Attorney General Opinions and Requests

April 06, 2018

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-0185 Which body-worn-camera recordings an officer may review, pursuant to Occupations Code subsection 1701.655(b)(5), before making a statement about an officer-involved incident (RQ-0177-KP)

Summary: Subsection 1701.655(b)(5) of the Occupations Code requires a law enforcement agency that receives a grant for a body-worn-camera program or otherwise operates a body-worn-camera program to adopt a policy that entitles a peace officer to choose which recording or recordings of an incident involving the officer to access before the officer is required to make a statement about the incident.

KP-0186 Whether and when a municipal law enforcement agency is authorized or required to release audio or video recordings from a body worn camera to members of the public, members of the governing body of the municipality, and civilian employees of the municipality (RQ-0180-KP) Summary: Pursuant to section 552.108(a)(l) of the Government Code, upon receiving authorization from the Attorney General, a law enforcement agency may withhold the recording of a body worn camera if releasing it to a member of the public would interfere with the detection, investigation, or prosecution of a crime. The exception to disclosure under section 552.108 is discretionary, and a law enforcement agency may release information recorded by a body worn camera to a member of the public after the agency redacts any information made confidential by law.

With narrow exceptions, section 58.008 of the Family Code prohibits a law enforcement agency from releasing to a member of the public a body worn camera recording that could be used as evidence in a juvenile court proceeding or depicts or otherwise relates to a child in a manner that would restrict access to the recording.

A municipal law enforcement agency may not withhold from a member of the municipal governing body a recording from a body worn camera when the request is made in the member's official capacity. Whether civilian employees may access the recordings will depend on the authority given those employees by the municipal governing body and the internal policies and procedures of the municipality.

KP-0187 Authority of a county commissioners court to implement a health wellness plan that includes a monthly payroll deduction for county employees who use tobacco products (RQ-0182-KP) Summary: No provision in the Local Government Code expressly authorizes a county to deduct an amount from an employee's salary without the employee's consent on the sole basis that the employee is a user of tobacco products. Yet, pursuant to its authority to provide health insurance to its employees under sections 157.101 and 172.013(c) of the Local Government Code and article 3.51 of the Insurance Code, a county is likely authorized to offer, in connection with its insurance coverage, a health wellness plan with an increased deduction from an employee's salary where the employee, as a tobacco user, is in a class for which the insurance premium is higher.

KP-0188 Whether postmortem toxicological analysis conducted pursuant to the request of a medical examiner or forensic pathologist is subject to accreditation requirements of the Forensic Science Commission (RQ-0183-KP) Summary: Postmortem toxicological analysis requested by a medical examiner or forensic pathologist is subject to the Forensic Science Commission's accreditation authority only if it is performed for the purpose of determining the connection of physical evidence to a criminal action. Such purpose depends on why a medical examiner or forensic pathologist requests the analysis, not how the results are ultimately used. Whether any particular postmortem toxicological analysis is performed for the purpose of determining the connection of physical evidence to a criminal action is for the Commission to· determine in the first instance, subject to judicial review.

KP-0189 Whether an elected constable and deputy constables may simultaneously serve under the sheriff, specifically to perform tasks related to the duties of a weight-enforcement officer under Transportation Code chapter 621 (RQ-0187-KP) Summary: Neither article XVI, section 40 of the Texas Constitution, nor any statute, nor the common-law doctrine of incompatibility precludes a constable or constable's deputy from serving simultaneously as a sheriff’s deputy. A deputy sheriff may serve as a weight-enforcement officer under section 621.401 of the Transportation Code, even if the person simultaneously serves as a constable or deputy constable.

Requests for Attorney General Opinions

RQ-0214-KP: The Honorable James White, Chair, Committee on Corrections, Texas House of Representatives, Whether sections 46.02 and 46.03 of the Penal Code apply to election judges who are licensed to carry a handgun under chapter 411 of the Government Code.

RQ-0215-KP: The Honorable Sharen Wilson, Tarrant County Criminal District Attorney, Obligations of a criminal district attorney under Code of Criminal Procedure article 39.14 to disclose to a criminal defendant information obtained by the criminal district attorney during the performance of certain civil duties.