Legislative Services

The Texas Association of Counties has highlighted recent attorney general opinions and requests for opinions of interest to counties. Summaries below are republished directly from opinion letters issued by the Office of the Attorney General without substantive editing.

Attorney General Opinions

KP-0520: Considers whether an amusement machine is considered a gambling device under the Texas Penal Code when the machine offers both chance-based and skill-based game modes (RQ-0637-KP). The opinion finds an amusement machine that offers both a chance-based game mode as well as a skill-based mode is a gambling device under Penal Code Chapter 47 so long as chance plays any role in determining whether the player receives something of value, regardless of the presence of skill.

KP-0522: The opinion request asked 20 separate questions relating to the authority of the commissioners court over the employees of local elected officials (RQ-0610-KP). The opinion finds, though it may be legally advisable, no statute requires all county elected officials to publicly advertise for job openings in their offices. Rather, any particular employment practice adopted by a commissioners court as to an elected official’s employee is permissible depends on (1) whether the action taken is within the authority of the commissioners court and, if so, (2) whether the action usurps or unreasonably interferes with the performance of the elected official’s constitutional or statutory duties. A commissioners court must restrict the amount of time that an employee may contribute to and withdraw from a county sick leave pool as provided in chapter 157, subchapter E of the Local Government Code.

KP-0524: Considers the authority of a county commissioners court to adopt a policy prohibiting use of county-owned law enforcement vehicles in the performance of private security jobs outside the county (RQ-0518-KP). The opinion provides to satisfy article III, subsection 52(a) of the Texas Constitution, a county’s vehicle use policy must ensure that a clear public benefit is realized by precluding the gratuitous use of county-owned vehicles, that a legitimate public purpose predominates over any benefits afforded to private parties, and that the county retains control over the vehicles’ use to ensure the public purpose’s accomplishment. We cannot conclude as a matter of law that a properly limited policy permitting county-owned vehicles to be used for private security jobs outside the county would invariably violate article III, subsection 52(a). The commissioners court may adopt a vehicle use policy that applies to a sheriff’s or constable’s office if the policy does not usurp or unreasonably interfere with the performance of the sheriff’s or constable’s core constitutional or statutory duties. Similarly, a sheriff or constable may adopt a vehicle use policy if it does not frustrate the commissioners court in performing its responsibilities. Whether any given policy meets these standards involves questions of fact that cannot be resolved in an Attorney General opinion.

KP-0525: The opinion request posed questions related to a probation officer’s authority related to juvenile detention hearings and ex parte communications (RQ-0591-KP). The opinion finds that a juvenile probation officer who serves as the intake officer or is otherwise considered an authorized officer of the court must release a child from custody under Family Code subsection 53.02(a) if they find that detention is not warranted under subsection 53.02(b), which does not require a hearing or judicial authorization. Moreover, hearing requirements under section 54.01 do not change when detention results from an alleged violation of probation. The opinion further finds that an email from a juvenile probation officer to a judge on the perceived legality of the prosecutor’s disposition recommendation constitutes an improper ex parte communication. Whether that email violates a child’s due process rights or must be disclosed under Brady, however, involves factual questions beyond the scope of an Attorney General opinion. Furthermore, though Article 39.14(a) of the Texas Code of Criminal Procedure does not require a juvenile prosecutor to disclose said email without a discovery request, Article 39.14(h) would require disclosure if the email tends to negate the defendant’s guilt or reduce their punishment. But that determination also implicates fact questions unsuited to an opinion.

KP-0526: The opinion asked about the applicability of Local Government Code § 120.002 to deputy constables subsequently assigned under an interlocal agreement (RQ0599KP). The opinion finds that for counties of the requisite population, Local Government Code section 120.002 generally prohibits a county commissioners court from adopting a budget for a fiscal year that reduces the funding or staffing for certain law enforcement agencies or reallocates resources of a law enforcement agency without voter approval. Reallocating resources from one constable’s office to another constable precinct would fall under subsection 120.002(a)(2) and require voter approval.

KP-0527: Requests consideration of the scope of municipalities’ authority to enter into intergovernmental support agreements with U.S. military installations. (RQ-0608-KP) The opinion finds Article VIII, section 3 of the Texas Constitution requires tax dollars to be spent for public purposes. When a home-rule municipality’s charter permits entry into an intergovernmental support agreement subject to section 793.002 of the Texas Government Code, the municipality’s expenditure of tax dollars to fulfill this municipal power may constitute a public purpose of the municipality. Nevertheless, the City of Socorro must determine in the first instance if a particular expenditure of tax dollars to fulfill its IGSA with the United States Army Garrison Fort Bliss, Texas accomplishes a public purpose of the City.

