AG Opinions and Requests

September 27, 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-0263 (RQ-0263-KP) Summary: Under article 102.0121 of the Code of Criminal Procedure, the commissioners court, not the prosecuting attorney, ultimately determines the authorized uses of the county pretrial intervention program fund. The statute authorizes the commissioners court to use the pretrial intervention fund for an employee's salary, salary supplement, or a benefit only to the extent the use of the fund is solely for the administration of the program. 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-0264 Purchasing authority of a criminal district attorney's office as a specialized local entity under Local Government Code section  (RQ-0264-KPSummary: A criminal district attorney is not subject to rules adopted by the county purchasing agent pursuant to subchapter B of chapter 262 of the Local Government Code; however, the entity is subject to rules implemented by the agent pursuant to the County Purchasing Act.

KP-0267 Protections against excessive fines under the U.S. and Texas Constitutions (RQ-0267-KPSummary: Courts following U.S. Supreme Court precedent would conclude that the Due Process Clause of the Fourteenth Amendment incorporates the Eighth Amendment protection against excessive fines.

Courts recognize article I, section 13 of the Texas Constitution as a constitutional protection against excessive fines. A court would not enforce an unconstitutionally excessive fine. Depending on the statute, a Texas court would be obligated to follow Texas law that requires it to separate the unconstitutional fine and uphold the portion of the statute that is constitutional, if possible.

A Texas court would likely conclude that the Excessive Fines Clause of the Eighth Amendment of the U.S. Constitution is binding on the State, and federal jurisprudence is instructive about, if not determinative of, excessive fines issues under article I, section 13 of the Texas Constitution.

KP-0269 Whether a county treasurer is authorized to use an online auction site to sell unclaimed property pursuant to chapter 76 of the Property Code (RQ-0269-KPSummary: Chapter 76 of the Property Code requires the county treasurer to sell abandoned property subject to its provisions at a public sale conducted in the county's jurisdiction. If the county treasurer determines the highest bid from the public sale is insufficient, then the property may be sold through a public or private sale, including an online auction.

KP-0270 Authority of the State to obtain an arrest warrant for a defendant previously released on pretrial bond conditions if credible evidence exists he violated those conditions (RQ-0270-KPSummary: A court likely may, without a hearing, order a defendant's rearrest to secure the defendant's presence at a bond-revocation hearing, based on an officer's sworn affidavit showing probable cause that the defendant has violated bond conditions.

KP-0271 Whether a sheriff may expend commissary funds for a salary stipend for a deputy sheriff with duties related to operation of the commissary (RQ-0271-KP) Summary: The sheriff’s "exclusive control" of commissary funds under subsection 351.0415(b)(1) of the Local Government Code and his or her authority under subsection 351.0415(c) to "use commissary proceeds only" for statutory purposes gives the Hunt County sheriff the authority to initially determine whether an expenditure is authorized, subject to administrative review by the Commission on Jail Standards and judicial review under an abuse of discretion standard. A court would likely conclude that an expenditure of commissary funds under subsection 351.0415(c) is not arbitrary if the amount of the expenditure is reasonable in light of the performance of the authorized activities.

KP-0272 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-0272-KPSummary: Subsection 1704.304(c) of the Occupations Code prohibits a bail bond surety from soliciting business in a police station, jail, prison, detention facility, or other place of detainment for persons in the custody of law enforcement. Based on the description provided, a court would likely conclude that a signboard installed inside a jail facility by a third party providing information about available bail bond services does not amount to a solicitation and is therefore not prohibited under subsection 1704.304(c). The First Amendment does not impose any duty on a public official with control over a detention facility to provide a public forum for third-party contractors to install and maintain an informational signboard in the facility.

Requests for Attorney General Opinions

RQ-0298-KP Procedure to repeal a special road tax.

RQ-0299-KP Voting entitlement of a taxing unit in the election of an appraisal district's board of directors under Tax Code section 6.03(d).

RQ-0303-KP Whether a nonprofit organization leasing a publicly-owned property may qualify for and obtain the state tax credit for certified rehabilitation of certified historic structures on behalf of the public owner.

RQ-0305-KP Authority to establish salaries of the staff of a multicounty court at law.

RQ-0307-KP Whether a real estate inspector is authorized to perform inspections of sewer lines by camera.

RQ-0309-KP To which account a county must allocate revenue generated from inmate use of a PIN debit system to pay for phone time.