AG Opinions and Requests

March 19, 2021

Legislative News

  • Share this:

TAC has highlighted recent Attorney General Opinions and Requests for Opinions of interest to counties.

Attorney General Opinions

KP-0357: Jurisdiction of a criminal district attorney to prosecute federal officials who violate criminal provisions of the Election Code (RQ-0376-KP). Determining whether authority exists to prosecute in any specific situation requires multiple factual determinations, which are outside the scope of the opinion process of this office.

The Sixth Amendment to the U.S. Constitution and article 33.03 of the Code of Criminal Procedure establish a right of the accused to be present in the courtroom through the conclusion of trial proceedings. Under article 33.03, an accused’s right to be present at his trial is non-waivable even by the accused until such a time as the jury has been selected.

KP-0359: Whether subsection 38.001(f) of the Education Code and title 25, section 97.62 of the Administrative Code allow school districts, during an epidemic, to exclude students who decline vaccinations for reasons of conscience even when such vaccinations are unrelated to the epidemic (RQ-0364-KP). Pursuant to subsection 38.001(f) of the Education Code, the Legislature provided that a student who has not received the immunizations required by law “for reasons of conscience, including because of the person’s religious beliefs, may be excluded from school in times of emergency or epidemic declared by the commissioner of public health.” Read in context, a court likely would conclude that this exception does not permit exclusion of students who lack vaccinations unrelated to an existing "epidemic" contemplated by subsection 38.001(f).

Depending on the particular facts at issue, a court could find exclusion from school for refusal to obtain a vaccine unrelated to the existing epidemic to be arbitrary and unreasonable and overturn the exclusion for this purpose.

Further, to the extent a school was to exclude a student who had declined required immunizations unrelated to an existing epidemic due to a sincere religious belief, a court could find this to be a substantial burden on the student’s religious freedom and potentially a violation of the U.S. and Texas Constitutions. Accordingly, subsection 110.003(a) of the Civil Practice and Remedies Code requires that only the least restrictive means of furthering a compelling government interest may be utilized in placing such a substantial burden. If less restrictive means exist to accomplish that objective, a court could find that a specific student’s exclusion in such circumstances from school under Education Code subsection 38.001(f) violates the Texas Religious Freedom Restoration Act.

KP-0360: Application of Government Code chapter 573, regarding nepotism, to the candidacy for sheriff of a person who is a brother of the current county judge, and associated questions regarding the county judge’s role as a member of the county commissioners court with respect to budget and election matters involving the sheriff (RQ-0378-KP). County judge’s brother’s candidacy for sheriff does not violate nepotism or conflict-of-interest statutes in described circumstances.

KP-0361: Whether article III, section 53 of the Texas Constitution prohibits a one-time bonus for the administrative staff of the county’s justices of the peace. (RQ-0380-KP). To the extent one-time bonuses constitute extra compensation for certain work performed by justice court clerks, article III, section 53 of the Texas Constitution prohibits the payment of the bonuses retroactively. A prospective bonus approved prior to the rendering of services would not run afoul of article III, section 53.

KP-0362: Government restrictions on an individual’s right of access to clergy due to the COVID-19 pandemic (RQ-0383-KP). To the extent that other less restrictive safety protocols further the government’s interest in stemming the spread of COVID-19, a court would likely conclude that prohibiting an individual’s access to clergy only when facing death violates the state and federal constitutions and the Texas Religious Freedom Restoration Act because it is not the least restrictive means of achieving such compelling interest.

KP-0363: Whether under the Utilities Code the Public Utility Commission has the legal authority to issue orders affecting pricing for the wholesale electricity market and ancillary services (RQ-0401-KP). The Utilities Code gives “complete authority” to the Public Utility Commission to adopt and enforce rules relating to reliability and accounting for the production and delivery of electricity among market participants. Specifically, subsection 39.151(d) of the Utilities Code authorizes the Public Utility Commission to oversee and investigate the independent organization (ERCOT) as necessary to ensure ERCOT’s accountability and to ensure that it adequately performs its functions and duties. Within the regulatory timelines, ERCOT can also revise pricing on the wholesale electricity market if certain events occur.

Under the plain language of subsection 39.151(d), the Public Utility Commission has complete authority to act to ensure that ERCOT has accurately accounted for electricity production and delivery among market participants in the region. Such authority likely could be interpreted to allow the Public Utility Commission to order ERCOT to correct prices for wholesale electricity and ancillary services during a specific timeframe.

A court would likely find that such corrective action by the Public Utility Commission under subsection 39.151(d) does not raise constitutional concerns, namely under article 1, sections 16 and 17 of the Texas Constitution, provided that such regulatory action furthers a compelling public interest.

Request for Attorney General Opinion

RQ-0400-KP: The Honorable Mark A. Gonzalez, Nueces County District Attorney. Authority of a district attorney to represent the State in litigation over an emergency protective order under Code of Criminal Procedure article 17.292 issued by a municipal judge sitting as a magistrate.