AG Opinions and Requests

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

October 27, 2022

Legislative News

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Attorney General Opinions

 

KP-0413: Whether a payment to county officials from funds received under the American Rescue Plan Act requires notice as set forth in the Local Government Code (RQ‑0446‑KP). A court could conclude that “premium pay” funds given to elected county officials by Tyler County in 2021 through the federal American Rescue Plan Act under an interim final rule were akin to hazard pay and thus did not constitute salary increases requiring advance public notice under section 152.013 of the Local Government Code.

KP-0414: Meaning of the term “salary” as used in article 16, section 40, of the Texas Constitution (RQ‑0447‑KP). Article XVI, subsection 40(b) expressly permits a state employee or an individual who receives compensation from the state to serve as a member of the governing body of a city but prohibits the person from receiving a salary for the latter unless the person receives compensation from the state for work performed in certain capacities. Because of the multiple possible meanings of these terms, we cannot predict with certainty whether a court would conclude the Legislature equates the term “salary” with “compensation” in subsection 40(b). Whether the per meeting payment provided under section 3.04 of the Hutto City Charter may be construed to constitute the reimbursement of expenses rather than “salary” for purposes of subsection 40(b) is left to the discretion of the appropriate City officials in the first instance, subject to judicial review.

KP-0415: Whether section 51.221 of the Water Code authorizes a limited liability company to vote in an election conducted pursuant to that section (RQ‑0448‑KP). Section 51.221 of the Water Code authorizes a person who meets certain qualifications to vote in an election conducted by the Maverick County Water Control & Improvement District No. 1. A court would probably conclude that section 51.221 of the Water Code does not authorize the representative of a limited liability company to vote on behalf of the company in an election conducted by that District. To vote in such an election, a person must meet the eligibility requirements of section 51.221 in the person’s individual capacity.

KP-0416: Use of CARES Act funds to increase salaries of employees in a sheriff’s department in the middle of the budget year (RQ‑0451‑KP). A county commissioners court generally may not amend its budget to grant a salary increase to the employees in the sheriff’s office in the middle of a budget year in the absence of a finding of an emergency. But a commissioners court may amend the budget without an emergency to transfer funds from one budget item to another, subject to limitations in other law. To adopt a midyear budget amendment due to an emergency, the commissioners court must make a finding of fact about the existence of a “grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention.” Section 111.0106 of the Local Government Code authorizes a commissioners court to adopt a special budget for grant or aid money that is available for disbursement in the fiscal year but was not included in the budget for that fiscal year, for the limited purpose of spending the grant or aid money for its intended purpose. Whether funds from a particular grant may be used to give a prospective raise to employees of the sheriff’s office will depend on the “intended purpose” of the grant itself, as well as its terms and conditions.

KP-0417: Whether a magistrate has authority to modify a bond set by a magistrate in a different county where the accused was arrested (RQ‑0452‑KP). A court would probably conclude that a magistrate who issued an arrest warrant executed in another county may, until charges are filed in the appropriate court, modify a bond set by a magistrate from the arresting county pursuant to article 17.09, section 3, of the Code of Criminal Procedure. Article 17.09 does not expressly condition the authority to modify bonds on whether new bond conditions sought are mandatory or discretionary under the law.

KP-0420: Authority of a county to dispose of salvage property as salvage or waste under section 263.152 of the Local Government Code (RQ-0455-KP). Section 263.152 of the Local Government Code authorizes a county to periodically sell the county’s surplus or salvage property by competitive bid or auction. “Salvage property” is personal property, other than items routinely discarded as waste, that because of use, time, accident, or any other cause is so worn, damaged, or obsolete that it has no value for the purpose for which it was originally intended. When a county attempts to sell salvage property by competitive bidding or auction but receives no bids, the county may dispose of the property through a recycling program under which the property is collected, separated, or processed and returned to use in the form of raw materials in the production of new products. A commissioners court possesses implied authority to utilize recycling programs for the disposition of routinely discarded county waste, subject to other applicable law. Whether culverts the county removes from real property are “routinely discarded as waste” presents fact questions for the commissioners court to determine and cannot be resolved in an attorney general opinion.

Request for Attorney General Opinion

RQ-0478-KP: Public Utility Commission of Texas. Whether the Public Utility Commission has authority under Water Code section 12.013 to hear an appeal by a municipal utility of rates set by a water control and improvement district, or whether the Texas Commission on Environmental Quality has exclusive authority over such an appeal under Water Code section 51.305(d).

RQ-0479-KP: Chair, Senate Committee on Administration. Whether an application for a certificate of limitation on appraised value under Tax Code chapter 313 must reflect that all qualifying criteria are met on the date the application is submitted, or whether the criteria must be met before the certificate is issued.

RQ-0480-KP: Chair, House Committee on Public Education. Questions related to public-private partnerships for state-funded prekindergarten offered by Texas school districts under Education Code section 29.153.

RQ-0481-KP: Chair, Senate Committee on Local Government. Whether a public facility corporation created under Local Government Code chapter 303 has authority to acquire real property for leaseholds outside of its sponsor’s geographic jurisdiction, and whether such acquisition furthers a public interest.