url
stringlengths 54
59
| text
stringlengths 0
4.79M
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/4128741/
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 12,2005
Mr. Rex Emerson Opinion No. GA-0354
Kerr County Attorney
County Courthouse, Suite BA- 103 Re: Whether an elected public official may accept
700 Main Street payment for completing a terrn as president of a
Kerrville, Texas 78028 private association of elected public officials
(RQ-0324-GA)
Dear Mr. Emerson:
You ask whether an elected public official may accept payment for completing a term as
president of a private association of elected public officials and whether the association may offer
such a payment.’
Your question concerns a payment the County and District Clerks Association of Texas
(“CDCAT” or the “Association”) traditionally makes to its outgoing president. Request Letter,
supva note 1, at 1. The Association is a private, nonprofit corporation.2 Its bylaws state that the
Association’s purpose is “to promote professional standards, to provide a means for the education
of its members regarding the statutory and constitutional duties of the offices of the county clerk and
the district clerk, and to participate in the legislative, judicial and executive processes of state
government beneficial in the performance of the members’ duties.” See Bylaws, supra note 2, at 1.
The Association has five classes of members, of whom only the “active member” class
possesses voting rights. Id. at l-2. Active members are those “elected or duly appointed county
clerks, district clerks, and county and district clerks, presently serving in their respective offices,”
who are current on their dues and continuing education requirements. Id. at 2. The bylaws
‘See Letter from Honorable Rex Emerson, Kerr County Attorney, to Honorable Greg Abbott, Texas Attorney
General (Mar. 9, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter
Request Letter].
2See Bylaws of the County and District Clerks Association, A Non-Profit Corporation (Jan. 15,2002) (on file
withopinion Committee, aZso available at http://www.texasclerks.org/pdf/Bylaws.pdf) [hereinafter Bylaws]. See also
Brief from Edward M. Shack, on behalf of the County and District Clerks Association of Texas, to Honorable Greg
Abbott, Texas Attorney General (Apr. 21,2005) ( on f 11e with Opinion Committee) (noting the Association’s status as
a nonprofit corporation under section 50 l(c)(3) of the Internal Revenue Code) [hereinafter CDCAT BriefJ; Tex. Att’y
Gen. LO-97-077, at 3 (discussing CDCAT’s status as a private association).
The Honorable Rex Emerson - Page 2 (GA-0354)
further state that the Association’s “officers shall be from the active membership.” Id. at 4. The
Association’s officers are president, vice president, secretary, treasurer, and the immediate past
president. Id. These officers comprise the executive board, which is responsible for everyday
operations. Id. at 5. The bylaws recommend that the Association’s offices alternate between county
and district clerks, with a county and district clerk serving as one of the officers at least every fifth
year. Id.
The president is the Association’s chief executive officer. Id. The Association informs us
that the president, “in general supervises and controls all the business and affairs of the Association,”
and that the president’s duties include:
l liaison with the Legislature
l chairing meetings of the Executive Board
l chairing and conducting meetings of the members and the Board of Directors
l appointing committees within the Association
l developing strategic and long term plans
l appointing numerous officers and positions within the Association
l promoting the purpose of the [Alssociation
l exercising any and all residual authority of the Association.
CDCAT Brief, supra note 2, at 1. The bylaws authorize reimbursement of directors’ expenses, but
state that “[alny other compensation is prohibited unless expressly approved by the board of
directors.” Bylaws, supra note 2, at 20. You state that traditionally, the Association has paid $5,000
to the outgoing president. Request Letter, supra note 1, at 1. You are concerned that the payment
may violate the Penal Code because it may be a prohibited honorarium under section 36.07 and a
prohibited gift under section 36.09. Id. at 2; see TEX. PEN. CODE ANN. $9 36.07(a), .09(a) (Vernon
2003).3 The Association, on the other hand, disputes that the payment is an honorarium, stating that
instead it is legitimate compensation for services rendered as president of a private association, not
rendered in the person’s capacity as an elected public official. See CDCAT Brief, supra note 2,
at 1. Thus, we construe Penal Code sections 36.07 and 36.09 to determine if they prohibit such
payments.
Statutory construction should focus initially “‘on the literal text of the statute in question’
because ‘the text of the statute is the law.“’ Getts v. State, 155 S.W.3d 153, 155 (Tex. Crim. App.
2005) (quoting Boykin v. State, 8 18 S. W.2d 782,785 (Tex. Crim. App. 1991), the Court of Criminal
Appeals’ “leading case in statutory interpretation”). A statute’s words and phrases are to be read in
context and given their common meaning unless they have acquired a technical or particular meaning
by definition or otherwise. See Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999)
(applying the rule of construction in TEX. GOV’T CODE ANN. 8 3 11 .Ol 1(a)-(b) (Vernon 2005) to
‘Both offenses are Class A misdemeanors. TEX. PEN. CODEANN. 5s 36.07(c), .09(b) (Vernon 2003). The
punishment for a Class A misdemeanor is a fine not exceeding $4,000, confinement in jail for not longer than one year,
or both. Id. 5 12.21.
The Honorable Rex Emerson - Page 3 (GA-0354)
construe section 39.03 of the Penal Code, the offense of official oppression).4 If a statute’s language
is clear and unambiguous the statute is construed according to its plain meaning. Getts, 155 S.W.3d
at 155. Certain “extra-textual factors” such as legislative history may be considered only when a
statute is ambiguous or when a literal interpretation would lead to absurd results. See id. at 155; EX
parte Spann, 132 S.W.3d 390,393 (Tex. Crim. App. 2004).
We consider sections 36.07 and 36.09 in the context of chapter 36 of the Penal Code as a
whole. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). Chapter 36, entitled
“Bribery and Corrupt Influences,” deals generally with offenses involving a “public servant,” who
is an “officer, employee, or agent of government,” which includes “a county, municipality, or
political subdivision of the state.” See TEX. PEN. CODE ANN. $ 1,07(24)(B), (41)(A) (Vernon Supp.
2004-05). Chapter 36 defines four terms, only one of which, the broad definition of “benefit,” is
pertinent to your inquiry. See id. 5 36.01(3) (Vernon 2003) (a benefit in the chapter is “anything
reasonably regarded as pecuniary gain or pecuniary advantage”). Chapter 36 proscribes conduct
such as bribery, section 36.02; coercion of a public servant or voter, section 36.03; attempts to
influence the outcome of certain proceedings, section 36.04; and similar offenses. See id. $5 36.02-
.06 (Vernon 2003 & Supp. 2004-05). As discussed in more detail below, section 36.07 prohibits
public servants from accepting certain honoraria. See id. § 36.07 (Vernon 2003). Section 36.08
prohibits a public servant from accepting any benefit from a person subject to the jurisdiction of the
public servant or the public servant’s employer. See id. 4 36.08. Section 36.09 prohibits a person
from offering or conferring a benefit on a public servant that the public servant cannot legally accept.
See id. 9 36.09. Section 36.10 provides that sections 36.08 and 36.09 do not apply to certain
benefits, most notably to any benefit “for which a [public servant] gives legitimate consideration in
a capacity other than as a public servant.” See id. 9 36.10(a)(l) (Vernon Supp. 2004-05).
We first consider the offense of accepting an honorarium, proscribed in Penal Code section
36.07(a) as follows:
A public servant commits an offense if the public servant solicits,
accepts, or agrees to accept an honorarium in consideration for
services that the public servant would not have been requested to
provide but for the public servant’s official position or duties.
Id. ?J36.07(a) (V emon 2003). The term “honorarium” is not defined in the Penal Code, and the
word’s only other appearance in the current statutes sheds little light on its meaning. See TEX.
GOV’TCODEANN. 8 2205.036(b)(3) (V emon 2000) (providing that the State Aircraft Pooling Board
shall not provide air transportation to a passenger who “will perform a service or has performed a
service for which the passenger is to receive an honorarium, unless the passenger reimburses the
4The Penal Code provides, “Unless a different construction is required by the context, Sections 3 11 .O11,
311.012,311.014,311.015, and31 1.021 through31 1.032 ofchapter 311, Government Code (Code Construction Act),
apply to the construction of this code.” TEX. PEN. CODEANN. $ 1.05(b) (Vernon 2003).
The Honorable Rex Emerson - Page 4 (GA-0354)
board for the cost of transportation”). Also, we have not located a Texas judicial decision that
construes current section 36.07 or defines “honorarium” in any other context?
This office has reviewed the common meaning of the term “honorarium”:
An honorarium . . . is sometimes defined as a payment or reward,
usually in recognition of services on which custom or propriety
forbids any fixed business price to be set. It may be a free gift or
gratuitous payment, as distinguished from hire or compensation for
service[ s] . . . . Thus, the word is commonly used to embrace both the
concept of gift and of compensation.
Tex. Att’y Gen. Op. No. H-551 (1975) at 4 (citations omitted), see also Tex. Att’y Gen. Op. Nos.
GA-0256 (2004) at 2-3, DM-397 (1996) at 3-4; Op. Tex. Ethics Comm’n No. 19 (1992) at 2 n. 1.
Likewise, the Ethics Commission (the “Commission”) has noted that an “honorarium” is commonly
understood to be “‘a payment in recognition of acts or professional services for which custom or
propriety forbids a price to be set.“’ Op. Tex. Ethics Comm’n No. 401 (1998) at 2 n. 1 (quoting
definition from RANDOM HOUSE UNABRIDGED DICTIONARY 9 18 (2d ed. 1993)).
The Commission, authorized to advise about the application of Penal Code chapter 36,6 has
determined that fees for speaking, teaching, and certain other services are included in the term
“honorarium.” Op. Tex. Ethics Comm’n Nos. 305 (1996) at 1 n. 1 (speaking and teaching fees can
be an honorarium); 425 (2000) at 2 (severance pay and moving expenses paid to an employee who
has accepted state employment may constitute an honorarium); 416 (1999) at l-2 (payment of a
research grant to a legislative employee pursuing a graduate degree may be an honorarium); 294
(1995) (stating that acceptance of payment for teaching may be an honorarium). The Commission
has concluded that an honorarium payment “in consideration for services” can be either payment of
contractual consideration or payment “in appreciation for” such services. Op. Tex. Ethics Comm’n
No. 97 (1992) at 1. And the Commission has determined that a payment may be an improper
honorarium regardless of whether the person offering the payment is also the person requesting
services. Op. Tex. Ethics Comm’n No. 425 (2000) at 2 n.3. However, the Commission has not
attempted to establish the parameters of the term “honorarium” as it appears in section 36.07. Op.
Tex. Ethics Comm’n No. 192 (1994) at 2 n.4 (stating that the “Ethics Commission has not
considered whether there are circumstances in which a fee may not be an honorarium”); accord Op.
‘Formerly, section 36.07 was assigned to the offense of compensating a public official for past official behavior.
See Act of May 24,1973,63d Leg., R.S., ch. 399,s 1,1973 Tex. Gen. Laws 883, amended by Act of June 2,1975,64th
Leg., R.S., ch. 342, 8 11, 1975 Tex. Gen. Laws 915, repealed by Act of May 28, 1983, 68th Leg., R.S., ch. 558, 9 3,
1983 Tex. Gen. Laws 3238; see also Garza v. State, 579 S.W.2d 220 (Tex. Crim. App. 1979) (upholding conviction of
bail bondsman under former section 36.07 for paying a county jailer for referrals). That offense was repealed in 1983,
and in 199 1, section 36.07 was reassigned to the offense of acceptance of a prohibited honorarium. See Act of May 27,
1991,72dLeg.,R.S., ch. 304, $4.03, 1991 Tex. Gen. Laws 1321-22,amendedbyActofMay29,1993,73dLeg.,R.S.,
ch. 900, $ 1.01, 1993 Tex. Gen. Laws 3586.
6See TEX. GOV’T CODEANN. 6 57 1.09 1(a) (Vernon 2004).
The Honorable Rex Emerson - Page 5 (GA-0354)
Tex. Ethics Comm’n Nos. 305 (1996) at 2 n. 1; 3 12 (1996) at 2 n. 1. For purposes of this opinion,
we assume the payment you describe is an honorarium and turn to whether it is prohibited under
Penal Code section 36.07.
From the plain language of the statute, whether an honorarium was paid “in consideration
for services that the public servant would not have been requested to provide but for the public
servant’s ofIicia1 position or duties” depends on the motivation of the person or persons requesting
the public servant to provide the services. TEX. PEN. CODEANN. 5 36.07(a) (Vernon 2003); see also
Op. Tex. Ethics Comm’n No. 305 (1996) at 2 n.2. As the Commission has stated, “an honorarium
is permissible as long as the public servant’s official status was not a deciding factor in the decision
to request the public servant to perform the services at issue.” Id. at 1.
Recently, in Attorney General Opinion GA-0256, this office considered whether section
36.07 applies when a commissioned peace officer receives compensation for working off-duty for
a private employer. Tex. Att’y Gen. Op. No. GA-0256 (2004). The opinion concluded that section
36.07 would not apply to a peace officer’s typical off-duty employment because generally it is a
commissioned officer’s experience and training that is of value to a private employer, not the
officer’s official status with a particular law enforcement agency. Id. at 3-4. Similarly, the
Commission has determined that the honorarium provision in section 36.09 would not prohibit a city
employee from performing services as a fingerprint expert for a defense attorney in another state,
based on the assumption “that a fingerprint expert is generally asked to perform services because of
his expertise and not because he is employed by a particular city.” Op. Tex. Ethics Comm. No. 3 12
(1996) at 1; see also Op. Tex. Ethics Comm. No. 305 (1996) at 1 (university professors may be
compensated for performing outside services sought “because of their academic expertise and not
because they hold a position at a particular institution”).
Here, the Association requires its officers to be active members. Because it is an association
of public servants, its officers also will be public servants. But as discussed earlier, whether section
36.07 prohibits an honorarium to a public servant depends on the motivation ofthe person or persons
requesting the public servant to provide the services. See Op. Tex. Ethics Comm’n No. 305 (1996)
at 2 n.2. The Association selects its president by majority vote of its active members. Although we
cannot know the motives of the various Association members when they voted for the president,
presumably they considered such factors as pertinent experience and commonality of interest. We
believe it unlikely that a person is elected president because the person serves as the clerk of a
particular county or district. Moreover, a finder of fact could conclude that a payment made to the
outgoing president is for services rendered as president of a private association, unrelated to the
person’s official position as clerk of a particular county or district. Chapter 36 (“Bribery and Corrupt
Influence”) does not prohibit a public servant from accepting all compensation from private sources.
As the Commission has stated, “Penal Code chapter 36 restricts the acceptance ofbenefits by [public
servants] but permits a [public servant] to accept a fee for work performed in a capacity other than
a [public servant] . . . .” Op. Tex. Ethics Comm’n No. 408 (1998) at 1. If a person is elected
president of a private association because of the person’s skills and abilities to perform the duties
of president and not because the person is clerk of a particular county or district, then acceptance of
The Honorable Rex Emerson - Page 6 (GA-0354)
fair compensation for services as the association’s president would not violate Penal Code section
36.07. See TEX. PEN. CODE ANN. $ 36.07(a) (Vernon 2003).
We next consider your second question-whether a private association violates section 36.09
of the Penal Code by making a payment in consideration of the outgoing president’s prior year’s
services when that person is a county or district clerk and by definition a public servant. Section
36.09 broadly prohibits a person from offering, conferring, or agreeing to confer a benefit on a public
servant knowing that the public servant is prohibited by law from accepting it. See TEX. PEN. CODE
ANN. 8 36.09(a) (Vernon 2003). As explained above, it is unlikely that acceptance of the described
payment would be prohibited by section 36.07. In any event, section 36.09 does not apply to “any
. . . benefit to which the public servant is lawfully entitled or for which he gives legitimate
consideration in a capacity other than as a public servant.” Id. 8 36.1 O(a)( 1) (Vernon Supp. 2004-
05). It appears that the outgoing president receives a payment for services as an officer of a private
association, not in the person’s capacity as a local county or district clerk. If that is the case, then
section 36.09 does not prohibit the payment.
The Honorable Rex Emerson - Page 7 (GA-0354)
SUMMARY
A payment by a private association of public officials,
compensating one of its members for services as its immediate
past president, does not per se violate Penal Code sections 36.07,
concerning prohibited honoraria, or 36.09, concerning the offer
of a gift to a public servant. Section 36.07 does not prohibit fair
compensation to a person for services as the president of a private
association, assuming the person was elected president because of the
person’s skills and abilities and not because the person is a public
servant of a particular county or district. Section 36.09 does not
prohibit payment to a person for legitimate consideration rendered in
a capacity other than as a public servant.
Very truly yours,
Attom&&&al of Texas
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Connnittee
William A. Hill
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4128742/
|
ATTORNEYGENERAL OF TEXAS
GREG ABBOTT
August 29,2005
The Honorable A. J. (Jack) Hartel Opinion No. GA-0353
Liberty County Attorney
Post Office Box 9 127 Re: Allocation of county funds to a hospital
Liberty, Texas 775759127 district that does not comprise the entire county
(RQ-0322-GA)
Dear Mr. Hartel:
Your office inquires about the allocation of county funds to the newly created Liberty County
Hospital District No. 1 (the “District”). You inform us the District is wholly contained within
Liberty County (the “County”), but its geographic territory is not conterminous with the County’s
geographic territory. ’ Pursuant to Health and Safety Code chapter 286, the applicable statute
governing the creation of hospital districts, the County is obligated to transfer to the District, inter
alia, its operating funds and reserves. See Request Letter, supra note 1, at 1; see also TEX. HEALTH
& SAFETYCODE ANN. 0 286.071 (Vernon 2001). At the same time, because the District does not
comprise the entire County, the County must retain some funding in order to fulfill its obligations
to provide care to County residents who do not reside within the District’s geographic boundaries.
See Request Letter, supra note 1, at 2. Thus, you present three formulas by which the County could
divide the funds between the County and the District and ask us to opine whether the County can
“use any one of the[] calculations, at its discretion” and still comply with the law. Id.
I. LePal Backmound
A. Health and Safety Code Chapter 286
You inform us that the District was created by special election pursuant to chapter 286 of the
Texas Health and Safety Code. See id. at 1. Once created, a hospital district “assumes full
responsibility for operating hospital facilities and for furnishing medical and hospital care for the
district’s needy inhabitants.” TEX. HEALTH& SAFETYCODE ANN. 8 286.073(a)( 1) (Vernon 2001).
Specifically, a hospital district is charged with supplying to “patient[s] residing in the district the care
and treatment that the patient or a relative of the patient who is legally responsible for the patient’s
support cannot pay.” Id. 5 286.082(a). In addition to assuming the obligation to care for resident
indigents, a hospital district is required to “assume[] any outstanding indebtedness incurred” by a
political subdivision in which “all or part of the district is located in providing hospital care for
residents of the territory of the district before the district’s creation.” Id. 5 286.073(a)(2).
‘See Request Letter from Mark Beausoleil, First Assistant County Attorney on behalf of Honorable A. J. (Jack)
Hartel, Liberty County Attorney, to Honorable Greg Abbott, Texas Attorney General (Feb. 28, 2005) (on file with
Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable A. J. (Jack) Hartel - Page 2 (GA-0353)
Political subdivisions in which a hospital district is located are required by chapter 286 to
convey or transfer to the district:
(1) title to land, buildings, improvements, and equipment
related to the hospital system located wholly in the district that are
owned by the [political subdivision] in which the district is located;
(2) operating funds and reserves for operating expenses and
funds that have been budgeted by the [political subdivision] in which
the district is located to provide medical care for residents of the
district for the remainder of the fiscal year in which the district is
established;
(3) taxes levied by the [political subdivision] in which the
district is located for hospital purposes for residents of the district for
the year in which the district is created; and
(4) funds established for payment of indebtedness assumed
by the district.
Id. § 286.07 1 (emphasis added). Your question relates to transferring operating funds under section
286.071(2). By its plain language, see Carmona v. State, 76 S.W.3d 29, 3 1 (Tex. App.-Amarillo
2001, pet. ref d) (“We look to the literal text of the statute and apply the plain meaning of its
words.“), section 286.071 requires a political subdivision, here a county, to transfer only the
operating funds necessary to provide care to the “residents of the district.” TEX. HEALTH & SAFETY
CODE ANN. 5 286.071(2)-(3) (V emon 2001) (emphasis added). Once a hospital district is created
in a political subdivision, the political subdivision is thereafter prohibited from levying taxes or
issuing bonds or other obligations “for hospital purposes or for providing medical care for the
residents of the district.” Id. $ 286.072 (emphasis added).
B. Health and Safety Code Chapter 61- Indigent Health Care and Treatment Act
Pursuant to chapter 6 1 of the Texas Health and Safety Code, a county “shall provide health
care assistance . . . to each of its eligible county residents.” Id. 0 6 1.022(a). An “eligible county
resident” is a person who meets the income and resources requirements established by chapter 61
or the political subdivision, see id. 8 61.002(3), (6)’ and who does not reside in the service area of
a public hospital or hospital district. See id. 8 61.002(2). A county is thus not required to provide
“health care services” and assistance2 to a county resident who resides in the service area of a public
‘A county is directed by chapter 61 to provide the following basic health care services:
(1) primary and preventative services designed to meet the needs of the community, ...;
(2) inpatient and outpatient hospital services;
(3) rural health clinics;
(continued...)
The Honorable A. J. (Jack) Hartel - Page 3 (GA-0353)
hospital or hospital district. Id. 5 61.033(a)(l). You do not ask about chapter 61 of the Health and
Safety Code, but our examination of it reveals no requirements or guidelines directing a county’s
apportionment of the specified operating funds.
Thus, pursuant to chapter 286, a county in which a hospital district is created must transfer,
among other things, its “operating funds and reserves for operating expenses and funds that have
been budgeted . . . to provide medical care for residents of the district.” Id. 8 286.07 1(a)(2). And
pursuant to chapter 61, a county is still charged with the duty to provide medical care assistance to
each eligible county resident not residing within the hospital district’s territory. See id. fj9 6 1.02 l-
.022. Where a newly created hospital district encompasses an entire county, all county funds
budgeted for indigent health care services should be transferred. However, where the territory of a
new hospital district does not comprise the entire territory of the county, less than the whole amount
of county funds is to be transferred. See id. § 286.071(2) (transfer of funds required to “provide
medical care for residents of the district”). This is particularly true because that same county must
still provide health care services for those indigent county residents who do not reside in the hospital
district. See id. $8 61.022(a), .028(a), .033(a)(l).
II. Questions
With this understanding of the issue confronting Liberty County, we address whether the
County can use “any one of [three] calculations, at its discretion, and still be within the legal
parameters of Health and Safety Code section 286.071.” See Request Letter, supra note 1,
at 2. The three calculations you suggest are:
(1) multiply the budgeted funds remaining for the year by the ratio
derived from calculating the county’s population residing within
the district divided by the county’s population for the entire
county;
(2) multiply the budgeted funds remaining for the year by the ratio
derived from calculating the geographical area inside the district
divided by the geographical area of the entire county; or
2(...continued)
(4) laboratory and X-ray services;
(5) family planning services;
(6) physician services;
(7) payment for not more than three prescription drugs a month; and
(8) skilled nursing facility services, regardless of the patient’s age.
TEX. HEALTH& SAFETYCODE ANN. 9 61.028(a) (Vernon 2001).
The Honorable A. J. (Jack) Hartel - Page 4 (GA-0353)
(3) multiply the budgeted funds remaining for the year by the ratio
derived from calculating the county’s indigent population that
resides in the district divided by the county’s indigent population
for the entire county.
Id.
III. Analvsis
With regard to the County, the commissioners court is the body to exercise discretion,
particularly when it comes to the County’s fiscal policy. Pursuant to article V, section 18 of the
Texas Constitution, a county commissioners court shall “exercise such powers and jurisdiction over
all county business, as is conferred by this Constitution and the laws of the State.” TEX. CONST.art.
V, § 18(b). The commissioners court is the “county’s principal governing body,” and its “powers
and duties . . . include aspects of legislative, executive, administrative, and judicial functions.”
Comm ‘rs Ct. of Titus County v. Agan, 940 S.W.2d 77’79 (Tex. 1997). And although “the legal basis
for any action taken must be grounded ultimately in the constitution or statutes,” a commissioners
court may exercise broad discretion in conducting county business. See Guynes v. Galveston County,
861 S.W.2d 861, 863 (Tex. 1993) (citing Canales v. Laughlin, 214 S.W.2d 451,453 (Tex. 1948));
see also Tex. Att’y Gen. Op. No. JM-788 (1987) at 1’3. Specifically, where a right is conferred or
a duty imposed on it by the legislature, the commissioners court has broad discretion, subject to
judicial review, to accomplish the purpose intended. See Guynes, 861 S.W.2d at 863; see also Agan,
940 S.W.2d at 81; Tex. Att’y Gen. Op. No. JM-788 (1987) at 3. Moreover, a county “has the
statutory authority to oversee the fiscal operation of the county by approving and authorizing a
budget. Generally, the allocation of county funds is a policy-making determination left to the sound
discretion of the commissioners court.” Hooten v. Enriquez, 863 S.W.2d 522, 529 (Tex. App.-El
Paso 1993, no writ) (citations omitted).
An early Texas court of appeals decision defined discretion of “public functionaries” as the
“power or right to act officially, according to what appears just and proper under the circumstances.”
Permanent Rd. Comm ‘rs v. Johnson, 23 1 S.W. 859, 860 (Tex. Civ. App.-Dallas 1921, no writ).
Discretion has also been defined “‘as the act or the liberty of deciding according to the principles of
justice and one’s ideas of what is right and proper under the circumstances, . . . deliberate
judgment[,] . . . the power to discriminate and determine what, under existing circumstances, is right
and proper. “’ Tex. lndem. Ins. Co. v. Arant, 171 S.W.2d 915, 919 n.1 (Tex. Civ. App.-Eastland
1943, writ ref d w.o.m.) (citation omitted); see also Minns v. Piotrowski, 904 S.W.2d 16 1,168 (Tex.
App.-Waco 1995, writ denied) (“‘Discretion’ signifies a power to choose among alternatives within
legal bounds.“). The United States Supreme Court has recognized that discretion “implies
the absence of a hard-and-fast rule.” The Steamship Styria v. Morgan, 186 U.S. 1, 9 (1902).
Discretionary acts can be contrasted with ministerial acts that “require obedience to orders or the
performance of a duty to which the actor has no choice.” Deaver v. Bridges, 47 S.W.3d 549,553
(Tex. App.-San Antonio 2000, no pet).
Neither section 286.07 1 in particular, nor chapter 286 in general, provides a specific method
or formula by which to allocate funds between the County and the newly created District. See
The Honorable A. J. (Jack) Hartel - Page 5 (GA-0353)
generally TEX. HEALTH& SAFETYCODEANN. 84 286.001-. 18 1 (Vernon 2001) (chapter 286). Nor
does chapter 61. See generally id. $5 61.001-.066 (Vernon 2001 & Supp. 2004-05) (chapter 61).
Section 286.071 requires the funds to be transferred so that the newly created District can provide
the necessary care to the indigent residents of the District. See id. 5 286.071(2) (Vernon 2001). The
use of the phrase ‘indigent residents’ suggests that the two calculations utilizing population would
yield a result more in line with the mandate of the statute. We recognize, however, that in addition
to the needs of the indigent residents of the District, the proper allocation of the specified operating
funds between the County and the District requires a decision based on the consideration and
balancing of numerous options and factors particular to the County and the District, and might
include geographic factors. Deciding between various alternatives based on consideration and
analysis of competing factors requires deliberate judgment which is, by definition, an exercise of
discretion. See Johnson, 231 S.W. at 860; Arant, 171 S.W.2d at 919n.l. Accordingly, we conclude
that the commissioners court, in its discretion and subject to judicial review, may use one of the three
calculations presented or an alternative calculation, see infra at 5, and not run afoul of section
286.071 so long as the calculation provides for an allocation that enables the District to fulfill its
obligation to provide care to indigent residents.
Chapter 286 does provide a formula, just not one that directly speaks to your question.
Section 286.073(b) provides a specific formula that directs a new hospital district’s assumption of
a county’s indebtedness. See TEX. HEALTH & SAFETY CODE ANN. 9 286.073(b) (Vernon 2001).
Where part of the political subdivision is included in the district and part is not included in the
district, “the amount of indebtedness the district assumes . . . is that portion of the total outstanding
indebtedness . . . for hospital care for all residents of the [political subdivision] that the value of
taxable property in the district bears to the total value of taxable property in the [political
subdivision] according to the last preceding approved assessment rolls . . . before the district is
confirmed.” Id.; see also TEX. CONST.art. IX, 8 9. While this formula might be another alternative
calculation, we do not believe this formula must be used to apportion the specified operating funds.
The section 286.073(b) formula relates to indebtedness and is not part of section 286.071, which
relates to the transfer of the specified operating funds. See TEX. HEALTH & SAFETYCODE ANN. 8
286.071 (Vernon 2001). Moreover, the statutory formula in section 286.073(b) is necessary in
context in that it requires the District to assume the portion of the County’s indebtedness that is
secured by the proportion of the taxable property contained within the District.
IV. Conclusion
Because we have concluded that apportionment of these funds is a discretionary matter for
the commissioners court and because we believe the determination of which calculation to use
involves consideration of factual issues, it is not appropriate for us to offer an opinion on the
County’s use of one particular calculation. See Tex. Att’y Gen. Op. Nos. GA-0003 (2002) at 1 n.2
(stating that the opinion process cannot resolve fact questions); JC-0020 (1999) at 2; JM-3 10 (1985)
at 5. We remind you that the commissioners court’s exercise of discretion is not unfettered. A
district court has supervisory jurisdiction over a commissioners court when the commissioners court
acts beyond its jurisdiction or clearly abuses its discretion. See TEX. CONST. art. V, 0 8; see also
Ector County v. Stringer, 843 S.W.2d 477, 479 (Tex. 1992). “If the commissioners court acts
illegally, unreasonably, or arbitrarily, a district court may so adjudge.” Agan, 940 S.W.2d at 80.
The Honorable A. J. (Jack) Hartel - Page 6 (GA-0353)
SUMMARY
The Texas Health and Safety Code requires a county in which
a hospital district is created to transfer to that district the county’s
operating funds budgeted to provide medical care for the district’s
indigent residents. Where the hospital district does not comprise
the entire county, neither chapter 286 nor chapter 6 1 of the Health and
Safety Code provide a specific method to apportion the operating
funds between the county and the hospital district. The county
commissioners court is the county’s governing body and is vested
with discretion over a county’s fiscal policy Absent a statutory mandate
on the apportionment of the operating funds, the commissioners court
may use its discretion, subject to judicial review, to choose the
calculation by which to divide the funds, provided the resulting
transfer comports with the statutory duty to provide care for the
indigent residents of the district.
Attorney -1 of Texas
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4289057/
|
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 62 MM 2018
:
Respondent :
:
:
v. :
:
:
RYAN UNTERWERGER, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 27th day of June, 2018, the Petition for Leave to File a Petition for
Allowance of Appeal Nunc Pro Tunc is DENIED.
|
01-03-2023
|
06-27-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/1724919/
|
462 S.W.2d 486 (1971)
MILLS-MORRIS AUTOMOTIVE,
v.
Stanley BASKIN, Jr.
Supreme Court of Tennessee.
January 4, 1971.
T.R. Waring, Covington, for plaintiff, defendant in error.
Walker Tipton, Covington, for defendant, plaintiff in error.
OPINION
McCANLESS, Justice.
