracts during the 2016-2017 fiscal biennium. (RQ-0063-KP) Summary: Pursuant to section 223.242 of the Transportation Code, the Department of Transportation may enter into a design-build contract for a highway project with a construction cost estimate of $150 million or more. The Department may not enter into more than three such contracts in each fiscal year.

KP-0078 Administration of funds received through the federal Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act. (RQ-0064-KP) Summary: The federal RESTORE Act provides that its funds shall "be available for expenditure, without further appropriation." The federal Gulf Coast Ecosystem Restoration Council has previously determined that subjecting RESTORE Act funding to the Texas appropriations process would violate this law. The rider in the General Appropriations Act the Legislature passed ultimately draws RESTORE Act funds into the appropriations process and to the State Treasury and grants disapproval authority to an agency that is granted no such authority under the RESTORE Act. Therefore, the rider in the General Appropriations Act is in direct conflict with the federal interpretation of the federal RESTORE Act and is without effect.

Pursuant to section 404.093 of the Government Code, to the extent that the Office of the Governor or the Governor's appointee receives RESTORE Act funds in trust for the benefit of a person or entity other than a state agency, such funds may be deposited outside of the State Treasury in an account for which the Comptroller serves as trustee.

KP-0079 Administration and audit of accounts maintained by a county sheriff. (RQ-0065-KP) Summary: Although the county sheriff has limited authority to maintain certain funds outside of the county treasury, all funds held by the sheriff in his official capacity are subject to oversight and audit by the county auditor, whether or not they are county funds.

In a county with a population of less than 190,000, unless a statute provides otherwise, a court would have a basis to conclude that there is no authority to require an auditor's countersignature on sheriff's funds properly held outside the county treasury.

KP-0081 Whether Tax Code section 33.06 authorizes ad valorem property tax deferral on mixed-use property. (RQ-0067-KP) Summary: A court would likely conclude that section 33.06 of the Tax Code impliedly authorizes a district to investigate facts recited in an affidavit for deferral, request additional information, and allow or deny a deferral as warranted by the law and facts. An appraisal district may grant deferral on mixed-use property provided that all uses are compatible with occupancy as a residence homestead. Whether an owner occupies an entire parcel as a residence homestead will depend on the particular facts.

Section 33.06 of the Tax Code does not authorize an appraisal district to require a property owner to provide a survey at the owner's expense in order to claim entitlement to tax deferral under subsection 33.06(a) of the Tax Code.

Requests for Attorney General Opinions

RQ-0105-KP: The Honorable Billy W. Byrd, Upshur County Criminal District Attorney, Whether a county commissioners court has authority to expend county funds on holiday decorations and county literacy programs.