AG Opinions and Requests

October 05, 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-0213 Obligations of a criminal district attorney under Code of Criminal Procedure article 39.14 to disclose to a defendant information obtained by the criminal district attorney during the performance of certain civil duties: (RQ-0215-KP) Summary: A court would likely conclude, as one appellate court already has, that the knowledge of an assistant criminal district attorney is imputed to the prosecutor as "the State" for purposes of article 39.14 of the Code of Criminal Procedure regardless of internal division affiliation.

To the extent information provided to an assistant criminal district attorney acting in a civil capacity constitutes an item described by subarticle 39.14(a) but is protected by the attorney-client privilege, the plain language of subarticle (a) would exempt its disclosure to the defendant. However, a court would likely conclude that any exculpatory information meeting the requirements of subarticle 39.14(h) obtained by such an attorney must be disclosed to the defendant, notwithstanding any attorney-client or other evidentiary privilege.

To the extent that information obtained by an assistant criminal district attorney acting in a civil capacity is confidential under section 261.201 of the Family Code, any duty of disclosure in subarticle 39.14(a) of the Code of Criminal Procedure would not be triggered except pursuant to court order obtained under subsection. 261.201 (b) or (c). A court would likely conclude that any exculpatory information obtained by an assistant criminal district attorney that meets the requirements of subarticle 39.14(h) but that is made confidential by section 261.201 shall be disclosed only pursuant to court order obtained under subsection 261.201 (b) or (c).

KP-0214 Whether subchapter 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-0216-KP) Summary: If a surviving spouse meets the eligibility requirements under subsection 615. 072( a) of the Government Code, a court would likely conclude the spouse is entitled to purchase health insurance benefits from the municipality that employed a part-time safety employee pursuant to subsection 615.073(b), regardless of whether the employee was eligible for the benefits prior to death.

KP-0215 Whether a municipality is authorized to adopt a residential homestead property tax exemption that establishes a floor for the exemption in an amount greater than $5,000, and, if not, whether an appraisal district may disregard or modify the exemption (RQ-0242-KP) Summary: Subsection 11.13(n) of the Tax Code provides that if a municipality adopts a tax exemption percentage that produces an exemption of less than $5,000 when applied to a particular residence homestead, the individual is entitled to an exemption of $5,000 of the appraised value. Because article VIII, section 1-b(e) of the Texas Constitution and the Legislature establish a legislatively-defined floor for the exemption in an amount of $5,000, a court would likely conclude that a home-rule municipality lacks authority to increase the floor above $5,000. Municipalities desiring to increase the homestead exemption must do so by raising the tax exemption percentage, up to twenty percent, as authorized in the Constitution.

The Legislature charged the chief appraiser with determining an individual's right to a property tax exemption, and the Commission of Licensing and Regulation prohibits appraisers from engaging in an official act that violates the law. If a taxing unit adopts an unlawful exemption, the appraiser maintains both a legal and ethical duty to determine that the exemption is inapplicable to the extent it violates the law.

KP-0216 Whether a groundwater conservation district may amend a historic or existing use permit in specific circumstances (RQ-0217-KP) Summary: Under the Texas Supreme Court's opinion in Guitar Holding Co. v. Hudspeth County Underground Water Conservation District No. 1, a change in the purpose of the proposed use of water to be produced under a historic or existing use permit is a new use, even if the new use would occur within the district. Whether a district must treat an application for an amended permit as an application for a new-use permit will depend on the particular facts and is a matter for the district to determine, in the first instance, subject to judicial review.

A groundwater conservation district may accept a surrender of a portion of rights to groundwater under a historic or existing use permit and allow the holder to retain the remaining rights not surrendered. A holder of a historic or existing use permit who surrenders a portion of rights subject to the permit may seek a new permit for a new use. A court would likely determine that the uniformity requirements in chapter 36 of the Water Code preclude district rules that would give an advantage to a historic or existing permit holder who seeks new use approval that is not available to other new use permit applicants.

KP-0217 Authority of the temporary directors of the Southwestern Travis County Groundwater Conservation District (RQ-0218-KP) Summary: A court would likely conclude that the temporary directors of the Southwestern Travis County Groundwater Conservation District had no authority to cancel the 2018 confirmation and candidate election.

A court would also likely conclude that the temporary directors hold office and can exercise those powers expressly given them in section 8871.023 of the Texas Special District Local Laws Code until the initial directors are elected under section 8871.024.

Absent express authority in chapter 8871, a court would likely conclude that the appointing officials may not withdraw their respective appointments.

Certainly, the Legislature has authority to amend chapter 8871. Other potential options to address the disarray resulting from the absence of the confirmation and director election include removal of the temporary directors for misconduct or a quo warranto proceeding challenging the authority of the temporary directors to hold office.

KP-0219 The authority of Texas counties to pursue housing programs in specific circumstances (RQ-0220-KP) Summary: Although a county may not expend public funds to solely benefit a private interest, a county may make an expenditure to assist a homeowner to make repairs or subsidize the construction of singleor multi-family housing when the expenditure serves a predominantly public purpose of the county. Whether a particular expenditure serves a predominately public purpose of the county is for the commissioners court to make in the first instance, subject to judicial review.

Section 381.003 of the Local Government Code authorizes housing programs that qualify under federal law as community and economic development programs or housing and community development programs, which generally address the housing needs of persons with low and moderate income.

Requests for Attorney General Opinions

RQ-0249-KP: The Honorable J. D. Lambright, Montgomery County Attorney, Whether a city attorney and the city administrator are local public officials subject to chapter 171 of the Local Government Code.
 
RQ-0250-KP: The Honorable Rene O. Oliveira, Chair, Committee on Business & Industry, Texas House of Representatives, Whether chapter 1704 of the Occupations Code prohibits a jail or detention facility from using a third party contractor to provide persons in the custody of law enforcement with information on available bail bond services.

RQ-0251-KP: The Honorable Matthew C. Poston, Liberty County Attorney, Authority of county law enforcement to enforce county weight regulations on county roads.
 
RQ-0252-KP: The Honorable Natalie Cobb Koehler, Bosque County Attorney, Whether Bosque County may prohibit employees or elected officials from carrying weapons while conducting county business in the courthouse due to liability.