This suit was commenced in the Court of General Sessions as a replevin action for the recovery of property in which plaintiff claimed a security interest under the Uniform Commercial Code. From a judgment for the plaintiff the defendant appealed to the Circuit Court where the case was tried on a stipulation of the facts. The judgment there was for the plaintiff and the defendant has perfected his appeal to this Court in the nature of a writ of error.
The facts, all of which are stipulated, are that before June 16, 1967, one Thomas F. Millington contracted to have the plaintiff install a wrecker bed on a truck chassis that he owned. On that date the plaintiff recorded in the office of the Secretary of State a financing statement evidencing its security interest but no lien notation was made with the Title Division of the Department of Revenue upon the title certificate of the vehicle on which the equipment was installed. Subsequently Millington, for a valuable consideration, transferred the truck on which the wrecker had been installed to the defendant delivering to him a certificate of title which contained no notation of the plaintiff's lien. The defendant was without actual knowledge of the existence of the plaintiff's claim.
*487 The decision of this case, under the stipulated facts, is controlled by Section 47-9-314, T.C.A. The relevant provisions of this section in summary are that a security interest which attaches to goods before or after they are affixed to other goods takes priority as to the goods installed or affixed (referred to as "accessions") over the claims of all persons to the whole except to the claim of a subsequent purchaser for value, if the subsequent purchase is made without the knowledge of the security interest and before it is perfected.
In the case before us the wrecker body, though acquired by an innocent purchaser, was acquired after the date on which the financing statement was filed in the office of the Secretary of State. In the annotations to this Section in Tennessee Code Annotated in the Comments to the Official Text the following sentence appears:
"This Section changes prior law in that the secured party claiming an interest in a part (e.g., a new motor in an old car) is entitled to priority and has a right to remove even though under other rules of law the part now belongs to the whole."
The wrecker did not become an accession to or an integral part of the truck and it was not necessary for the plaintiff to file a notice of the lien with the Title Division of the Department of Revenue in order to protect its lien. It is our opinion, therefore, that since the lien of the plaintiff was perfected before the sale of the truck to the defendant the lien has priority over the title that the defendant acquired by his purchase.
We affirm the judgment of the Circuit Court and remand the case to that court for further proceedings in accordance with this opinion.
DYER, C. J., CHATTIN and CRESON, JJ., and ADAMS, Special Judge, concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/4128800/
|
.
7.
i:::
.._
:.’
.
GREG ABBOTT
January 19,2005
he Honorable Bruce Isaacks OpinionNo. GA-0295
Denton County Criminal District Attorney
1450 East .McKinney, Suite 3100 Re: Operation of the ex officio road commissioner
: ._ PostOfficeBox2850
Denton, Texas 76202
system and allocation of road .a.ndbridge funds in
Denton County (RQ-0254-GA)
DeaiMr.
rsaach:
.You seek advice about the ex officio road commissioner systemof county road and bridge
: administration as it has been implemented in Denton County.’ See TEX. ‘X~ANSP. CODE ANN. ch.
252, subch. A (Vernon 1999) (Ex Officio Road Commissioner System). Transportation Code
chapter 252, subchapter A authorizes a county road administration system in which each county
: commissioner is the ex officio road commissioner of his precinct. See id. 0 252.003.
c .. i. Facts
Prior to October 1,2003, Denton County administered its roads and bridges as a single
county-wide system under the road superintendent system authorized by chapter 252, subchapter C.*
See id. $0 252.201-.216. A single road superintendent appointed by the commissioners court had
general supervision over the county’s roads, subject to the court’s orders. See id. $0 252.203;
.205(a). All requests for road work in the county were made to the road superintendent, and no work
crew was assigned to an individual county commissioner precinct. See Request Letter, supra note
1, at 2.
: Effective October 1,2003, Denton County adopted the ex officio road commissioner system
._ authorized, by chapter 252, subchapter A. See id.; TEX. TRANSP. CODEANN. $9 252.001-.006
.(Vernon 1999). At that date, each county commissioner became the ex officio road commissioner
for his county commissioner’s precinct. See TEX.TIUNSP.CODE ANN. 0 i52.003 (Vernon 1999).
Information you provide about county roads in the unincorporated areas of Denton County,
excluding, interstate highways, state highways, farm to market roads, and city streets, shows
significant variations in county road mileage among the four precincts. See Request Letter, supra
‘Letter from Honorable Bruce Isaacks, Criminal District Attorney, Denton County, to Honorable Greg Abbott,
Tkxas Attorney General (July30,2004) (on file with Opinion Committee, also available at ht@//www.oag.state.tx.us)
@ereinafier RequestLetter].
( w. at 1.
,
The Honorable Bruce Isaacks - .Page 2 (GA-0295)
?
note 1, at 2-3. Over 6Qpercent of the mileage is located in precinct one and almost 39’percent of the
mileage in precinct four, while precincts two and three combined have less than one percent of the
county road mileage. See id at 2. Denton County has divided its centralized road crew into two
groups, locating them at facilities m precinct one and precinct four. Id. at 3. No work crew is
located in either precinct two or three, but the ex officio road commissioner in precinct two is to have
road work performed by the road crew in precinct one, and the precinct three commissioner by the
road crew in precinct four. See id.
The Denton County road and bridge fund is comprised 95 percent of motor vehicle
registration fees, while 5 percent derives from otherrevenue sources, such as the farmtomarket road
tax and flood control tax. Id. See TEX. ASP. CODEANN. @502.102 (Vernon Supp. 2004-05)
(disposition of vehicle registration fees); 502.108 (Vernon 1999) (use of registration fees retained
by county). See also id 0 502.172 (Vernon 1999) (optional vehicle registration fee for county road
and bridge fund). The county budget for fiscal year 2004 allocated the county road and bridge fund
by “distributing 95% of alI road material funds to Precincts 1 and 4 with Precincts 3 and 123
receiving 5% of such material funds” and distributing all other road and bridge funds equally among
the precincts, each receiving 25 percent of the remaining fbnds.’.See Request Letter, supra note 1,
at 3. The budget. for fiscal year 2005 allocated all road and bridge funds to the precincts based on
the mileage and historical expenditures for the past five years. See id. at 4. Road and bridge funds,
without distinguishing between materials cost and other budget items, were allocatedfor fiscal year
2005 as follows:
PrecinctOne 54%
c
Precinct Two 2%
Precinct Three 1%
Precinct Four 43%
Id. at 4.
Transportation Code chapter 25 1 .sets out the commissioners court’s general authority over
roads. while chapter 252 provides for optional systems of road administration that a county
may adopt. See TEX. TRANSP.CODE ANN. chs. 251, 252. (Vernon 1999 & Supp. 2004-05).
Transportation Code chapter 252, subchapter A authorizes the commissioners court to adopt the ex
officio road system, under which each county commissioner is the ex officio road commissioner of
his precinct. See id. $0 252.001(a),- .003 (Vernon 1999). See ah id. 0 252.002 (subchapter A
controls over conflicting general laws relating to roads). Before assuming the duties of an ex officio
road commissioner, a county commissioner must execute a bond conditioned on the individual’s
performing “the duties required of the ex officio road commissioner by law or by the commissioners
court” and accounting for money or other county property coming into his possession. Id.
5 252.004(a). The commissioners court “shall adopt a system for laying out, working on, draining,
TheHonorable Bruce Isaacks - Page 3 (GA-0295)
and repai&g the public roads.” Id. 0 252.005(a). The commissioners court may also “purchase
I vehicles, tools, and machinery necessary for working on public roads and.may construct, grade, or
otherwise improve a road or bridge by contract in the manner provided by Section 252.213.” Id.
9 252.005(b). See id. 0 252.213 (procedures for road work contract). See. also id. 0 251.006
(commissioners court may obtain material necessary to construct, repair, or maintain public roads).
As a general matter, the ex officio road. commissioner exercises certain powers and duties
independently within his precinct, and others subject to the commissionerscourt’s authority. Under
the commissioners court’s direction, “an ex officio road~~&mnissioner rs responsible for the
vehicles, tools, and machinery belonging to the county and placed in the commissioner’s control by
the court.” Id. .§ 252.006(a). “[AIn ex officio road commissioner shall,” under rules of the
commissioners court, direct the laying out of new roads, construction or changing of roads, and the
building of bridges. Id. 5 252.006(b). See also id. $0 251.003(a) (commissioners court may make
all necessary rules and orders for construction ofpublic ioads); 251.08 1 (authority of commissioners
court to build and maintain bridges). “Subject to authorization by the commissioners court, an ex
officio road commissioner may t%nploypersons for positions in the commissioner’s precinct to be
paid from the county road and bridge fund.” Id. $252.006(c). Se.ea&o id. 0 256.001 (money in the
county road and bridge fund may be spent only by order ofthe commissioners court). The ex officio
road commissioner “may discharge any county employee working in the commissioner’s precinct
who is paid from the county road and bridge fund.” Id. 6 252.006(d).
An ex officio road commissioner must also determine the condition of the public roads in the
precinct and the kind of work to be done on them, as well as direct “the manner of grading, draining,
c or otherwise improving the roads.” Id. 0 252.006(f). He has the reporting duties that Transportation
Code sections 251.004 and 251.005 require of county commissioners serving as road supervisors.
See id. 0 252.006(e). See also id. $0 25 1.004(b) (duty to supervise the public roads in the precinct
at least once a month); 25 1.005 (annual report on the condition of each road, culvert and bridge in
the precinct; the funds needed to maintain the roads during the next fiscal year; any new road that
should be opened; and other information relating to improvements).
III. Questions
You ask the following questions:
1. Is the ex officio road commissioner system as. adopted and
functioning in Denton County in accordance with lega! requirements
and within the discretion of the Commissioners Court?
21 Was the allocation of road and bridge funds for Fiscal Year 2004 in
accordance with legal requirements and within the discretion of the
Commissioners Court?
3. Is the proposed allocation of road and bridge funds for Fiscal Year
2005 in accordance with legal requirements and within the discretion
of the Commissioners Court?
TheHonorable Bruce Isaac&s - Page 4 (GA-0295)
1
4. Does the ex officio road commissioner of Precinct 2 have joint
authority with the ex officio road commissioner of Precinct 1 to hire i
the road and bridge crew to perform work in Precincts 1 and 2?
5. What authority, if any, does one Denton County ex officio road
commissioner who shares a road crew with another ex officio road
commissioner have over the road crew while it is performing work in
the other commissioner’s precinct?
6. What authority does the Commissioners Court acting as a unit have
over the individual ex officio road commissioner?
7. Ifnot answered in Question 6, what authority does the Commissioners
Court acting as a unit have over the budget allocated to an individual
ex officio road commissioner during the fiscal year other than its
annual budgeting author-i@’
8. May an ex officio road commissioner system continue to be used in
a County in which there are no longer any county roads in one of the
commissioner precincts?
Request Letter, supra note 1, at 4-5.
We will first answer questions 2 through 5, which relate to the legality of specific aspects of (
the Denton County road system and then answer question 1; which relates to the system’s legality
in its entirety, and then questions 6 through 8.
Iv. Questions 2 and 3: Allocation of Road and Bridge Funds
You ask whether the allocations of road and bridge funds for fiscal years 2004 and 2005
complied with the law and were within the commissioners court’s authorized discretion. Article V,
section 8 of the Texas Constitution gives the district ‘court “appellate jurisdiction and general
supervisory control over the County Commissioners Court.” TEX. CONS-Kart. V, 0 8. Discretionary
matters are for the commissioners court to resolve in the first instance, subject to judicial review.
See Comm ‘rs Court of Titus County v. Agan, 940 S.W.2d 77,80 (Tex. 1997).
The leading case on allocating the county road and bridge fund among the precincts is Sto&ZZ
v. Shivers, 103 S.W.2d 363 (Tex. 1937). The court in Stovall interpreted former article 6740 of the
Revised Civil Statutes: the predecessor of Transportation Code section 252.108, which provides as
follows:
3ActapprovedApri16,1889,21stLeg.,RS.,ch. 111,$6,1889Tex.Gen.Laws 134,135,reprintedin9H.P.N.
GAMMEL,
THE LAWSOFTEXAS1822-1897, at 1162,1163 (Austin, Gammel Book Co. 1898).
C
TbeHonorableBruce Isaacks - Page 5 (GA-0295)
f
(a) In a county that employs road commissioners under this
subchapter, the commissioners court shall ensure that the county road
and bridge fund is judiciously and equitably spent on the roads and
bridges in the county. As nearly as the condition and necessity of the
roads permit, the fund shall be spent in each county commissioner’s
precinct in proportion to the amount of money in the fund collected
in the precinct.
TEX. TFMNSP.CODEANN. $ 252.108(a) (Vernon 1999). This provision, found in chapter 252,
subchapter B, does not apply to Denton County or to other counties that have adopted the ex officio
road commissioner system under subchapter A. It nonetheless states some general rules about a
county’s exercise of discretion in allocating the road and bridge fund among the precincts that
provide guidance in addressing questions like yours. See Tex. Att’y Gen. LO-98-087 (relying on
section 252.108 to consider allocation of road and bridge fund among precincts in county subject to
Transportation Code chapter 251 and special road law).
In StovuZZ,the Texas Supreme Court stated that a district court may review and abrogate an
action of the commissioners court if it “acted arbitrarily without the exercise of any discretion, or
clearly abused its discretion, . . . especially if the action of the court involves a failure to perform a
duty affecting the public welfare.” StovuZZ,103 S.W.2d at 366. It noted that the members of the
commissioners court are “primarily representatives of the whole county, and not merely
representatives of their respective precincts.” Id. It is their duty to “transact the business, protect
the interests, and promote the welfare of the county as a whole.” Id. The commissioners court had
mechanically allocated one-fourth of the fund to each precinct, regardless of the amount of taxes
collected in the precincts or condition and needs of the roads, and the Texas Supreme Court found
that this allocation was “not authorized by article 6740, or any other statute.” Id. at 367. By contrast,
in another case under former article 6740, the court uPheld a commissioners court’s allocation of the
road and bridge fund to the precincts because the order was “supported by substantial evidence” and
involved “no arbitrary action.” See AZZeyv. Jones, 311 S.W.2d 717,723 (Tex. Civ. App.-Beaumont
1958, writ refd n.r.e.). See ako Jams v. Morton, 385 S.W.2d 702,706 (Tex. Civ. App.-Amarillo
1964, writ ref d n.r.e.) (upholding commissioners court’s allocation of road and bridge fund under
article 6740 because it was not arbitrary and was supported by substantial evidence).
Relying on StovuZZ,this office has developed a test for allocating vehicle registration fees
placed in the county road and bridge fund pursuant to section 502.102 of the Transportation Code.
See TEX. TRANSP.CODEANN. 0 502.108 (Vernon Supp. 2004-05) (motor vehicle registration fees
in road and bridge fund may only be used for the road construction, improvement, and maintenance
purposes set out in statute). Attorney General Opinion O-1091 (1939) determined that the
commissioners court, in spending the vehicle registration fees for county road purposes, “shah regard
the roads and highways of the county as a system to be built, improved and maintained as a whole
to the best interests and welfare of all the people of the county and of all the precincts of the county.”
Tex. Att’y Gen. Op. No. O-1091 (1939) at 7. Accord Tex. Att’y Geri. Op. Nos. H-428 (1974) at 3,
V-566 (1948) at 4. See also Tex. Att’y Gen. Op. No. GA-0128 (2003) at 3; Tex. Att’y Gen.
LO-98-087, at 6.
1
The Honorable Bruce Isaacks - Page 6 (GA-0295)
P
We conclude that the Denton County Commissioners Court has broad discretion to allocate
the road and bridge fund among the precincts, keeping in mind its duty to represent the county as a
whole. This authority applies to the allocations for fiscal years 2004 and 2005, as well as other
budget years. We note, however, that in 2004 the county divided a portion of the fund equally
among the four precincts, an allocation that may raise a question as to whether the commissioners
court has exercised its discretion in the best interest of the county as a whole. See StovuZZ,103
S.W.2d at 367; Tex. Att’y Gen. LO-98-087, at 6. The county’s allocation of the road and bridge
fund is subject to judicial invalidation for arbitrary action or other abuse of discretion. Whether the
commissioners court abused its discretion in adopting the allocation for 2004 or 2005 must be
determined by considering the evidence relevant to each annua.I allocation, something that cannot
be resolved in an attorney general opinion. See, e.g., Tex. Att’y Gen. Op. Nos. GA-01 39 (2004)
at 5, GA-0003 (2002) at 1; Tex. Att’y Gen. LO-98-087, at 6.
You are also concerned about a restriction on the 2005 allocation to precincts two and three.
See Request Letter, supru note 1, at 4,12. The commissioners court’s order allocating the road and
bridge fund provides that “funds for Precincts 2 and 3 shall be deposited in ‘contract labor, road
work. “’ Id. at 4, You state that the “probable interpretation” of this phrase “is that the ex officio
mad commissioners for Precincts 2 and 3 w& not have the use of the road and bridge crews and will
have to contract with private sources for any road workthat either seeks to do during the next fiscal
year.” Id. In answering your question, we will rely on your interpretation of the restriction.
As already noted, an ex officio road commissioner may hire employees for his precinct if the
commissioners court authorizes the position. TEX.TRANSP. CODEANN.$252.006(c)(Vernon 1999).
Chapter 252, subchapter A does not, however, authorize the ex officio commissioner to contract with
a public or private.entity to have road work done in his precinct. A county may act only through its
commissioners court, and individual commissioners have no authority to make contracts that are
binding on the county, except where authorized to do so by statute. See Canales v. Laughlin, 214
S.W.2d 451,455 (Tex. 1948); Anderson v. Wbod, 152 S.W.2d 1084,1085 (Tex. 1941). See also
Tex. Att’y Gen. Op. No. GA-0139 (2004) at 6 (ex officio road commissioner has no authority to
accept a street for county maintenance). Subchapter A authorizes a commissioners court to
‘,‘construct,grade, or otherwise improve a road or bridge by contract,“see TEx. TRANSP.CODEANN.
6 252.005(b)(V ernon 1999), ,but ex officio road commissioners do not have such authority.
Accordingly, the ex officio road commissioners for precincts two and three may not individually
contract with an entity for road work within their precincts. They may, however, request the
commissioners court to contract pursuant to section 252.005(b) with a public or private entity to
construct, grade, or improve a road or bridge within their respective precincts.
V. Questions 4 and 5: Hirimand Suuervisine Road Crews
The Denton County Commissioners Court, having adopted subchapter A, must administer
the county roads consistently with its provisions. Commissioners courts possess only those powers
expressly confkrred by the Texas Constitution and the legislature. See City of Sun Antonio v. City
of Boerne, 111 S.W.3d 22,28 (Tex. 2003); Canales, 214 S.W.2d at 453. While a commissioners
court has broad discretion in exercising powers expressly conferred upon it, the legal basis for any
action by the court must be found in the constitution or statutes. See Canales, 214 S.W.2d at 453. (
See aZsoCity of San Antonio; 111 S.W.3d at 28; Anderson, 152 S.W.2d at 1085.
,
TheHonorableBruce Isaacks - Page 7 (GA-0295)
In C&ales v. Laughlin, the Jim Wells County Commissioners Court adopted a resolution
I providing that the roads in the county would be built, operated, and maintained on a county-wide
basis and that the county would employ a county road unit administrative officer, who would
exercise broad powers over county road administration, such as hiring and thing employees, setting
their compensation, and purchasing equipment, materials, and supplies. See Canales, 214 S.W.2d
at 454,456. The Texas Supreme Court determined that the commissioners court was statutorily
authorized to provide for administering the roads on a county-wide basis, but that no statute
authorized the court to create the position of county road unit administrative officer. See id
at 454-55. The court reviewed statutes authorizing the commissioners court to employ road
commissioners, road superintendents, and a county engineer. See id Finding that the commissioners .
court’s employment of a county road unit administrative officer did not comply with any of these
provisions, the court reached the following conclusion:
{S]ince the legislature has expressly provided that the commissioners
courts may employ persons to superintend or supervise the county
road system and has placed certain conditions and restrictions on the
exercise of this power, these conditions and restrictions must be
observed if the authority is to be exercised.
Id. at 457. Accord Starr County v. Guerru, 297 S.W.2d 379,380 (Tex. Civ. App.-San Anton@
1956, no writ) (commissioners court may employ road commissioner only as authorized by statute);
Guerru v. Rodriguez, 239 S.W.2d 915,918 (Tex. Civ. App.-San Antonio 1951, no writ) (position
of ex officio road commissioner for precinct does not exist in county absent a statute creating that
position).
These decisions about the authority ofthe commissioners court and individual commissioners
guide us in addressing your fourth question, as to whether the ex officio road commissioners of two
precincts have joint authority to hire the road and bridge crew to work in both precincts.
Subchapter A provides that “[slubject to authorization by the commissioners court, an ex
officio road commissioner may employ persons for positions in the commissioner’s precinct to be
paid from the county road and bridge fund.” TEX.TR~NSP.CODEANN. 0 252.006(c) (Vernon 1999).
It also authorizes an ex officio road commissioner to discharge any county employee working in his
precinct who is paid from the county road and bridge fund. See id. 0 252.006(d). Once the
commissioners court has authorized an employee position in a precinct, the ex officio road
commissioner has authority to hire someone for that position as well as authority to fire that person.
See Tex. Att’y Gen. id-97-021, at 2; Tex. Att’y Gen. Op. Nos. DM-158 (1992) at 4, MW-362
(1981). Thus, a commissioners court lacks authority to overturn an ex officio road commissioner’s
discharge of an employee working in that commissioner’s precinct and paid from county road and
bridge fin&. See Tex. Att’y Gen. Op. No. DM-158 (1992) at 4.
Subchapter A, however, includes no provision authorizing two ex officio road commissioners
jointly to hire a person to work in both precincts. Nor does it provide that the crew hired by
one ex officio road commissioner may work on roads in another commissioner’s precinct or be
supervised by the other precinct’s ex officio road commissioner: If a county adopts subchapter A,
1
TheHonorableBruce Isaacks - Page 8 (GA-0295)
1
“[a] county commissioner is the ex officio road conimissioner of the county commissioner3
precinct:“- TEX.TRANSP. CODE ANN. 0 252.003 (Vernon 1999) (emphasis added). The ex officio
road commissioner’s authority under subchapter A is limited to his own precinct.
We conclude, in answer to question 4, that the ex officio road commissioner of precinct two
does not have joint authority with the ex officio road commissioner ofprecinct one to hire the road
and bridge crew to perform work in precincts one and two. The answer to question 5 follows from
our answer to question 4. A Denton County ex officio road commissioner has no authority to
supervise a road crew jointIy with the ex officio road commissioner of another precinct or to
supervise employees other than those he has hired to work in his precinct.
VI. Lwalitv of Denton Countv Ex Officio Road Commissioner Svstem
We now.address your first question, whether the ex officio road commissioner system is
operating in Denton County in accordance with legal requirements and within the discretion of the
commissioners court. As we concluded in answering questions 2 and 3 about the allocation of the
r&d and bridge fund, ,the Denton County Commissioners Court has broad discretion to allocate this
$md among the four precincts, subject to its duty to represent the county as a whole. An attorney
general opinion cannot, however, determine the validity of the court’s decision as a matter of law.
See Tex. Att’y Gen. Op. Nos. GA-01 39 (2004) at 5, GA-0003 (2002) at 1. Thus, we caflIlot advise
you whether the Commissioners Court has funded its road system in accordance with law.
In answering questions 4 and 5, however, we have determined that the ex officio road
commissionersystem asimplementedinDentonCountyisnotoperatinginaccordancewiththelegal
requirements set out in Transportation Code chapter 252, subchapter A. The ex officio road
commissioner of a precinct does not have joint authority with the ex officio road commissioner of
another precinct to hire a road and bridge crew to perform work in both precincts. Nor is an ex
officio road commissioner authorized to supervise employees other than those he has hired to work
in his precinct. In addition, we determined in auswer to question 3 regarding the 2005 funding for
thecounty road system that an ex officio road commissioner lacks authority to c&&act for road work
to be done in his precinct. In these respects, the Denton County ex officio road commissioner system
‘is not operating in accordance with the relevant law.
.Vn. Chestions 6 and 7: Commissioners Court’s Authority as a Unit over an Individual Ex
Officio Road Commissioner
You wish to know what authority the commissioners court acting as a unit has over an
individual ex officio road commissioner. Under the ex officio road commissioner system, the
commissioners court exercises a number of powers on behalf of the county and the road system as
a whole. Chapter 252, subchapter A grants an individual ex officio road comn@sioner certaiu
express powers to be exercised in his precinct, in most cases subject to the commissioners court’s
supervision.
We first note that money in the county road and bridge fund may be spent only by order
of the commissioners court. See TEX. TRANSP. CODE ANN. 6 256.001(b) (Vernon 1999). The
l The HonorableBruce Isa&s - Page 9 (GA-0295)
commissioners court’s authority over spending for roads has at least a practical effect on what
an individual road commissioner may do in his precinct. For example, an ex officio road
commissioner’s authority to hire au employee to work in his precinct depends upon the
commissioners court’s authorizing the position and funding it t%omthe county road and bridge fund.
See id. 0 252.006(c); see also Tex. Att’y Gen. Op. No. JM-1070 (1989) at 4 (in county with ex
officio road commissioner system, commissioners court sets working hours and holidays for road
employees as au aspect of compensation). Once an authorized position is filled, the ex officio road
commissioner may discharge an employee in his precinct without the commissioners court’s
supervision or approvak See Tex. Att’y Gen. Op. No. DM-158 (1992) at 4 (commissioners court
does not have authority to reinstate an employee discharged by ex officio road commissioner from
position in his precinct).
The commis~oners court is responsible for adopting ‘a system for laying out, working on,
draining, ,and repairing the public roads.” 'l?EX.TRANSP.CODE&TN. 5 252.005(a) (Vernon 1999).
Thus, the commissioners court makes decisions about locating and building new roads and the
methods for working on, draining, and repairing the public roads. See also id. $ 251.05 1
(cornmursioners court may order roads to be “laid out, opened, discontinued, closed, abandoned,
vacated, or altered”); 0 25 1.08 1 (commissioners court may erect and maintain bridges). Under rules
adopted by the commissioners court, an ex officio road commissioner shall direct the
(1) laying out of new roads;
(2). construction or changing of roads; and
(3) building of bridges.
Id. 6 252.006(b), An ex officio road commissioner thus implements the commissioners court’s
decisions on a day-today basis, by directing the work in his precinct according to rules established
Joythe court.
. ._ The commissioners court has authority to “purchase vehicles, tools, and machinery necessary
for working on public roads.‘: Id. 0 252.005(b). An ex officio road commissioner has no authority
to make such purchases on behalf of the. county. See Tex. Att’y Gen. Op. No. JC-0100 (1999) at 2.
Under the commissioners court’s direction, “an ex officio road commissioner is responsiile for the
.vehicles, tools, and machinery belonging to the county and placed iu the commissioner’s control by
the court.” TEX. TRANSP,CODE ANN. 0 252.006(a) (Vernon 1999). Au ex officio road
comnzissioner is therefore accountable to the commissioners court for his use of county property for
road work in his precinct. The cormnissioners court may also “construct, grade, or otherwise
improve a road or bridge by contract.” Id. 0 252.005(b). As we have already concluded, an ex
officio commissioner has no independent authority to contract for road work in his precinct. Only
the commissioners court acting as a unit may enter into such contracts. In summary, the ex officio
commissioners are under the direction of the commissioners court in the exercise of most of their
duties, as they implement the court’s plans on a day-today basis. Ex officio road commissioners
do have authority, subject to the budget, to hire and tire employees for their precincts. See Tex. Att’y
Gen. Op. No. DM-158 (1992) at 3.
The Honorable Bruce Isaacks - Page 10 (GA-0295)
t
You also wish to know what authority the commissioners court acting as a unit has over the
budget allocated to an individual ex officio road commissioner during the fiscal year, other than its
annual budgeting authority. Section 111.070 of the Local Government Code provides the auswer
to this question. See Tex. Att’y Gen. Op. No. GA-008 l(2003) at 1 (section 111.070 governs budget
amendment process in Denton County). See akro TEX.UK. GOV’TCODEANN. ch. 111, subch. C
(Vernon 1999 & Supp. 2004-05) (alternative method of budget preparation in countries with a
population of more than 125,000). After the commissioners court gives final approval to the county
budget, it may spend county funds only in strict compliance with it, except as provided by section
111.070. See id. $111.070(a) (Vernon 1999). The commissioners court may amend the budget to
authorize an emergency expenditure “‘onlyin a case of grave public necessity to meet an unusual and
unforeseen condition that could not have been included in the original budget through the use of
reasonably diligent thought and attention.” Id. 0 111.070(b). The commissioners court may also
transfer funds budgeted for one item to another budgeted item without authorizing an emergency
expenditure. See id. 0 1I I .070(c); Tex. Att’y Gen. Op. No. GA-0081 (2003) at 1-2. Thus, a
commissioners court may transfer funds originally budgeted for one road precinct to another road
precinct. See Tex. Att’y Gen. Op. No. DM-158 (1992) at 5.
VIII. guestion 8: Ex Officio Road Commission’er Svstem Where One Precinct Has No
Conntv Roads
You ask whether an ex officio road commissioner system may continue to be used iu a
county where there are no longer any county roads in one of the precincts. See Request Letter, supra
note 1, at 5. You state that when Denton County adopted the ex officio road commissioner system,
there were only ,075 miles .of county roads in precinct three, exchrding interstate highways, state (
highways, farm to market roads, and city streets, and that there may be no county roads in precinct
three in the near future. See id. at 2-3,15. “Ifthere are no county roads in a precinct,” you write,
“there is no reason for the existence of an ex officio road commissioner.” See id. at 15.
Transportation Code chapter 252, subchapter A does not specifically address such a case.
However, an ex officio road commissioner may still have some statutory powers and duties even if
most of the precinct is within the boundaries of incorporated municipalities and there are no county
roads iu the unincorporated area of his precinct.
A county has long had authority under common law to improve a city street that forms au
integral part of or connecting link with county roada or state highways. See City of Breckem-idge v.
Stephens ‘Cow@, 40 S.W.2d 43,43-44 (Tex. 1931); Tex, Att’y Geu. Op. No. JC-0036 (1999) at 1.
See also TEX, ‘I’RANSP.CODE ANN. 0 251.101 (Vernon 1999) (county may condemn, with
municipality’s consent, real property interest within municipality necessary or convenient to a road
forming a connecting link in county road system or in a state highway). Transportation Code section
25 1.012 authorizes the commissioners court of a county to build, maintain, or improve city streets
within the county that are not integral parts of or connecting links with the cotmty roads, where this
expenditure would serve a cotmty purpose. See id. $25 1.012 (Vernon Supp. 2004-05); Tex. Att’y
Gen. Op. No. JC-0036 (1999) at 11. If the commissioners court decides to build, maintain, or
improve a city street, the ex officio road commissioner of the precinct where the city street is
located may be involved in implementing this decision. See generaZZyTEX.TRANSP.CODEANN.
The Honorable Bruce Isaacks - Page 11 (GA-0295)
f
i $ 251.0!2(b) (V emon Supp. 2004-05) (county work on city road may he done by couuty, by
t independent contractor with whom county has contracted, or pursuant to other specified methods).
Moreover, an ex officio road comrrkioner is required to report on the condition of roads,
culverts, and bridges in his precinct. See id. 0 25 1.005 (Vernon 1999). See also id. 6 252.006(e) (ex
officio road commissioner has duties of supervisor of public road under sections 251.004 and
251.005). This duty would apply to any county roads iu an incorporated area. The. ex officio
road commissioner must also report if any new road should be opened in his precinct. See id.
