AG Opinions and Requests

June 28, 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-0254 Availability of civil remedies for violations of the Texas Open Meetings Act (RQ-0285-KP).

Summary: If a quorum of a governmental body deliberates about public business within the jurisdiction of the body outside of a meeting authorized by the Texas Open Meetings Act, through multiple communications each involving fewer than a quorum, the governmental body violates the Act.

Action taken by a governmental body in violation of the Act is voidable. In addition, any interested person may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of the Act by members of a governmental body.

If the Texas Education Agency conducts an investigation as authorized by section 39.057 of the Education Code and concludes that members of a school district board of trustees violated their duty to comply with the Act, it could take appropriate civil action authorized by subsection 39.057(d) of the Education Code.

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 232.003(8).

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.

Requests for Attorney General Opinions

RQ-0290-KP Ms. Terri Sellars, Wood County Auditor, Payment of a district attorney pro tem.

RQ-0291-KP The Honorable Poncho Nevarez, Chair, Committee on Homeland Security and Public Safety, Texas House of Representatives, County authority and responsibility for stray livestock.