Legislative Services

Attorney General Opinions

KP-0480: Asks whether House Bill 1763 and House Bill 1919, enacted by the 87th Legislature and codified in chapter 1369 of the Insurance Code, are enforceable against a health benefit plan issuer and a pharmacy benefit manager administering the pharmacy benefits of the health benefit plan in certain circumstances (RQ-0539-KP). Enacted by House Bill 1763 and House Bill 1919, subchapter M and subchapter L of chapter 1369 of the Texas Insurance Code regulate certain contracts with pharmacists and pharmacies and certain referral and solicitation practices concerning affiliated providers. Under United States Supreme Court precedent, neither subchapter has an impermissible connection with ERISA plans as they do not dictate plan choices or add requirements to beneficiary status. The two subchapters also do not refer to ERISA plans as they neither exclusively apply to those plans nor are ERISA plans essential to the laws’ operation. Therefore, a court would likely conclude that ERISA does not preempt either subchapter. In addition, nothing in the language of either subchapter limits their applicability to plans domiciled in Texas. Thus, a court would likely conclude that both subchapters are enforceable against an issuer or PBM that satisfy the statutory definitions and administer a plan covering Texas residents or contracting with Texas pharmacy providers regardless of where the plan is domiciled.

KP-0482: Authority of a county commissioners court to use county labor and equipment to open and close graves in private cemeteries (RQ-0541-KP). Under Chapter 791 of the Texas Government Code — the Interlocal Cooperation Act — a county may not agree to perform a governmental function or service for a cemetery organization unless the cemetery organization is a local government, an Indian tribe, or a state agency. Pursuant to Health and Safety Code subsection 694.002(a), the commissioners court of a county “shall provide for the disposition of the body of a deceased pauper.” To the extent a county proposes to establish a burial program that extends beyond the disposition of the body of a deceased pauper, it is not authorized under chapter 694. Health and Safety Code section 713.021 authorizes a commissioners court to establish by resolution “a perpetual trust fund to provide maintenance for a neglected or unkept public or private cemetery in the county.” A county that establishes a perpetual trust fund is not relieved from the prohibition against using county employees or equipment to open or close graves when those graves are in a private perpetual care cemetery or a cemetery maintained by a religious or fraternal organization.

KP-0483: Whether a taxing unit is entitled to recover attorney’s fees pursuant to Property Tax Code section 33.48 in certain circumstances (RQ-0544-KP). Section 33.07 of the Property Tax Code authorizes a taxing unit to impose a penalty to defray the costs of delinquent tax collection. The section 33.07 penalty is solely for the purpose of providing compensation to a contract attorney. Section 33.48 of the Property Tax Code provides that in a suit to collect a delinquent tax a taxing unit is entitled to recover attorney’s fees. However, a taxing unit may not both recover attorney’s fees under section 33.48 and impose the section 33.07 collection penalty. A court would likely conclude a taxing unit that contracts with a private attorney to enforce the collection of delinquent taxes may — in lieu of imposing the section 33.07 penalty — initiate a delinquent tax suit after February 1 but before July 1 of the year in which the taxes become delinquent and recover section 33.48 attorney’s fees.

KP-0484: Authority of the Texas Ethics Commission to toll its obligation under Government Code § 571.1242(g) in circumstances beyond litigation (RQ-0568-KP). Subsection 571.1242(g) of the Government Code unambiguously imposes a jurisdictional deadline by which the Texas Ethics Commission must take specified action on a complaint. Subsection 571.1244(2), on the other hand, concerns procedures for preliminary reviews and unambiguously pertains to procedural deadlines—not the Commission’s jurisdiction. This is likewise confirmed by the general objectives of the Commission’s enabling framework, which aims to streamline the complaint process such that the Commission’s failure to timely resolve claims during preliminary review results in a loss of jurisdiction over the underlying allegations. As such, the Commission may not toll its jurisdictional deadline outside of litigation. Rules that provide otherwise are facially invalid insofar as they conflict with both the plain text and general objectives of the Commission’s enabling framework.