0 25 1,005(a)(4). Even if there are no roads in the unincorporated area of the precinct at present,
circumstauces may change so that roads will be needed in the future. Accordingly, we conclude that
a county may continue to admiuister its roads under the ex officio road commissioner system even
if there are no longer any county roads in the unincorporated area of one precinct.
TheHonorableBruce Isaacks - Page 12 (GA-0295)
t
SUMMARY
In a county operating under the ex officio road commissioner
system authorized by Transportation Code chapter252, subchapter A,
the ex officio road commissioners of two precincts may not jointly
hire a road and bridge crew to work in both precincts. Nor may an ex
officio road commissioner contract with a public or private entity to
perform road work in his precinct, although the commissioners court
may enter into such contracts. Denton County, in attempting to
implement the ex officio road commissioner system in these ways,
.does not’comply with chapter 252, subchapter A.
The commissioners court of a county has broad discretion,
subject to judicial review and abrogation for abuse of discretion, to
allocate the road and bridge fimd among the county’s precincts,
keeping in mind its duty to represent the county as a whole. The
Denton County Commissioners Court may amend its budget to
authorize an emergency expenditure under the circumstances stated
in Local Government Code section 111.070 and may transfer funds
originally budgeted for one precinct to another precinct without
authorizing an emergency expenditure.
A county may continue to administer its roads under the ex
officio road commissioner system even if there are no longer any
county roads in the unincorporated area of one precinct.
Very trvlyYOU,
Attor&q&!eneral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4128805/
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 5,2005
The Honorable Eddie Lucia Jr. Opinion No. GA-0290
Chair, Senate Committee on International
Relations and Trade Re: Whether the Texas Commission on
Sam Houston Building, Room 475 Environmental Quality is authorized to raise
Post Office Box 12068 the environmental cleanup level at a specific
Austin, TX 78711 site, and if so, what procedures must it follow
(RQ-0245-GA)
Dear Senator Lucia:
You pose questions pertaining to the authority of the Texas Commission on Environmental
Quality (“TCEQ” or “commission”) to raise the environmental cleanup level at a particular site in
Texas. You inform us that the United States Environmental Protection Agency (“EPA”) and TCEQ
are “currently taking public comment on the Administrative Record File for the ASARCOiEl Paso
Metals site [(“Site”)] in El Paso County.“’ You provide us with a copy of a public notice issued by
EPA, Region 6, in which EPA proposes to “change the cleanup level for soils lead contamination
from the current 500 parts per million @pm) to 640 ppm based on recent site studies and
information.” EPA Notice, supra note 1. In your letter, you refer to TCEQ regulations that establish
the current “human health residential soil protective concentration level [for lead] at 500 ppm.” Id.
at 1 (citing 30 TEX. ADMIN. CODE 5 350.76 (2004)). The proposed change prompts you to ask
whether:
[gliven the concentration levels under Rule 5 350.76, TAC, does
TCEQ have the authority to raise the cleanup level at the El Paso
County Metals site from 500 ppm to 640 ppm? Can TCEQ grant a
variance such that it changes the cleanup level at a specific site, while
the level at other sites remains the same? If TCEQ has the authority
to change these levels, what process or guidelines must the agency
follow, if any? If a federal agency raises the concentration levels for
remediation, would the state agency have to make [conforming]
changes to their rules?
‘Letter and attached copy of EPA Notice from Senator Eddie Lucia Jr., Chair, Senate Committee on
International Relations and Trade, to Honorable Greg Abbott, Texas Attorney General, at 1 (July 12,2004) (on tile with
Opinion Committee, also availa6le af http:l/www.oag.state.tx.us) [hereinaikr “Request Letter” and “EPA Notice”].
The Honorable Eddie Lucia Jr. - Page 2 (GA-0290)
Id. We provided interested parties an opportunity to comment on your request. Neither EPA nor
TCEQ provided briefing to this office regarding the cleanup activities at the Site or the legal issues
raised by your request.
Yom question assumes that any cleanup or remediation of a site will not return the site to its
pristine condition, but will instead allow a certain amount of a contaminant to remain. We
understand the reference to “cleanup level” to be the amount of a particular contaminant that will
be allowed to remain at the site. For instance, a 500 ppm lead cleanup level contemplates that a
concentration of lead in the amount of 500 ppm will remain, while a 640 ppm lead cleanup level
allows a concentration of 640 ppm to remain. There is an inverse relationship between the cleanup
level and the amount of contaminant that is removed. A higher cleanup level means less
contaminant needs to be cleaned up or removed. A lower cleanup level would require a greater
amount of contaminant to be removed or cleaned up.
I. Background
A. ASARCOlEl Paso Metals Site
You do not provide us with much information regarding the Site. From documents
found on EPA’s website, we have learned that the Site includes residential properties located near
the ASARCO property in the City of El Paso that are contaminated with arsenic and/or lead.*
Testing results in 2001 indicated that lead levels in the residential soil at the Site were as high as
1,700 ppm.3 See EPA Memo, supra note 2, at 2.
B. Removal Action under CERCLA
We have also learned from EPA’s website that the current action at the Site is a
Removal Action4 pursuant to the federal Comprehensive Environmental Response, Compensation
*See Memorandum from Myron 0. Knudson, P.E., Director, Superfund Division (6SF), Environmental
Protection Agency, to Marianne L. Horinko, Assistant Administrator, Offke of Solid Waste and Emergency Response,
Environmental Protection Agency, at 1 (Mar. 11, 2003) available af www.epa.goviArkansas/6sf/pdffiles/elqaso
-memo.pdf [hereinafter EPA Memo].
‘Generally, lead contamination in residential soil comes from mining and milling sites, primary and secondary
smelters, battery manufacturing and recycling facilities, and paint manufacturers. See United States Environmental
ProtectionAgency, Lead inPaint, Dust&Soil, Basic Information, available atwww.epa.gov/opptea~eadileadinfo.hhn.
Lead will remain in soil indefinitely. “Lead poisoning can cause, or be associated with, neurological damage, mental
retardation, cerebral palsy, seizures, visual-motor deficiencies, behavioral problems, and even death.” Daniel G. LeVan,
Landlord Liability for Lead Poisoning of Tenant Children Caused by Defects in Premises, 70 U. DET. MERCY L. REV.
429,430.3 1 (1992). The effects of lead poisoning are permanent. See id. at 431. Low concentrations of lead blood
levels can permanently lower a child’s intelligence quotient. See id.
‘A “Removal Action” involves the cleanup OI removal of released hazardous substances from the environment.
42 U.S.C. 5 9601(23). In contrast, a “Remedial Action” means “those actions consistent with permanent remedy taken
instead of or in addition to removal actions to prevent or minimize the release of hazardous substances so that they
do not migrate.” Id. 9 9601(24).
The Honorable Eddie Lucia Jr. - Page 3 (GA-0290)
and Liability Act, 42 U.S.C. $4 9601-9675 (“CERCLA”), undertaken to remove the arsenic and/or
lead contaminated soils found on numerous residential properties. See EPA Memo, supra note 2,
at 1. Better known as the federal Superfund because of the funding provided by the Hazardous
Substance Superfund (“Superfund”), see 42 U.S.C. 5 9601(11), CERCLA allows EPA to clean up
or remediate contaminated sites with funding from the Superfund,’ and later seek reimbursement
from responsible parties. See id. § 9607. As of March 11, 2003, the Site was being evaluated for
inclusion as a Remedial Action on the National Priorities List. See EPA Memo, supra note 2, at 1;
see also infra note 6.
The public notice that prompts your question states that EPA and TCEQ are cooperating at
the Site. Because the notice was published by EPA and directs comments be made to EPA, and
because the Site information is found on EPA’s website and not on TCEQ’s website, we assume that
EPA, not TCEQ, is the lead agency at the Site conducting or overseeing the Removal Action.6
CERCLA does not establish quantitative cleanup levels, but instead utilizes cleanup levels
from state and other federal sources. See 42 U.S.C. 5 962 1. Because CERCLA incorporates certain
state requirements, where a Texas site is involved, Texas cleanup levels such as the one found in
section 350.76(c)(l) are relevant.
C. Rule 350.76(c)(l)
Texas Administrative Code, title 30, section 350.76(c)(l) (“Rule” or “Rule
350.76(c)(l)“) is contained in TCEQ’s Texas Risk Reduction Program (“TRRP”) rule? See
generally 30 TEX. ADMIN. CODE §§ 350.1-. 135 (2004). To put your question in context, it is helpful
to generally understand the operation and goal of the TRRP. The TRRP is a comprehensive rule
designed to set cleanup levels for environmental contamination in the State of Texas. See id.
$350.2(a). Texas has a multitude of environmental regulation and cleanup programs, including the
State Superfund, Voluntary Cleanup, Petroleum Storage Tank, Industrial and Hazardous Waste, and
Underground Injection Control programs. See 24 Tex. Reg. 7437, 7438-39 (1999).’ The various
programs deal with different modes of contamination and different kinds of substances. Instead of
‘Only releases included on the National Priorities List are eligible for Superfond-financed Remedial Actions.
Superfund financing of Removal Actions is not limited to sites listed on the National Priorities List. See 40 C.F.R.
5 300.425.
6With respect to each site, the designated lead agency is required to define potential federal and state cleanup
standards and other criteria to be considered. See id. 5 300.430(b)(9). The lead agency is the agency that plans and
implements the Remedial or Removal Action at a federal Superfond site, and may include a state acting pursuant to a
contract or other agreement. See id. 5 300.5. This is to be distinguished from a state Superfind cleanup under the
jwisdictionofstatelaw. See, ~~,TEx.HEALTH&SAFE~CODEANN. $§361.181-.188,361.272(Vemon2001 &Supp.
2004-05).
‘Your question assumes that the Site is subject to the TRRP rule as opposed to being grandfathered under the
TRRP’s predecessor rule. See Request Letter, supra note 1, at 1. The Rule’s general applicability date is May 1,200O.
See 30 TEX. ADMIN. CODE 5 350.2 (2004). We do not question this assumption.
‘See also http://www.tceq.state.tx.us/navicec/cleanops.h~
The Honorable Eddie Lucia Jr. - Page 4 (GA-0290)
having different cleanup standards for each respective program, the TRRP serves as a central (and
consistent) rule for the cleanup process for all specified remediation programs. See 30 TEX. ADMIN.
CODE 5 350.2 (2004). The TRRP does not use the terms pollution or contaminant, but rather uses
the term of art “chemicals of concern.” Id. 5 350.2(a). A chemical of concern is
[a]ny chemical that has the potential to adversely affect ecological or
human receptors due to its concentration, distribution, and mode of
toxicity. Depending on the program area, chemicals of concern may
include the following: solid waste, industrial solid waste, municipal
solid waste, and hazardous waste as defined in the Texas Health and
Safety Code .
Id. 9 350.4(11).
The TRRP sets out a five-part process to be followed once a release of chemicals of concern
has been identified and reported under the respective state program. See id. 5 350.3. Generally, a
party undertaking to clean up or remediate a property must (1) conduct a property assessment: (2)
determine critical protective concentration levelsi of chemicals of concern that can remain in or on
thepropertyand stillbeprotective ofhuman and ecological health, see id. §$350.71-.79, (3) develop
a response action to attain objectives under one of two remedy standards,” (4) develop and submit
required reports to TCEQ, and (5) implement the response action. See id. 5 350.3. Rule
350.76(c)(l) is a component of Step 2-the determination of protective concentration levels. See
id. 5 350.3(2). The protective concentration level is the cleanup standard. See id. 5 350.71(a) (“If
[protective concentration levels] are exceeded for certain [chemicals of concern], then [after further
evaluation and comparison] . a response action must be initiated.“).
Generally, Step 2 requires a person involved in the cleanup of a release of chemicals of
concern to determine how much of the particular chemical of concern may remain in or on the
property, and still protect human health and ecological health. See id. The TRRP establishes three
tiers under which this calculation can be made. See id. $3 350.71, .75. Each successive tier calls
for incrementally increased consideration of site-specific information and sophistication in the
protective concentration level calculation process. See id. 5 350,71(a). A party must use one ofthe
‘A property assessment identities chemicals of concern, locates human and ecological receptors, and
characterizes the geological and hydrogeological features of a site. Upon completion of the property assessment, there
shouldbeaclearunderstandingofthechemicalsofconcempresent,theenviro~entalmediai~actedbyeachchemical
of concern, and the nature of any exposure to human and ecological receptors posed by the chemicals of concern. See
30Tm. ADMIN. CODE $9 350.51-.55 (2004).
‘OThe protective concentration level is the “concentration of a chemical of concern which can remain within the
source mediumand not result in levels which exceed the applicable humanhealtb risk-based exposure limit or ecological
protective concentration level at the point of exposure for that exposure pathway.” Id. 5 350.4(68).
“The TRRF’ allows a person to select between Remedy Standard A and Remedy Standard B. Under Remedy
Standard A, the property must be cleaned up by removing or decontaminating the chemical ofconcern. See id. 5 350.32.
Remedy Standard B allows for the elimination ofexposure to a chemical of concern through the use of control measures.
Controls can be physical, such as a parking lot placed over contaminated soils, or institutional, such as a deed notice
which identifies the problem with the property. See id. 5 350.33.
The Honorable Eddie Lucia Jr. - Page 5 (GA-0290)
tiered approaches to calculate the protective concentration level, but is given some flexibility in
selecting which tier to use. Any chemical of concern existing at a site above the protective
concentration level must be the subject of a response action (Steps 3 & 5)-that is, cleaned up.
See id.
There are a few chemicals of concern that TCEQ has segregated for special treatment “due
to the unique nature of the toxicity and/or exposure, ” id. 5 350.76(a), which chemicals are excluded
from the three-tiered calculation approach. Instead, the TRRP mandates a more specific approach
(a numeric level or formula) for these particular chemicals. See id. Lead is one of these segregated
chemicalsofconcem,seeid. 3 350,76(a)(l)(B), andTCEQ has aftirmativelyestablishedaprotective
concentration level of 500 ppm for lead in residential soils in Texas. See id. 5 350.76(c)(l).
Irrespective ofwhich tier is utilized with respect to a release of chemicals of concern, the 500 ppm
protective concentration level is the cleanup standard by which all residential soil lead contamination
in Texas is to be measured and remediated. See id.
With this background information, we now turn to address your questions
II. Authoritv of TCEO
Because they are closely related, we will answer your first two questions together. You
specifically ask whether TCEQ has the authority to raise the lead cleanup level at this Site from 500
ppm to 640 ppm. See Request Letter, supra note 1, at 1. You also inquire whether TCEQ can grant
a variance such that it changes the cleanup level at this Site, while the level at other sites remains the
same. See id. We read your questions to ultimately inquire whether TCEQ may apply a cleanup
level to the Site that is different from the level established by the TRRP, without changing the TRRP.
The nature of your questions assumes that Texas law will set the cleanup level for the Site, which,
as we discuss later in this opinion, may not be the case. However, in order to answer your initial
questions, we address here the authority ofTCEQ acting under state law as the environmental agency
of the State of Texas.
You do not question TCEQ’s authority to have adopted the TRRP. TCEQ is a creature of
statute withno inherent authority. SeeSexton v. Mount Olivet Cemetery Ass ‘n, 720 S.W.2d 129,137
(Tex. App.-Austin 1986, writ ref d n.r.e.). An agency may exercise only those powers granted it by
statute together with those powers necessarily implied from its statutory authority. See City of
Sherman V.Pub. Util. Comm’n of Tex., 643 S.W.2d 681,686 (Tex. 1983); Tex. Att’y Gen. Qp. No.
JM-903 (1988) at 4. The TRRP was adopted under TCEQ’s authority pursuant to sections 5.103,
26.011,26.039,26.121,26.262,26.264,26.341,26.354, and 26.401 ofthe Texas Water Code, and
sections 361.017 and 361.024 oftheHealth and Safety Code. See 24Tex. Reg. 7743 (1999). These
sections provide TCEQ with authority to adopt any rules necessary to carry out its powers, duties and
policies to protect water quality and regulate solid waste. We will assume, as you appear to in your
request letter, that these statutes sufficiently authorized the TCEQ to initially adopt and implement
the TRRP rule.
Once adopted, valid rules of administrative agencies have the same “force and effect of
legislation.” Tex. Citrus Exch. v. Sharp, 955 S.W.2d 164, 169 (Tex. App.-Austin 1997, no pet.);
The Honorable Eddie Lucia Jr. - Page 6 (GA-0290)
Nacogdoches Sav. &Loan Ass’n v. Lewis, 531 S.W.2d 428,430 (Tex. App.-Austin 1975), rev’don
other grounds, 540 S.W.2d 313 (Tex. 1976). While an agency’s interpretation of its own rules is
entitled to deference from the courts, see Pub. Util. Comm ‘n v. Gulf States Utils. Co., 809 S.W.2d
201,207 (Tex. 1991), an agency is, nonetheless, bound by its own rules. See Nacogdoches SW. &
Loan Ass iz, 531 S.W.2d at 430 (CitingFoley v. Benedict, 55 S.W.2d 805,808 (Tex. 1932)); Flares
Y. Employees Ret. Sys., 74 S.W.3d 532,542 (Tex. App.-Austin 2002, pet. denied). Moreover, the
commission is directed by statute to follow its own rules. See TEX. WATER CODE ANN. 5 5.103(c)
(Vernon Supp. 2004-05); see also TEX. HEALTH AND SAFETY CODE ANN. 5 361.024(e) (Vernon
2001). Where an agency fails to follow the clear, unambiguous language of its own regulation, its
action is arbitrary and capricious. See Gulf States Utils. Co., 809 S.W.2d at 207.
Rule 350.76(c)(l) clearly and unambiguously establishes the protective concentration
level, or cleanup standard, for lead in residential soils at 500 ppm.‘* See 30 TEX. ADMIN. CODE
5 350.76(c)(l) (2004). Though the TRRP is flexible and allows for some site-specificity in state
cleanup actions for many chemicals of concern, see id. 5 350.2(a), it gives special treatment to lead.
See id. 5 350.76(a)(l)(B). Where the protective concentration level for most chemicals of concern
can be established using one of the calculations of one of the three tiers, see id. 5 350.75, the TRRP
affirmatively establishes the protective concentration level for lead in residential soils in all three
tiers. See id. 5 350.76(c)(l). Moreover, the TRRP does not contain any exceptions or allow for any
variances from the residential lead protective concentration level. Accordingly, any party, including
TCEQ, undertaking the cleanup of lead in residential soil in Texas pursuant to the TRRP must use
the 500 ppm protective concentration level.
Because TCEQ is bound to its rules, it must apply the 500 ppm standard to all sites in Texas
to which the TRRP applies. Applying a cleanup level of 640 ppm in violation of the 500 ppm
standard set forth in Rule 350.76(c)(l) would be arbitrary and capricious. Such an arbitrary and
capricious action on the part of TCEQ would be subject to judicial reversal. See TEX. GOV’T CODE
ANN. ~~~~~.~~~(~)(F)(V~~~~~~~~);TEX.HEALTH&SAFETYCODEANN. $3 361,32l(e)(Vemon
2001) (“the issueiswhethertheactionisinvalid, arbitraryorunreasonable”), 361.322(g)-(h) (“action
shall be upheld unless the court determines the remedy is arbitrary or unreasonable”); Gulf States
Vtik Co., 809 S.W.2d at 2 lo- 11. Having created a cleanup standard that applies to residential soils
across the state, TCEQ is precluded from applying that standard differently to different sites. See
TEX. WATER CODE ANN. $ 5.103(c) (Vernon Supp. 2004-05); see also TEX. HEALTH & SAFETY
CODE ANN. 5 361.024(e) (Vernon 2001).
III. Procedurefor Charwine Cleanup Level
You next ask, “If TCEQ has the authority to change these levels, what process or guidelines
must the agency follow, if any?” Request Letter, supra note 1, at 1. As we have concluded, the
TRRP does not permit TCEQ to apply a cleanup level other than 500 ppm. TCEQ may authorize
a different cleanup level for the state only by amending the TRRP.
‘*The protecfive concentration level for lead in residential soils is treated more stringently than the protective
concentration level for lead in commercial/industrial soil. The TRRF’ provides equations for the calculation of
commercial/industriallead protective concentration levels under Tier 1 or Tier 2 and Tier 3. See 30 TEX. ADMIN. CODE
§ 350.76(c)(2)-(3) (2004).
The Honorable Eddie Lucia Jr. - Page 7 (GA-0290)
TCEQ adopted the TRRP pursuant to its rulemaking authority under the Water Code and the
Health and Safety Code, see supra p. 5, and it may amend the TRRP under the same authority.
Because a rule includes an amendment to a prior rule, see TEX. GOV’T CODE ANN. § 2001.029(a)
(Vernon 2000), should TCEQ decide to amend the TRRP, it must follow the rulemaking procedures
ofthe Texas Administrative Procedure Act. SeeT~x. WATERCODE&. 5 5.103(c) (Vernon Supp.
2004-05) (“Rules shall be adopted in the manner provided by Chapter 2001, Government Code.“);
see also TEX. HEALTH &SAFETY CODE ANN. 5 361.024(e) (Vernon 2001). If any proposed change
to the TRRP meets the statutory definition of a “major environmental rule,“13 then aFinal Regulatory
Analysis of the rule’s impact is also required. TEX. GOV’T CODE ANN. 5 2001.0225(d) (Vernon
2000).
IV. Effect of EPA Cleanup, Level on State Rule
You do not ask about what cleanup standard is to be used at the Site. Instead, you ask if a
federal agency raises the cleanup level at the Site, “would the state agency have to make
[conforming] changes to their rules.“‘4 To fully address your question, a more detailed discussion
of CERCLA, and its relationship to Rule 350.76(c)(l), is required.
A. CERCLA
CERCLA authorizes the President, or the EPA as delegatee of the President, to:
remove or arrange for the removal of, and provide for remedial action
relating to such hazardous substance, pollutant, or contaminant at any
time (including its removal from any contaminated natural resource),
or to take any other response measure consistent with the national
contingency plan . . to protect the public health or welfare or the
environment.
42 U.S.C. 5 9604(a)(l). CERCLA contemplates two types of actions: Removal Actions and
Remedial Actions. See supra note 4. Whether a response is a Removal Action or a Remedial
Action, CERCLA does not affiatively establish a quantitative nationwide cleanup standard for
particular hazardous substances and environmental media. Instead, CERCLA incorporates cleanup
““A ‘major environmental rule’ means a rule the specific intent of which is to protect the environment or reduce
risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, 01 the public health and safety of the state OI a sector
of the state.” Twc. GOV’T CODE ANN. 5 2001,0225(g)(3) (Vernon 2000).
14Request Letter,supranote 1, at 1. Congresshasthe authoritytoestablishfederalcleanup standards, andunder
the federal Supremacy Doctrine, can impose those standards on the states. See U.S. CONST., zut. VI, cl. 2. While it has
the authority to do so, it has not done so. Instead, it has chosen, through CERCLA, to use the standards dictated by other
federal regulations and mope stringent state standards. See 42 U.S.C. 5 9621. We note further that Congress can use
its powers of economic inducement to encourage the states to adopt state laws and regulations desired by the Congress.
See West Virginia v. UnifedSfafes Dep’t ofHealth &Human Serw., 289 F.3d 281,286-87 (4th Cir. 2002) (“Congress
may use its spending power to encourage the states to act.“). We do not read your question to inquire about these
posslblhtles and so do not address them in this opinion.
The Honorable Eddie Lucia Jr. - Page 8 (GA-0290)
standards from other federal sources and state sources through the concept of “applicable or relevant
and appropriate requirements,” or ARARs. See 42 U.S.C. 5 9621(d)(2)(A) @emedial Actions); 40
C.F.R. $ 300.4156) (Removal Actions). A Removal Action, such as the one here, shall “to the
extent practicable considering the exigencies of the situation, attain applicable or relevant and
appropriate requirements under federal environmental or state environmental or facility siting laws.”
40 C.F.R. 5 300.415(j).
Ultimately, if Rule 350.76(c)(l) is an ARAR under CERCLA, then pursuant to 40 C.F.R.
5 300.415cj), the EPA should be required to clean up the residential soils lead at the Site under the
state standard. See United States v. Akzo Coatings ofAm., Inc., 949 F.2d 1409,1439 (6th Cir. 1991).
However, that determination is ultimately within the jurisdiction and discretion of EPA. See 42
U.S.C. 9 9604(a)(l) (“[T]he President is authorized to act to remove . such hazardous
substance, pollutant, or contaminant . .“); see also 40 C.F.R. $3 300.4OO(g)( l)-(2), 300.415(a)(l)
(lead agency to determine appropriate extent of action to be taken in response to a release); United
States v. Fort Lauderdale, 81 F. Supp. 2d 1348, 1352 n.5 (S.D. Fla. 1999) (“The EPA’s
determination of whether these state standards are ARARs under federal law is entitled to some
deference under Chevron, USA v. NRDC, 467 U.S. 837, 843-44 (1984).“). Furthermore, that
determination is also dependent on the facts and circumstances of a particular site. See Tex. Att’y
Gen. Op. No. GA-0139 (2004) at 5 (the opinion process does not resolve questions of fact).
Nonetheless, we offer the following analysis of issues that would bear upon EPA’s determination.
B. Applicable or Relevant and Appropriate Requirements (ARARs)
To constitute an ARAR, a state standard must be (1) promulgated, (2) more stringent
than federal standards, (3) legally applicable or relevant and appropriate, and (4) timely identified
with respect to a particular site. See 40 C.F.R. § 300.400(g)(4); see also Akzo, 949 F.2d at 1440.
First, to be viewed as promulgated, Rule 350.76(c)(l) must be legally enforceable and
generally applicable. It will be considered legally enforceable if it is based on specific enforcement
provisions or the state’s general legal authority. See Akzo, 949 F.2d at 1440-43. It is generally
applicable if it applies to more than just Superfund sites. See id. Rule 350,76(c)(l) was adopted by
TCEQ under the authority of the state given to it by the legislature in the Texas Water Code and the
Health and Safety Code to conserve the state’s natural resources and protect the environment. See
supra p. 5. As such it is derived from the state’s general legal authority. Rule 350.76(c)(l) applies
to state Superfimd sites, but also to contaminated sites involving municipal solid waste, Brownfield
initiatives, composting, spill prevention and control, and underground injection control. See 30
TEX. ADMIN. CODE 9 350.2 (2004). Accordingly, it is our opinion that under Texas law, Rule
350.76(c)(l) is both legally enforceable and generally applicable.
Second, to be determined to be an ARAR, Rule 350.76(c)( 1) must also be more stringent than
applicable federal standards. See Akzo, 949 F.2d at 1443-45. EPA must consider whether any
federal act imposes any relevant cleanup standards for the Site. Any applicable federal cleanup
standards would then be compared against the standard in Rule 350.76(c)(l), and EPA would
determine whether the state standard of 500 ppm was more stringent.
The Honorable Eddie Lucia Jr. - Page 9 (GA-0290)
Third, to constitute an ARAR a requirement must either be “applicable”” or “relevant and
appropriate.“‘6 40 C.F.R. § 300,400(g)(2); see also Franklin County Convention Facilities Auth. Y.
Premier Underwriters, 240 F.3d 534,544 (6th Cir. 2001); Ohio v. UnitedStates Envtl. Prot. Agency,
997 F.2d 1520, 1526 (D.C. Cir. 1993). Applicable state requirements are those cleanup standards,
controls, and other substantive environmental protection requirements, criteria, or limitations
promulgated under state law that specifically address a hazardous substance, pollutant or
contaminant, remedial action, location, or other circumstance at a Superfund site. See 40 C.F.R.
5 300.5. To be applicable, “a requirement must directly and fully address a CERCLA activity.”
Akzo, 949 F.2d at 1445-46. We believe that Rule 350.76(c)(l) would be considered applicable to
the Site under Texas law.” Pursuant to the state’s Solid Waste Disposal Act, TCEQ is responsible
for the management of lead as a solid waste. See TEX. HEALTH & SAFETY CODE ANN. 5 361.002
(Vernon 2001). “Solid waste” includes a wide variety of discarded material, including hazardous
substances for purposes of the state’s Superfund enforcement provisions. See id. 5 361.003(35).
“Hazardous substance” includes “an element, compound, mixture, solution, or substance designated
under Section 102 of[CERCLA].” Id. 5 361,003(11)(A)(ii). Regulationspromulgatedunder section
102 of CERCLA (42 U.S.C. 4 9602) include lead as a hazardous substance. See 40 C.F.R. 5 302.4.
Irrespective of its source, the lead in the residential soil at the Site is a solid waste over which TCEQ
has jurisdiction. If the Site is ultimately not remediated under CERCLA, TCEQ would have
authority to remediate the site under the Health and Safety Code. See TEX. HEALTH &SAFETY CODE
ANN. $5 361.181-.188,361.271-.273,361.341 (Vernon 2001 & Supp. 2004-05). Anyremediation
action under Texas law would have to comply with the standard set by Rule 350.76(c)(l). See supra
Part II.
Fourth, a potentially more stringent state standard must be timely identified as applicable to
a particular site. See 40 C.F.R. $5 300.515(d) (state involvement in Remedial InvestigationiFeasibility
Study process), 300,515(h)(2) (identification of ARARs and TBCs, or To Be Considered). The
question ofwhether a state standard has been timely identified so that it maybe considered an ARAR
is for EPA to decide. As a practical matter with respect to the Site, we point out that the Texas
standard set by Rule 350.76(c)(l) of 500 ppm in residential soils has likely already been identified.
C. ARARs Applicable to Removal Actions
Although ARARs are defined in the same way for purposes of a Removal Action and
a Remedial Action, ARARs are used differently under the two actions. A Removal Action is
designed to deal with an emergency situation. It has a short time frame and a monetary ceiling,
and is “to contribute to the efficient performance of a long-term remedial action, where practicable.”
42 U.S.C. 5 9604(a)(2); 53 Fed. Reg. 51394,51409 (1988). A Remedial Action, see supra note 4,
“Applicable requirements are those standards that are promulgated under federal laws that specifically address
a hazardous circumstance at a CERCLA site, or relevant state standards that are more stringent than federal requirements.
See 40 C.F.R. 5 300.5.
‘6Relevant and appropriate requirements are those that are “well suited to a particular site” but do not fall witbin
the deftition of “applicable.” Id.
“‘Accordingly, we do not address whether Rule 350.76(c)(l) is “relevant and appropriate” under CERCLA
The Honorable Eddie Lucia Jr. - Page 10 (GA-0290)
is the long-term cleanup action that involves the complete cleanup of a site. See 53 Fed. Reg. 5 1394,
5 1409 (1988). CERCLA requires that Remedial Actions attain ARARs but does not impose the
same requirement on Removal Actions. See 42 U.S.C. 5 9621. EPA, through its regulations,
requires Removal Actions to identify and attain ARARs but only to the extent practicable. See 53
Fed. Reg. 51394, 51410 (1988). EPA offers three factors to guide a determination that attainment
of ARARs are practicable in a particular situation. Those factors are (1) the exigencies of the
situation, (2) the scope of the removal action to be taken, and (3) the effect ofARAR attainment on
the statutory limits for duration and costs. See id. at 5 1411.
Under the first factor, urgent and time-critical conditions may constrain or preclude efforts
to identify and attain ARARs. See id. The federal regulations provide the example of leaking drums
that pose an immediate threat of tire or explosion that must be removed immediately, without
consideration of any ARAR, to protect human health. See id. As an interim remedy, a Removal
Action has a more limited scope than a Remedial Action. The second factor focuses narrowly on
the “stabilization of a release or threat of a release and mitigation of near-term threats.” Id. Only
ARARs that are within the narrow parameters of the Removal Action must be attained. The third
factor takes into consideration the statutory time and monetary limitations on Removal Actions
which may preclude the attainments of all ARARs in such an action. See id.
