Attorney General Opinions

January 12, 2017

Legislative News

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​Attorney General Opinions

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

Attorney General Opinions

KP-0121 Authority of county attorneys regarding payments made in conjunction with pretrial diversion agreements. 
(RQ-0111-KP) Summary: Section 45.125 of the Government Code authorizes the Brown County Attorney to receive gifts and grants limited to the purpose of financing or assisting the operation of the attorney's office. A court would likely conclude that section 45.125 does not authorize the Brown County Attorney's office to require an accused to pay an amount to that office as a condition of a pretrial intervention agreement in addition to or in excess of the fee authorized by article 102.0121 of the Code of Criminal Procedure. No statute authorizes a criminal court to order a defendant to pay a gift or grant under section 45.125 of the Government Code.

Gifts or grants received under section 45.125 of the Government Code are limited to financing or assisting the operation of the Brown County Attorney's office. The fee authorized by article 102.0121 of the Code of Criminal Procedure may be used only for the expenses of a prosecuting attorney's office related to a defendant's participation in a pretrial intervention program offered in that county.

The county commissioners court has ultimate authority over the disposition of funds received under section 45.125 of the Government Code. Funds received under that statute may not be comingled with or transferred to the hot-check fund established under article 102.007 of the Code of Criminal Procedure.

KP-0122 Simultaneous service as a municipal police chief and a constable. 
(RQ-0112-KP) Summary: Neither article XVI, section 40 of the Texas Constitution nor the common-law doctrine of incompatibility bars the City of Lumberton police chief from simultaneously holding the position of constable in the same precinct where the city is located.

KP-0123 Whether adoption of the American Bar Association’s Model Rule of Professional Conduct 8.4(g) would constitute a violation of an attorney’s statutory or constitutional rights.
(RQ-0128-KP) Summary: A court would likely conclude that the American Bar Association's Model Rule of Professional Conduct 8.4(g), if adopted in Texas, would unconstitutionally restrict freedom of speech, free exercise of religion, and freedom of association for members of the State Bar. In addition, a court would likely conclude that it was overbroad and void for vagueness.

KP-0124 Whether doctors of osteopathy are authorized to issue certificates of medical examination under chapter 574 of the Health and Safety Code. 
(RQ-0133-KP) Summary: Pursuant to chapter 574 of the Health and Safety Code, an individual licensed to practice medicine in this State, whether holding a doctorate degree in medicine or osteopathy, may issue a certificate of medical examination for mental illness as provided in section 574.009.

KP-0126 Authority of a district attorney to use forfeiture funds for certain purposes. 
(RQ-0116-KP) Summary: Article 59.06 of the Code of Criminal Procedure authorizes a district attorney to expend forfeiture funds solely for an official purpose of the attorney's office, which may include expenditures for facility costs such as remodeling, renovating, and maintenance. A district attorney may expend such funds .on carpet for a county-owned building to the extent it serves an authorized purpose of the attorney's office. A district attorney need not seek permission of the commissioners court to expend forfeiture funds for such an authorized purpose, provided that the expenditure does not usurp or unreasonably interfere with the county commissioners' authority with respect to county buildings.

Requests for Attorney General Opinions

RQ-0144-KP: Chase Untermeyer, Chair, Texas Ethics Commission, Application of section 552.1175 of the Government Code to reports filed with the Texas Ethics Commission that by statute must be made available to the public.