News Article | March 24, 2023
AG Opinions and Requests
Attorney General Opinions
KP-0432: A court would likely conclude that Tax Code subsection 6.43(c) does not authorize the county attorney to serve as legal counsel to the tax appraisal district (RQ-0461-KP). Tax Code section 6.43 governs an appraisal review board's employment of personnel and expressly authorizes an appraisal review board, not a tax appraisal district, to utilize the legal services of the county attorney. A court would likely conclude that subsection 6.43(c) does not authorize the county attorney to serve as legal counsel to the tax appraisal district.
KP-0434: A person simultaneously volunteering as a firefighter for an emergency services district and a commissioner on the district's board of commissioners (RQ-0477-KP). A court would likely conclude that the common-law doctrine of incompatibility bars a person from simultaneously serving as a volunteer firefighter for an emergency services district and a commissioner on the district's board of commissioners.
KP-0435: Authority of a county to use tax revenue to pay a supplement to a hospital district in the county (RQ-0474-KP). The hospital district in which a county taxpayer resides and votes is of no legal consequence when it comes to the expenditure of county property tax revenue. A county entering into an agreement with a hospital district to provide ambulance services in the county will not violate article III, subsection 52(a) of the Texas Constitution as long as the county (1) ensures that the transfer of funds is to accomplish a public purpose of the county, not to benefit private parties; (2) retains public control over the funds to ensure that the public purpose is accomplished and to protect the public's investment; and (3) ensures that the county receives a return benefit. Whether an agreement satisfies the three-part test is for the county commissioners court to determine in the first instance, subject to judicial review. A "debt" as defined by Tax Code subsection 26.012(7) requires, among other things, that the indebtedness be "payable from property taxes in installments over a period of more than one year[.]" A court would likely conclude that an indebtedness payable in installments is one payable in periodic partial payments and, thus, an indebtedness payable in a lump sum over a period of one year or less does not constitute a debt as defined in subsection 26.012(7).
KP-0436: Authority of a county under Transportation Code chapter 251 to abandon or rename a public road not included in the county maintenance system (RQ-0475-KP). Transportation Code chapter 251 governs general county authority relating to roads and bridges. A court would likely conclude that subsection 251.051(a)(1) authorizes a commissioners court to abandon a public road that has not been accepted into a county's road maintenance system. Likewise, a court would likely conclude that subsection 251.013(b) authorizes a commissioners court to name or rename a public road that has not been accepted into the county's road maintenance system.
KP-0437: Authority of a public facility corporation sponsored by a municipal management district created under chapter 375 of the Local Government Code to act outside its geographical territory (RQ-0481-KP). Local Government Code chapters 303 and 375 respectively govern public facility corporations (PFCs) and municipal management districts (MMDs), including authorizing the creation of a PFC by an MMD. A court could conclude that, as a general matter, the two chapters allow a PFC to acquire real estate for leasehold outside its geographic boundaries. Whether a PFC should have this authority and the limitations of such authority are policy questions for the Legislature, especially when impacting taxing authority for another district.
KP-0438: Authority of a general-law city to offer trash collection services outside its geographic boundaries (RQ-0482-KP). A court could conclude that section 363.113 of the Health and Safety Code authorizes the City of Escobares to provide solid waste disposal service in the extraterritorial jurisdiction as a means of assuring solid waste management service is provided to all persons in the city's jurisdiction.
KP-0439: Constitutionality of legislation creating a Texas Education Savings Account (ESA) program for Texas children (RQ-0502-KP). Texas's Blaine Amendments – article I, section 7, and article VII, subsection 5(c) of the Texas Constitution – violate the Free Exercise Clause of the First Amendment to the U.S. Constitution. Accordingly, any law, action, or policy implemented in accordance with their prohibitions would be unconstitutional. An Education Savings Account program offering parents and students education assistance payments that can be directed to public and private schools, including "sectarian" schools, and that offers parents and students a genuine and independent choice to select a private religious school does not violate the Establishment Clause. An ESA program does not violate article VII, section 1, or subsection 5(c) of the Texas Constitution to the extent the program is an additional educational initiative and is not funded from the permanent school fund or available school fund.
Requests for Attorney General Opinion
RQ-0500-KP: Franklin County Attorney. Authority of a county commissioners court to adopt and enforce a moratorium regarding commercial solar projects.
RQ-0501-KP: Kerr County Attorney. Questions relating to the respective responsibilities of a county sheriff's office and the Texas Department of Criminal Justice regarding the detention and transportation of offenders to state jail facilities.
RQ-0502-KP: Senate Committee on Education. Constitutionality of legislation creating a Texas Education Savings Account program for Texas children.
RQ-0503-KP: Nueces County Auditor. Questions related to county's responsibility to provide a legal defense and to reimburse defense costs under Local Government Code section 157.901 or the common law to a district attorney subject to a removal proceeding brought under Local Government Code chapter 87.