The fact that this Site is being evaluated for inclusion on the National Priorities List, see EPA
Memo, supra note 2, at 4, as a possible Remedial Action is also a consideration. CERCLA requires
that Removal Actions, to the extent practicable, contribute to the performance of any long-term
Remedial Action. See 42 U.S.C. 5 9604(a)(2). By repeating this requirement in its regulations, see
40 C.F.R. 3 300.415(c), EPA intends to “avoid repetitive removal actions or actions that do not take
into account their impact on performance of subsequent remedial actions, and to allow for more
permanent tasks to be completedunderremoval authorities.” 53 Fed. Reg. 51394,51409-10 (1988).
We cannot fully ascertain f?om your letter and material on EPA’s website what precise cleanup
activities are planned for the Removal Action and for any subsequent Remedial Action. To the
extent that Rule 350.76(c)(l) is an ARAR in any subsequent Remedial Action, its use as an ARAR
in the current Removal Action would certainly contribute to the efficient performance of the
Remedial Action. However, as we have stated before, this determination is ultimately within the
province of EPA.
D. Standard Applicable to the Site and Effect on State Law
Because the cleanup at the site is being conducted under CERCLA, the cleanup is
governed by federal law.” Should the Site ultimately warrant a Remedial Action, CERCLA requires
the cleanup of the Site to comply with all ARARs, or “applicable” or “relevant and appropriate”
requirements. We believe the state’s Rule 350.76(c)(l) cleanup standard is “promulgated” and
“legally applicable” as contemplated by CERCLA regulations. If it is more stringent than
comparable federal requirements and has been timely identified to EPA, then it should be considered
an ARAR and apply to any Remedial Action.
“If the Site is not remediated under CERCLA, the Texas Health and Safety Code would direct the remediation
efforts. S~~TEX.HEALTH&SAFE~CODEANN.§§ 361.181..188,361.271-.273,361.341 (Vernon2001 &Supp.2004-
05).
The Honorable Eddie Lucia Jr. - Page 11 (GA-0290)
As the action at the Site is still a Removal Action, Rule 350.76(c)(l), if an ARAR, should
be the cleanup standard but only to the extent practicable, considering the exigencies ofthe situation.
While we believe the Rule is an ARAR with respect to the final cleanup standard for the Site, it may
not apply to this Removal Action if EPA finds it is not practicable given the exigencies of the
situation. However, if this action is intended to be the final cleanup of the Site, this statewide
standard should apply. In any case, the determination of whether Rule 350.76(c)( 1) is an ARAR is
ultimately within EPA’s discretion.
Yom question indicates that you are concerned about the effect of EPA cleanup standards
at the Site on Rule 350.76(c)(l). See Request Letter, supro note 1, at 1. Jn the event EPA
determines that Rule 350.76(c)(l) is not an ARAR, or otherwise decides on some other legal basis
to allow a higher lead level to remain at the Site, such an application of federal law would not affect
the validity or enforceability of the Rule under Texas law, but would merely control for purposes of
remediation at the Site under CERCLA. Thus, in answer to your specific question, “if a federal
agency raises the concentration levels for remediation” at the Site, TCEQ would not be required to
make conforming changes to the Rule.
The Honorable Eddie Lucia Jr. - Page 12 (GA-0290)
SUMMARY
As an administrative agency, the Texas Commission on
Environmental Quality (“TCEQ”) is bound by its own rules. Where
a validly adopted rule, here the Texas Risk Reduction Program
(“TRRP”) rule, establishes the cleanup standard for remediation
activity at all sites in the state, TCEQ’s application of a different
standard to the ASARCO/El Paso Metals Site without changing the
~rule would be arbitrary and capricious.
TCEQ is authorized under its enabling legislation to amend
the TRRP rule so long as it follows the rulemaking procedures of the
Texas Administrative Procedure Act.
As a Removal Action under the federal Comprehensive
Environmental Response Compensation and Liability Act, or
CERCLA, the current United States Environmental Protection
Agency (“EPA”) cleanup at the Site is required to meet the lead
cleanup standard in title 30 Texas Administrative Code section
350.76(c)(l) to the extent it is practicable to do so given the
exigencies of the situation. If EPA determines that the action will be
a Remedial Action, or final cleanup, then Rule 350.76(c)(l) sets the
applicable cleanup standard. In either case, if EPA determines that
Rule 350.76(c)(l) is not applicable to the Site as an applicable or
relevant and appropriate requirement, or ARAR, that determination
would not require a change in the TRRP rule.
Very truly yours,
eneral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4289073/
|
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK GAKERA THIONGO, No. 15-73638
Petitioner, Agency No. A201-006-612
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 13, 2018
Seattle, Washington
Before: GOULD and WATFORD, Circuit Judges, and ROTHSTEIN,** District
Judge.
Petitioner Patrick Gakera Thiongo (Thiongo) is a native and citizen of
Kenya. Thiongo entered the United States in 2007 and overstayed his visa. In
2011, Thiongo filed applications for asylum, withholding of removal, and United
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
Nations Convention Against Torture (CAT) relief. Reviewing the agency’s
decision for substantial evidence, we grant Thiongo’s petition in part, deny it in
part, and dismiss it in part.
Thiongo argues that the immigration judge (IJ) erred by making an adverse
credibility finding that served as the basis for the IJ denying his withholding of
removal and CAT relief claims. This result was affirmed by the Board of
Immigration Appeals (BIA). An adverse credibility finding will be sustained if
substantial evidence supports the IJ’s determination, and if the BIA “highlight[ed]
specific and cogent reasons to support the adverse credibility finding.” Kin v.
Holder, 595 F.3d 1050, 1055 (9th Cir. 2010). The IJ’s adverse credibility
determination here was not supported by substantial evidence in the record. The IJ
stated that Thiongo’s inconsistencies about the harm he faced strongly weighed
against his claim, but the IJ did not “suggest any reason that [the IJ] found his
explanation not credible.” See Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th
Cir. 2009). The IJ was required to explain why Thiongo’s plausible explanations
did not explain the inconsistencies, but the IJ did not do so. Id. The BIA similarly
did not “give [its] reasons for considering [Thiongo’s] explanation unpersuasive.”
Id. Because the agency did not address Thiongo’s explanations for the alleged
inconsistencies, the inconsistencies cannot serve as substantial evidence to find
Thiongo not credible. Id. at 1091–92. We grant Thiongo’s petition as to his
2
withholding of removal and CAT relief claims, and remand to the agency on an
open record for further proceedings consistent with this disposition.
Thiongo also argues that because of extraordinary and changed
circumstances, the IJ and BIA erred by not excusing the late filing of his asylum
application. Thiongo contends that the IJ and BIA did not consider his health
issues or incidents in Kenya when determining whether the exceptions to the one-
year filing deadline for asylum applications applied. We have limited jurisdiction
to review IJ and BIA’s determinations related to the exceptions to the one-year bar
for asylum applications. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010).
Thiongo gave no evidence of his alleged depression or trauma and gave no
documentary evidence of the day his documented hypertension or diabetes
changed or what treatment he was seeking that led him to come forward in 2011.
The medical evidence he provided showed that he was in good health and that his
medical conditions were well controlled as late as April 2010. The record does not
compel the conclusion that the BIA erred in holding that Thiongo failed to show
that his medical conditions were extraordinary or changed circumstances that
justified an exception to the one-year limitation.
Thiongo argues that some incidents befalling his family constitute changed
circumstances warranting an extension of time in which he can seek relief. See 8
C.F.R. § 1208.4(a)(4), (5). On Thiongo’s account, the most recent of these events
3
was his brother’s beating, which occurred on June 1, 2010. Yet Thiongo filed his
application for asylum on November 17, 2011, 17 months after the beating, and
has given no explanation for why taking 17 months from that incident to file the
application was within a “reasonable period given the circumstances.” See Al
Ramahi v. Holder, 725 F.3d 1133, 1135 (9th Cir. 2013) (noting that a “reasonable
period” is usually within six months of the changed circumstance). Substantial
evidence in the record supports the IJ’s determination, and the BIA’s affirmance,
that Thiongo’s asylum application was untimely. We deny Thiongo’s petition as to
his asylum application.
Thiongo finally argues that he was denied due process of law, but Thiongo
did not raise this claim before BIA. Procedural due process claims must first be
exhausted before the Board. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004). This claim is not administratively exhausted, and we do not have
jurisdiction to review it. We dismiss this claim. The parties shall bear their own
costs on appeal.
GRANTED IN PART, DENIED IN PART, DISMISSED IN PART, AND
REMANDED.
4
|
01-03-2023
|
06-27-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/4289088/
|
IN THE SUPREME COURT OF THE STATE OF DELAWARE
DONALD R. JOHNSON, §
§ No. 450, 2017
Plaintiff Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ C.A. No. N17C-03-206
STATE FARM MUTUAL §
AUTOMOBILE INSURANCE §
COMPANY, §
§
Defendant Below, §
Appellee. §
Submitted: May 2, 2018
Decided: June 27, 2018
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
On this 27th day of June 2018, upon consideration of the parties’ briefs and
the record on appeal, it appears that:
(1) Appellant, Donald R. Johnson, appeals from a Superior Court opinion
granting Appellee, State Farm Mutual Automobile Insurance Company, summary
judgment. Johnson makes one claim on appeal. He contends the Superior Court
erred when it found he did not qualify as an “insured” for purposes of an
underinsured motorist claim against a State Farm policy insuring a vehicle which
struck him while he was walking across the street as a pedestrian.
(2) On October 22, 2014, Fredia Brinkley struck Johnson with her vehicle
while Johnson was crossing the street on foot. Johnson struck the hood of the
vehicle and rolled off, landing on the road. At the time of the accident, Brinkley
was insured by State Farm. On September 8, 2015, State Farm paid Johnson the
policy limit for Brinkley’s liability coverage. He also sought underinsured
motorist coverage (“UIM”) on the theory that he was an insured under Brinkley’s
State Farm policy, but such coverage was denied by State Farm. Johnson then filed
suit against State Farm in the Superior Court.
(3) Brinkley’s State Farm policy provides for underinsured coverage for
persons insured under the policy. The policy defines “insured” as: “[the named
insured]”; “resident relatives”; and “any other person while occupying . . . [the name
insured’s] car.”1 The policy goes on to state “[b]oth the use and actual operation of
such vehicle must be within the scope of [the named insured’s] consent.”2 The
policy defines occupying as “in, on, entering, or exiting [the vehicle].”3
(4) On August 17, 2017, State Farm filed a motion for summary judgment
arguing that Johnson does not qualify as an insured under the policy. On October
16, 2017, State Farm was granted summary judgment, and this appeal followed.
1
App. to Appellant’s Opening Br. at A23.
2
App. to Appellant’s Opening Br. at A23 (emphasis added).
3
App. to Appellant’s Opening Br. at A15.
2
(5) “This Court reviews de novo the Superior Court’s grant or denial of
summary judgment ‘to determine whether, viewing the facts in the light most
favorable to the nonmoving party, the moving party has demonstrated that there are
no material issues of fact in dispute and that the moving party is entitled to judgment
as a matter of law.=@4 “When interpreting a statute, Delaware courts must ‘ascertain
and give effect to the intent of the legislature.’”5
(6) Appellant contends the Superior Court erred by finding he was not
entitled to UIM coverage as an “insured” under the language of Brinkley’s State
Farm policy. Under his theory, he qualified as an insured under the plain language
of the State Farm policy because he was occupying Brinkley’s vehicle in the sense
that he was “in, on, entering, or exiting” the vehicle. He considers himself an
occupant by way of the physical contact he made when getting struck by the vehicle
and being on the vehicle’s hood.
(7) Appellant believes the Superior Court erred in applying the
“geographic perimeter” test when it found that he was not “occupying” the vehicle
even though he was touching the vehicle when he was struck. We have fashioned
a two-prong test to determine if a person is an “occupant” of a vehicle. The
claimant must either be “within a reasonable geographic perimeter of an insured
4
Brown v. United Water Del., Inc., 3 A.3d 272, 275 (Del. 2010) (quoting Estate of Rae v. Murphy,
956 A.2d 1266, 1269-70 (Del. 2008)).
5
State Farm Mut. Auto. Ins. Co. v. Davis, 80 A.3d 628, 632 (Del. 2013) (citations omitted).
3
vehicle or engaged in a task related to the operation of a vehicle at the time injuries
are sustained.”6 To be within a reasonable geographic perimeter, the claimant need
be “in, entering, exiting, touching or within reach of the covered vehicle.”7
(8) The “geographic perimeter” test was never meant to apply to a
pedestrian who is struck by a vehicle.
(9) Even though Appellant may have been “on” or “touching” Brinkley’s
vehicle for a brief second when he was hit, he fails to recognize that we have found
that Delaware’s UIM statute provides that coverage is personal to the insured.8 The
purpose of that statute “is to protect innocent parties injured by the negligence of
unknown tortfeasors or from those who have no means for compensating the injured
persons.”9 Title 18, Section 3902 allows “a risk adverse person to establish a fund
to protect against losses caused by [others].”10
(10) Appellant has cited no case law, or persuasive authority, that warrants
extending UIM insurance to pedestrians. Brinkley carried UIM insurance to
protect herself, her “resident relatives,” and “any other person . . . occupying” her
6
Nat’l Union Fire Ins. Co. of Pittsburgh v. Fisher, 692 A.2d 892, 896 (Del. 1997).
7
Id. at 897.
8
Frank v. Horizon Assur. Co., 553 A.2d 1199, 1202-03 (Del. 1989); see 18 Del. C. § 3902(a)
(“unless coverage is provided therein or supplemental thereto for the protection of persons insured
thereunder who are legally entitled to recover damages . . .”).
9
Fisher, 692 A.2d at 896.
10
Hurst v. Nationwide Mut. Ins. Co., 652 A.2d 10, 14 (Del. 1995).
4
vehicle “within the scope of [her] consent” 11 , from harm caused by “unknown
tortfeasors,”12 not pedestrians injured by her own negligence. The mere fact that
Johnson was in physical contact with Brinkley’s vehicle because he was struck by it
does not make him an insured occupant of the vehicle able to claim benefits under
Brinkley’s personal UIM coverage.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
11
App. to Appellant’s Opening Br. at A23.
12
Fisher, 692 A.2d at 896.
5
|
01-03-2023
|
06-27-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/4289090/
|
IN THE SUPREME COURT OF THE STATE OF DELAWARE
JEFFREY KENT, §
§ No. 8, 2018
Defendant Below- §
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ ID. No. 1302002915 (N)
Plaintiff Below- §
Appellee. §
Submitted: April 18, 2018
Decided: June 26, 2018
Before VALIHURA, VAUGHN, and SEITZ, Justices.
ORDER
This 26th day of June 2018, upon consideration of the appellant's
Supreme Court Rule 26(c) brief, his attorney’s motion to withdraw, and the
State’s response thereto, it appears to the Court that:
(1) In September 2014, a Superior Court jury convicted the
defendant-appellant, Jeffrey Kent, of Murder in the First Degree and
Possession of a Firearm During the Commission of a Felony (“PFDCF”).
After denying Kent’s motions for judgment of acquittal and for a new trial,
the Superior Court sentenced Kent to life imprisonment plus a term of years.
This Court affirmed his convictions and sentence on direct appeal.1
(2) Kent filed a motion for postconviction relief and a motion for
appointment of counsel in April 2016. The Superior Court appointed counsel
to represent him and gave appointed counsel the opportunity to file an
amended motion under Rule 61. The amended motion raised three claims of
ineffective assistance of trial counsel. After obtaining responses from Kent’s
trial counsel and from the State, as well as Kent’s reply, a Superior Court
Commissioner issued a report on September 5, 2017, recommending that
Kent’s amended motion for postconviction relief be denied.2 On December
5, 2017, the Superior Court adopted the Commissioner’s report and
recommendation and denied Kent’s motion. This appeal followed.
(3) On appeal, Kent’s counsel has filed a brief and a motion to
withdraw under Rule 26(c). Appellate counsel asserts that, based upon a
complete and careful examination of the record, there are no arguably
appealable issues. By letter, appellate counsel informed Kent of the
provisions of Rule 26(c) and provided him with a copy of the motion to
withdraw and the accompanying brief. Kent also was informed of his right to
1
Kent v. State, 2016 WL 1039125 (Del. Mar. 11, 2016).
2
State v. Kent, 2017 WL 3891448 (Del. Super. Sept. 5, 2017).
2
supplement his attorney’s presentation. In response to appellate counsel’s
motion and brief, Kent has raised several issues for this Court’s consideration.
The State has responded to Kent’s points, as well as to the position taken by
Kent’s counsel, and has moved to affirm the Superior Court’s judgment.
(4) The standard and scope of review applicable to the consideration
of a motion to withdraw and an accompanying brief under Rule 26(c) is
twofold: (a) this Court must be satisfied that defense counsel has made a
conscientious examination of the record and the law for arguable claims; and
(b) this Court must conduct its own review of the record and determine
whether the appeal is so totally devoid of at least arguably appealable issues
that it can be decided without an adversary presentation.3
(5) The following recitation of facts is taken from this Court’s
decision on Kent’s direct appeal:
On June 30, 2011, Dewey Lee was stopped at the intersection of
West 8th and Monroe Streets in Wilmington, Delaware. While he was
stopped, a man on a bicycle approached his vehicle and began speaking
with him. At some point during the conversation, the man on the bicycle
shot Lee. Lee’s vehicle then accelerated west on 8th Street before
striking a utility pole. The man on the bicycle fled north on Monroe
Street.
When the Wilmington Police responded to the scene, they found
Lee behind the wheel of his vehicle. He was unresponsive and bleeding
from a gunshot wound to his torso. He died as a result. During the
investigation, the Wilmington Police located three eyewitnesses:
3
Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486
U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
3
Thurman Boston, Brianna Brown (“Brianna”), and Dajuan’ya Brown
(“Dajuan’ya”). All three identified Kent as the man on the bicycle.
In February 2013, Kent was indicted on charges of Murder in the
First Degree and PFDCF. Two attorneys from the Public Defender's
Office (“PDO”) were appointed to represent him. Shortly after being
appointed, Kent’s counsel sent the State a discovery request, which
included a request for a list of the State's witnesses. The State responded,
but did not provide a list of witnesses, citing concerns for the witnesses’
safety. This concern may have received some confirmation in May 2014
when Wilmington Police came into possession of a letter from Kent
requesting that his nephew locate the witnesses to the crime.
On July 16, 2014, defense counsel again requested a witness list.
One reason defense counsel requested the names of the witnesses was to
identify potential conflicts of interest. The State requested a protective
order for the witness list on July 29, 2014, protecting against disclosure
of the names to the defendant. In the weeks that followed, a number of
witness statements were provided to Kent’s attorneys.
Jury selection was scheduled to begin on September 8, 2014. On
September 2, 2014, the State provided the transcript of Monica Miller’s
statement wherein she stated that she was with Brianna and Dajuan'ya
at the time of the incident and that one could not see the intersection of
8th and Monroe from their vantage point.
On September 6, 2014, the State advised Kent’s trial counsel that
the statements of Wallace Archy, Dexter Briggs, and Raheem Smith
would not be disclosed because the statements contained no Brady
material. The next day, the State changed its position and provided
Archy’s and Smith’s statements. In his statement, Archy stated that the
shooting occurred at a different intersection, 8th and Washington. Smith
told police that he did not see a white person at 8th and Monroe (the
victim was white), and that it was impossible to see the intersection from
where Brianna and Dajuan’ya were located.
On the same day that the Archy and Smith statements were
disclosed, Kent filed a motion to dismiss, alleging that the Miller, Archy,
and Smith statements contained Brady material, which was disclosed in
an untimely manner and prevented defense counsel from using the
evidence effectively. The following day, the trial court held a hearing on
the motion. The trial court denied Kent’s motion because Kent’s trial
counsel had been provided the witnesses’ statements, and the State was
making all three witnesses available to be interviewed by defense
4
counsel. The jury was selected on September 8, 2014, and trial
commenced on September 10, 2014.
During pretrial proceedings, the trial court also heard arguments
regarding a potential conflict of interest resulting from the PDO’s
representation of Boston in an unrelated matter. At the trial court’s
request, Kent filed a memorandum of law requesting that the PDO be
allowed to withdraw as Kent’s counsel, or in the alternative, prohibiting
Boston from being called as a witness. On August 26, 2014, the trial
court requested additional information in support of Kent’s motion for
an in-camera review. Kent’s trial counsel declined to provide the
additional information requested on the grounds that Boston did not give
permission to release confidential information. On September 2, 2014,
the trial court reminded Kent’s trial counsel that it could reveal Boston’s
confidential information upon court order, but counsel did not respond
or comply with the trial court’s request until after the trial court informed
counsel of its decision to deny the request.
The trial court issued an opinion denying Kent’s motion to
prohibit Boston from being called as a witness or for appointment of
new counsel on September 3, 2014. The representation of Boston had
concluded by March of 2014, approximately six months before Kent’s
trial. The trial court found that Kent’s trial counsel failed to meet their
burden of showing that a conflict did exist because the only evidence
offered was an alleged conflict due to Boston’s mental health history,
which the trial court determined was public knowledge. Without any
other evidence, the trial court held that there was no actual conflict
regarding the representation of Boston on the unrelated charges.
At trial, Boston testified for the State that he was behind Lee at
the intersection and that Kent was the shooter. Brianna and Dajuan’ya
both testified that they saw Kent from the stoop of their home at 814
West 8th Street. Miller testified for the defense that she was with
Brianna and Dajuan’ya at the time of the incident, and that one could
not see the intersection of West 8th and Monroe from the steps of 814
West 8th Street. Archy, also called by the defense, testified that he was
on Monroe Street between 7th and 8th on the evening of the incident.
He further testified that he did not observe Lee’s vehicle stopped at the
intersection and that he saw it speed through the intersection. Although
Kent’s trial counsel was able to interview Smith, he was not called as a
witness.
During closing arguments, Kent’s trial counsel implied that
Boston may have received a benefit for testifying against Kent. Trial
5
counsel also implied that Boston changed his story to comport with
Brianna and Dajuan’ya. In response, the State argued that the jury could
only believe trial counsel’s suggestion if the jurors were to violate the
rule on speculation because there was no evidence that Boston received
a benefit, only that he was hoping for help with his case. The State also
argued that there was no evidence presented to support a finding that
Boston changed his story to appear more credible.
The State also argued that Kent’s trial counsel did not read the
entire redacted letter that Kent had written to his nephew, a statement
which was not correct. After the trial court admonished the State
regarding the inaccuracy of its statement, the State informed the jury that
it was mistaken and that Kent’s trial counsel had, in fact, read the entire
letter. Shortly after, the State argued that Archy heard a gunshot and
immediately saw a vehicle travel through the intersection. After it was
brought to the State’s attention that this was incorrect, the State informed
the jury that there was a ten to fifteen second delay between the gunshot
and when Archy saw the vehicle speed through the intersection. Kent
was convicted of Murder in the First Degree and PFDCF.
(6) On direct appeal, Kent raised three issues. First, he argued that
the State committed a Brady4 violation by not providing the statements of
three witnesses in a timely fashion. Second, he argued that the prosecutor
engaged in misconduct during closing arguments. Finally, he asserted that the
trial court erred in denying the motion to withdraw as counsel or, alternatively,
to preclude the testimony of Boston. We rejected all three claims.5
(7) In his amended postconviction motion, Kent also raised three
issues. First, he asserted that his trial counsel was ineffective for failing to
investigate and call two witnesses who could have provided exculpatory
4
Brady v. Maryland, 373 U.S. 83 (1963).
5
Kent v. State, 2016 WL 1039125, at *3-4.
6
testimony. Second, he argued that trial counsel was ineffective for failing to
present evidence to corroborate Monica Miller’s testimony that the
intersection of 8th and Monroe Streets was not visible from the steps of 814
W. 8th Street, in order to discredit the eyewitness identification of Brianna and
Dajuan’ya Brown. Finally, Kent argued that his trial counsel was ineffective
for failing to call Siron Chambers as a witness because Chambers had
provided a statement to the police on July 3, 2011 admitting that he and his
girlfriend had attempted to steal the victim’s wallet after his truck crashed near
their house and that he never saw Kent (whom he knew) in the area.
(8) After trial counsel filed an affidavit and the State filed its
response to the amended motion, Kent’s postconviction counsel filed a reply
and withdrew the first two claims raised in the amended motion. 6
Accordingly, the Commissioner deemed those claims to be waived and only
addressed the third argument. The Commissioner concluded, after
considering the entirety of Chambers’ police statement, that trial counsel was
not ineffective for deciding not to call Chambers as a witness. The Superior
Court adopted the Commissioner’s reasoning and denied Kent’s motion.
6
As postconviction counsel explains, he did not have access to trial counsel’s case log and
contemporaneous notes at the time the amended postconviction motion was prepared.
After receiving the notes and trial counsel’s affidavit, postconviction counsel found no
good faith basis to pursue the first two claims.
7
(9) On appeal, Kent raises four claims in response to his counsel’s
Rule 26(c) brief. First, he contends that his trial counsel was ineffective for
failing to request a continuance to corroborate the testimony of favorable
defense witnesses. Second, he contends that his trial counsel was ineffective
for failing to request lesser included offense jury instructions on second
degree murder or manslaughter. Third, he contends that the evidence was
insufficient to find him guilty of first degree murder because there was no
evidence of intent. Finally, he contends that his trial counsel was ineffective
for failing to provide the Superior Court with the additional information that
was requested concerning the PDO’s conflict of interest arising from its
former representation of Boston.7
(10) As the State correctly points out in its response, in the absence of
plain error, this Court will not consider on appeal any issue that was not raised
and considered by the trial court in the first instance.8 Plain error exists when
the error complained of is apparent on the face of the record and is so
prejudicial to a defendant’s substantial rights as to jeopardize the integrity and
fairness of the trial.9
7
Kent does not challenge the Superior Court’s rejection of the claim he argued below
concerning Siron Chambers. Thus, he has waived further review of that claim. Murphy v.
State, 632 A.2d 1150, 1152 (Del. 1993)
8
Del. Supr. Ct. R. 8; Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
9
Wainwright v. State, 504 A.2d at 1100.
8
(11) With respect to Kent’s claim challenging the sufficiency of the
evidence to convict him of first degree murder, we hold that this claim is
procedurally barred. Superior Court Criminal Rule 61(i)(4) bars
reconsideration of any previously adjudicated claim. Kent filed a motion for
judgment of acquittal after the jury rendered its verdict. His motion was
denied, and he did not appeal that ruling. Under the circumstances, his claim
is barred as previously adjudicated, and he has failed to overcome that
procedural hurdle under Rule 61(i)(5).10
(12) With respect to Kent’s three new claims of ineffective assistance
of counsel, we find no plain error. Kent first argues that counsel was
ineffective for failing to request a continuance to investigate corroborating,
favorable defense witnesses. But Kent does not identify who these
corroborating witnesses are or what favorable corroborating testimony they
could have provided. This vague and conclusory allegation is insufficient to
establish a claim of ineffective assistance of counsel.11
10
Under Rule 61(i)(5), the procedural bars of Rule 61(i)(1)-(4) do not apply to a claim that
the trial court lacked jurisdiction or to a claim alleging new evidence creating a strong
inference of actual innocence or to a claim that a new, retroactively-applicable rule of
constitutional law renders the defendant’s conviction invalid.
11
See Younger v. State, 580 A.2d 552, 555 (Del. 1980) (holding that the burden is on the
defendant in a postconviction proceeding to make concrete allegations of cause and actual
prejudice to substantiate a claim of ineffective assistance of counsel or else risk summary
dismissal).
9
(13) Moreover, we find no plain error with respect to counsel’s failure
to request lesser included offense instructions. Kent’s defense at trial was that
he was not the shooter. Lesser included offense instructions would have been
inconsistent with Kent’s mistaken identity defense. We thus find no plain
error in counsel’s failure to request lesser included offense instructions.12
(14) Finally, Kent argues this trial counsel was ineffective for failing
to provide additional information requested by the trial judge about the PDO’s
alleged conflict of interest arising from its former representation of Boston.
The record reflects that counsel did provide the information, under seal, but
did not do so until after the trial court had denied the motion. Kent does not
argue, and there is nothing in the record to reflect, that the Superior Court
would have granted counsel’s motion if the information had been provided
sooner. Under the circumstances, we find no plain error.
(15) We have reviewed the record carefully and conclude that Kent’s
appeal is wholly without merit and devoid of any arguably appealable issue.
We also are satisfied that Kent’s counsel has made a conscientious effort to
examine the record and the law and has properly determined that Kent could
not raise a meritorious claim in this appeal.
12
See Allison v. State, 2010 WL 3733919, *2 (Del. Sep. 24, 2010) (finding counsel was
not ineffective for not requesting an LIO instruction because it would have been
inconsistent with the defendant’s actual innocence defense).
10
NOW, THEREFORE, IT IS ORDERED that the State's motion to
affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
The motion to withdraw is moot.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
11
|
01-03-2023
|
06-27-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/4289092/
|
2018 IL App (1st) 171711
No. 1-17-1711
SECOND DIVISION
June 26, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
U.S. BANK, N.A., as Legal Title Trustee for ) Appeal from the Circuit Court
Truman 2012 SC2 Title Trust, ) of Cook County.
)
Plaintiff and Counterdefendant-Appellee, )
) No. 16 CH 04811
v. )
)
QUADRANGLE HOUSE CONDOMINIUM ) The Honorable
ASSOCIATION, ) Celia Gamrath,
) Judge Presiding.
Defendant and Counterplaintiff-Appellant. )
______________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court, with opinion
Presiding Justice Mason and Justice Hyman concurred in the judgment and opinion.
OPINION
¶1 Defendant Quadrangle House Condominium Association (Association) appeals from an
order of the circuit court of Cook County granting plaintiff U.S. Bank’s motion for summary
judgment on its complaint for a declaratory judgment and denying the Association’s cross-
motion for summary judgment on its counterclaim for unpaid assessments. The sole question of
law presented for consideration is whether U.S. Bank’s payment of postforeclosure sale
assessments, several months after purchasing a condominium unit at a judicial foreclosure sale,
extinguished the Association’s lien for preforeclosure sale assessments, pursuant to section
1-17-1711
9(g)(3) of the Condominium Property Act (Act) (765 ILCS 605/9(g)(3) (West 2016)), and as
interpreted by 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372. We
affirm the judgment of the circuit court for the reasons that follow.
¶2 BACKGROUND
¶3 The subject property, unit 5B, is located at 6700 South Shore Drive, in Chicago, Illinois,
and was previously owned by Betty Colvin. In 2011, U.S. Bank’s predecessor in interest, Wells
Fargo Bank, commenced an action to foreclose a mortgage lien interest encumbering unit 5B.
The matter was filed in the Chancery Division and captioned Wells Fargo Bank v. Colvin, No.
11 CH 19139 (Cir. Ct. Cook County).
¶4 On July 29, 2015, the circuit court entered an order confirming the sale and granting
possession of unit 5B to U.S. Bank as the successful bidder at a judicial sale held on June 24,
2015. The circuit court’s order was captioned U.S. Bank N.A. v. Colvin, No. 11 CH 19139 (Cir.
Ct. Cook County, July 29, 2015). A judicial deed granting U.S. Bank title to unit 5B was issued
pursuant to the order approving the sale and was recorded by the Cook County Recorder of
Deeds on August 28, 2015. Shortly thereafter, U.S. Bank retained Parkvue Realty to recover
possession of and market unit 5B. U.S. Bank asked Parkvue to contact the Association for
information about the payment of postforeclosure sale assessments. Early in September 2015,
Parkvue provided the Association with a copy of the judicial deed and informed the Association
that any correspondence and assessment invoices were to be sent to U.S. Bank at P.O. Box 830,
Armonk, New York 10504.
