Blog | February 24, 2023
AG Opinions and Requests
Attorney General Opinions
KP‑0425: Whether an amusement machine is a gambling device under section 47.01 of the Penal Code where the amount awarded from play is determined partially by chance (RQ‑0457‑KP). A court would unlikely conclude that subsection 47.01(4) of the Penal Code excludes an amusement machine where the amount awarded from play is partially determined by chance.
KP‑0427: Authority of the Texas Optometry Board under section 351.005 of the Occupations Code to take action against licensed optometrists who are independent contractors (RQ‑0463‑KP). Whether a person under the physician's control, supervision or direction is exempt from regulation under Occupations Code subsection 351.005(a)(2)(B) does not turn on whether the person is an employee or independent contractor. And whether a physician's specific degree of supervision of an optometrist or treatment and care of a patient will impact the board's action against an optometrist involves fact questions that are outside the purview of an attorney general opinion. A legal entity wholly owned and controlled by at least one licensed physician that is also a manufacturer, wholesaler or retailer of ophthalmic goods is exempt from Occupations Code section 351.408 only if the legal entity has offices at three or fewer locations.
KP‑0428: Whether the city's employment of an attorney who is the son-in-law of the city manager constitutes a conflict of interest under chapter 176 of the Local Government Code or the Texas Disciplinary Rules of Professional Conduct (RQ‑0469‑KP). Employment of an attorney who is the son-in-law of the city manager and whether it constitutes a conflict of interest under chapter 176 of the Local Government Code or the Texas Disciplinary Rules of Professional Conduct.
KP‑0429: Authority to determine software systems for county departments (RQ‑0470‑KP). Section 203.001 of the Local Government Code makes a justice of the peace, as an elected county officer, the records management officer for his or her office for purposes of the Local Government Records Act. We cannot conclude as matter of law that a commissioners court, in selecting and purchasing a computer software system for the county over the objection of the justice of the peace, impermissibly intrudes on the officer's sphere of authority in the fulfillment of the officer's records management duties under the Act.
A justice of the peace seeking recourse would need to challenge the commissioners court's actions by invoking a district court's supervisory jurisdiction in article V, section 8 of the Texas Constitution through a properly filed lawsuit. A district court reviewing the matter may not substitute its policy judgment for that of the commissioners court but may set aside any actions of the commissioners court that are illegal, unreasonable or arbitrary.
KP‑0430: Required mental state under Local Government Code section 111.012, which creates a criminal offense for an officer, employee or official of a county government who refuses to comply with applicable budget preparation requirements (RQ‑0471‑KP). The mental states of reckless, knowing or intentional suffice for the prosecution of the criminal offense in Local Government Code section 111.012.
KP‑0431: Applicability of Texas' minimum wage laws to minor league baseball players when playing baseball for one of eight minor league teams in Texas (RQ‑0487‑KP). Considering whether two exemptions to the Texas Minimum Wage Act, Labor Code sections 62.151 (persons covered by the Fair Labor Standards Act) and 62.158 (employer that is an amusement or recreational establishment in certain instances) apply in the context of minor league baseball.
Requests for Attorney General Opinion
RQ‑0497‑KP: Kerr County Attorney. Whether a volunteer fire department is a political subdivision for purposes of a land exchange with a county under Local Government Code subsection 263.006(e).
RQ‑0499‑KP: Cameron County District Attorney. Whether an amusement machine is a gambling device under section 47.01 of the Penal Code where the amount awarded from play is determined entirely by skill.