Attorney General Opinions and Requests

May 03, 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-0190 To what extent the Texas Commission on Environmental Quality may consider a recommendation from a local government to deny a permit for a facility because the facility is incompatible with the local government’s zoning or land use ordinances (RQ-0185-KP) Summary: Section 382.112 of the Health and Safety Code requires the Texas Commission on Environmental Quality to consider a local government's recommendation on a standard permitting determination only to the extent that the recommendation concerns the statutory and administrative requirements of the Texas Clean Air Act. A court would likely conclude the Commission is precluded from considering local zoning, land use, and other ordinances in standard permitting decisions made under section 382.05198. The Commission could likewise be precluded from considering local zoning, land use, and other ordinances on standard permitting decisions made under section 382.05195 if a court construed such an action as invalid, arbitrary, or unreasonable.

KP-0191 Whether the emergency powers under section 418.016 of the Government Code authorize the Governor to suspend relevant state election laws and order an emergency special election (RQ-0223-KP) Summary: To the extent that the special election procedures established in the Election Code prevent, hinder, or delay necessary action in coping with the damage caused by Hurricane Harvey, section 418.016(a) of the Government Code authorizes the Governor to suspend those provisions.

If the Governor determines the situation in Congressional District 27 constitutes an emergency warranting a special election before November 6, 2018, a court would likely conclude that section 41.0011 of the Election Code authorizes calling an expedited special election to fill the vacancy in that district.

KP-0192 Procedures regarding reappraisal of property after a disaster (RQ-0188-KP) Summary: Pursuant to subsection 23.02(c) of the Tax Code, a taxing unit authorizing a disaster reappraisal must pay the appraisal district all the costs of making the reappraisal. Appraisal districts may not capitalize on a disaster by requesting additional funds from taxing units for expenses the appraisal district would incur regardless of the disaster. To the extent that an appraisal district incurs additional costs resulting from a disaster reappraisal, it may require participating taxing units to fund those extraordinary expenses.

Section 25.19 of the Tax Code requires a chief appraiser to deliver a written notice to the owner of each property that was reappraised in the current tax year. The Legislature made no exception to this requirement for disaster reappraisals conducted pursuant to section 23.02 of the Tax Code. Thus, a court would likely conclude that a chief appraiser must provide notice to a property owner of a reappraisal when the owner's property value decreases as a result of the disaster reappraisal.

KP-0194 Applicability of amendments to the Transportation Code made by Senate Bill 312, 85th Regular Session, to the Loop 1604 toll project in Bexar County (RQ-0190-KP) Summary: Transportation Code, subsection 372.002(d), as amended by Senate Bill 312, provides that an entity constructing a toll project is not required to repay funds provided by the Department of Transportation "if a toll project entity commenced the environmental review process for the project on or before January 1, 2014." A change in a project's level of environmental review from an environmental impact statement to an environmental assessment is likely not the "commencement" of a new environmental review process for purposes of subsection 372.002(d). However, the question whether the environmental review process for the Loop 1604 toll project in Bexar County commenced prior to January 1, 2014, involves disputed issues of fact and thus is one that this office cannot determine as a matter of law.

KP-0195 Consequences of failing to comply with the requirements for continuation of existing private transfer fee obligations under section 5.203 of the Property Code (RQ-0205-KP) Summary: If the payee of a private transfer fee obligation fails to comply with the notice requirements under section 5.203 of the Property Code, the private transfer fee obligation is void, and the property is not subject to further obligation under the private transfer fee obligation. The Legislature did not authorize substantial compliance with the notice requirements of section 5.203. A court would therefore likely conclude that a payee must strictly comply with those requirements, and failure to meet even one payee requirement would void the private transfer fee obligation.

Chapter 5, subchapter G of the Property Code does not address the validity or enforce ability of a private transfer fee obligation when a change in the use of the underlying land occurs.

Section 5.205 of the Property Code requires that a "seller of real property that may be subject to a private transfer fee obligation shall provide written notice to a potential purchaser stating that the obligation may be governed by this subchapter." The Legislature did not provide specific requirements regarding this notice, and a court is unlikely to read requirements into the statute that the Legislature did not enact. A seller's failure to provide notice under section 5.205 will not void the private transfer fee obligation.

Requests for Attorney General Opinions

RQ-0216-KP: The Honorable Wiley B. McAfee, District Attorney, 33rd & 424th Judicial Districts, Whether subchapte D, chapter 615, of the Government Code requires municipalities to allow survivors of a part-time public safety employee to purchase health insurance benefits when the employee was not eligible for health insurance benefits at the time of the employee's death.

RQ-0217-KP: The Honorable Tracy O. King, Chair, Agriculture and Livestock Committee, Texas House of Representatives, Whether a groundwater conservation district may amend a historic or existing use permit in specific circumstances.

RQ-0218-KP: The Honorable Lyle Larson, Chair, Committee on Natural Resources, Texas House of Representatives, Authority of the temporary directors of the Southwestern Travis County Groundwater Conservation District.

RQ-0220-KP: The Honorable Lyle Larson, Chair, Committee on Natural Resources, Texas House of Representatives, The authority of Texas counties to pursue housing programs in specific circumstances.

RQ-0222-KP: The Honorable Charles Perry, Chair, Committee on Agriculture, Water & Rural Affairs, Texas State Senate, Whether recreational vehicle park guests are licensees or tenants.

RQ-0223-KP: The Honorable Greg Abbott, Governor of Texas, Whether the emergency powers under section 418.016 of the Government Code authorize the Governor to suspend relevant state election laws and order an emergency special election.

RQ-0225-KP:  Mr. Boyd Carter, Starr County Auditor, Whether funds from a county's forfeiture fund may be expended to pay for food served at a county attorney's holiday party.

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