¶5 On September 24, after receiving no response from the Association, U.S. Bank asked the
Association for an invoice reflecting the postforeclosure sale assessments due for unit 5B.
-2
1-17-1711
However, the Association sent U.S. Bank a resident ledger for Gloria Carter, who possessed no
interest in unit 5B.
¶6 In October, U.S. Bank received the invoice it had requested along with a resident ledger
for unit 5B, both showing the amount due from U.S. Bank was $3079.62 for its proportionate
share of common expenses beginning July 1, 2015. U.S. Bank also received a resident ledger
addressed to Mrs. Colvin, which showed a $62,579.35 amount due for preforeclosure sale
assessments.
¶7 According to U.S. Bank, it immediately sent the Association a $3919.34 check, dated
October 6, 2015, comprising the $3079.62 amount due and $839.72 in assessments for the
upcoming month of November. The Association initially claimed that it was never received but
then acknowledged having received the check in November, when U.S. Bank placed a stop
payment order on the check. On November 6, U.S. Bank issued another $3919.34 check, which
the Association received and credited to U.S. Bank. From December 2015 to February 2017, the
Association sent invoices that U.S. Bank paid in full.
¶8 In 2016, U.S. Bank requested a paid assessment letter from the Association, and the
Association issued a letter on January 25 stating that a $63,464.07 lien in favor of the
Association existed under section 9(g)(1) of the Act (765 ILCS 605/9(g)(1) (West 2016)) for the
period from May 1, 2009, to January 25, 2016. The letter stated that U.S. Bank had not
extinguished the lien by payment of assessments under section 9(g)(3) of the Act (id. § 9(g)(3)).
The letter stated that the amount due from U.S. Bank under section 9(g)(4) of the Act (id.
§ 9(g)(4)) was the $63,464.07, “due to failure of purchaser at judicial sale to confirm
extinguishment of lien, the extinguishment of lien by lender will render the amount owed by the
subsequent purchaser to be $0.”
-3
1-17-1711
¶9 In March, the Association sent U.S. Bank a notice and demand for possession of unit 5B
as a condition precedent to an action for forcible entry and detainer. In April, U.S. Bank filed the
underlying complaint for declaratory judgment in case number 16 CH 04811, asking for a
determination that the Association’s lien had been extinguished. In June, the Association filed a
counterclaim for unpaid assessments totaling $63,464.07, “inclusive of the Colvin Balance.” In
July, U.S. Bank filed an amended complaint for declaratory judgment.
¶ 10 In 2017, the parties filed cross-motions for summary judgment, and the circuit court
entered an order granting summary judgment in favor of U.S. Bank on June 28. The Association
filed a timely notice of appeal from the June 28 order, which declared that U.S. Bank had paid all
postforeclosure sale assessments required under section 9(g)(3) of the Act and extinguished the
Association’s lien on the Colvin balance for the period before July 1, 2015.
¶ 11 We take judicial notice that, after the Association filed its notice of appeal, U.S. Bank
sold unit 5B to a nonparty on July 31 and the special warranty deed conveying unit 5B was
recorded on August 3 as document number 1721557092. See generally City of Chicago v.
Soludczyk, 2017 IL App (1st) 162449, ¶ 3 n.1. On November 13, this court denied U.S. Bank’s
motion to dismiss the appeal as moot by application of Illinois Supreme Court Rule 305(k) (eff.
July 1, 2017).
¶ 12 ANALYSIS
¶ 13 We initially reject U.S. Bank’s contention that this appeal is moot because the
Association failed to file an appeal bond. See, e.g., Jack Spring, Inc. v. Little, 50 Ill. 2d 351, 355
56 (1972) (the right to appeal may not be conditioned upon posting an appeal bond); Downstate
National Bank v. Elmore, 224 Ill. App. 3d 1075, 1083 (1992) (finding that controversy existed as
to plaintiff’s lien rights against property and question not mooted by foreclosure action that
-4
1-17-1711
excluded nonparty); O’Brien v. Cacciatore, 227 Ill. App. 3d 836, 842 (1992) (failure to obtain a
stay does not, alone, render an issue moot). Moreover, an order granting summary judgment in a
declaratory judgment action is final, and a notice of appeal must be filed within 30 days of the
entry of the order, as occurred in this case. Universal Underwriters Insurance Co. v. Judge &
James, Ltd., 372 Ill. App. 3d 372, 379-80 (2007).
¶ 14 On the merits, the Association solely contends that U.S. Bank’s payment of
postforeclosure sale assessments several months after purchasing unit 5B at a judicial foreclosure
sale did not extinguish the Association’s lien for preforeclosure sale assessments, pursuant to
section 9(g)(3) of the Act and as construed by our supreme court in 1010 Lake Shore Ass’n, 2015
IL 118372.
¶ 15 Because this case was disposed of by the circuit court pursuant to cross-motions for
summary judgment, our review is de novo. Quadrangle House Condominium Ass’n v. U.S. Bank,
N.A., 2018 IL App (1st) 171713, ¶ 8. On cross-motions for summary judgment, the parties
concede that only a question of law is presented and invite the court to decide the issue on the
record. Id. “Summary judgment is appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.” Virginia Surety Co. v. Northern
Insurance Co. of New York, 224 Ill. 2d 550, 556 (2007); 735 ILCS 5/2-1005(c) (West 2016).
¶ 16 The Association argues that it is difficult to read our supreme court’s construction of
section 9(g)(3) in 1010 Lake Shore Ass’n as anything other than requiring U.S. Bank to begin
paying postforeclosure sale assessments the month after the foreclosure sale in order to confirm
the extinguishment of the Association’s lien for preforeclosure sale assessments. Because U.S.
Bank failed to begin paying postforeclosure sale assessments for unit 5B the month after the
-5
1-17-1711
foreclosure sale, the Association argues that U.S. Bank’s tardy payments did not confirm the
extinguishment of the Association’s lien.
¶ 17 Section 9(g)(3) states:
“(3) The purchaser of a condominium unit at a judicial foreclosure sale, or a
mortgagee who receives title to a unit by deed in lieu of foreclosure or judgment by
common law strict foreclosure or otherwise takes possession pursuant to court order
under the Illinois Mortgage Foreclosure Law, shall have the duty to pay the unit’s
proportionate share of the common expenses for the unit assessed from and after the first
day of the month after the date of the judicial foreclosure sale, delivery of the deed in lieu
of foreclosure, entry of a judgment in common law strict foreclosure, or taking of
possession pursuant to such court order. Such payment confirms the extinguishment of
any lien created pursuant to paragraph (1) or (2) of this subsection (g) by virtue of the
failure or refusal of a prior unit owner to make payment of common expenses, where the
judicial foreclosure sale has been confirmed by order of the court, a deed in lieu thereof
has been accepted by the lender, or a consent judgment has been entered by the court.”
765 ILCS 605/9(g)(3) (West 2016).
¶ 18 In 1010 Lake Shore Ass’n, 2015 IL 118372, ¶ 24, our supreme court stated that the first
sentence of section 9(g)(3) “plainly requires a foreclosure sale purchaser to pay common expense
assessments beginning in the month following the foreclosure sale.” The supreme court stated
that the second sentence of section 9(g)(3) “provides an incentive for prompt payment of those
postforeclosure sale assessments.” Id. The supreme court concluded that pursuant to the plain
language of section 9(g)(3), “the payment of postforeclosure sale assessments formally approves
and makes certain the cancellation of the condominium association’s lien.” Id.
-6
1-17-1711
¶ 19 In Country Club Estates Condominium Ass’n v. Bayview Loan Servicing, LLC, 2017 IL
App (1st) 162459, ¶ 12, pet. for leave to appeal denied, No. 122687 (Ill. Nov. 22, 2017), we
considered the argument that there is no promptness requirement under the plain language of
section 9(g)(3). We noted that, although the plain language of this section clearly provides that a
foreclosure buyer’s duty to pay monthly assessments begins on “the first day of the month after
the date of the judicial foreclosure sale,” this section does not expressly include a deadline for
confirming the extinguishment of an association’s lien. Id. ¶ 14. We found no legislative debate
about the “extinguishment clause” but noted occasions where our legislature expressed concern
about the difficulties met by condominium associations when a unit owner fails to pay common
expenses and the unit goes into foreclosure. Id. ¶ 15. Although that concern was expressed
during discussions about the 2006 amendment to the Act, we stated it was still pertinent to the
interpretation of section 9(g)(3). Id. ¶ 16. We then stated that our supreme court’s construction of
section 9(g)(3) in 1010 Lake Shore Ass’n “acknowledges that a time requirement is implicit in
section 9(g)(3), insofar as that section gives foreclosure buyers an ‘incentive for prompt
payment.’ If as Bayview argues, a foreclosure sale buyer could withhold payment of
postforeclosure sale assessments indefinitely and still obtain the benefit of section 9(g)(3), the
statute would not provide any such incentive.” Id. ¶ 18. Based on the statements of our supreme
court in 1010 Lake Shore Ass’n and our legislature regarding the policies “animating” this
section, we held “that in order to extinguish an association’s lien for preforeclosure sale
assessments, a foreclosure buyer must make ‘prompt’ payment of current assessments.” Id. ¶ 21.
We stated that “1010 Lake Shore [Ass’n] did not create a requirement of promptness; it merely
articulated the requirement that was already implicit in the purpose underlying section 9(g)(3).”
(Emphasis in original.) Id. ¶ 30.
-7
1-17-1711
¶ 20 Eight months after we filed our opinion in Country Club Estates Condominium Ass’n, the
Sixth Division of this court filed its opinion in Quadrangle House Condominium Ass’n, 2018 IL
App (1st) 171713, ¶ 11 (filed April 20, 2018), rejecting the condominium association’s argument
that U.S. Bank was required to begin paying postforeclosure sale assessments in the month
following the sale in order to extinguish the association’s lien for unpaid preforeclosure sale
assessments. The Sixth Division stated, “[c]ontrary to our colleagues in [Country Club Estates
Condominium Ass’n], we do not believe that the cited sentence in 1010 Lake Shore [Ass’n]
means that payment of post-purchase assessments must be prompt in order to constitute a
confirmation of the extinguishment of any lien created under subsection 9(g)(1) for any unpaid
pre-sale assessments.” Id. ¶ 13. However, about one month later, the Sixth Division filed V&T
Investment Corp. v. West Columbia Place Condominium Ass’n, 2018 IL App (1st) 170436, ¶ 30
(filed May 18, 2018), citing our opinion in Country Club Estates Condominium Ass’n, as
guidance on determining when a foreclosure buyer’s payment of assessments is prompt. We see
no reason to depart from our holding in Country Club Estates Condominium Ass’n and proceed
with our analysis to determine whether U.S. Bank made prompt payment of postforeclosure sale
assessments.
¶ 21 The circuit court in this case entered an order on July 20, 2015, confirming the sale and
granting U.S. Bank possession of unit 5B. U.S. Bank provided the Association with a copy of the
judicial deed and an address where assessment invoices were to be sent in early September 2015.
U.S. Bank then commenced paying postforeclosure sale assessments on October 6, 2015, about
two months after its liability for postforeclosure sale assessments began, but the Association
claimed that it was never received and then acknowledged having received the check in
November. Under these circumstances, we conclude that U.S. Bank made prompt payment of
-8
1-17-1711
postforeclosure sale assessments and extinguished the Association’s lien for preforeclosure sale
assessments. Cf. Country Club Estates Condominium Ass’n, 2017 IL App (1st) 162459, ¶ 31
(“We cannot discern from the record what reasons, if any, existed for Bayview’s delay in
payment. And the Association did not file a cross-motion for summary judgment, so we are not
in a position to say that Bayview’s tender was not prompt as a matter of law.”); see generally
V&T Investment Corp., 2018 IL App (1st) 170436, ¶ 30.
¶ 22 CONCLUSION
¶ 23 For the reasons stated, we affirm the judgment of the circuit court of Cook County
granting U.S. Bank’s motion for summary judgment on its complaint for a declaratory judgment
and denying the Association’s cross-motion for summary judgment on its counterclaim for
unpaid assessments.
¶ 24 Affirmed.
-9
|
01-03-2023
|
06-27-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/4289094/
|
2018 IL App (2d) 150488
No. 2-15-0488
Opinion filed June 27, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of De Kalb County.
)
Plaintiff-Appellee, )
)
v. ) No. 13-CF-140
)
DONALD R. GAUGER JR., ) Honorable
) Robbin J. Stuckert,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SPENCE delivered the judgment of the court, with opinion.
Presiding Justice Hudson and Justice McLaren concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Donald R. Gauger Jr., was convicted of violating an
order of protection (720 ILCS 5/12-3.4(a) (West 2012)), stalking (id. § 12-7.3(a)(2)), and
aggravated stalking (id. § 12-7.4(a)(3)). The trial court merged the lesser convictions and
sentenced defendant to five years’ imprisonment for aggravated stalking. Defendant appeals,
contending that he was convicted under an unconstitutional provision of the aggravated-stalking
statute. Because defendant’s conviction was proper under another, constitutional, portion of the
statute, we affirm.
2018 IL App (2d) 150488
¶2 The aggravated-stalking charge alleged that defendant engaged in a course of conduct
directed at Crystal Carswell that defendant knew would cause a reasonable person emotional
distress while Carswell had an order of protection against him.
¶3 At trial, Carswell testified that she had been married to defendant and that they had two
children together. She had an active order of protection against him. On September 9, 2012, she
got a Facebook message from someone she knew in high school, asking if she had recently sent
him a new “friend” request. After looking at the profile the friend told her about, she realized
that an old Facebook account of hers had been reactivated.
¶4 At about the same time, she received two Facebook messages that she knew immediately
defendant had sent. The first message asked about meeting for a date and the second wished her
a happy birthday. The messages were from a Facebook account using the name “Ed Kloog.”
She knew Ed Kloog, an older man who did not live in Illinois at the time. She contacted him
about the messages. Kloog responded that he had only one Facebook account and that he was
upset that someone was apparently using his name. Carswell then contacted the De Kalb police
and filed a complaint against defendant for sending the messages.
¶5 The fictitious Facebook activity frightened Carswell. She felt worried every time she left
her building. She would constantly look over her shoulder while driving into town, worried that
defendant or someone he knew was “going to pop up.” She was upset that defendant was “trying
to be friends with [her] friends that [she] went to high school with just to find out some things about
[her].”
¶6 Detective Angel Reyes testified that he investigated Carswell’s complaint. A subpoena
was issued to Facebook to obtain the Internet Protocol (IP) address for the fictitious Ed Kloog
account. Facebook provided two different IP addresses, both of which belonged to Charter
-2
2018 IL App (2d) 150488
Communications (Charter). A subpoena was issued to Charter seeking the names of the persons
assigned to the two IP addresses. Charter’s response indicated that one of the IP addresses was
assigned to Raymond Peterson at 610 Stearn Avenue in Genoa.
¶7 Reyes contacted the Department of Corrections and learned that defendant had recently
been paroled and was living at 610 Stearn Avenue. Reyes talked to defendant’s parole officer,
who told Reyes that, during a recent parole check at defendant’s home, he obtained the IP
address of defendant’s computer. Reyes testified that the IP address obtained by the parole
officer was the same one that Reyes was investigating.
¶8 Using this information, Reyes obtained a search warrant for defendant’s residence.
Defendant’s computer was seized during the search. A subsequent forensic analysis revealed an
image identical to the image used as the profile picture on the fictitious Ed Kloog Facebook
account. A compact disc near that computer contained a Facebook post by Carswell and a
picture of one of Carswell’s children. Police also found a three-ring binder with a page labeled
“Facebook” containing four or five fictitious Facebook pages, passwords, and e-mails.
¶9 Melvin Smith, of the Chicago Regional Computer Forensics Laboratory, conducted a
forensic examination of the data from the computer and worked with Reyes to “bookmark” data
that was deemed important to the investigation.
¶ 10 Reyes reviewed Smith’s report. Reyes found on the computer a number of photos and e
mails pertaining to Carswell and her family. The forensic analysis also turned up references to
Ed Kloog and a copy of one of the photos associated with the fictitious account. The computer
also contained a copy of a photo of Carswell in a Kohl’s dressing room. Carswell said that she
posted the picture on her Facebook page in November 2012. The computer also contained a
copy of a Carswell family photo taken at J.C. Penney’s that Carswell posted on Facebook.
-3
2018 IL App (2d) 150488
¶ 11 Reyes spoke with defendant, who initially denied knowing anything about the fictitious
Ed Kloog account. He later acknowledged that he knew about the account, but he claimed that it
had been created by a woman named “Debbie.” Defendant admitted using the account but only
to obtain pictures of his and Carswell’s daughter from Carswell’s Facebook page. Defendant
admitted “accessing” Carswell’s Facebook page, but he denied ever sending Carswell any
messages.
¶ 12 Officer Michael Stewart testified that he collected evidence from defendant’s residence.
He found documents from an e-mail account related to Carswell, including some Facebook posts
and some unopened messages. Stewart found another document that included Carswell’s name,
date of birth, and Social Security number. Another document appeared to be from someone
logged on to a website called Classmates.com, using Carswell’s name and asking, “How do you
remember Debbie?” Stewart also found mail addressed to Carswell.
¶ 13 The court found defendant guilty on all three charges. The court found that defendant
“knowingly engaged in a course of conduct directed at Crystal Carswell and knew or should
have known that this course of conduct would cause a reasonable person to suffer other
emotional distress.” The court specifically found that the evidence “overwhelmingly establishes
that the defendant directly or indirectly through third parties monitored and communicated to or
about Ms. Carswell through his Internet activities.” The court merged the order-of-protection
and stalking counts into the aggravated-stalking count and sentenced defendant to five years’
imprisonment. Defendant timely appeals.
¶ 14 In his initial brief, defendant contended that, per People v. Relerford, 2016 IL App (1st)
132531, his aggravated-stalking conviction violated due process because it was based not on
defendant’s culpability but on how a “reasonable person” might perceive his conduct. However,
-4
2018 IL App (2d) 150488
during briefing, the supreme court granted leave to appeal in Relerford and we held the appeal in
abeyance pending its decision.
¶ 15 The supreme court affirmed, but on a different basis. The supreme court accepted the
defendant’s argument, raised for the first time, that Illinois’s stalking statute is unconstitutional
to the extent that it prohibits communicating “ ‘to or about’ ” someone. People v. Relerford,
2017 IL 121094, ¶ 28 (quoting 720 ILCS 5/12-7.3(c)(1) (West 2012)). The court held that the
phrase was overbroad and thus impermissibly infringed speech protected by the first amendment.
Id. ¶¶ 63, 78. Therefore, the court struck that phrase from the statute. Id. ¶ 78. The court also
reversed the defendant’s conviction, because it could not be sustained under any other portion of
the statute. Id. ¶¶ 65-69.
¶ 16 We ordered the parties to submit supplemental briefs addressing the supreme court’s
decision in Relerford. In his supplemental brief, defendant argues that, because his aggravated-
stalking conviction was based on his Facebook messages to Carswell, it was based on his having
communicated “to or about” Carswell and thus, under Relerford, his conviction cannot stand.
¶ 17 The State responds that the trial court also found that defendant “monitored” Carswell
(see 720 ILCS 5/12-7.3(c)(1) (West 2012)) and that this portion of the statute is unaffected by
Relerford. The State cites circumstantial evidence that defendant used fictitious Facebook
accounts to contact Carswell’s friends and to download pictures and information about her that
were not available to the general public.
¶ 18 Defendant was convicted of aggravated stalking. To convict him of stalking, as charged
here, the State had to prove that defendant knowingly engaged “in a course of conduct directed
at” Carswell that he knew or should have known would cause a reasonable person to “fear for his
-5
2018 IL App (2d) 150488
or her safety or the safety of a third person” or “suffer other emotional distress.” Id. § 12
7.3(a)(1), (a)(2). The statute defines “course of conduct” as follows:
“2 or more acts, including but not limited to acts in which a defendant directly, indirectly,
or through third parties, by any action, method, device, or means follows, monitors,
observes, surveils, threatens, or communicates to or about, a person, engages in other
non-consensual contact, or interferes with or damages a person’s property or pet. A
course of conduct may include contact via electronic communications.” Id. § 12
7.3(c)(1).
Stalking becomes aggravated stalking if the defendant, inter alia, violates an order of protection.
Id. § 12-7.4(a)(3).
¶ 19 Defendant contends that his Facebook messages to Carswell constituted
“communicat[ing] to or about” her and that Relerford struck this portion of the definition from
the statute. We agree with the State however that, unlike in Relerford, defendant’s conviction
can be sustained under another, constitutional, portion of the statute. The trial court here
specifically found that defendant monitored Carswell. The stalking statute does not define
“monitoring,” but the dictionary defines “monitor” as “to watch, keep track of, or check usu. for
a special purpose.” Merriam-Webster’s Collegiate Dictionary 750 (10th ed. 2001). Even
without the Facebook messages, the evidence showed that defendant created at least one
fictitious Facebook account in the name of Carswell’s friend, downloaded pictures of her and her
family, and apparently even obtained mail addressed to her. This course of conduct satisfies that
definition, and the court reasonably found that defendant “knew or should have known that this
course of conduct would cause a reasonable person to suffer other emotional distress.”
-6
2018 IL App (2d) 150488
¶ 20 In his supplemental reply brief, defendant does not challenge the trial court’s findings.
Instead, defendant argues that the State’s argument is inconsistent with Relerford. Defendant
further contends that the stalking statute defines “non-consensual contact” as requiring a physical
presence near the victim or on the victim’s property and that thus contact through Facebook does
not fit the definition. See 720 ILCS 5/12-7.3(c)(6) (West 2012).
¶ 21 First, the State’s argument is consistent with Relerford, which dealt only with the
“communicates to or about” language in the statutory definition of “course of conduct.” Id. § 12
7.3(c)(1). The court struck that language from the statute, but it did not purport to invalidate any
other portion of the statutory definition, which includes monitoring.
¶ 22 Second, we reject defendant’s statutory-construction argument. The definition of “course
of conduct” concludes with the catchall “other non-consensual contact.” The statute then defines
“non-consensual contact” by reference to examples that require a physical presence. Id. § 12
7.3(c)(6). Defendant apparently posits that, because the catchall provision refers to “other non-
consensual contact” (emphasis added) (id. § 12-7.3(c)(1)), all of the preceding enumerations of
specific conduct must also be “non-consensual contact,” which requires a physical presence. We
disagree.
¶ 23 Agreeing with defendant that all of the specific types of conduct listed in the definition of
“course of conduct” require a physical presence would render meaningless the very next
sentence, which specifically states, “[a] course of conduct may include contact via electronic
communications.” Id.; see McNamee v. Federated Equipment & Supply Co., 181 Ill. 2d 415, 423
(1998) (in construing statute, courts should avoid interpretations that would render any portion of
statute meaningless).
-7
2018 IL App (2d) 150488
¶ 24 Accordingly, we affirm the judgment of the circuit court of De Kalb County. As part of
our judgment, we grant the State’s request that defendant be assessed $50 as costs for this appeal.
55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978).
¶ 25 Affirmed.
-8
|
01-03-2023
|
06-27-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/4289096/
|
2018 IL App (2d) 170405
No. 2-17-0405
Opinion filed June 27, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Boone County.
)
Plaintiff-Appellee, )
)
v. ) No. 14-CF-0312
)
SHANE M. AMANS, ) Honorable
) C. Robert Tobin III
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court.
Presiding Justice Hudson and Justice Jorgensen concurred in the judgment.
OPINION
¶1 Defendant Shane Amans pled guilty to possession with the intent to deliver more than
2000 but not more than 5000 grams of cannabis. 720 ILCS 550/5(f) (West 2014). Defendant
was originally sentenced to a four-year term of imprisonment. After granting his motion to
reconsider, the trial court resentenced defendant to a term of 48 months’ probation. The State
filed a motion to reconsider that order. The trial court granted the State’s motion and
resentenced defendant to four years’ imprisonment. On appeal, defendant argues that (1) the trial
court abused its discretion when it originally sentenced him to four years’ imprisonment and
(2) the trial court erred in reconsidering his sentence of probation on the State’s motion and
reimposing the original sentence. For the following reasons, we vacate the trial court’s order
2018 IL App (2d) 170405
resentencing defendant to four years’ imprisonment, we reinstate its order sentencing defendant
to 48 months’ probation, and we remand this cause with directions.
¶2 I. BACKGROUND
¶3 At the sentencing hearing, Detective Patrick Imrie testified for the State in aggravation.
Imrie had been a narcotics detective for nine years and he had extensive training and experience
in cannabis investigations. He had dealt with cannabis hundreds of times and had seen cannabis
in almost all of its varieties. He had taken several courses in identifying different types of plants
and their strengths as a psychoactive drug.
¶4 Imrie was part of a team that executed a search warrant of defendant’s home and he
recorded a video of the home where the cannabis was found, in two “growrooms” in the
basement. The basement was unfinished, with the exception of two dry-walled rooms. The
growrooms were behind a large, white bookcase. The bookcase was on a hinge and, if closed, it
would block access into the growrooms. Inside the growrooms were numerous black plastic tubs
that were used for housing water and plants in “grow cubes.” There were numerous fans and
“electronic ballasts for converting electricity to make the electricity go into these specific types
of grow lights from a standard electrical setup in [the] house.” Imrie said that there were
machines similar to air purifiers in the rooms. The machines, one of which was connected to
electricity, would “basically suck in the smell of the cannabis” so that neighbors or anyone
coming into the house could not smell it.
¶5 In the smaller of the growrooms, several grow lights were hung from the ceiling, over the
plastic tubs. The grow lights were on when Imrie entered that room, and they were above 12 live
cannabis plants that were in plastic tubs. In each room, the tubs were connected by PVC piping
and water was being pumped into those tubs. Aeration systems were set up and there was a 55
-2
2018 IL App (2d) 170405
gallon barrel full of water that was actively feeding the plants in each room. In both rooms, fans
were blowing at the plants. Imrie explained that fans are used so the plants have to resist the
wind, which typically makes a plant grow stronger.
¶6 Imrie said that the approximate street value of the cannabis found in defendant’s house
was around $300 per ounce or $10 per gram. At that price, the cannabis found would be worth
approximately $39,000. Imrie said that the plants were very large, around two to three feet high
and a couple of feet around. However, the plants were not ready to be harvested yet.
¶7 Imrie opined that the cannabis found in defendant’s house was of high quality. The buds
on the plants were mature and they had a lot of crystallized THC on the outside of them. People
buy cannabis for the psychoactive properties of THC. According to Imrie, the buds on these
particular plants seemed to have a high quality of THC based upon the resin that he could see on
the buds.
¶8 Imrie then identified several photographs that were taken at the scene. He described the
grow cubes that were found in the house. He explained that grow cubes are used instead of dirt
because they give the roots of the plants room to grow. Imrie also identified nutrients that were
used to grow cannabis plants along with bags of processed cannabis and a digital scale that were
found in an upstairs room in the house. He also identified three bags of cannabis that were found
in a freezer in the home. Finally, he identified a photograph of a humidistat, a machine that
measures humidity, that was used in the growrooms.
¶9 On cross-examination, Imrie said that he was not sure if the bookcase that hid the grow
rooms was on a hinge. When asked whether it was much more common for cannabis to sell for
$6 per gram, rather than the $10 valuation Imrie had assigned to the cannabis on direct
-3
2018 IL App (2d) 170405
examination, Imrie said that there were huge fluctuations in the price of cannabis. As for the
cannabis found in the bags upstairs, Imrie said that he did not go through and inspect all of it.
¶ 10 Imrie said that defendant was very cooperative when the police were executing the search
warrant. In fact, one of the first things defendant said to the police after they told him that they
had a search warrant was, “[y]ou won’t need it. It’s all downstairs.”
¶ 11 On redirect examination, Imrie said that he had purchased cannabis for as much as $500
per ounce and as little as $125 per ounce. Based upon his training and experience, he reiterated
that he considered the cannabis in defendant’s home to be high quality. Finally, Imrie said that
the amount of cannabis indicated that it was not for personal use.
¶ 12 The defense then called Sam Maurici as a character witness. Maurici testified that he and
defendant had been friends for the last 20 years. They met in high school and played football
together. Maurici had contact with defendant around every two weeks. Maurici’s family and
defendant’s family took vacations together and their children played together. Defendant was a
very involved father who watched his three-year-old daughter almost every day when
defendant’s wife was at work. If the trial court were to incarcerate defendant, Maurici believed
that it would cause a hardship to defendant’s family.
¶ 13 Maurici had spent time with defendant over the last two years since his arrest for the
instant offense. He did not believe that defendant would be likely to commit additional crimes in
the future, but he also did not know that defendant was committing this crime. If he had, he
would have persuaded defendant to think differently about his actions and take a different
course. Defendant had not expressed his feelings to Maurici about the instant offense, because
defendant is a private person. Based upon his relationship with defendant and his knowledge of
-4
2018 IL App (2d) 170405
defendant’s character, Maurici believed that, if the trial court placed defendant on probation,
defendant would likely comply with any conditions placed on him.
¶ 14 The defense then called Ryan Curry as a character witness. Curry testified that he had
known defendant for 20 years and that they met in high school. He spoke to defendant every
day. He did not know that defendant had a grow operation in his basement. If he had known, he
would have persuaded defendant to make other decisions and explained to defendant the
ramifications of his actions. Curry said that he did not believe that defendant was likely to
commit another crime in the future. Defendant is a great father and husband and Curry would
not trust anyone more than he did defendant. Defendant told Curry that if he were incarcerated it
would not only affect him financially, such as by causing him to lose his house, but it would
affect his family as well. Defendant had expressed extreme remorse to Curry over committing
this crime. He believed that defendant would comply with all conditions placed upon him if the
trial court were to sentence him to probation. Curry had been wounded in Iraq in 2006 was now
medically retired. Defendant is one of Curry’s closest friends and Curry could completely rely
on defendant if he ever needed anything.
¶ 15 Defendant then spoke in allocution. He said that a year prior to his arrest his family had a
lot of bills. He and his wife were having a lot of financial difficulties and he thought that
marijuana could get him out of his financial problems. Instead, it only caused his family
hardship and worry. He intended to do it only long enough to get caught up with his bills, and at
the time he thought that it was his only option. He now realized what a mistake he had made.
¶ 16 Defendant knew that he had to be punished for his decisions and he would accept any
punishment that the court would impose. However, if he were sentenced to incarceration, his
wife and daughter would struggle financially. Their childcare costs would go up and they would
-5
2018 IL App (2d) 170405
not have any means to pay all of their bills. They would almost certainly lose their home. His
previous job allowed him to be flexible with his hours so that he could be with his daughter most
of the day while his wife was gone 10 hours a day and traveled for work about two months of the
year. He and his wife do not have parents who live close enough to help out, and he was unsure
what it would do to his daughter emotionally not to see him every day. Defendant said that he
could not believe what an idiot he was to put his family in this position. He gave the trial court
his word that it would never see him in the courtroom again, and he asked the trial court not to
make his family pay for his mistakes.
¶ 17 The State then argued that a sentence of probation would deprecate the seriousness of the
offense and be inconsistent with the ends of justice. It said that it was clear that a lot of thought
and planning had been put into this offense and that a sentence of imprisonment would deter
other people who wanted to start up this type of operation and make fast money. The State said
that probation was an option but that the legislature also set a prison range of 4 to 15 years.
