TAC has highlighted recent Attorney General Opinions and Requests for Opinions of interest to counties.
Attorney General Opinions
KP-0370: Whether Section 3000.002 of the Government Code prohibits political subdivisions from adopting paint color and pattern requirements (RQ-0387-KP). Determining whether an ordinance adopting color palette and pattern requirements prohibits or limits, directly or indirectly, a model code approval, or is more stringent than model code standards for building product, material, or aesthetic methods, will likely require investigation into and resolution of fact questions, which is beyond the purview of the opinion process.
KP-0371: Whether Section 81.066 of the Natural Resources Code authorizes the Railroad Commission to address noise generated from oil and gas equipment as part of its annual plan (RQ-0388-KP). Under the plain language of Section 81.066, absent any monitoring and enforcement activities of the commission’s Oil and Gas Division relating to the control of noise, or any statute or commission rule concerning the commission’s control of noise, the commission is not required to include information on noise control in its annual plan.
KP-0372: Authority of the Behavioral Health Executive Council to adopt a rule prohibiting certain discriminatory conduct by licensed social workers (RQ-0391-KP). The Legislature authorized the Behavioral Health Executive Council to take disciplinary action against social workers who refuse to perform an act or service within the scope of their licenses solely because of the recipient’s age, sex, race, religion, national origin, color or political affiliation. The council adopted a rule changing the word “sex” to “gender” and authorizing disciplinary action for refusal of service based on disability, sexual orientation, and gender identity and expression. In doing so, the council exceeded the authority granted to it by the Legislature by rewriting the language chosen by the Legislature and imposing additional restrictions in excess of the relevant statutory provisions. A court would likely conclude that the rule is invalid to the extent that it is inconsistent with and exceeds the council’s statutory authority.
No Texas statute prohibits discrimination based on sexual orientation or gender identity or expression, and the U.S. Supreme Court has emphasized that religious and philosophical objections to categories of sexual orientation are protected views and in some instances protected forms of expression under the First Amendment. If the Legislature intends otherwise, it may expressly amend the statute to so provide. A council rule prohibiting that expression conflicts with the long-standing constitutional protection for an individual’s free exercise of religion.
While a social worker may not discriminate based on disability in contravention of state and federal law, the council lacks statutory authority to discipline a licensee for discrimination based on disability.
KP-0374: Whether a constable working as a deputy sheriff may be paid for work under the Justice Assistance Grant (RQ-0393-KP). The Criminal Justice Division of the Governor’s Office determines applicability of federal Justice Assistance Grant funds to pay overtime to a constable serving as a deputy sheriff.
Requests for Attorney General Opinion
RQ-0406-KP: The Honorable Russell W. Malm, Midland County Attorney. County compliance with competitive bidding procedures before renewing or extending a contract for management of a county facility.
RQ-0407-KP: Mr. Tony Sims, Chambers County Auditor. Authority of a conservation district to change the directors’ terms of office from two to four years.
RQ-0408-KP: The Honorable Rob Baiamonte, Goliad County Attorney. Authority of county judges to declare and terminate local disasters pursuant to Section 418.108 of the Government Code.
RQ-0409-KP: The Honorable Senfronia Thompson, Chair, House Committee on Licensing & Administrative Procedures, Texas House of Representatives. Effect of Executive Order GA-36 on the federal requirements related to face coverings on public transit.
RQ-0410-KP: The Honorable Chris Taylor, Tom Green County Attorney. Whether a court has discretion to accept an affidavit of surety to surrender a principal and to require a bondsman to show cause for the surrender.
RQ-0411-KP: The Honorable Larry Taylor, Chair, Senate Committee on Education, Texas Senate. Whether HB 1525 requires school districts to accept PTA donations designated to fund supplemental educational staff positions and use funds donated for that purpose for the 2021-2022 school year.
RQ-0412-KP: The Honorable Dustanna Rabe, Hopkins County Attorney. Eligibility to hold municipal office under Section 22.008 of the Local Government Code, regarding an officer in default to the municipality.
RQ-0413-KP: The Honorable Donna Campbell, Texas Senate. Texas medical school compliance with the Coats-Snowe Amendment, which prohibits discrimination against health care entities that refuse to provide or undergo training for abortion.