AG Opinions and Requests

September 30, 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-0381: Whether a peace officer is prohibited from forcing entry into a residence or dwelling to enforce a parole revocation warrant for the arrest of a releasee (RQ-0416-KP). Chapter 508, subchapter H, of the Government Code authorizes the issuance of parole revocation warrants if a parolee violates a condition of a parole or in other specified circumstances. Under article 15.24 of the Code of Criminal Procedure, an officer executing a parole revocation warrant is authorized to use reasonable force to effectuate the warrant (like any other valid arrest warrant). If an officer has a reasonable belief that the suspect resides at the place to be entered and is present, the officer has authority to use reasonable force to enter the residence to execute the warrant.

KP-0382: Whether Texas law allows for a determination that a legislator has vacated office (RQ-0418-KP). Texas courts recognize that a vacancy may occur by abandonment of office. Whether a specific legislator abandoned his or her office such that a vacancy occurred will be a fact question for a court and is beyond the scope of an Attorney General opinion.

Through a quo warranto action, a district court may determine that a legislator has forfeited his or her office due to abandonment and can remove the legislator from office, thereby creating a vacancy.

KP-0383: Maximum allowable period of deferred adjudication community supervision for a third-degree felony under either Title 7 of the Penal Code or Chapter 481 of the Health and Safety Code (RQ-0398-KP). Under article 42A.053 of the Code of Criminal Procedure, the maximum period of regular community supervision for a third-degree felony under either Title 7, Penal Code or Chapter 481, Health and Safety Code is five years.

Under article 42A.103, the maximum period of deferred adjudication community supervision for all felonies is 10 years. Articles 42A.053 and 42A.103 do not conflict. The maximum allowable period of deferred adjudication community supervision for a felony, including a third-degree felony under either Title 7 of the Penal Code or Chapter 481 of the Health and Safety Code, is 10 years.

KP-0384 : Enforceability of city action transitioning to staggered elections for city officials (RQ-0399-KP). Subsection 23.026(b) of the Local Government Code authorizes a Type B general-law city to provide for two-year staggered terms for the mayor and city aldermen by ordinance. To the extent the municipal action at issue providing for such stagger was taken by resolution, it does not conform to the statute and is likely void.

To the extent the action was taken by ordinance pursuant to subsection 23.026(b), that provision contains no language allowing the aldermen to opt out of drawing lots to determine which aldermen have two-year terms. Similarly, subsection 23.026(b) does not authorize the city secretary to draw lots for the aldermen.

While a Type B general-law city may repeal a prior ordinance, such a repeal does not necessarily revive the prior law. Instead, a city must affirmatively adopt a new ordinance providing for the change in form of government. A meeting to adopt an ordinance must be posted as required by the Open Meetings Act in chapter 551 of the Government Code. An adopted ordinance must be published in three public places in the municipality or posted in a newspaper published in the municipality as required by chapter 52 of the Local Government Code. Failure to follow these posting and publication requirements would render the ordinance voidable under the Open Meetings Act or unenforceable under chapter 52 of the Local Government Code.

KP-0385: 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 (RQ-0400-KP). Authority of district attorney to represent the state in municipal court in litigation pertaining to Code of Criminal Procedure article 17.292 emergency protective order.

KP-0386 : Whether Executive Order GA-38 creates a right, privilege, power or immunity with regard to Texans' ability to not wear a face covering (RQ-0429-KP). Executive Order GA-38 generally prohibits a governmental entity, including a county, city, school district or public health authority, from requiring any person to wear a face covering or to mandate that another person wear a face covering.

Section 39.03 of the Penal Code makes it an offense for a "public servant acting under color of his office or employment" to intentionally deny or impede "another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful." Executive Order GA-38 creates immunity for Texans to be free from enforcement of most local governmental mandates that require face coverings. A court could find under certain facts that a governmental official intentionally denying that immunity to an individual by enforcing an unlawful face covering mandate is in violation of section 39.03 of the Penal Code.

Request for Attorney General Opinion

RQ-0426-KP: The Honorable Matt Krause, Chair, House Committee on General Investigating, Texas House of Representatives. Whether certain medical procedures performed on children without medical necessity constitute child abuse.

RQ-0427-KP: The Honorable Paul Bettencourt, Chair, Senate Committee on Local Government, Texas State Senate. Whether a school district may implement a policy making additional leave available to employees who are vaccinated for COVID-19 or medically exempt from the vaccination.

RQ-0428-KP: The Honorable Mark A. Gonzalez, Nueces County District Attorney. Whether Code of Criminal Procedure article 55.01(a)(1)(C), which provides for the expunction of all records and files relating to the arrest of a person convicted of unlawfully carrying certain weapons, includes expunction of the conviction itself.

RQ-0430-KP: The Honorable Pam Guenther, Jackson County Criminal District Attorney. Whether Article 5, section 1-a of the Texas Constitution prohibits a candidate from running for state judicial office if the candidate is 74 years of age on the date of the election but turns 75 before the term begins.

RQ-0431-KP: The Honorable Brandon Creighton, Chair, Senate Committee on Higher Education, Texas State Senate. Proper method for distribution of Coronavirus Relief Funds in a jurisdiction with a population under 500,000, but within a county with a population over 500,000.

RQ-0432-KP: The Honorable Dee Hobbs, Williamson County Attorney. Whether an executive order is enforceable as a “law” under subsection 1.07(a)(30) of the Penal Code.