Therefore, the State requested that defendant be sentenced to a term of four years’ imprisonment.
¶ 18 Defense counsel argued that there was a statutory presumption of probation in a case like
this. As for mitigation, counsel argued that several statutory mitigating factors applied:
(1) defendant’s conduct did not cause or threaten serious harm to another, (2) defendant had no
history of prior delinquency or criminal activity and had led a law-abiding life for a substantial
period of time before the commission of the instant offense, (3) defendant was unlikely to
commit another crime, (4) defendant was likely to comply with the conditions of a probation
period, and (5) a sentence of imprisonment would cause excessive hardship to his dependents.
After further argument, counsel requested that defendant be sentenced to a term of probation.
-6
2018 IL App (2d) 170405
¶ 19 The court said that it had heard some evidence from two of defendant’s close friends
about defendant’s good character. However, it was not sure whether those men knew defendant
as well as they thought they did, because defendant was able to hide the grow operation from
them. With regard to excessive hardship to his dependents, the court said that it did not doubt
that if defendant were sentenced to imprisonment he would likely lose the family home, his wife
would incur a huge financial burden, and his incarceration would be an emotional burden on his
whole family. However, it did not think that defendant’s wife “got to play innocent bystander.”
It could reasonably infer that she knew that there was a grow operation going on in her basement.
The court then noted that defendant had pleaded guilty, thereby avoiding the cost to the State of a
trial, and that he had taken responsibility for his conduct and cooperated fully with law
enforcement.
¶ 20 The court then discussed whether it believed that a sentence of imprisonment was
necessary to deter others from committing the same crime. It noted that, although it could not
compare defendant’s grow operation to any others, it found defendant’s operation to be extensive
and sophisticated. The court said that, with the decriminalization of cannabis for personal use,
the State of Illinois had created a new market of people who might not go to housing projects in
Rockford, for example, to purchase cannabis, but would go to a beautiful subdivision like the one
defendant lived in, knock on the door, purchase the drug, and go home. It said that this type of
new market was ripe for a markup, since people would pay more if they did not have to go to a
seedy neighborhood to buy cannabis. Therefore, there needed to be consequences for people
who started these types of grow operations. Accordingly, the court sentenced defendant to four
years’ imprisonment and imposed upon him a $37,000 street-value fine.
-7
2018 IL App (2d) 170405
¶ 21 Defendant filed a motion to reconsider his sentence, and then an amended motion. At the
hearing on the motion, the trial court rejected each of the grounds he raised as meritless. It
reaffirmed that at the time of sentencing it believed that a sentence of incarceration was
necessary to deter others. It said that it could not do anything about the minimum that was
required for this offense. Curiously, the court then said that it did not think that four years’
imprisonment was the correct sentence at the original sentencing hearing, and it did not think that
the sentence was any better today. It noted that, since defendant was originally sentenced, he
had served four months in prison, which it did not have to consider at the original hearing. In
ruling on the motion to reconsider, the court then said:
“And while I don’t intend to circumvent any of the mandatory minimums nor set
up a process that I believe is appropriate to do so, on this particular case I am hoping and
trusting that the message has been sent not just to you but to other people who are in your
situation, otherwise law-abiding people that are interested in making a quick buck and
getting a grow operation in their basement. And based upon all of this now with the
additional factor that as you sit here [today] have served at least four months in the
Department of Corrections, I am going to reconsider my sentence. I’m going to sentence
you to 48 months of probation, time served for the time you’ve been in the Department of
Corrections or actually in custody.”
¶ 22 The State argued that on a motion to reconsider it was improper to consider factors that
had occurred after the sentencing hearing. In response, the trial court said that the State could
appeal. It then vacated defendant’s four-year term of imprisonment and entered an order
sentencing defendant to 48 months of probation with credit for time served.
-8
2018 IL App (2d) 170405
¶ 23 On March 1, 2017, the State filed a motion to reconsider the court’s ruling on defendant’s
motion to reconsider his sentence. At a hearing on the State’s motion, defense counsel argued
that the State had no authority to even make its motion and that therefore the court should not
hear it. If the court decided to hear it, counsel contended, then the court could not increase the
sentence beyond the 48 months of probation to which it had sentenced defendant when it granted
his motion to reconsider. The court then gave the parties time to research the issue of whether
the court had the authority to hear the State’s motion at all, particularly in light of People v.
Castleberry, 2015 IL 116916.
¶ 24 At the hearing on the issue of the court’s authority to hear the State’s motion, the court
agreed with defendant that, on a motion to reconsider a sentence, it could not vacate the sentence
imposed and instead order a more severe sentence. However, the court said that here it was not
reconsidering a sentence but instead reconsidering its ruling on the motion to reconsider the
sentence. Specifically, the court said:
“But really I think the reason that I keep jurisdiction over these things for 30 days
is so I can clear up any mistakes that I make. And again, this is not the State asking for a
greater sentence. It’s asking for them to—for me to correct a mistake I made in granting
the motion itself to reconsider. I considered a thing that I ought not have. This is not a
discretionary thing. Clearly, my findings were a sentence—as originally sentenced based
upon the evidence provided at the sentencing hearing was proper. I considered things
that happened subsequent to that, in particular his incarceration to the Department of
Corrections, and I shouldn’t have. And ultimately the State has not asked me to go back
and take a look at what otherwise would be discretionary. Clearly once I make a finding
that the sentence itself based upon the evidence is proper and the minute I deviate from
-9
2018 IL App (2d) 170405
denying the motion to reconsider the sentence based upon the evidence that I ought not to
have considered, the answer to the original motion to reconsider is pretty straightforward
and non-discretionary. I should have denied it.
I believe I have the authority to deny it and I’m going to do that.”
¶ 25 The trial court then reimposed the previously vacated sentence of four years’
imprisonment. Defense counsel objected, arguing that the trial court was ignoring the plain
language of section 5-4.5-50(d) of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5
50(d) (West 2014)). Specifically, he said:
“[DEFENSE COUNSEL]: Judge, respectfully you’ve just created an entire legal
theory for not following the precise language of 4.5-50(d) from which there is no
authority in the State of Illinois of any kind for a void imposed sentence that doesn’t
violate a statutory requirement. There’s no language of any kind—
“[TRIAL COURT]: Courts have always had the ability to review any sentencing
irregularities. Looking at People v. Foster which was—in that case the State filed a
motion to reconsider the sentence; however, the defendant had filed a notice of appeal
prior to that time. In that case the court of appeals said that normally you would hear the
motion to reconsider the sentence filed by the State; however, you got—that court had
already lost its jurisdiction because the defendant had already filed his notice of appeal
prior to that filing. So even in that case, it is acknowledged that this is a procedural—a
procedural possibility. So the answer to say that it doesn’t happen, there’s no case law to
suggest it doesn’t happen, that’s not true.”
¶ 26 Defendant filed a second motion to reconsider his sentence, which the trial court denied.
The court later granted defendant’s motion to stay the sentence pending appeal.
- 10
2018 IL App (2d) 170405
¶ 27 II. ANALYSIS
¶ 28 On appeal, defendant argues that (1) the trial court abused its discretion in entering its
original sentence of incarceration and (2) after reducing that sentence to probation, the trial court
erred in granting the State’s motion to reconsider and reimposing the original sentence. We will
address defendant’s second argument first because, if we find that the trial court violated the
Code when it imposed an increased sentence, we need not address the first argument.
¶ 29 Defendant alleges that it was error for the trial court to even entertain the State’s motion
to reconsider defendant’s sentence of probation. After failing to reject the matter out of hand, he
argues, it was further error to grant the State’s motion to reconsider and reimpose the original
sentence of imprisonment. He argues that such an increase is expressly prohibited by section 5
4.5-50(d) of the Code (730 ILCS 5/5-4.5-50(d) (West 2014)). Defendant points out that
imprisonment was not mandatory here and that the court had the option to sentence defendant to
up to 180 days in the county jail along with a term of probation. Id. § 5-6-3(e).
¶ 30 Defendant also argues that whether or not he agreed with the trial court’s reasons for
vacating the original sentence, it was in fact vacated and a term of probation was entered in its
stead. Accordingly, the State should not have been allowed to seek reconsideration of the
sentence of probation that he received when the trial court granted his motion to reconsider the
original sentence. Once the valid sentence of probation was imposed, he argues, the trial court
was without authority to increase his sentence upon the State’s motion to reconsider. Although
the trial court said that it did so to correct an error that it had made in considering postsentencing
evidence at the hearing on defendant’s motion to reconsider, defendant contends that the trial
court’s power to address such a sentencing error was eradicated in Castleberry, 2015 IL
1169616, where our supreme court abolished the “void sentence rule.” Defendant points out that
- 11
2018 IL App (2d) 170405
the Castleberry court held that the only correct remedy for the State in the face of what it
believed was a “void” sentence was to seek mandamus relief. Specifically, defendant directs us
to Castleberry’s holding that “[t]he remedy of mandamus therefore permits the State to challenge
criminal sentencing orders where it is alleged that the circuit court violated a mandatory
sentencing requirement, but precludes the State from challenging ordinary, discretionary
sentencing decisions.” Id. ¶ 27. Defendant argues that the trial court here seemed to seize on the
concept of a “void” sentence as discussed in Castleberry to justify vacating the sentence of
probation, initially finding that the sentence here was not void but then treating it like a void
sentence even though it did not fit the characteristics of a void sentence as set out in Castleberry.
He argues that the probation sentence was validly imposed and that the second sentence of
imprisonment was clearly an increase from that valid sentence and thus forbidden, as expressly
set out in People v. Foster, 309 Ill. App. 3d 1 (1999).
¶ 31 In response, the State first argues that, contrary to defendant’s reading of the statute, the
plain language of section 5-4.5-50(d) of the Code does not explicitly prohibit the State from
moving to reconsider a court’s sentencing order. In fact, it argues, Illinois Supreme Court Rule
303(a)(2) (eff. Jan. 1, 2015) provides that a timely filed posttrial motion, even if preceded by the
filing of a notice of appeal, shall be heard by the trial court. It notes that, although Rule
303(a)(2) is a civil rule, it has been applied in criminal cases. See People v. Neal, 286 Ill. App.
3d 353, 354-55 (1996).
¶ 32 The State then argues that, at the hearing on its motion to reconsider defendant’s sentence
of probation, the trial court correctly interpreted Castleberry when it found that it retained
jurisdiction to correct any mistakes in sentencing and that granting defendant’s motion to
reconsider his sentence based upon postsentence evidence had been a mistake. It relies upon
- 12
2018 IL App (2d) 170405
Foster to support the proposition that, as occurred here, the State may seek reconsideration of a
sentencing order as long as the court retains jurisdiction over the matter. It also distinguishes
Foster on the ground that in Foster the State sought reconsideration of the imposition of valid
concurrent sentences, whereas in this case the trial court’s order sentencing defendant to
probation was based on a legal mistake. On the State’s motion, the defendant in Foster was
resentenced to consecutive terms of imprisonment, which represented an increase to his original
sentence. Foster, 309 Ill. App. 3d at 13-14. The State contends that here, unlike in Foster,
defendant’s original sentence was not increased by the court’s order reconsidering its ruling on
his motion to reconsider.
¶ 33 Section 5-4.5-50(d) of the Code provides, in pertinent part:
“(d) MOTION TO REDUCE SENTENCE. A motion to reduce a sentence may be
made, or the court may reduce a sentence without motion, within 30 days after the
sentence is imposed. A defendant's challenge to the correctness of a sentence or to any
aspect of the sentencing hearing shall be made by a written motion filed with the circuit
court clerk within 30 days following the imposition of sentence. A motion not filed
within that 30-day period is not timely. The court may not increase a sentence once it is
imposed. A notice of motion must be filed with the motion. The notice of motion shall
set the motion on the court’s calendar on a date certain within a reasonable time after the
date of filing. (Emphasis added.) 730 ILCS 5/5-4.5-50(d) (West 2014).
¶ 34 Illinois Supreme Court Rule 606(b) provides, in pertinent part:
“When a timely posttrial or postsentencing motion directed against the judgment
has been filed by counsel or by defendant, if not represented by counsel, any notice of
appeal filed before the entry of the order disposing of all pending postjudgment motions
- 13
2018 IL App (2d) 170405
shall have no effect and shall be stricken by the trial court.” Ill. S. Ct. R. 606(b) (eff.
Dec. 11, 2014).
¶ 35 We review de novo questions of statutory interpretation. People v. Molnar, 222 Ill. 2d
495, 519 (2006).
¶ 36 In Castleberry, 2015 IL 116916, the defendant was convicted of two counts of
aggravated criminal sexual assault, based on separate acts of oral and vaginal contact with the
victim. At sentencing, the State contended that the defendant was subject to a mandatory 15
year sentencing enhancement on each of the two counts because the defendant had been armed
with a firearm. Id. ¶ 3. When added to the mandatory minimum term of 6 years’ imprisonment
for each offense, the State claimed, the defendant was subject to a mandatory minimum term of
21 years’ imprisonment on each count. Id. The trial court disagreed about the application of the
15-year enhancement, however, and found that the legislature had intended for the enhancement
to be applied only once. It sentenced the defendant to a 9-year term of imprisonment on each
count and added the 15-year enhancement to only one count, for a total term of 33 years’
imprisonment. Id. ¶ 4. Neither the defendant nor the State moved to reconsider the defendant’s
sentence.
¶ 37 One of the arguments that the defendant raised on appeal was that the mandatory 15-year
sentencing enhancement was unconstitutional, which the appellate court rejected. However, the
court then responded to the State’s argument on appeal and agreed that the mandatory 15-year
enhancement applied to both convictions. Id. ¶ 6. The court held that, because the sentence that
lacked the enhancement did not conform to a statutory requirement, it was void. The court then
remanded the matter to the trial court for resentencing. Id. The defendant filed a petition for
leave to appeal to the supreme court, and it was allowed.
- 14
2018 IL App (2d) 170405
¶ 38 In reviewing the defendant’s arguments, our supreme court abolished the “void sentence
rule,” which mandated that a sentence that did not conform to a statutory requirement was void.
Id. ¶ 1 (citing People v. Arna, 168 Ill. 2d 107, 113 (1995)). The court held that, because a trial
court’s subject matter jurisdiction over criminal cases comes from the constitution, a trial court
cannot lose jurisdiction over a criminal case through “ ‘the failure to satisfy a certain statutory
requirement or prerequisite.’ ” Id. ¶ 15 (quoting LVNV Funding, LLC v. Trice, 2015 IL 116129,
¶ 30). Instead, the court held that a judgment is void only if it was entered by a court lacking
either subject matter jurisdiction or personal jurisdiction. Id. ¶¶ 11-12. Subject matter
jurisdiction involves the court’s power “ ‘to hear and determine cases of the general class to
which the proceeding in question belongs.’ ” Id. ¶ 12 (quoting In re M.W., 232 Ill. 2d 408, 415
(2009), quoting Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334
(2002)). Personal jurisdiction involves the court’s power “ ‘to bring a person into its
adjudicative process.’ ” Id. (quoting In re M.W., 232 Ill. 2d at 415).
¶ 39 Although the State agreed that the void-sentence rule should be abolished, it argued that,
even if the void-sentence rule did not provide a basis for the appellate court’s decision, there was
nothing wrong with the appellate court’s increasing the defendant’s sentence at the request of the
State. Id. ¶ 20. The court disagreed and noted that Illinois Supreme Court Rule 604(a) (eff. July
1, 2006) did not permit the State to appeal a sentencing order. Id. ¶ 21. Further, because that
rule did not allow the State to appeal a sentencing order, it followed that the State could not have
cross-appealed in the appellate court either, which the supreme court held was essentially what
the State was trying to do. Id. ¶ 22-23. The court also held that Illinois Supreme Court Rule
615(b) (eff. Jan. 1, 1967), granting the appellate court the authority to reverse, affirm or modify
the judgment or order from which the appeal was taken, did not grant it the plenary power to
- 15
2018 IL App (2d) 170405
increase a sentence. Id. ¶ 24. However, the court held that, where a sentence “is illegally low,
the State may, in appropriate circumstances, seek relief from this court via the writ of
mandamus.” Id. ¶ 26. At that time, the court noted, the State had not sought a writ of
mandamus. Accordingly, the supreme court reversed the appellate court’s judgment that
increased the defendant’s sentence and it affirmed the trial court’s judgment. Id. ¶¶ 27, 31. 1
¶ 40 We first dispose of defendant’s claim that the State did not have the authority to even file
a motion to reconsider the trial court’s order vacating the sentence of imprisonment and
resentencing him to a term of probation. At oral argument, defendant’s counsel conceded that
the trial court had the authority to entertain the State’s motion. Accordingly, we turn to the issue
of whether the trial court erred in granting the State’s motion.
¶ 41 The trial court’s order granting the State’s motion to reconsider its order sentencing
defendant to 48 months’ probation and resentencing him to four years’ imprisonment violated
section 5-4.5-50(d) of the Code and was clearly in error. That section specifically provides that
“[t]he court may not increase a sentence once it is imposed.” (Emphasis added.) 730 ILCS 5/5
4.5-50(d) (West 2014). However, that is exactly what the court did here.
¶ 42 Our supreme court has long held that “a harsher sentence imposed after a successful
appeal or motion to reconsider is only proper if it is based on additional bad conduct performed
by the defendant after the original sentencing.” People v. Moore, 177 Ill. 2d 421, 433 (1997). A
defendant should not have to run the risk that challenging a sentence might result in a longer
1
The State subsequently sought a writ of mandamus to compel the trial court to impose
the mandatory 15-year firearm enhancement on each of the defendant’s two convictions of
aggravated criminal sexual assault. Our supreme court awarded the writ. People ex rel. Alvarez
v. Gaughan, 2016 IL 120110.
- 16
2018 IL App (2d) 170405
sentence and should not be penalized for his efforts to seek relief from the sentence he received.
People v. McBride, 395 Ill. App. 3d 204, 209 (2009). Foreign jurisdictions have come to similar
conclusions. Bryant v. State, 29 So. 3d 928, 936-37 (Ala. Crim. App. 2009) (“ ‘[o]nce a valid
sentence has been entered, it cannot, in the absence of fraud or another compelling reason, be
altered anytime thereafter so as to increase the severity of the sentence’ ” (quoting Ex parte Tice,
475 So. 2d 590, 591-92 (Ala. 1984))).
¶ 43 Here, the State never alleged that defendant engaged in additional bad conduct after he
was originally sentenced. Instead, the trial court had jurisdiction to grant defendant’s motion to
reconsider his sentence of imprisonment, and it did so. Since the trial court still retained
jurisdiction over this matter when the State filed its motion to reconsider, i.e., 30 days had not
passed since the trial court entered its order sentencing defendant to probation (Ill. S. Ct. R.
606(b) (eff. Dec. 11, 2014)), the trial court could entertain the State’s motion. 2 Moreover, this
court has made it clear that Rule 606(b) applies equally to both a defendant and the State.
Abdullah, 2018 IL App (2d) 150840, ¶ 16.
¶ 44 Nevertheless, although the State believed that the trial court erred in lowering defendant’s
sentence upon reconsideration, based upon the time defendant spent in prison since he was
originally sentenced, the trial court could not resentence defendant based upon that alleged error,
because the order of probation was not illegal. Cf. id. ¶ 17 (the State is entitled to move to
2
Even if defendant had filed a notice of appeal before the State filed its motion, as long
as the State filed the motion within 30 days of the final order, defendant’s notice of appeal would
have been considered premature and the trial court would still have had jurisdiction to hear the
State’s motion. Ill. S. Ct. R. 606(b) (eff. Dec. 11, 2014); People v. Abdullah, 2018 IL App (2d)
150840, ¶ 14.
- 17
2018 IL App (2d) 170405
correct a sentence that does not conform to the law). Instead, the probation sentence was lawful,
and any “mistake” in the trial court’s rationale when imposing it did not make the sentence itself
unlawful.
¶ 45 We also disagree with the State’s claim that Foster supports its position that the trial
court had the authority to vacate defendant’s sentence of probation and resentence him to a term
of imprisonment.
¶ 46 In Foster, the defendant was found guilty of second-degree murder, two counts of
attempted first-degree murder, and two counts of aggravated discharge of a firearm. The trial
court originally sentenced him to a total of 18 years’ imprisonment, with concurrent terms of 18,
17, 17, 10, and 10 years in prison, respectively. Foster, 309 Ill. App. 3d at 2. Those sentences
were based on the State’s argument that the offenses were not part of a single course of conduct.
However, the State urged the court to use its discretion to impose consecutive sentences. Id. at
5-6. The court rejected that argument and imposed concurrent sentences. Id. at 6. After the
defendant filed his notice of appeal, the State filed a motion to reconsider the defendant’s
sentence. The court granted the motion, found the original sentence void, and resentenced the
defendant to a total of 35 years’ imprisonment, with an 18-year term for second-degree murder to
run consecutively to concurrent terms of 17, 17, 10, and 10 years, respectively, for the remaining
convictions. Foster, 309 Ill. App. 3d at 3, 6. In doing so, the court found that the offenses
constituted a single course of conduct and were therefore subject to mandatory consecutive
sentencing.
¶ 47 On appeal, the defendant argued that the trial court erred when it reconsidered his
sentence and ordered consecutive sentences, because the court had been divested of jurisdiction
when the defendant filed his notice of appeal. The State argued that the issue of jurisdiction was
- 18
2018 IL App (2d) 170405
irrelevant because the trial court had the authority to correct a void sentence at any time. Id. at 6.
The Foster court described the issue on appeal as whether, upon a motion by the State to
reconsider a sentence, a trial court may reinstate its own jurisdiction to “correct” a sentence after
a notice of appeal has been filed. Id. at 7. The court held that the State could not seek
reconsideration of the defendant’s sentence in the trial court after the defendant had already filed
a notice of appeal, because that notice divested the trial court of jurisdiction and only the
appellate court had the authority to review the sentence at that time. Id. at 8 (citing People v.
Bounds, 182 Ill. 2d 1, 3 (1991)). The Foster court then said, “[t]he State could have obtained
reconsideration of the sentence order by filing its motion before the notice of appeal was filed by
the defendant.” Id. at 8. However, since the trial court’s order resentencing the defendant to
consecutive sentences was made in the absence of jurisdiction, the Foster court held that it must
be vacated. Id.
¶ 48 The court then determined that the original sentence was valid because it reflected the
fact that the second-degree murder and attempted murders were separate offenses, motivated by
different criminal objectives, and were not committed as part of a single course of conduct. Id. at
10. With regard to the second sentencing hearing, the court held that the State attacked the
concurrent sentences under a different version of the facts from the version it relied upon at the
first sentencing hearing, which was improper. Id. at 12 (citing People v. Summers, 291 Ill. App.
3d 656 (1997)). After discussing Summers, the court held, “[m]oreover, the trial court could not
increase the sentence once a valid sentence was imposed.” Id. at 13. It found that the
defendant’s sentence was increased from 18 to 35 years’ imprisonment when the terms were
changed from concurrent to consecutive. Accordingly, it vacated the second, increased sentence
and reinstated the original sentence. Id. at 14.
- 19
2018 IL App (2d) 170405
¶ 49 We agree with the State that Foster supports its proposition that the State may seek
reconsideration of a sentencing order as long as the court retains jurisdiction over the matter.
However, that does not mean that the State’s motion for reconsideration will be granted, if it is
requesting reconsideration of a sentence that was not unlawful but simply a product of the trial
court’s discretion. 3
¶ 50 The State attempts to distinguish Foster on the ground that, in Foster, the State sought
reconsideration of the imposition of valid concurrent sentences, whereas in this case the trial
court’s order sentencing defendant to probation was due to a “legal mistake.” We are not
persuaded. Again, although the trial court’s reliance on defendant’s time spent in prison might
have been error, that alleged error did not make the sentence itself unlawful. Nothing in the
Code provides that, if the trial court made an error in resentencing a defendant, the trial court
may vacate the valid order that resentenced the defendant and then impose an increased sentence.
See State v. Lehrkamp, 2017 MT 203, ¶ 11, 400 P.3d 697 (review of the legality of a sentence is
confined to determining whether the sentencing court had statutory authority to impose the
sentence).
¶ 51 The State also notes that here, unlike in Foster, defendant’s original sentence was not
increased by the court’s order reconsidering its ruling on defendant’s motion to reconsider. This
3
We note that the Foster court incorrectly held that the trial court was divested of
jurisdiction when the defendant filed a notice of appeal. Id. at 8. The plain language of Rule
606(b) clearly states, “[w]hen a timely posttrial or postsentencing motion directed against the
judgment has been filed by counsel or by defendant, if not represented by counsel, any notice of
appeal filed before the entry of the order disposing of all pending post-judgment motions shall
have no effect and shall be stricken by the trial court.” Ill. S. Ct. R. 606(b) (eff. Dec. 11, 2014).
- 20
2018 IL App (2d) 170405
argument has no merit. It is clear that the focus here is not on an increase to the original
sentence but on an increase to the sentence of probation that defendant received upon
reconsideration.
¶ 52 Finally, the State argues that, since the trial court still had personal and subject matter
jurisdiction when it granted the State’s motion to reconsider, it had the authority to correct its
order resentencing defendant to a term of probation. Unlike in Castleberry, the State argues, the
voidable sentence here was corrected by the trial court but was not increased upon resentencing.
Therefore, as the trial court concluded, Castleberry is distinguishable and did not limit the
court’s inherent authority to correct its ruling.
¶ 53 Again, we are not persuaded. Although the trial court still had personal and subject
matter jurisdiction when it granted the State’s motion to reconsider and resentenced defendant to
imprisonment, that does not mean that it had the power to ignore the Code’s requirement that
specifically states that a court may not increase a sentence once it has been imposed. 730 ILCS
5/5-4.5-50(d) (West 2014). Here, the trial court did not have “inherent authority” to correct its
ruling, and when it did so it impermissibly increased defendant’s sentence.
¶ 54 Finally, at oral argument, we asked the State to respond to our supreme court’s holding in
Moore that “a harsher sentence imposed after a successful appeal or motion to reconsider is only
proper if it is based on additional bad conduct performed by the defendant after the original
sentencing.” Moore, 177 Ill. 2d at 433. In response, the State referenced our supreme court’s
decision in People v. Garcia, 179 Ill. 2d 55 (1997), where the court referred to the “prophylactic
rule” announced in North Carolina v. Pearce, 395 U.S. 71l (1969). That rule was “designed to
protect a defendant on retrial from the potential vindictiveness of a resentencing judge.” Garcia,
179 Ill. 2d at 74 (citing Pearce, 395 U.S. at 725). Twenty years later, in Alabama v. Smith, 490
- 21
2018 IL App (2d) 170405
U.S. 794 (1989), the United States Supreme Court held that the Pearce presumption of
vindictiveness does not apply when a sentence imposed after trial is greater than that previously
imposed after a guilty plea. Id. at 797-803.
¶ 55 In Moore, our supreme court found that the provisions of section 5-4.5-50(d) of the
Code 4 (titled “Motion to Reduce Sentence”) were consistent with and incorporated the reasoning
in Pearce. Moore, 177 Ill. 2d at 432. Our supreme court has recently reiterated that same
finding. See Alvarez, 2016 IL 120110, ¶ 19. Therefore, we fail to see how Garcia aids the State
here. Since the increased sentence that defendant received after the trial court granted the State’s
motion to reconsider his sentence of probation was not based upon bad conduct that occurred
after he was originally sentenced, the trial court did not have the authority to resentence
defendant to four years’ imprisonment.
¶ 56 III. CONCLUSION
¶ 57 In sum, the State had the authority to file a motion to reconsider the trial court’s order
here. However, the trial court erred in granting the State’s motion, because the order of
probation was not an illegal sentence, even if the court believed that its rationale was flawed
when it entered that sentence. When the trial court vacated the sentence of probation and
resentenced defendant to a four-year term of imprisonment, it impermissibly increased
defendant’s sentence, in violation of section 5-4.5-50(d) of the Code (730 ILCS 5/5-4.5-50(d)
(West 2014)). Having so held, we need not address defendant’s remaining contention that the
trial court abused its discretion in originally sentencing him to four years’ imprisonment.
4
Section 5-4.5-50 was then section 5-8-1(c) of the Code. See 730 ILCS 5/5-8-1(c) (West
1996).
- 22
2018 IL App (2d) 170405
¶ 58 The judgment of the circuit court of Boone County resentencing defendant to four years’
imprisonment is vacated and the trial court’s order sentencing defendant to 48 months’ probation
is reinstated. Upon remand, the trial court shall order defendant to report to the appropriate
probation authority to begin serving his sentence of probation, less credit for time served.
¶ 59 Imprisonment order vacated and probation order reinstated.
¶ 60 Cause remanded with directions.
- 23
|
01-03-2023
|
06-27-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/4143437/
|
. ’
OFFICE OF THE AlTORNEYGENERAL OF TEXAS
AUSTlN
HOnor~bl* Rolner @arrimll, Jr.
Dircator
Beprrtment o? Pwbllo Safety
Austin , Texas
-!?i
1940, you ark the
ion of ubethbr ?ihe
Aote or, the
authorire t
on HRe sulultted to Ii8 aA&
dleouaaed In our opiaian
f Ootobar 9, 1939.
th, for your ln-
plalon WC hrld follorr:
or tomyour eixth querCloa, you are
the balanoo whioh may r”p*c la the
and Qhaatfeur8r License kd, under
Publid 9atsty
ocae is not the ohmaoter of npcoi.altuna ~vtil-
abke for the UPO oi the Deportmentof Publlo
Safety generally, by gnd with the approved of
the Lialtaatlunof P~ytwnta?S&&, but the rider
:
HolaarGarrison,Jr., Page 2
Hor:.Trable
quoted above from Senate Bill 427 requirer
" th& I)uohexoese or surplus in the fund be
devbted to a partloular use by the ComptrOl-
ler, that is, the exoesa at the end of the
flroal blennlum in this epealal fund is to
be pald into the Qeneral Fund for the pur-
pole of relmburslngthat fund for the item
of~~:ralariee and other expenaee arywoprlated
to the Depertment of Publio Safety out of
the Generel Fund for the flroal blennlum end-
ing Augtmt 31, 1941.*
Your6 very truly
ATTORNEY GENE~:AL OF TEXhB
BY
A .'d Falmhlld
Aesiat&t
Opinion Committee
By B.W.B., Chairman
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143556/
|
103
OFFICE OFTHE ATTORNEY GENERAL OF TEXAS
AUSTIN
~%!i!i
Au we understsad the isots submitted the propsrty
ww derised by the Qolased to the United OhrirtlsnLUutomry
8miaOy of Indifmapolia,Indiane. It oontnined no restrlstlan
or prorision whatweYar oonoerning nhtiher or not the 8am
should be spent 5.nTexas.
&Sicle 7ll7 of Veran*s Annotated itevlwd Civil
8tatuteu provi4es in part au follarrr
*All property withhi this Stste . . . whioh 8hall
lmLl, upon pawing to or for the we mf mny
~~o~~*&mratlon or awoolation, be rubfeat to a tu
for the boruiit or the State’8 Wnm.i Rommo Zun6, in
aoooPtmloawith the rollowing c1Msir10st1on. . . .*
*If paeobag to or,iw th+ we or hha United SAate8,
bo or Ser the une of si& othu! persw or x-slims, oduee-
tiowl or obuitable ~~sditm OF lmaitutio~r, of tso
any other prmn, eorpmation or 8saaolai&on not inoluUe4
5.n nny of the olesser mentiione~ in the pneodl portianr
OS the originalAot Imom an Chapter 29 ef the3 vmerp1
Laws of the Seoond Called 5e88ion ot thr Thlrty-dghth
Legid.nhwo, the tax Wall be,
“59 011wy tslw in exeom of 9500 a nd
no tlx e r eUing
~1 0,000.
