TITLE attorney-general

Opinions

Opinion No. GA-0276

The Honorable James L. Keffer

Chair, Committee on Economic Development

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether a home-rule city may extend a Tax Code, chapter 311 reinvestment zone's termination date beyond the date provided in the ordinance designating the zone (RQ-0238-GA)

S U M M A R Y

A home-rule city may not extend a Tax Code, chapter 311 reinvestment zone's termination date beyond the date provided in the ordinance designating the zone.

Opinion No. GA-0277

Mr. Ray Stelly, C.P.A.

San Jacinto County Auditor

1 State Highway 150, Room B1

Coldspring, Texas 77331

Re: Executive sessions of the San Jacinto County Commissioners Court (RQ-0241-GA)

S U M M A R Y

The county clerk is required by section 81.003 of the Local Government Code to keep the records of all open meetings of a commissioners court. The commissioners court as a governmental body has the discretion to allow or deny the county clerk admission to executive sessions of the court. The commissioners court as a governmental body is the proper custodian of the tape of an executive session, but it may delegate that duty to the county clerk. A commissioners court acts by majority vote of its members; a single member acting alone has no authority to alter court policy. A release of the tape of an executive session to the county clerk would not render the tape a public document under the Public Information Act. Such a tape may be released to the public only under court order.

Opinion No. GA-0278

The Honorable Frank J. Corte Jr.

Chair, Committee on Defense Affairs and State-Federal Relations

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether constitutional authorization of video lottery terminals on Indian tribal lands would permit Indian tribes to offer casino gambling in Texas (RQ-0214-GA)

S U M M A R Y

The Restoration Act does not authorize the Alabama- Coushatta and the Ysleta del Sur Pueblo tribes to operate VLTs on tribal land.

Whether a federally recognized Texas Indian tribe may negotiate with Texas under the Indian Gaming Regulatory Act about only the specific Class III games allowed by Texas law, or whether it may negotiate about all Class III games is an open question in this state.

A tribal-state compact for Class III gaming activities under the IGRA may include provisions allowing state assessments of gaming activities as necessary to defer the costs of regulating the gaming activities. A compact may not allow the state to receive a share of Class III gaming revenues unless the compact grants territorial exclusivity or another unique economic benefit to the tribe.

Opinion No. GA-0279

The Honorable Fred Hill

Chair, Committee on Local Government Ways and Means

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether the placement of one-party foreclosable contractual liens on land by a developer that supersede the homestead rights created in article XVI, section 50 of the Texas Constitution violates the Texas Homestead Act (RQ-0236-GA)

S U M M A R Y

A property owner may encumber real property with a covenant running with the land, which, depending on the particular instruments and circumstances involved, may be enforced by foreclosure without violating subsequent purchasers' constitutional and statutory homestead rights.

Opinion No. GA-0280

The Honorable Jose R. Rodriguez

El Paso County Attorney

County Courthouse

500 East San Antonio, Room 503

El Paso, Texas 79901

Re: Whether the Border Health Institute is a state agency for various purposes (RQ-0229-GA)

S U M M A R Y

The Border Health Institute is neither a state agency within the executive branch of state government nor a local political subdivision. The BHI may or may not be entitled to sovereign immunity. It must comply with the Open Meetings Act and the Public Information Act. It is not required to follow state procurement and contracting rules, nor is it subject to civil service rules. The BHI need not obtain nonprofit corporation status because it has statutory authority to solicit funding from public and private sources.

Opinion No. GA-0281

Mr. Lowry Mays, Chair

Board of Regents

The Texas A&M University System

Post Office Box C-1

College Station, Texas 77843

Re: Whether the Texas Workforce Commission Civil Rights Division is properly interpreting the equal employment opportunity training requirement of Labor Code section 21.556(a) (RQ-0240-GA)

S U M M A R Y

Section 21.556(a) of the Labor Code requires a state agency to provide equal employment opportunity training after three employment discrimination complaints have been filed against the agency other than complaints determined to be without merit. Section 21.556 does not require that the Texas Workforce Commission Civil Rights Division find reasonable cause that discrimination has likely occurred in order to determine that a complaint counts toward the training requirement. The Texas Workforce Commission Civil Rights Division rule establishing a procedure to determine whether a complaint is without merit reasonably construes section 21.556(a). However, the Commission's interpretation of the rule must be consistent with the rule's plain language.

