AG Opinions and Requests

August 26, 2021

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-0378: Whether amendments to a contingent fee contract for legal services entered into before Sept. 1, 2019, must comply with Chapter 2254 of the Government Code (RQ-0397-KP). To the extent a contract amendment expands the scope of legal services to encompass a new legal matter, whether made before or after May 19, 2021, a court could find on particular facts that the amended contract is subject to Chapter 2254 requirements regarding the governmental approval process, attorney general approval and a cap on fees. A contract amendment subject to Chapter 2254 of the Government Code but failing to meet the law’s requirements is void under subsection 2254.110.

KP-0379: Whether access to a government facility can be conditioned upon obtaining a vaccine issued under emergency usage authorization (RQ-0402-KP). Pursuant to Executive Order GA-38, Texas state agencies and political subdivisions may not condition an individual’s access to a government facility on receipt of a vaccine administered under emergency use authorization and not yet approved by the Food and Drug Administration.

Furthermore, pursuant to Senate Bill 968, passed by the 87th Legislature, a governmental entity in Texas may not issue a COVID-19 vaccine passport or any other documentation certifying COVID-19 vaccination status for any purpose other than health care. Implicit in this prohibition is that a governmental entity may not issue a COVID-19 vaccine passport and condition entry to a governmental facility on possession of it. This prohibition is not limited to vaccines issued under emergency use authorization and therefore will also apply to COVID-19 vaccines with full FDA approval.

KP-0380: Effect of the governor’s executive orders on the federal requirements related to face coverings on public transit (RQ-0409-KP). Texas Executive Order GA-38 prohibits governmental entities from requiring any person to wear a face covering or to mandate that another person wear a face covering.

Federal orders issued by the Centers for Disease Control (CDC) and the Transportation Security Administration (TSA) attempt to require persons traveling on public transit to wear a mask and to require local transit authorities to enforce the federal mandate. However, a court could conclude that the CDC and the TSA lack statutory authority to issue the face-covering orders, particularly with respect to intrastate public transit systems. Furthermore, a court may have a basis to conclude that TSA’s directive violates the Americans with Disabilities Act or is an unconstitutional attempt to commandeer local officials to enforce a federal regulatory scheme.

Given the many concerns regarding the authority of the CDC and TSA to issue the federal orders requiring facial coverings on public transport, we are unable to definitively conclude that those orders preempt the governor’s Executive Order GA-38.

Request for Attorney General Opinion

RQ-0417-KP: Hon. Robert Love, Randall County criminal district attorney. Whether Section 37.122 of the Education Code prohibits the sale of alcoholic beverages at a school banquet facility when leased to private operators for non-school-related or -sponsored events.

RQ-0419-KP: Hon. Briscoe Cain, chair, House Committee on Elections, Texas House of Representatives. Application of Chapter 556 of the Government Code to the Texas Windstorm Insurance Association.

RQ-0420-KP: Hon. Matt Krause, chair, House Committee on General Investigating,
Texas House of Representatives. The meaning of specialty provider and other terms for purposes of implementing Senate Bill 1207 from the 86th Legislature.

RQ-0421-KP: Hon. James White, chair, House Committee on Homeland Security & Public Safety, Texas House of Representatives. Whether the teaching of critical race theory violates Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the 14th Amendment, or provisions of the Texas Constitution.

RQ-0422-KP: Hon. Rob Baiamonte, Goliad County attorney. Authority of Goliad County to erect signage in a highway right of way under Transportation Code Chapter 394 in particular circumstances.

RQ-0423-KP: Hon. Susan Deski, Burleson County attorney. Whether a part-time assistant county attorney representing the Department of Family and Protective Services may maintain a private practice representing parents or children in child protection cases in other counties.

RQ-0424-KP: Hon. Matt Krause, chair, House Committee on General Investigating, Texas House of Representatives. Whether a legislator or a member of the public may inspect anonymous voted ballots.