Attorney General Opinions and Requests

March 03, 2017

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-0132  Authority of a reserve deputy sheriff to act as a surety on a bail bond (RQ-0123-KP) Summary: Chapter 17 of the Code of Criminal Procedure establishes the eligibility requirements for sureties on a bail bond made in Andrews County. Assuming a surety satisfies these requirements, we are not aware of any authority that would prohibit a reserve deputy sheriff in Andrews County from acting as a surety on a bail bond or prohibit a sheriff from accepting such a bond.

KP-0133 Whether the proposed Upper San Saba River Management Plan unlawfully delegates legislative power to a private entity (RQ-0124-KP) Summary: The constitutionality of a proposed management plan (the "Plan") for the Upper San Saba River involving a potential delegation of legislative authority, and whether such a Plan would result in a regulatory taking, involves fact determinations that cannot be resolved in an attorney general opinion.

If the Plan involves a delegation of legislative authority to a private entity, a court would first confirm the delegation, examining whether the Plan results in a private entity setting public policy, providing the details of the law, promulgating rules and regulations to apply the law, or ascertaining conditions upon· which existing laws may operate. If so, the court would apply the eight-factor test established in Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen to determine whether the factors as a whole weigh in favor of or against constitutionality.
If the Plan involves a delegation of legislative authority to a public entity, a court examines whether the Legislature established reasonable standards to guide the public entity in exercising such powers.

A court considering a regulatory takings challenge would use a federal framework examining: (1) "the economic impact of the regulation on the claimant"; (2) the "character of the governmental action"; and (3) the "extent to which the regulation has interfered with the economic expectations of the property owner."

KP-0134 Access to court records containing criminal history record information that is subject to an order of nondisclosure under chapter 411 of the Government Code (RQ-0125-KP) Summary: Pursuant to section 411.076 of the Government Code, a court may disclose criminal history record information subject to an order of nondisclosure only to criminal justice agencies for criminal justice or regulatory licensing purposes, to the person who is the subject of the order, or to an agency or entity listed in section 411.0765(b) of the Government Code. Such criminal history record information may not be disclosed to employees of a district or county clerk except as necessary for statutorily authorized purposes. The adequacy of measures necessary to seal criminal history record information involves questions of fact that cannot be determined in an attorney general opinion.

Requests for Attorney General Opinions

RQ-0147-KP: The Honorable James M. Tirey, Hale County Attorney, Whether relatives of public officials may perform uncompensated work for the official's office without violating nepotism laws if the relatives receive reimbursement of actual expenses or a per diem expense payment.

RQ-0148-KP: The Honorable Mark A. Gonzalez, Nueces County District Attorney, Whether the State may obtain a waiver of a defendant's right to seek expunction of the record of arrest for the offense for which it places the defendant in pre-trial diversion.

RQ-0149-KP: Mr. Brandon S. Wood, Executive Director, Texas Commission on Jail Standards, Whether certain expenditures of commissary proceeds violate section 351.0415 of the Local Government Code.

RQ-0150-KP: The Honorable David P. Weeks, Walker County Criminal District Attorney, Whether a commissioners court may enter an order authorizing the treasurer to pay certain types of claims and bills prior to presenting the actual claims or bills to the commissioners court.

RQ-0151-KP: The Honorable Jodie Laubenberg, Chair, House Committee on Elections, Requirements for signatures on a petition filed in connection with a candidate’s application for a place on the ballot.

RQ-0152-KP: Mr. Tony Sims, Chambers County Auditor, Whether a commissioners court may fund the county fire marshal and safety coordinator through revenue generated by a sales and use tax imposed pursuant to chapter 324 of the Tax Code.