...
It fs the opinion oi W&s 8eepartaunt that the derire
in question ia we whloh &mms usdsr the o.la8siiioatU#n 8eb up
5.n the rirst pet of ArtlcZe 7122, *uprat in that it paraw
pro exty to or for the use of a oharitebloorganfsatianoae, inrtl-
tutfon. St find nothing howover ia ebbsderiee nhlah u8ul6 mko
it one paaaing property to e charitable arganiaation to bs ustd
within this State. ft is urged, &weveI?, wren, thccqh tlw deriso
thee not recplre the money to be apsnt in Texas, that Ur fs6t
the maucsywill be so spent, A roakllngof the Various eBnr#iflea-
tions set up by Arttale 7128 thxough 7122, insltmive, el.om&g
Benorable George ii. Sheppard, gage 3
&i~pratnat the-tax la to be oomputed in aooordenoe dth the
worilingof the devise itself. Xi the rule be otherwiao,
awmy ~8selng to an unole or aunt would not have to pay the
tax aohsdule set Out in Utiole 7121 on an affibatit or suoh
wc&.eor atantthnttha aMeywaalnSeott0 be spent upon a
brother or si8ter at the 6eoaese6, uhlah beer8 a a!aaller tex
lehedule a8 808, out in mole 7120.
Prior to 1933 8 aimllm lxuphion was oontalnod
in the Texne InheritanceTax Law la rerebnoo to d&tin8 to
mli(lioua, eduoetlonal or ohqrkteble orgeair;etiona. Pnaer
the exemption (18it Wgl reeb it uaa naoeaaary that t&a 8evlae
be to M in8titUtiOnlooatad iA thla IStat tid alao it wan
woenary that the boqgmt, deriaa or gift was to ba uaeed
dthln this Btate. Tho Auatio Court of Cirll Appoala aons6ru.d
tbia bIbngtlon in the aaae of Ban Jeointo #et&me1 Beak v.
Sheppard, 125 8. W. (26) 715. Un4er the feota ia that o8ae
thn dsriw of one-half of the boooeaed98a8tete we8 to aa out
OS Stat6 oorporationor(ganlnotlS6~ rellgiow, bsnevelent aq4
e&wational purpoae8. The oourt held that auoh inatitutba
was not looatbd dthln this Btetr. The aomt aim atet& aa
follws 1
140r Aid the will.of Xllro~ nquire the ruada
derived rrom hla tlevin to be wed in Texas, Clenrly
under the barter an4 s&l& will tie bsnefiotaryowpora-
tion could bara und the derim anywhere the dlreotora
theroof rhould determine in their tweblngs in Ohio.*
The eboro dia c ua alraPPptlcm
od was mum&l to ita
pnaent form ae quoted supra by the I+%& Leprial8turo ia 19.933.
HOwever, the preaemt examptlon rouuirea that thr der@?a bo OM
whlah is to be used dthin t&la State and in this reapeotthe
pre8ent exemption is ldantioal with the like requuirenont in the
prior lxemptbn. Therefore t&a oourt*s atetment oohoornlag
the berise in the San Jaointa Mational Bank tram I.8 pertinent
In eowtti~ the preeent exemgtlan.
rionotable
Omme H. Sheppard,p-0 k,
Under the deviw in question the Indiana organiea-
t,j,on
has the authority'to spend the rooeebs fromtha aale of
the proprty anywhere that it SeeB I!t to do em. The devise
ia not one which requixea that the money be apentrrithinthis
5tatie. It ta the opinion Of t:iiaikp8rtnsnt,therefo&ya, that
fbe property paselag la thePsriaa in qumatfon is c ublot to
the Texas Inheritan F on lta Value la exoes8 0r 0f00.
Pours very truly
APPROVEDOCT 26, 1940
lzLL.dA*u
ATTORNEY GZB%RAL OF TEXAS
COMMIITEC
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4128838/
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 12,2004
Mr. Paul Hudson, Chairman Opinion No. GA-0257
Public Utility Commission of Texas
Post Office Box 13326 Re: Whether the Public Funds Investment Act
Austin, Texas 78711 would govern a municipal utility’s authority to
invest certain nuclear decommissioning trust
Ms. Julie Parsley, Commissioner funds (RQ-0212-GA)
Public Utility Commission of Texas
Post Office Box 13326
Austin, Texas 78711
Dear Chairman Hudson and Commissioner Parsley:
Your questions arise because a municipal utility is considering acquiring an interest in a
nuclear generating plant.’ You explain that Federal Nuclear Regulatory Commission (“NRC”) rules
require the safe decommissioning of nuclear facilities after they cease operating and permit a utility
to fund a facility’s decommissioning costs over the life of the asset through an external trust. See
Request Letter, supva note 1, at 2; see also 10 C.F.R. 5 50.75 (2004) (decommissioning planning)
(Nuclear Regulatory Commission)? The trust consists of amounts collected from utility customers
and investment earnings. See Request Letter, supra note 1, at 2; see also 16 TEX. ADMIN. CODE 9
25.231 (2004) (Pub. Util. Comm’n of Tex.) (electric utility’s authority to include nuclear
decommissioning expense as a service cost). Because the Public Utility Commission (the
“Commission”) is drafting rules regarding decommissioning trusts, you ask whether the Public
Funds Investment Act, Government Code chapter 2256 (the “Public Funds Investment Act” or the
“Act”), would govern a municipal utility’s authority to invest certain decommissioning trust funds.
See Request Letter, supru note 1, at 1.3
State law provides the Commission with regulatory authority overrates for “costs associated
with nuclear decommissioning obligations,” which “shall be included” as a charge to retail
‘SeeLetter fromPaul Hudson, Chairman,and Julie Parsley,Commissioner,PublicUtility CommissionofTexas,
to Honorable Greg Abbott, Texas Attorney General (Apr. 15, 2004) (on tile with Opinion Committee, also available
af http//www.oag.state.tx.us) [hereinafter Request Letter].
zSeealso 10 C.F.R. 5 50.2 (2004) (“Decommissionmeans to remove a facility or site safely from service and
reduce residual radioactivityto a level that permits - (1) Release of the property for unrestricted use and termination of
the license; or (2) Release of the property under restricted conditions and termination of the license.“).
‘After submitting this request, the Commission formally proposed a new rule “relating to Nuclear
Decommissioning following the Transfer ofNuclear Generating Plant Assets.” See 29 Tex. Reg. 4632 (2004) (to be
codified at 16 TEX. ADMIN.CODE 5 25.303) (proposed May 14,2004) (Pub. Util. Comm’n of Tex.).
Mr. Paul Hudson - Page 2 (GA-0257)
Ms. Julie Parsley
customers. TEX. UTIL. CODE ANN. § 39.205 (Vernon Supp. 2004-05). You explain that if the
municipal utility acquires an interest in the nuclear facility, decommissioning costs would continue
to be collected from the selling utility’s customers; your query is limited to the purchasing municipal
utility’s authority to invest funds from that source. See Request Letter, supra note 1, at l-2.
The Commission is drafting a rule “to prescribe the [selling] utility’s responsibility for
charging rates for the collection of funds for a nuclear decommissioning trust” after the transaction
and to “establish standards for the administration ofthe trust by the buyer ofthe nuclear plant asset.”
Id. at l.4 In regulating privately owned utilities, the Commission’s “rules and ratemaking decisions
concerning the appropriate level of the decommissioning charge” are based on the assumption that
the trust will be invested in both equity and debt securities. Id. at 3. Ifthe Public Funds Investment
Act governs a municipal utility’s authority to invest these decommissioning trust funds, however,
the municipal utility “would be limited to investments in debt securities, which likely would mean
a lower overall [investment] return” and thus “require a significantly higher non-bypassable charge
to customers of the selling utility.” Id.
Originally enacted in 1987, the Public Funds Investment Act was intended to “broaden”
certain governmental entities’ “investment opportunities.“s Section 2256.003 provides that “[e]ach
governing body of the following entities may purchase, sell, and invest its funds and funds under its
control in investments authorized under this subchapter in compliance with investment policies
approved by the governing body and according to the standard of care prescribed by Section
2256.006.” TEX. GOV’T CODE ANN. 5 2256.003(a) (Vernon 2000). The entities subject to the Act
include “(1) a local government; (2) a state agency; (3) a nonprofit corporation acting on behalf of
a local government or a state agency; or (4) an investment pool acting on behalf of two or more local
governments, state agencies, or a combination ofthose entities.” Id. Other sections in chapter 2256,
subchapter A list various authorized investments. See id. $5 2256.009-.0201 (Vernon 2000 & Supp.
2004-05).
Your question involves a municipal utility owned by the City of San Antonio, a local
government subject to the Act. See id. 5 2256.003(a)(l) (V emon 2000); see also id. 3 2256.0201
(authorizing a municipalitythat owns amunicipal electric utility to enter into certain hedge contracts
related to energy prices); Request Letter, supra note 1, at 2 n.3; Letter from N. Beth Emery, Senior
Vice President & General Counsel, City Public Service of San Antonio, to Honorable Greg Abbott,
Texas Attorney General at 1 (Apr. 22,2004) (on file with Opinion Committee). Section 2256.004(b)
of the Government Code provides that the Act does not apply to “an investment donated to an
investing entity for a particular purpose or under terms of use specified by the donor.” TEX. GOV’T
CODEANN. 5 2256.004(b) (Vernon 2000). Yourrequest letter focuses on whether decommissioning
trust timds derived from charges paid by the selling utility’s customers fall within the section
2256.004(b) exception. See Request Letter, supra note 1. Specifically, you ask the following
question:
‘See alsoid.
5SeeTex.Att’yGen. Op.No. DM-489(1998)at 1 (citingFISCALNOTE,Tex.
Comm. SubstituteH.B. 1488,7Oth
Leg., R.S. (1987)).
Mr. Paul Hudson - Page 3 (GA-0257)
Ms. Julie Parsley
If funds are held in a separate trust account pursuant to the
requirements of an order or rule of the Commission, would [the
section 2256.004(b) exception] apply to (i) funds for investment in a
nuclear decommissioning trust that are collected pursuant to
regulation from the customers of an entity that has transferred its
interest in a nuclear generating plant to a local government entity (a
municipally-owned utility) whose investments are otherwise subject
to the restrictions ofthe Act; and (ii) the decommissioning trust funds
accumulated by the transferee entity prior to the transfer which are
acquired by the local government entity in connection with its
acquisition of the transferred interest in the nuclear generating plant?
Id. at 1
The Act does not define any of the terms in section 2256.004(b), and we construe the phrase
“investment donated to an investing entity,” as it is commonly understood, to refer to an investment
given to the entity as a gift. See TEX. GOV’T CODE ANN. 3 3 11 ,011 (Vernon 1998) (words that have
not acquired a technical or particular definition shall be construed according to their common usage);
WEBSTER’SNINTH NEW COLLEGIATEDICTIONARY 375 (9th ed. 1983) (defining “donate” to mean
“to make a gift of,” “to make a donation”). Section 2256.004@) excepts from the Act an investment
given to the investing entity as a gift, thus permitting the entity to continue to hold the donated
investment even ifit is not an investment the Act permits. However, neither trust funds derived from
charges paid by the selling utility’s customers in exchange for utility services nor trust funds
transferred to a purchasing municipal utility by the selling utility in connection with the transfer of
an interest in a nuclear facility may be characterized as a donation or gift to the municipal utility.
Although your question focuses on section 2256.004(b), your concern is whether the Public
Funds Investment Act would govern the municipal utility’s authority to invest the trust funds. To
fully respond to your query, we must consider whether the trust fund moneys are “public funds”
within the Act’s scope. The Act permits a subject entity to “purchase, sell, and invest” in the listed
investments “itsfunds andfunds under its control.” TEX. GOV’T CODE ANN. 5 2256.003 (Vernon
2000) (emphasis added). Section 2256.002(3) defines the term “tinds” to mean “publicfunds in the
custody of a state agency or local government that: (A) are not required by law to be deposited in
the state treasmy; and (B) the investing entity has authority to invest.” Id. 5 2256.002(3) (emphasis
added). In Attorney General Opinion DM-489, this office concluded that the term “public funds”
in section 2256.002(3) denotes funds that belong to the investing entity “collected by virtue of some
general law, and that are designated to a public purpose.” Tex. Att’y Gen. Op. No. DM-489 (1998)
at 2. Moreover, “[flunds a state agency possesses merely as a custodian, for the benefit of
contributors, are not public funds.” Id, at 3.
Applying this standard, Attorney General Opinion DM-489 concluded that the Public Funds
Investment Act did not govern the Department of Banking’s authority to invest certain funds, such
as t?mds of a liquidated, uninsured bank or a trust company in conservatorship, because they were
not “public funds.” See id. at 4-8 (addressing whether certain funds administered by the Department
of Banking are public funds subject to the Act). The funds were not public funds because they did
not belong to the state, because the Department held them as a mere custodian, and because they
would not be used to discharge a general public purpose. See id.
Mr. Paul Hudson - Page 4 (GA-0257)
Ms. Julie Parsley
Here, we address whether the Public Funds Investment Act applies to a municipal utility’s
authority to invest decommissioning trust funds, the corpus of which derives from charges paid
by the selling utility’s customers, and which are dedicated to paying a nuclear facility’s
decommissioning costs. See Request Letter, supru note 1, at 3. As you note, the funds at issue
would be “governed by a trust agreement, NRC rules, and Commission rules.” Id. at 3-4. Pursuant
to a Commission rule,
Each electric utility collecting funds for a nuclear
decommissioning trust shall place the funds in an external,
irrevocable trust fund. The utility shall appoint an institutional trustee
and may appoint an investment manager(s). Unless otherwise
specified in subsection (b) of this section, the Texas Trust Code
controls the administration and management of the nuclear
decommissioning trusts, except that the appointed trustee(s) need not
be qualified to exercise trust powers in Texas.
16 TEX. ADMIN. CODE 9 25.301(a)(2) (2004) (Pub. Util. Comm’n of Tex.); see also 10 C.F.R.
F, 50.75(e)(ii) (2004) (“An external sinking fund is a fund established and maintained by setting
funds aside periodically in an account segregated from licensee assets and outside the administrative
control of the licensee and its subsidiaries or affiliates in which the total amount of funds would be
sufficient to pay decommissioning costs at the time permanent termination ofoperations is expected.
An external sinking fund may be in the form of a trust .“). The Commission rule also governs
trust agreements and decommissioning trust investments. See 16 TEX. ADMIN. CODE 4 25.301 (b)-(c)
(2004) (Pub. Util. Comm’n of Tex.). In addition, you inform us that Commission orders and rules
“are expected to specify that funds in excess of actual decommissioning costs are to be refunded to
the customers of the seller of the nuclear asset.” Request Letter, supra note 1, at 4.6 Based on this
regulatory framework, the municipal utility at issue observes that it would hold these
decommissioning trust funds not on its own behalfbut as a custodian pursuant to a trust established
to provide for the selling utility customers’ share ofdecommissioning costs. See Letter from N. Beth
Emery, Senior Vice President & General Counsel, City Public Service of San Antonio, to Nancy S.
Fuller, Chair, Opinion Committee, Office of the Attorney General at 2 (July 1, 2004) (on file with
Opinion Committee).
Assuming that the decommissioning trust funds at issue here will not belong to the municipal
utility but rather will be held by the municipal utility as a custodian to pay for decommissioning costs
and that any excess funds will be returned to the selling utility’s customers, they are not “public
funds” within the meaning of the Public Funds Investment Act, and the Act does not govern the
municipal utility’s authority to invest them.
6Therule formally proposed by the Commission after submittingthis request would provide that “[a]nyfunds
remaining in the trust after the completion of decommissioning shall be refUndedto customers in a manner determined
by the commission.” 29 Tex. Reg. 4632,4636 (2004)(to be codified at 16TEX. ADMLV. CODE 9 25.303(f)(5))(proposed
May 14,2004) (Pub. Util. Comm’n ofTa.).
Mr. Paul Hudson - Page 5 (GA-0257)
Ms. Julie Parsley
SUMMARY
The Public Funds Investment Act applies to “public funds”
and generally does not govern funds that a governmental entity holds
as a mere custodian for the benefit of contributors. In the event a
municipal utility acquires an interest in a nuclear facility, the Act
would not govern the municipal utility’s authority to invest nuclear
decommissioning trust funds derived from charges paid by the selling
utility’s customers if the municipality holds the funds as a custodian
to pay for decommissioning costs and any excess funds will be
returned to the selling utility’s customers.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4128853/
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 30,2004
The Honorable Cheryl1 Mabray Opinion No. GA-0242
Llano County Attorney
Llano County Courthouse Re: Whether a commissioners court may hold an
801 Ford, Room 111 election that creates an emergency service district
Llano, Texas 78643 and imposes a sales and use tax within the proposed
district’s boundaries (RQ-0202-GA)
Dear Ms. Mabray:
You ask about creating an emergency services district (“ESD”) pursuant to Health and Safety
Code chapter 776.’ You state that Llano County called for an election to create an ESD in 2002, but
it was not approved because the citizens did not want more ad valorem taxes. See Request Letter,
supra note 1, at 1; Tex. Att’y Gen. Op. No. JC-0392 (2001) (concerning creation of an ESD in Llano
County). Many voters have stated that they would vote for an ESD funded with a one cent sales and
use tax because everyone pays it, unlike an ad valorem tax paid only by property owners. See
Request Letter, supra note 1, at 1. You also state that Llano County citizens have considered
adopting a county health services sales and use tax under Tax Code chapter 324, and you ask
whether the county may do so. See id. at 2.
We first address the creation of an ESD. The Llano County Commissioners Court wishes
to call an election with a petition that includes the following wording:
The ESD will provide for emergency medical service within the
district. The district is to be created and is to operate under Article
III, Section 48-e, Texas Constitution with a levy on the ad valorem
property situated in said district not to exceed zero cents (0) on the
One Hundred Dollars ($100) valuation for the support thereof;
provided that no tax shall be levied in support of said district until
approved by vote ofthe qualified voters residing herein. Said district
is to be created and is to operate under the adoption of a not to exceed
one cent (1) sales and use tax.
Id. Accordingly, you ask whether the commissioners court may call an election to create an
emergency services district and at the same time call an election for a sales and use tax not to exceed
one percent in the emergency service district boundaries. See id. at 1.
‘Letter from Honorable Cheryl1 Mabray, Llano County Attorney, to Honorable Greg Abbott, Texas Attorney
General (Mar. 1,2004) (on file with the Opinion Committee, also availableat hnp://www.oag.state.tx.us) [hereinafter
Request Letter].
The Honorable Cheryl1 Mabray - Page 2 (GA-0242)
Texas Constitution article III, section 48-e, provides for establishing ESDs as follows:
Laws may be enacted to provide for the establishment and
creation of special districts to provide emergency services and to
authorize the commissioners courts ofparticipating counties to levy
a tax on the ad valorem property situated in said districts not to
exceed Ten Cents (106) on the One Hundred Dollars ($100.00)
valuation for the support thereof; provided that no tax shall be levied
in support of said districts until approved by a vote of the qualified
voters residing therein. Such a district may provide emergency
medical services, emergency ambulance services, rural tire prevention
and control services, or other emergency services authorized by the
Legislature.
TEX. CONST. art. III, 5 48-e (added Nov. 3,1987; amended Nov. 2,1999). Pursuant to section 48-e,
the legislature adopted Health and Safety Code chapter 776, authorizing the creation of ESDs in
counties with a population of 125,000 or less. See TEX. HEALTH & SAFETY CODE ANN. 5 776.003
(Vernon 2003); see also id. ch. 775 (Vernon 2003 & Supp. 2004) (authorizing the creation of
ESDs without a population restriction). Llano County has a population of approximately 17,500
persons. See Request Letter, supra note 1, at 1.’
To create an ESD located wholly within Llano County pursuant to chapter 776, “a petition
signed by at least 100 qualified voters who own taxable real property in the proposed district must
be filed with the county judge.” See TEX. HEALTH & SAFETY CODE ANN. 5 776.01 l(a) (Vernon
2003). The petition must show “that the district is to be created and is to operate under Article III,
Section 48-e,” the proposed district’s name and boundaries, the services it will provide, that its
creation complies with Health and Safety Code section 776.021, which pertains to overlapping
districts, and certain information pertaining to the petitioners. Id. 5 776.013. After the countyjudge
receives the petition and tiles it with the county clerk, the commissioners court schedules a hearing
to consider the petition. See id. 5 776.015(a)-(b).
Notice of the hearing must state, among other things, that the district is to be created and
operate under Texas Constitution article III, section 48-e, the name of the proposed district, and its
boundaries and functions. See id. § 776.015(c). At the hearing, the commissioners court “shall
consider the petition and each issue relating to the creation of the district,” and any interested person
may appear “to support or oppose creation ofthe district.” Id. 5 776.016(a)-(b). “If after the hearing
the commissioners court finds that the proposed district is feasible, will benefit the territory in the
district, will secure the public safety, welfare, and convenience, and will aid in conserving the real
property or natural resources . , the commissioners court shall grant the petition and fix the
district’s boundaries.” Id. 8 776.017(a). On granting a petition, the commissioners court “shall order
an election to confirm the district’s creation and authorize the levy of a tax not to exceed the rate
allowed by Section 48-e, Article III, Texas Constitution.” Id. 776.019(a). “If a majority of the votes
‘See U.S. Census Bureau, Texas QuickFacts Llano County, nvailobleat http://quickfacts.census.gov/qfd/states
/48/48299.html (visited July 29, 2004).
The Honorable Cheryl1 Mabray - Page 3 (GA-0242)
cast in the election favor confirmation, the district is created.” Id. 776.020(a). The commissioners
court of a county in which a single-county district is located appoints a five-member board of
emergency commissioners to serve as the district’s governing body. See id. 5 776.033(a) (Vernon
Supp. 2004).
Attorney General Opinion JM-1010 addressed legislation implementing Texas Constitution
article III, section 48-e. The commissioners court, acting under the predecessor of Health and Safety
Code chapter 775, wished to limit the tax to be levied in support of an ESD to a maximum rate of
six cents per $100 valuation and to provide for that amount in the election order. See Tex. Att’y
Gen. Op. No. JM-1010 (1989) at 1 (addressing former article 235la-8, Revised Civil Statutes). The
statute stated that “the commissioners court shall call an election to confirm the organization and
authorize the levy of an ad valorem tax in an amount not to exceed ten cents on the $100 valuation.”
See Act ofMay 22, 1987,7Oth Leg., R.S., ch. 673, 5 8, 1987 Tex. Gen. Laws 2495,2496 (formerly
codified as section 8, article 2351a-8, Revised Civil Statutes). Opinion JM-1010 found the statute
to be ambiguous as to whether it required the election order to include the maximum constitutional
rate often cents on the $100 valuation or allowed the commissioners court to set a lower maximum
tax rate in the election order. See Tex. Att’y Gen. Op. No. JM-1010 (1989) at 3. AAer reviewing
the relevant provisions in context, the opinion concluded that the statute did not allow the
commissioners court any discretion as to the maximum tax rate and the election order must track the
statutory language as to tax rate. See id. at 4. Attorney General Opinion JC-0392 also concluded
that an election order to establish an ESD must strictly conform to statutory language stating the tax
rate. See Tex. Att’y Gen. Op. No. JC-0392 at 4 (construing a prior version of Health and Safety
Code section 776.019). More importantly, opinion K-0392 determined that article III, section 48-e
did not bar the legislature from adopting statutes authorizing the levy of a tax less than ten cents on
the $100. See id. at 5.
Amendments to chapter776 that became effective following the issuance ofopinion JC-0392
allow the commissioners court to set the maximum property tax rate for an ESD at less than ten cents
per $100 valuation. See Act ofMay28,2001,77th Leg., R.S., ch.1140, 5 6,200l Tex. Gen. Laws
2542, 2543-44. Section 776.019(a) was amended to provide as follows: “On the granting of a
petition, the commissioners court shall order an election to confirm the district’s creation and
authorize the levy of a tax not to exceed the rate allowed by Section 48-e, Article ZZZ,Texas
Constitution.” TEX. HEALTH & SAFETY CODE ANN. 5 776.019(a) (Vernon 2003) (adopted by Act
of May 28,2001, 77th Leg., R.S., ch.1140, 5 6, 2001 Tex. Gen. Laws 2542,2544) (language of
amendment emphasized).
Although the amendment to section 776.019(a) does not expressly state that the election
order may authorize a maximum tax rate of less than ten cents on the $100 property valuation, the
legislative history is explicit on this point. A bill analysis states that the 2001 enactment amends the
Health and Safety Code to provide that the tax rate of an ESD “is any rate allowed by the Texas
Constitution.” HOUSE COMM. ON COUNTY AFFAIRS, BILL ANALYSIS, Tex. H.B. 2744, 77th Leg.,
R.S. (2001). Moreover, the same 2001 enactment included another provision regarding the
maximum tax rate for an ESD. Section 776.0755 provides as follows:
The Honorable Cheryl1 Mabray - Page 4 (GA-0242)
Aboard [ofemergencycommissioners]3mayorderanelection
to increase the maximum tax rate of the district to any rate at or below
the rate allowed by Section 48-e, article III, Texas Constitution. The
proposition on the ballot must state the proposed maximum tax rate
to be authorized at the election.
TEX.HEALTH&SAFETYCODEANN. 3 776.0755(a) (Vemon2003)(adoptedbyActofMay28,2001,
77th Leg., R.S., ch.1140, § 6,200l Tex. Gen. Laws 2542,2544). This provision must mean that an
ESD may be created with a maximum property tax rate of less than ten cents on the $100 valuation.
Otherwise, the ESD board could not possibly seek to increase the maximum tax rate and the above
provision would be meaningless. See TEX. GOV’T CODE ANN. 5 311.021(2) (Vernon 1998)
(presumption that the entire statute is intended to be effective). The commissioners court’s election
order may authorize a maximum property tax rate at any rate up to and including the ten cents on
$100 valuation allowed by article III, section 48-e. Of course, once an ESD is established, it may
tax in any year at less than the maximum rate that it has adopted. See Tex. Att’y Gen. Op. No. JM-
1010 at 5; see also TEX. HEALTH & SAFETY CODE ANN. $776.075(a) (Vernon 2003) (board shall
annually impose an ad valorem tax on real and personal property in the district for the district’s
support and the purposes of chapter 776).
A tax rate of zero is not unprecedented. See N. Shore MRZ Ctr. v. Ill. Dep ‘tof Revenue, 723
N.E.2d 726, 728 (Ill. App. Ct. 1999) (zero percent tax rate for certain goods provided by statute);
Op. MO. Att’y Gen. No. 69-2004 (ambulance district set its property tax rate at zero in shifting to
support by sales tax). We assume that the newly created ESD will not have any bonded indebtedness
or obligations to third parties that will be jeopardized by the absence of any property tax support.
However, the commissioners court is not authorized to call an election to adopt a sales tax
to support an ESD. No sales and use tax may be adopted until after a district has been confirmed
and the commissioners court has appointed its board. See TEX. HEALTH & SAFETY CODE ANN.
§ 776.033(a) (Vernon Supp. 2004). “A district may adopt a sales and use tax . at an election
held as provided by Section 776.0752.” Id. 5 776,0751(a) (V emon 2003) (emphasis added). “An
election [to adopt a sales and use tax] is called by the adoption of a resolution by the board.” Id.
5 776.0752(b) (emphasis added). At the election, the ballot shall permit voting “for or against the
proposition: ‘The adoption of a local sales and use tax in (name of district) at the rate of (proposed
tax rate) percent.“’ Id. 5 776.0752(c).
We conclude in answer to your question that the commissioners court may not order an
election to create an emergency service district and at the same time impose a sales and use tax
within the proposed district’s boundaries. If the election order sets the maximum property tax rate
at zero, the board is unlikely to have the funds necessary to pay board members’ expenses or the
expenses of an election to adopt a sales and use tax. But see id. § 776.031(5) (district may accept
and receive donations). Thus, while there may not be a legal impediment against setting the tax rate
at zero, it may be impossible as a practical matter to establish an ESD with a zero tax rate.
“‘Board”meanstheboardofemergencycommissioners. S~~TD(.HEALTH&SAFE~CODEANN. ~776.001(1)
(Vemon2003).
The Honorable Cheryl1 Mabray - Page 5 (GA-0242)
You also ask whether Llano County may adopt a sales and use tax under Tax Code chapter
324, which authorizes a county with a population of 50,000 or less to adopt a one-half percent sales
and use tax to provide health services in the county. See Request Letter, supra note 1, at 2; TEX.
TAXCODEANN. $4 324.021-.022, .081 (Vernon2002) (tax shall beadoptedorabolishedbyelection
in the county). A county may not adopt the sales and use tax if as a result “the combined rate of all
sales and use taxes imposed by the county and other political subdivisions having territory in the
county would exceed two percent at any location in the county.” TEX. TAX CODE ANN. § 324.021(b)
(Vernon 2002) (emphasis added). You state that the one-half percent tax rate authorized by Tax
Code chapter 324 combined with the rate of sales and use taxes established in the City of Llano
would exceed a two percent tax rate within the city. See Request Letter, supra note 1, at 2.
Chapter 324 requires the sales and use tax to be established throughout the county. It must
be approved “at an election held in the county,” and the ballot shall permit adopting a “local sales
and use tax in (name of county).” TEX. TAX CODE ANN. 5s 324.021(a), .061(b) (Vernon 2002).
These chapter 324 provisions may be contrasted with Health and Safety Code section 776.013(3),
which requires the petition to establish an ESD to describe the “proposed district’s boundaries as
designated by metes and bounds or other sufficient legal description,” and section 776.020(d),
requiring the commissioners courts’ order recognizing the ESD’s creation to “insert description [of
district] unless the district is countywide.” TEX. HEALTH & SAFETY CODE ANN. §§ 776.013(3),
.020(d) (Vernon 2003). Nothing in chapter 324 provides for establishing the sales and use tax in an
area less than the entire county. Llano Countymaynot adopt the sales and use tax authorized by Tax
Code chapter 324 if that tax, when combined with the rate of sales and use taxes imposed by the
county and other political subdivisions having territory in the county, would exceed two percent
anywhere in the county. See TEX. TAX CODE ANN. 5 324.021(b) (Vernon 2002). See generally
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999) (court
construes a statute by looking to the plain meaning of its language). If the one-half percent tax rate
authorized by Tax Code chapter 324 combined with the rate of sales and use taxes established in the
City of Llano would exceed a two percent tax rate within the city, Llano County may not adopt the
sales and use tax authorized by chapter 324.
The Honorable Cheryl1 Mabray - Page 6 (GA-0242)
SUMMARY
Health and Safety Code chapter 776 does not authorize a
commissioners court to call an election to create an emergency
service district and at the same time call for an election for a sales and
use tax in the emergency service district boundaries. The election
order must provide for an election to confirm the district’s creation
and authorize the levy of a property tax, setting the maximum tax rate
at any rate that does not exceed the ten cents on the $100 valuation
allowed by Texas Constitution article III, section 48-e. Only the
district board may call an election to adopt a sales and use tax.
Tax Code chapter 324 provides for a county-wide sales and
use tax to fund county health services. A county may not adopt the
chapter 324 tax if the tax rate authorized by that chapter combined
with the rate of all sales and use taxes imposed in any city within the
county exceeds two percent in that city.