KP-0528: Requests consideration of the scope of “law enforcement agency” definition under Senate Bill 571 in relation to school district police department authority to investigate suspected child abuse or neglect. (RQ-0614-KP) The definition of “law enforcement agency” in Family Code subsection 261.001(3-a) applies throughout Chapter 261. Accordingly, a school district police department is not an “appropriate law enforcement agency” under either section 261.105 or 261.301.

KP-0529: Asks whether a school district trustee must resign upon announcing candidacy for justice of the peace and related compatibility questions. (RQ-0619-KP) The opinion states an independent school district trustee is not required to resign that office upon becoming a candidate for justice of the peace under article XVI, sections 40 or 65 of the Texas Constitution, Canon 5(3) of the Texas Code of Judicial Conduct, or the common-law doctrine of incompatibility. The common-law doctrine of incompatibility does not prohibit an independent school district trustee from simultaneously serving as a justice of the peace.

KP-0530: Questions regarding House Bill 4490 and the confidentiality of next of kin information under Article 49.25 of the Texas Code of Criminal Procedure. (RQ-0617-KP) The opinion holds we must apply statutory text as written by the Legislature. When it amended the Code of Criminal Procedure article 49.25, adding subsection 11(d), the Legislature elected to except next-of-kin information from required disclosure under the Public Information Act but chose not to make the information confidential. Therefore, subsection 11(d) permits a medical examiner’s office to withhold next-of-kin information from mandatory disclosure under the PIA but does not bar disclosure.

Requests for an Attorney General Opinion

RQ-0646-KP: Senate Committee on Business and Commerce. Questions municipal authority to regulate residential energy backup systems under Sections 229.102 and 214.211of the Local Government Code as amended by 89R SB1252.

RQ-0647-KP: House Committee on Intergovernmental Affairs. Questions whether a county treasurer may receive compensation as appointed legal counsel in the county in which he or she serves as county treasurer.

RQ-0648-KP: Webb County Attorney. Questions regarding the circumstances in which school districts must obtain the pre-service affidavit required by Texas Education Code § 22A.055.

RQ-0649-KP: Cooke County Auditor. Asks questions relating to the use and oversight of Law Enforcement Officer Standards and Education (LEOSE) by a Constables’ office and related reporting and oversight obligations of the County Auditor and Commissioners Court.

RQ-0650-KP: Hardin County Attorney. Asks whether Section 573.041 of the Government Code prohibits a Health Department Director from employing a relative of a County Judge or a County Commissioner.

RQ-0651-KP: Reeves County Auditor. Questions how and whether a county may pay an invoice for a purchase made without the authorization of the county purchasing agent.

RQ-0652-KP: House Committee on Land and Resource Management. Asks whether a municipality violates Section 54.202(b) of the Texas Utilities Code by entering into a franchise agreement under which a third party installs and provides fiber optic internet service to residents on a bulk basis.

RQ-0653-KP: Kinney County Auditor. Questions whether a county policy mandating centralization and supervisory authority over records maintained by independently elected and appointed officials under their scope of authority as the custodians of public information is authorized by Government Code § 552.201(b).

RQ-0654-KP: Senate Committee on Natural Resources. Asks whether use of standardized contracts by oil and natural gas pipeline and midstream companies result in unfair anticompetitive practices.

RQ-0655-KP: State Commission on Judicial Conduct. Questions whether the State Auditor’s Office may access confidential complaints, records, and documents filed with or are pending before the State Commission on Judicial Conduct, including documents prepared by staff attorneys that may be subject to attorney-client privilege.

RQ-0656-KP: Montgomery County Attorney. Questions the applicability of procedural requirements under 118.025(g) to county commissioners’ courts and county clerks for adoption of an Archive Plan and fees.

RQ-0657-KP: Harris County Attorney. Asks whether the Axon TASER 10 qualifies as a "firearm" under Texas Penal Code § 46.01(3).

RQ-0658-KP: Tom Green County Attorney. Asks whether property exempt from platting under §232.0015(1) triggers a duty by the Commissioner's Court to issue street names and 911 address.

RQ-0659-KP: Senate Committee on State Affairs. Questions whether Texas Health and Safety Code prohibits the involuntary commitment of persons diagnosed with dementia.