Opinion No. GA-0282

Mr. Wayne Thorburn

Administrator

Texas Real Estate Commission

Post Office Box 12188

Austin, Texas 78711-2188

Re: Whether the Texas Real Estate Commission may establish by rule minimum service standards for a real estate broker who enters into an exclusive agency relationship with a party to a real estate transaction (RQ-0224-GA)

S U M M A R Y

The Texas Real Estate Commission has proposed three rules that purport to clarify a listing broker's duties when negotiating for a client. Proposed Administrative Code section 535.2(d), which provides that a listing broker may not refuse to provide certain services to that broker's principal, is valid. Proposed Administrative Code section 535.2(e), which prohibits behavior already prohibited by Occupations Code section 1101.652, is valid. Finally, proposed Administrative Code section 535.2(f), which describes conduct that would not violate agency rules or the Texas Real Estate License Act, is valid.

Opinion No. GA-0283

The Honorable Mike Stafford

Harris County Attorney

Appraisal District Section

Post Office Box 920975

Houston, Texas 77292-0975

Re: Whether Tax Code section 6.025(d) requires chief appraisers in overlapping appraisal districts to enter on the tax roll either the property's lowest market value or lowest appraised value established by the two districts, but not both the lowest market value and the lowest appraised value (RQ-0239-GA)

S U M M A R Y

With respect to property lying in overlapping appraisal districts, section 6.025(d) of the Tax Code requires the chief appraiser of each of the overlapping districts to enter in the appraisal records the lowest values, appraised and market, listed by any of the overlapping districts.

Opinion No. GA-0284

The Honorable Tom Maness

Jefferson County Criminal District Attorney

Post Office Box 2553

Beaumont, Texas 77704

Re: Which entity has authority to approve retirement and medical benefits for the Jefferson County Waterway and Navigation District Board members: the Jefferson County Commissioners Court or the Waterway and Navigation District Board (RQ-0243-GA)

S U M M A R Y

Section 62.070 of the Water Code, which authorizes a county commissioners court to determine "compensation" for navigation district commissioners, pertains only to monetary compensation. The navigation district may determine whether to provide district commissioners with retirement and medical benefits under sections 60.011 and 60.014 of the Water Code. The navigation district board also may determine whether to pay a portion of the commissioners' dependents' coverage under section 172.004 of the Local Government Code.

Opinion No. GA-0285

Donald W. Patrick, M.D., J.D.

Executive Director

Texas State Board of Medical Examiners

Post Office Box 2018

Austin, Texas 78768-2018

Re: Proper construction of Occupations Code section 155.051, which establishes a time period for applicants to take the medical license examination, and section 155.056, which limits the number of times an applicant may take the examination (RQ-0248-GA)

S U M M A R Y

The Texas State Board of Medical Examiners' interpretation of Occupations Code section 155.051, which establishes a time period for applicants to complete the medical license examination, and section 155.056, which limits the number of attempts to pass the examination, is reasonable and does not exceed the Board's statutory authority. Given the interest in protecting public health, section 155.051 is mandatory. Accordingly, the doctrine of substantial compliance is irrelevant to determining whether an applicant has complied with section 155.051.

Opinion No. GA-0286

Mr. R. Dyke Rogers, Chairman

Texas Racing Commission

Post Office Box 12080

Austin, Texas 78711-2080

Re: Whether the Texas Racing Commission may grant a license for a racetrack without a formal certification of election results to the Secretary of State; and whether the Commission may initiate a license application process for a county following a formal election certification that occurs more than ten days after the canvass of returns (RQ-0258-GA)

S U M M A R Y

As a restriction on the Texas Racing Commission's authority, section 16.01(a) of the Texas Racing Act is mandatory. Certification of local option election results must be made to the Secretary of State before the Texas Racing Commission may accept or act on a license application. The Texas Racing Commission has the discretion to determine whether a given action or document preceding a license application constitutes certification under section 16.01(a).

Section 16.12(a) is a statutory enactment concerning elections and, absent a showing that departure from the requirement changes the result of the election, ordinarily should be given a directory construction. Both the certification component and the timing component of section 16.12(a) are directory and require only substantial compliance. Questions of substantial compliance are fact questions outside the scope of the opinion process. Accordingly, this office cannot determine whether Webb County or Hidalgo County substantially complied with section 16.12(a), but leave that determination to the Commission.

Opinion No. GA-0287

Ms. Dale B. Farrow, P.E.

Executive Director

Texas Board of Professional Engineers

1917 IH-35 South

Austin, Texas 78741

Re: Whether the seal of a professional engineer licensed in Texas may be placed on engineering plans, specifications, and other documents relating to projects not to be constructed in Texas (RQ-0244-GA)

S U M M A R Y

A professional engineer licensed in Texas must place his seal on engineering plans, specifications, plats, and reports prepared under authority of his Texas license, even if the project will not be constructed in Texas. Whether documents prepared and sealed by an engineer under authority of his Texas license may legally be used for construction in another state or country depends upon the laws of that jurisdiction.

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

TRD-200407519

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: December 29, 2004