Legislative Services

Attorney General Opinions

AC-0005: The opinion considers whether an executive order is enforceable as a "law" under subsection 1.07(a)(30) of the Penal Code (RQ-0432-KP). The opinion concludes, pursuant to section 418.012 of the Government Code, that executive orders issued by the Governor pursuant to his emergency powers under chapter 418 have the force and effect of law. The Penal Code defines "law" to include a rule authorized by and lawfully adopted under a statute. A court is therefore likely to conclude that executive orders authorized by and lawfully adopted pursuant to the Governor's statutory emergency powers constitute "laws" for purposes of subsection 1.07(a)(30) of the Penal Code.

KP-0445: Considers the application of Local Government Code section 120.002 to a county's transfer of a deputy constable from the constable's office to other county departments (RQ-0505-KP). The opinion provides 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 or reallocates resources of law enforcement agencies without voter approval. A constable's office is a law enforcement agency, and likely one with duties that constitute policing, criminal investigation or answering calls for service within the scope of subsection 120.002(a)(1). A threshold question whether those duties are the constable office's primary responsibility is a fact question that cannot be addressed in an Attorney General opinion. That question will ultimately be resolved through the complaint procedures set out in sections 120.006 and 120.007 and judicial review.

KP-0446: The opinion considers questions relating to the powers and duties of the Galveston Park board of trustees (RQ-0507-KP). The opinion concludes that Local Government Code chapter 306 authorizes certain municipalities to create a park board and gives such boards certain powers and responsibilities. While a home-rule municipality has the full power of self-government, it may not impose measures on a park board that conflict with state law. Because the Legislature has not spoken to the issue of removal in chapter 306, a court would likely find the chapter does not preempt a municipal ordinance removing a park or facility from the park board's management and control. Tax Code section 351.105 allows eligible coastal municipalities to contract for a park board to use a portion of the hotel occupancy tax for certain statutory purposes without further authorization beyond the contract. The extent to which a municipality may exercise control over the use of hotel occupancy tax funds allocated under section 351.105 will be determined by the provisions of the contract required by subsection 351.105(f)(1).

KP-0447: Considers whether an elected constable may serve as a student resource officer, employed as an independent contractor, with a school district located in the constable's precinct (RQ-0506-KP). The opinion provides that Education Code section 37.081 authorizes a school district to retain the services of a school resource officer. A court would likely conclude that a school resource officer may not be retained as an independent contractor. Neither Texas Constitution article XVI, subsection 40(a) nor the common-law doctrine of incompatibility prohibit a constable from acting as a school resource officer under a memorandum of understanding to retain the constable that complies with Education Code section 37.081.

KP-0448: The opinion considers whether the District Attorney's Office located in a standalone building with no other courts or court offices is a building that houses the operations of a district, county or justice court for purposes of an expenditure from the courthouse security fund (RQ-0509-KP). The opinion concludes, under Code of Criminal Procedure article 102.017(b), a county commissioners court may use monies from the courthouse security fund to purchase or repair bullet-proof glass related to buildings that house the operations of district, county or justice courts. A court would likely conclude that a building does not house the operations of a district, county or justice court if it is devoid of adjudicators.

KP-0449: Considers whether a county commissioners court may cede authority to the county judge to hire a county commissioner's spouse for a position that reports directly to the county judge; and related questions involving Government Code chapter 573 (RQ-0511-KP). A commissioners court has implied authority to employ persons necessary to carry out county business. A commissioners court may, through official action, delegate to the county judge its implied authority to employ persons. A court would likely conclude that a county judge who is delegated the commissioners court's implied authority to employ persons is prohibited by the anti-nepotism provision in Government Code section 573.041 from appointing the spouse of a county commissioner to a paid county position. Pursuant to Government Code section 573.083, a public official who makes, confirms or votes for an appointment or confirmation of an ineligible individual or who approves an account or authorizes the drawing of a warrant or order to pay the individual's salary potentially commits a misdemeanor involving official misconduct.

KP-0450: Considers the authority of the Hood County Development District No. 1 to add an additional member to its board of directors under Local Government Code chapter 383 (RQ-0002-AC). The opinion finds that Local Government Code section 383.041 provides that a county development district is governed by a board of five directors. Local Government Code subsection 383.048(d) establishes who may serve as a board's assistant or deputy secretary. A court would likely conclude that subsection 383.048(d) does not authorize a county development district to add a sixth director to its board.

Requests for an Attorney General Opinion

RQ-0007-AC: Sen. Brian Birdwell. Asks whether a school district board of trustees has the authority under Education Code section 37.0811(c)(1)–(2) to adopt local procedures to allow uniformed school marshals to duty belt carry their firearm.

RQ-0512-KP: Hardin County Attorney. Asks whether an elected county commissioner may use county equipment and labor to maintain an outfall ditch that lies solely on private property.

RQ-0513-KP: Johnson County Attorney. Considers whether Johnson County Emergency Services District No. 1 may operate a countywide ambulance service.

RQ-0514-KP: Cooke County Attorney. Asks whether equipment is a gambling device under section 47.01 of the Penal Code where its play involves a fixed or finite sweepstakes system.

RQ-0515-KP: Sen. Charles Perry. Asks for consideration of whether the refund of court costs required by Health and Safety Code subsection 571.018(j) is limited to patients who are committed to a mental health facility.

RQ-0516-KP: Nacogdoches County Attorney. Asks for consideration relating to the calculation of the amount "not to exceed one-fourth of one percent" in Texas Special District Code section 1069.211, governing the Nacogdoches County Hospital District's allocation of its sales and use tax revenue for economic development.

RQ-0517-KP: 31st Judicial District Attorney, Pampa. Asks whether a constable may simultaneously serve as a municipal court judge.

RQ-0518-KP: Liberty County Auditor. Asks whether county-owned law enforcement vehicles may be used for extra security jobs outside Liberty County.