Re: Whether the seal of a professional engineer licensed in Texas may be placed on engineering plans, specifications, and other documents that are not to be constructed or created in Texas (Request No. 0244-GA)

Briefs requested by August 13, 2004

For further information, please access the website at www.oag.state.tx.us. or call the Opinion Committee at 512/463-2110.

TRD-200404527

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: July 14, 2004

Opinions

Opinion No. GA-0213

The Honorable Mary Denny

Chair, Committee on Elections

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Proper procedure, under article III, section 24a of the Texas Constitution, for the Speaker of the House of Representatives to nominate individuals to serve as members of the Texas Ethics Commission (RQ-0194-GA)

S U M M A R Y

Subsection (a)(3), article III, section 24a of the Texas Constitution requires that the Speaker of the House of Representatives appoint a Republican to the Texas Ethics Commission from a list of at least ten names submitted by Republican members of the House; and that he appoint a Democrat from a list of at least ten names submitted by Democratic members of the House. Nothing in article III, section 24a requires that the names be submitted by formal caucus or through any other sort of joint action of a political party. Rather, the Texas Constitution accords to individual members the right to submit to the Speaker the names of suggested appointees

Opinion No. GA-0214

D.C. Jim Dozier, J.D., Ph.D.

Executive Director

Texas Commission on Law Enforcement Officer Standards and Education

6330 U.S. Highway 290 East, Suite 200

Austin, Texas 78723

Re: Whether a peace officer may simultaneously hold a commission from more than one law enforcement agency (RQ-0163-GA)

S U M M A R Y

Unless a peace officer holds a "civil office" within Texas Constitution article XVI, section 40, that provision does not bar him from being employed and commissioned by two law enforcement agencies. A peace officer holds an office within article XVI, section 40, if a sovereign function of government is conferred upon him to be exercised for the benefit of the public largely independent of the control of others. This test must be applied on a case-by-case basis considering facts relevant to the specific peace officer's authority.

A peace officer does not violate the common-law doctrine of incompatibility solely because he is employed and commissioned by two different law enforcement entities and is responsible to two different employers. The common-law doctrine of incompatibility does not reach the practical difficulties involved in holding two positions. Attorney General Opinions O-1263 (1939) and H-727 (1975) are overruled to the extent they incorrectly define the common-law doctrine of incompatibility.

Opinion No. GA-0215

The Honorable Robert E. Talton

Chairman, Urban Affairs Committee

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether a peace officer may order the removal of a disabled vehicle to a location other than a licensed vehicle storage facility when the driver has not given consent to the removal (RQ-0164-GA)

S U M M A R Y

Section 545.305 of the Transportation Code authorizes a peace officer to order a nonconsent tow of certain vehicles to a nearby place of safety. However, section 643.206 of the Transportation Code does not authorize a towing company to assess a nonconsenting owner or interest holder a towing fee without taking the vehicle to a licensed vehicle storage facility.

Opinion No. GA-0216

The Honorable Kurt Sistrunk

Galveston County Criminal District Attorney

722 Moody, Suite 300

Galveston, Texas 77550

Re: Procedure for filling a vacancy in the office of district clerk (RQ-0165-GA)

S U M M A R Y

The district judges of Galveston County must unanimously assent to the appointment of a district clerk. If the judges cannot agree, they must certify that fact to the governor, who is required to order a special election to fill the vacancy.

For further information, please access the website at www.oag.state.tx.us. or call the Opinion Committee at 512/463-2110.

TRD-200404518

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: July 13, 2004