AG Opinions and Requests

July 26, 2019

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-0252 Authority of municipalities to regulate firearm and ammunition sales through zoning and other regulations (RQ-0269-KP) Summary: Subsection 229.00I(a)(l) of the Local Government Code prohibits a municipality from regulating the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, knives, ammunition, or firearm or air gun supplies. Subsection 229.001(b)(3) excepts from this prohibition a municipality's regulation on the use of property or businesses and the location of businesses as long as the regulation does not circumvent the intent of subsection (a)(l). A regulation that expressly prohibits gun stores from operating in a specific area relates to the transfer of firearms and is prohibited by subsection 229.00I(a)(l). Similarly, an ordinance singling out firearm and ammunition sales relates to the transfer of firearms and is therefore prohibited. A court would likely conclude subsection 229.00I(a)(l)'s prohibition encompasses any one or more of the listed items. To the extent a municipality regulates firearm transfers but not also licensing, registration, or transportation of firearms, it acts contrary to subsection 229.00l(a)(l). A violation of section 229.001 may be enforced by the Attorney General. Any plaintiff with standing under the Texas Constitution or the U.S. Constitution could bring an action seeking declaratory or injunctive relief against enforcement of an unconstitutional ordinance. Individual city council members who voted on a zoning provision that is ultimately found to violate section 229.001 or the Texas or the U.S. Constitution would likely be immune from personal liability.

KP-0255 Authority of the Historical Commission to permit the destructive testing of human remains for research purposes, including for the purpose of obtaining DNA samples adequate to enable the identification of genetically related descendants (RQ-0259-KP) Summary: A court would likely conclude that the Historical Commission is authorized to permit the destructive testing of human remains for research purposes, including the purpose of obtaining DNA samples adequate to enable the identification of genetically related descendants pursuant to the Commission's authority in Government Code chapter 442, Natural Resources Code chapter 1 91, and Health and Safety Code chapter 711.

KP-0256 Use of funds collected from claims on subdivision road and drainage bonds required under Local Government Code subsection 232.003(7) (RQ-0260-KP) Summary: Sections 232.003, 232.0031, and 232.004 of the Local Government Code authorize a county to use proceeds from a subdivision bond required by section 232.003 to ensure a public or private road is constructed to standards adopted by the county for subdivision roads. A court would likely conclude that a county's expenditure of such bond proceeds, without more, does not constitute acceptance of the roads into the county's system of roads or otherwise obligate the county to maintain the roads. A county may expend construction bond proceeds on subdivision drainage facilities that are not part of a road right-of- way, provided that the facilities are for stormwater runoff management or storm drainage coordination as authorized under Local Government Code subsection

KP-0257 Whether a private attorney or collection agency that contracts with a county to collect delinquent amounts owed to county courts may charge defendants a fee for the use of credit cards (RQ-0261-KP) Summary: Section 604A.0021 of the Business and Commerce Code prohibits imposing a surcharge for the use of a credit card in certain instances. Although a recent judicial decision held section 604A.0021 unconstitutional as applied to specific facts, it remains enforceable in some contexts. But it does not apply to a county imposing a surcharge on a payee using a credit card for the payment of money owed to the county. Section 103.0031 of the Code of Criminal Procedure authorizes a county to contract with a private attorney or a public or private vendor for the provision of collection services for fees. If a county is entitled to impose a surcharge fee for credit card use, a court would likely conclude that a private attorney or collections agency acting as agent for the county could collect that surcharge on behalf of the county when collecting other fees, taxes, or other charges.

KP-0260 Applicability of nondisclosure orders on the licensing operations of the Texas Board of Nursing, and reconsideration of GA-0919 due to amendments to chapter 411 of the Government Code ( RQ-0263-KP) Summary: Under subsection 301.161 S(b) of the Occupations Code, the Texas Board of Nursing may not disclose the criminal history record information of its license applicants or holders to any person except to another nursing board or by court order.
When the Department of Public Safety provides the Board with a nondisclosure order or the order's contents, subsection 411.075(d) of the Government Code requires the Board to seal criminal history record information it maintains that is subject to the nondisclosure order. The Board has a duty to seal and maintain such information as confidential even when the Board learns of a nondisclosure order after issuing a final disciplinary action.

KP-0261 Whether durational or amount limitations exist for loans and grants issued for economic development programs pursuant to subsection 381.004(h) of the Local Government Code ( RQ-0266-KP) Summary: With respect to specified programs authorized by section 381.004 of the Local Government Code for stimulating business and commercial ativity in a county, the limitations on tax abatement agreements stated in subsection 381.004(g) do not apply to loans and grants made pursuant to subsection 381.004(h). Loan and grants authorized by subsection 381.004(h) must comply with sections 52(a) and 52-a of article III of the Texas Constitution. Section 7 of article XI of the Texas Constitution may also impact how such loans and grants are structured, depending on the circumstances. Subject to these constitutional limitations, subsection 381.004(h) leaves the duration and amount of economic development loans and grants to the commissioners court's budgetary discretion in the first instance.

KP-0262 Whether the Jackson County Navigation District may require an easement for new and existing aerial utility lines which cross over its boundaries ( RQ-0268-KP) Summary: Assuming that the patent by which the Jackson County Navigation District purchased submerged land from the State does not provide otherwise, the District may require an easement for new
and existing aerial utility lines which cross over its boundaries, provided that doing so is consistent with the navigation district's constitutional and statutory purposes.

Requests for Attorney General Opinions

RQ-0293-KP Asks for the requirements associated with Government Code §2306.6715, regarding the low income housing tax credit appeals process, and if the statutory appal deadlinewas properly followed when accepting and granting appeals by the Texas Department of Housing and Community Affairs.

RQ-0294-KP  Asks for guidance in defining terms and procedures for addressing dangerous dogs under chapter 822 of the Health and Safety Code.

RQ-0295-KP  Asks to clarify which is the proper allocation formula to be used for distribution of county transportation grant funds appropriated under Senate Bill 500.

RQ-0296-KP  Whether a municipality may use tax revenue for a visitor information center owned and operated by a Chamber of Commerce.