Very truly yours,
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4128870/
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 3,2004
The Honorable Jeff Wentworth Opinion No. GA-0225
Chairman, Senate Jurisprudence Committee
Texas State Senate Re: Whether a school district may offer an early
Post Office Box 12068 payment discount to its taxpayers if the school
Austin, Texas 7871 l-2068 district has contracted with a county for tax
collection services and the county has discontinued
early payment discounts (RQ-0179-GA)
Dear Senator Wentworth:
You ask whether a school district may offer an early payment discount to its taxpayers if the
school district has contracted with a county for tax collection services and the county has
discontinued early payment discounts.’
We have received briefs filed on behalf of the Alamo Heights Independent School District
(the “District”)* and Bexar County (the “County”),3 which relate the facts of their particular situation.
The County has been the tax collecting agent for the District since 1986, and their arrangement is
embodied in an interlocal agreement. District Brief, supra note 2, at 1. In September 2003, the
County discontinued its own early payment discounts for County taxpayers and mailed tax
statements that did not offer an early payment discount to either County taxpayers or District
taxpayers. See id.
Section 3 1.05(a) of the Tax Code provides for early payment tax discounts:
The governing body of a taxing unit that collects its own taxes
may adopt the discounts provided by Subsection (b) or Subsection (c)
of this section, or both, in the manner required by law for official
‘See Letter from Honorable Jeff Wentworth, Chairman, Senate Jurisprudence Committee, Texas State Senate,
to Honorable Greg Abbott, Texas Attorney General (Jan. 27,2004) (on file with Opinion Committee, also available at
http://www.oag.state.tx.us).
‘See Brief from Robert A. Schuhnan, Legal Counsel for Alamo Heights Independent School District, to
Honorable Greg Abbott, Texas Attorney General (Feb. 6,2004) (on tile with Opinion Committee) [hereinafter District
BriefJ.
3See Brief from Jill Torbet, Assistant District Attorney-Civil, Bexar County, to Honorable Greg Abbott, Texas
Attorney General (Mar. 11,2004) (on file with Opinion Committee).
The Honorable Jeff Wentworth - Page 2 (GA-0225)
action by the body. The discounts, if adopted, apply to taxes for a
taxing unit for which the adopting taxing unit collects taxes if the
governing body of the other unit, in the manner required by law for
offkial action by the body, adopts the discounts or approves of their
application to its taxes by the collecting unit. . . .
TEX. TAX. CODE ANN. 5 3 1.05(a) (Vernon 2001).
The primary goal of statutory interpretation is to ascertain legislative intent and give it effect.
McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). See In re Canales, 52 S.W.3d 698, 702
(Tex. 2001). To discern the Legislature’s intent, we begin with a statute’s plain language, because
the words the Legislature chooses are the surest guide to its intent. See Fitzgerald v. Advanced Spine
Fixation Sys., Inc., 996 S.W.2d 864,865-66 (Tex. 1999). When a statute is plain and unambiguous
on its face, it should generally be construed as written. Id. The Texas Supreme Court has stated that
even when a statute is unambiguous, a court may consider, “among other things, the statute’s
objectives, its legislative history, and the consequences of a particular construction.” In re Canales,
52 S.W.3d at 702. However, the court has indicated that only “exceptional circumstances” might
warrant construing an unambiguous statute other than as written. Fitzgerald, 996 S.W.2d at 866.
The first sentence of section 3 1.05(a) of the Tax Code plainly authorizes thegoverning body
of a taxing unit that collects its own taxes to adopt early payment discounts. The second sentence
provides that a discount adopted by a tax collecting unit will apply to taxes collected for another tax
unit, provided the noncollecting unit also adopts or authorizes the discount.
..
The District suggests that in the first sentence the phrase “taxing unit that collects its own
taxes” means a taxing unit that has the authority to collect its own taxes whether they actually collect
their own taxes or contract for others to do so. Otherwise, the District concludes, no taxing unit that
did not in fact collect its own taxes would have the authority to adopt the discount. See District
Brief, supra note 2, at 6-10.
We disagree for several reasons. First, the Texas Supreme Court directs that, “[i]n applying
the plain and common meaning of the language in a statute, courts may not by implication enlarge
the meaning of any word in the statute beyond its ordinary meaning; such implication is
inappropriate when legislative intent may be gathered from a reasonable interpretation of the statute
as it is written.” Sorokolit v. Rhodes, 889 S.W.2d 239,241 (Tex. 1994). Here, nothing in the statute
indicates that a “taxing unit that collects its own taxes” means anything other than a taxing unit that
actually collects its own taxes.
Also, it must be noted that the statute uses the word “collects” in both sentences. The second
sentence provides that the discount may apply to “taxes for a taxing unit for which the adopting
taxing unit collects taxes.” In that sentence, a unit that “collects taxes” can only mean a unit that
literally collects taxes. We must assume that a “taxing unit that collects its own taxes” in the first
sentence and a taxing unit that “collects taxes” in the second sentence both mean a taxing unit that
literally collects taxes. See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)
(stating that statutory terms should be interpreted consistently throughout an act).
The Honorable Jeff Wentworth - Page 3 (GA-0225)
Further, although the first sentence does not authorize a taxing unit that does not collect its
own taxes to adopt an early payment discount, that authority may be found in the terms of the second
sentence. The second sentence allows a taxing unit that does not collect its own taxes to adopt the
discount, provided the taxing unit that collects the tax has adopted the discount for its own taxes.
Section 3 l.O5(a)‘s plain language does not authorize a taxing unit that does not collect its own taxes
to offer an early payment discount when the collecting unit that collects the taxes does not offer a
disdount.
Previously this office construed section 3 1.05(a) to the same effect:
Under section 3 1.05(a), a taxing unit may adopt the discounts
specified in subsections (b) and (c) for the timely payment of taxes,
but only in the presence of one of two circumstances: Either the
taxing unit collects its own taxes; or if it does not collect its own
taxes, the unit that collects its taxes (the collecting unit) also has
adopted the discounts. Section 3 1.05 does not permit a noncollecting
taxing unit to choose to adopt the discounts unless the collecting unit
has adopted the discounts. See Hearings on H.B. 1282 Before the
House Subcommittee on Property Tax, 68th Leg. (Apr. 12, 1983)
(statements of unidentified representative and committee counsel)
(tape on file with House Committee Coordinator).
Tex. Att’y Gen. Op. No. DM-171 (1992) at 3 (footnote omitted). The District suggests that its
construction of section 31.05(a) is consistent with DM-171 because the specific question in that
opinion involved a taxing unit that did not have the authority to collect its own taxes. However, it
is clear from the opinion as a whole that the interpretation of section 3 1.05(a) quoted above did not
turn on that fact.
The District also suggests that the legislative history for section 31.05(a) supports its
interpretation. Prior to 1983, section 3 1.05(a) provided:
The governing body of a taxing unit that collects its own taxes
may adopt [specified discounts] in the manner required by law for
official action by the body. The discounts, if adopted, apply to taxes
for all units for which the adopting taxing unit collects taxes.
Act of May 26, 1979,66th Leg., R.S., ch. 841, $ 1, 1979 Tex. Gen. Laws 2217,2285 (amended
1983). As this office described section 31.05 as it read prior to 1983, “if a collecting unit adopted
the discounts specified in the statute, the discounts automatically applied to all taxing units for which
the collecting unit collected taxes.” Tex. Att’y Gen. Op. No. DM- 17 1 (1992) at 4. In other words,
the collecting unit had sole discretion to decide whether discounts applied not only to its own taxes
but to the taxes it collected for other taxing units.
In 1983, the Legislature amended section 3 1.05 to read as it does in its present form. Act of
May 29, 1983,68th Leg., R.S., ch. 862, 5 2, 1983 Tex. Gen. Laws 4875,4875-76. A bill analysis
The Honorable Jeff Wentworth - Page 4 (GA-0225)
states, “[tlhis bill allows each taxing unit to decide whether or not to offer discounts. A collecting
unit would no longer be able to make that decision for units for which it collects.“4 HOUSE COMM.
ON WAYS & MEANS, BILL ANALYSIS, Tex. H.B. 1282, 68th Leg., R.S. (1983). That statement is
undoubtedly true when the collecting unit has adopted the early payment discount. After 1983, a
collecting unit’s decision to adopt a discount no longer automatically applies to all taxes it collects.
However, section 3 1.05’s plain language does not authorize a noncollecting entity to adopt an early
payment discount unless the collecting unit provides its own taxpayers with such a discount, and the
legislative history of the amendment to section 31.05 does not establish an intent contrary to the
plain language.
The District argues that public policy favors its interpretation of section 31.05(a): (1)
taxpayers of a school district, through elected trustees, should be able to choose whether to offer an
early payment discount; (2) a school district could not use a private tax collection agency to collect
its taxes because the private agency would be the “tax collecting unit” authorized to decide whether
to offer the discount;5 (3) discontinuing the discount here disrupted the District’s financial planning,
which should be the sole province of the District trustees; and (4) if non-collecting tax units cannot
depend on the collecting tax units to provide the discount, then non-collecting units would be forced
to resort to more costly in-house or private collection systems resulting in unnecessary waste and
duplication of public resources. District Brief, supra note 2, at 10-l 1.
Policy considerations are a matter for the Legislature. Tex. Att’y Gen. Op. No. GA-0088
(2003) at 6. We may consider a statute’s purpose and the consequences of a particular construction
when attempting to determine the Legislature’s intent. TEX. GOV’T CODE ANN. 8 3 11.023(l), (3),
(5) (Vernon 1998) (Code Construction Act). But the policy reasons that the District identifies do not
compel the conclusion that the Legislature intended section 3 1.05 to apply other than as written.
Notions of what might constitute good policy are not a basis for disregarding plain statutory
language. Tijerina v. City ofTyZer, 846 S.W.2d 825,828 (Tex. 1992) (While we may permissibly
consider public policy in construing the intent of the Legislature from an ambiguous provision, we
cannot rewrite or. . . deconstruct a plainly worded statute because we believe it does not effectuate
sound policy.“).
Finally, the District suggests that its interlocal agreement may require the County to provide
District taxpayers with the discount, even though the County no longer offers its own taxpayers a
discount. While this office does not construe the terms of a particular contract, we will address
applicable general legal principles. Tex. Att’y Gen. Op. No. GA-0176 (2004) at 2.
4Although similar statements were made in the course of a House subcommittee meeting on House Bill 1282,
other statements in the meeting describe the bill as requiring the collecting unit to offer the discount before other units
may adopt the discount. See Hearings on Tex. H.B. 1282 Before the House Subcommittee on Property Tax, 68th Leg.,
R.S. (Apr. 12, 1983) (statement of unidentified representative and unidentified committee counsel) (tape on file with
House Video/Audio Services).
‘This offke has determined that taxing units may not delegate all duties of a tax assessor-collector to a private
firm, but that the governing body of a school district or a home-rule city may contract with a private firm to provide
ministerial and clerical assistance under the control and supervision of the tax assessor-collector. Tex. Att’y Gen. Op.
No. JM-1025 (1989) at 11.
The Honorable Jeff Wentworth - Page 5 (GA-0225)
The governing body of an independent school district may either (1) employ a person to
assess and collect its taxes, or (2) provide for assessing and collecting its taxes under chapter 6,
subchapter B of the Tax Code. TEX.EDUC.CODEANN. $45.23 l(a)-(b) (Vernon 1996); TEX.TAX
CODEANN. $0 6.21-.30 (Vernon 2001) (chapter 6, subchapter B). Under one provision in chapter
6, subchapter B, the governing body of a taxing unit such as a school district, by official action, “may
require the county to assess and collect the taxes the unit imposes in the county in the manner in
which the county assesses and collects its taxes.” TEX.TAX CODEANN. 3 6.22(c) (Vernon 2001)
(emphasis added). Additionally, an intergovernmental contract may require a county tax assessor-
collector to assess and collect taxes for another taxing entity. Id. 5 6.23(a)(4). Chapter 6, subchapter
B of the Tax Code does not specify the appropriate terms of such an agreement.
The Interlocal Cooperation Act authorizes one local government to contract with another
to perform “governmental functions and services . . . that each party to the contract is authorized
to perform individually.” TEX. GOV’T CODEANN. $ 791.01 l(a), (c)(2) (Vernon Supp. 2004).
Conversely, the Act does not authorize a local government to contract for services it is not authorized
to perform individually. See Tex. Att’y Gen. Op. No. GA-01 89 (2004) at 5. Section 3 1.05(a) of the
Tax Code authorizes a taxing unit that does not collect its own taxes to adopt or approve only the
discount adopted by the collecting tax unit. Consequently, because the Tax Code does not authorize
a noncollecting tax unit to offer a discount unless its tax collecting unit offers a discount, an
agreement under the Interlocal Cooperation Act may not provide to the contrary.
The Honorable Jeff Wentworth - Page 6 (GA-0225)
SUMMARY
A school district may not offer an early payment discount to
its taxpayers if the school district contracts with a county for tax
collection services and the county does not offer early payment
discounts for county taxes.
Very truly yours,
Attorney &n&al of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129276/
|
OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
August 28,200l
The Honorable E. Bruce Curry Opinion No. JC-0405
District Attorney
2 16th Judicial District Re: Whether and when a district clerk must
Bandera, Gillespie, Kendall, Kerr Counties provide jury lists to litigants in civil and criminal
521 Earl Garrett Street trials (RQ-0353-JC)
Kerrville, Texas 78028
Dear Mr. Curry:
You have asked this office a series of questions concerning when the district clerk must
release jury lists to the parties in both civil and criminal actions. In examining the relevant statutes
and the cases interpreting them, we find no controlling legal authority as to when the clerk may
provide such information in either civil or non-capital criminal actions beyond the clear limitation
that it be presented to both sides when the parties have announced ready for trial. See TEX.R. CIV.
PROC. 224; TEX. CODE CRIM. PROC. ANN. art. 35.01 (Vernon 1989).* We have not been directed to,
and our research has not disclosed, “any prohibition to the District Clerk, in her discretion, providing
this list to the parties at any time after the list is prepared.“2 The legislature and the courts, which
have not spoken on this matter, have thereby effectively granted the district clerk, a constitutional
officer, discretion in it. The ultimate management of either civil or criminal trials, of course, is in
the hands of the presiding judge.
Discretion granted to a public officer in the exercise of his or her functions is, of course, not
unbounded. You have asked, in that regard, “If the District Clerk provides the jury list to one of the
litigants, is it mandatory that the District Clerk provide the list to the other litigants at the same
time?” Request Letter, supra note 2, at 2. While there appears to be no statutory directive in this
regard, the district clerk must not show undue favoritism to any party. See, e.g., Mann v. Ramirez,
905 S.W.2d 275 (Tex. App.-San Antonio 1995, writ denied) (actions of district clerk in improperly
‘Article 34.04 of the Code of Criminal Procedure provides that “No defendant in a capital case in which the
state seeks the death penalty shall be brought to trial until he shall have had at least two days (including holidays) a copy
of the names of the persons summoned as veniremen, for the week for which his case is set for trial. . . .” TEX. CODE
GRIM.PROC. ANN. art. 34.04 (Vernon Supp. 2001).
*Letter from Honorable E. Bruce Curry, District Attorney, 2 16th Judicial District, to Honorable John Comyn,
Texas Attorney General, at 2 (Feb. 21, 2001) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable E. Bruce Curry - Page 2 (JC-0405)
excusing jurors for reasons stemming from personal relationship with corporate representative of
party resulted in fundamentally unfair trial).
Generally, the organization of petit juries in the district court is governed by chapter 62 of
the Government Code. This is true in both civil and criminal cases, since article 33.09 of the Code
of Criminal Procedure provides that “Jury panels, including special venires, for the trial of criminal
cases shall be selected and summoned (with return on summons) in the same manner as the selection
of panels for the trial of civil cases except as otherwise provided in this Code.” TEX. CODE GRIM.
PROC.ANN. art. 33.09 (Vernon 1989). Depending on the county, an appropriate number of names
to meet jury requirements will be drawn either from the jury wheel by the clerk and the sheriff or
constable “in the presence and under the direction of the district judge,” TEX. GOV’T CODE ANN. 8
62.004(a) (Vernon 1998), or in counties which use a computer pursuant to section 62.011 of the
Government Code “by random selection computer programming.” OFFICE OF COURT
ADMINISTRATION,DISTRICTCLERKPROCEDUREMANUAL II-5 (1998). A plan for computerized jury
selection pursuant to section 62.011 must “designate the district clerk as the officer in charge of the
selection process and define his duties.” TEX.GOV’T CODEANN. 8 62.011 (b)(4) (Vernon 1998); see
Tex. Att’y Gen. Op. No. DM-34 (1991). Section 62.012 of the Government Code provides:
(a) When a justice of the peace or a county or district judge
requires a jury for a particular week, the judge, within a reasonable
time before the prospective jurors are summoned, shall notify the
county clerk, for a county court jury, or the district clerk, for a justice
or district court jury, to open the next consecutively numbered
envelope containing a jury list that is in the clerk’s possession and has
not been opened. The judge shall also notify the clerk of the date that
the prospective jurors are to be summoned to appear for jury service.
(b) On receiving the notice from the judge, the clerk shall
immediately write on the jury list the date that the prospective jurors
are to be summoned to appear and shall deliver the jury list to:
(1) the sheriff, for a county or district court jury; or
(2) the sheriff or constable, for a justice court jury.
TEX. GOV’T CODE ANN. 0 62.012 (Vernon 1998).
While the point at which the jury list is opened and delivered to the sheriff is the first point
at which it would be possible for the clerk to permit access to this information to any person, section
62.012 does not expressly authorize or require such access at that time. Rule 224 of the Texas Rules
of Civil Procedure provides that “when the parties have announced ready for trial,” the clerk shall
The Honorable E. Bruce Curry - Page 3 (JC-0405)
write the names of the week’s jurors on separate slips of paper, place the slips in a box, draw out (in
the district court) twenty-four names, write them on two slips of paper, and present the slips to each
party. TEX.R. CIV. PROC.224. Similarly, article 35.01 of the Code of Criminal Procedure provides
that “When a case is called for trial and the parties have announced ready for trial, the names of those
summoned as jurors in the case shall be called.” TEX.CODECRIM. PROC.ANN. art. 35.01 (Vernon
1998).3 There is therefore a final point - when the parties announce ready - at which, in both civil
and criminal cases, the identities of potential jurors must be made known to the parties. The statutes
are, however, silent as to whether this information may be provided to the parties at any earlier time
after the jury list has been opened and delivered to the sheriff. We have discovered no statutory
provision which would forbid the clerk, in the exercise of his or her discretion, from providing the
parties with the list at any such time. We note that the district clerk is a constitutional officer,
elected by the voters, TEX. CONST.art. V, 5 9, and as such is vested with much discretion in the
operation of his or her office.
As we understand, and as you suggest, parties would prefer to receive as much such
information as far in advance of voir dire as possible, in order to aid them in the process of jury
selection. See Request Letter, supra note 2 (Attached Brief at 3). We note that a similar question
was posed in Attorney General Opinion C-239 (1964)’ in which this office was asked whether a
criminal defendant in a misdemeanor case had a right of access to the list of prospective jurors for
the county court prior to the date of trial, and if not whether the county judge had the discretion to
permit the defendant such access. After reciting the statutory predecessor of Government Code
section 62.012, and noting that the only express right of access of this sort was that granted to a
capital defendant by the statutory predecessor of article 34.04 of the Code of Criminal Procedure,
the opinion noted that, while there was no absolute right of such access to the defendant, “the custom
in most counties is to make the jury list available to any attorney who requests the same on Friday
prior to the trial on Monday. We see no reason to upset this practice. . . .” Tex. Att’y Gen. Op. No.
C-239 (1964) at 3.
Attorney General Opinion C-239 accordingly decided that since “there is no provision in [the
statutory predecessor to section 62.0121 prohibiting knowledge of the array to defendant, we are led
to believe it was not meant by the Legislature to prohibit the practice of allowing attorneys to obtain
a list of jurors. Policy in this regard should apply equally to prosecution and to defense counsel.”
Id. Noting the power of the judge over the management of the case before him, the opinion
concludes that “if the judge wishes to follow the custom of making the jury panel list available prior
to the time of the trial, he may do so.” Id. at 4. The conclusion of Attorney General Opinion C-239
remains sound. Therefore, in our view, while the district clerk must provide the jury lists when the
3Your brief also inquires concerning the jury list referenced in article 35.11 of the Code of Criminal Procedure.
However, that list, unlike the general jury lists we are considering, is only prepared “on the demand of the defendant
or his attorney, or of the State’s counsel” by a shuffle of the general panel. TEX. CODE GRIM. PROC.ANN. art. 35.11
(Vernon Supp. 2001). It is thereupon presented to both sides. Id.
The Honorable E. Bruce Curry - Page 4 (JC-0405)
parties announce ready, the decision to provide the parties such lists in advance of that time is within
the clerk’s discretion, subject to the direction of the judge presiding. The clerk must of course show
no undue favoritism. See Mann, 905 S.W.2d at 275. While we have discovered no cases dealing
with this matter, we are persuaded that were a clerk to provide jury lists to one party in either a civil
or criminal matter and withhold such lists from the other party, a court would likely hold such action
to be an abuse of the clerk’s discretion.
You have also asked whether the clerk may disclose personal information that has been
provided by jurors to the parties in either civil or criminal cases. In our view, two statutes are
particularly relevant to your inquiry - section 62.0132 of the Government Code, which generally
governs the gathering and dissemination of jury information, and article 35.29 of the Code of
Criminal Procedure, which limits the dissemination of such information as it pertains to jurors in
particular criminal cases.
Section 62.0132 of the Government Code directs the Office of Court Administration to
develop and maintain a jury questionnaire accompanying the jury summons. “The questionnaire
must require a person to provide biographical and demographic information that is relevant to
service as a jury member . . . .” TEX. GOV’T CODEANN. 8 62.0132(c) (Vernon Supp. 2001). The
questionnaire is to be completed and submitted “when the person reports for jury duty.” Id. 9
62,0132(d). The information contained in such questionnaires “is confidential and is not subject to
Chapter 552 [of the Government Code, the Public Information Act].” Id. 9 62.0132(f). Information
under section 62.0132 is confidential with respect to third parties rather than litigants. “The
information contained in a completed questionnaire may be disclosed to . . . a litigant and a litigant’s
attorney in a cause of action in which the respondent to the questionnaire is a potential juror.” Id.
8 62.0132(g)(3).
While personal information concerning jurors serving in particular criminal proceedings is
confidential pursuant to article 35.29 of the Code of Criminal Procedure, and may not be disclosed
by the district clerk absent an order from the trial court, article 35.29 does not preclude the provision
of such information concerning the general panel to counsel for the purpose of voir dire. Article
35.29 of the Code of Criminal Procedure provides:
Information collected by the court or by a prosecuting
attorney during the jury selection process about a person who serves
as a juror, including the juror’s home address, home telephone
number, social security number, driver’s license number, and other
personal information is confidential and may not be disclosed by the
court, the prosecuting attorney, the defense counsel, or any court
personnel except on application by a party in the trial or on
application by a bona fide member of the news media acting in such
capacity to the court in which the person is serving or did serve as a
The Honorable E. Bruce Curry - Page 5 (JC-0405)
juror. On a showing of good cause, the court shall permit disclosure
of the information sought.
TEX. CODECRIM.PROC.ANN. art. 35.29 (Vernon Supp. 2001).
Article 35.29 raises two questions: first, whether its provisions are applicable to the parties
in the case; and second, whether those provisions apply to the entire venire, or to the jury ultimately
impanelled to sit in a particular case. At least one jurist has taken the view that article 35.29
prohibits the release of such information to third parties, rather than to the parties in the litigation.
Concurring in the judgment in Hooker v. State, 932 S.W.2d 712,717 (Tex. App.-Beaumont 1996,
no writ), Justice Burgess wrote, “I disagree [with the view that article 35.29 prohibits the parties
from having access to personal information about jurors]. I read the statute to only prohibit
disclosure of that information to third parties, except by application and a showing of good cause.”
Id. at 7 17. However, the weight of authority is against this view. See id. at 7 16-l 7 (majority holding
that good cause not shown for unsealing information because defendant’s trial counsel had “a couple
of thoughts” regarding trial); see also Mayo v. State, 971 S.W.2d 464,465 (Tex. App.-Fort Worth
1998)’ rev’d on other grounds, 4 S.W.3d 9 (Tex. Crim. App. 1999); Esparza v. State, 31 S.W.3d
338, 340-41 (Tex. App.-San Antonio 2000, no pet.). “Texas Code of Criminal Procedure article
35.29 cloaks jurors’ addresses in confidentiality and prevents disclosure of those addresses except
upon a showing of good cause. . . . Plainly, article 35.29 is intended to protect jurors by keeping
their addresses and other personal information confidential in the absence of a trial court order.”
Mayo, 971 S.W.2d at 465. We therefore follow the weight of authority and conclude that personal
information concerning the jurors in a particular criminal matter may not be disclosed by the district
clerk to the parties absent an order of the trial court.
While, as we note, the case law indicates that personal information of those who have sat on
a particular criminal jury is confidential and unavailable even to the parties absent a court order, the
cases are not generally concerned with release to the trial counsel of information on the general
panel, but see Mayo, 97 1 S.W.2d at 465 (“If article 35.29 requires an accused to carry a burden of
proving good cause before knowing whether venire members are truly challengeable as non-citizens,
then the accused is saddled with a dilemma.” dicta); and the legislative history of article 35.29
indicates that the statute was not intended to apply to access by counsel to such information during
voir dire.
In the public hearing before the Senate Committee on Criminal Justice concerning Senate
Bill 12 - now article 35.29 - on March 16, 1993, the author, Senator Brown, described the
purpose of the legislation as to prevent convicted criminals from obtaining personal information
concerning the jurors in their trials:
What this bill will do, it makes personal information available
only to the lawyer in the case and specifically it’s designed so that if
The Honorable E. Bruce Curry - Page 6 (JC-0405)
a criminal appeals his case after conviction, pro se . . . , then the
personal information about the juror is not going to be a part of the
record that is sent up for his consideration. . . .
Hearings on Tex. S.B. 12 Before the Senate Comm. on Criminal Justice, 73d Leg., R.S. (Mar. 16,
1993) (statement of Senator Brown) (audio tape available from Senate Staff Services Office).
In reply to certain concerns raised concerning voir dire by Senator Royce West, Mr. Tom
Crumpett of the District and County Attorneys’ Association specifically indicated that the intent of
the legislation was not to prohibit the use of such information by attorneys in voir dire:
Our primary intent on this was not to hamstring any of the
jury selection process. I think Senator West asked the question. I
think it’s fairly typical when you put together juror information cards
that information is made available to both sides. . . . I was concerned
originally that this bill would prevent us from doing that fact finding
as far as both sides finding out as much as we could about the
background and qualifications of potential jurors and I think that’s
why it was revised several times so that now it only applies to those
folks who finally are picked. . . .
Id. (statement of Mr. Tom Crumpett, District & County Attorneys Ass’n) (audio tape available from
Senate Staff Services Office). In response to these assurances, Mr. Chris Elliott of the Texas
Criminal Defense Lawyer’s Association said: “I think our concerns have basically been addressed
with this expression of intent that [the bill is] not going to affect the jury selection process and the
information available.” Id. (statement of Mr. Chris Elliott, Texas Criminal Defense Lawyer’s Ass’n)
(audio tape available from Senate Staff Services Office).
A colloquy at second reading on April 1, 1993 between Senator Brown and Senator John
Montford is to the same effect:
Senator Montford: I want to be sure in the analysis. I think I agree
with what you’re trying to do, but you’re not in any way attempting
to restrict the rights of trial counsel to select and make their jury
selection?
Senator Brown: Absolutely not.
Senator Montford: And they have full access to this inforrnation?
Sometimes you need to know where somebody lives in order to make
a determination for instance on a peremptory challenge.
The Honorable E. Bruce Curry - Page 7 (JC-0405)
Senator Brown: And this does not interfere at all with the defense
and prosecution seeking and getting that information. It’s just after
the trial, what’s done with that information.
Debate on Tex. S.B. 12 on the Floor of the Senate, 73d Leg., R.S. (Apr. 1, 1993) (audio tape
available from Senate Staff Services Office).
In the light of this legislative history, we conclude that article 35.29 of the Code of Criminal
Procedure does not apply to information regarding the general panel available to the trial counsel
for the purpose of voir dire in a criminal case, and thus does not preclude the provision of such
information to counsel for that purpose.
The Honorable E. Bruce Curry - Page 8 (JC-0405)
SUMMARY
In both civil and criminal actions, jury lists must be disclosed
to the parties when the parties announce ready for trial. Subject to the
direction of the presiding judge the district clerk may, in his or her
discretion, release such information to the parties at any time after the
jury list has been delivered to the sheriff to summon the jurors. The
clerk must not show undue favoritism, and may not provide the list
to one party while withholding it from another. Information
contained in jury questionnaires completed pursuant to section
62.0132 of the Government Code, while confidential with respect to
third parties, is available to the litigants in the cause of action in
question. While personal information concerning jurors serving in
particular criminal proceedings is confidential pursuant to article
35.29 of the Code of Criminal Procedure, and may not be disclosed
by the district clerk absent an order from the trial court, article 35.29
does not preclude the provision of such information concerning the
general panel to counsel for the purpose of voir dire.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143473/
|
OFFICE OF THE AWORNEY GENERAL OF TEXAS
AUSTIN
Derr Sir:
ue- the’ 8herlft
ner in a for-
nloa of thle depa~rtlaent,
en re001reu.
fee la the
ulljr requeetedr
ty, working with a
honor In a foreign
laoe o? arrest in the
~8 sherlri eerv8e the
rieoner to hle Jail.
ge fee lo due the sheriff RII gro-
e 1030 and 1032 CCH”
a Ranger from Da11~1 oonveyed one 2,cart.y00~1 DaUqe to #inoral
We116, Texas, where he wwa aet by a~Ranger froaz Fleher County
traveling in hla oar aocomanied by L aomtmble or deputy @herif.’
of Fisher County m& the party in ou@ad 0r the Ranger from
Dallee was placed in the ouetody of the L r and Conrteblo or
Deputy Sheriff from Fisher County who aonveyed him to the aaunt
Jail o? e&id county. The eeoond traneaotloa vae identioal wit)
Honorable tieorge R. ShepTard. Page 2
the first with the exmptlon t&t the Ranger from Dallas oon-
veyed the seoond party to Breokenridge, Texas, where he was
pla.ceU ln custody of the Ranger and oonetable or Deputy Sheriff
of Fisher County, who took him to the oounty jell of Fleher
county.
You further state that no queatlon regarding ieee for
eervlng crlmlnal prooese or aaklng an arreet lr involved In
thle reqll)st, but the only question Involved 15 what mlleage
fee, If any, le due the eheritf, his deputy or the constable
of Fisher County aacompanying the State RAnger under the facts
above stated.
Artlole 1030, Code of Crlmlns.1 Frocedure, euthorlzee
and provides aertain fees ror sheriffs and oonetebles perform-
ing the vsrloue duties enumerated therein.
Artiole 1032, Code of Crtilnal Procedure, provides :
“A rrherlff ehall nijt charge fees for arreate
made by Bangers, or mlleage for prl8onera trene-
ported by Rangera, or mileage or other feca for
tranrportlng a witness under attaohment leeued from
another county unless euoh wltnees refuses to give
bill for his offense, or files an a??ld,evit with
such sheriff of his inability to glve ball.*
Statutes preocrlbing fees for publlo officers are
etrlatly aonstrued; henoe a right to fees may not rest by IBW
pllcetion. Where this right la left to oonstructlon the lang-
uage of the law muet be aunatrued In favor of the government.
Where a statute la oapable of two oonetruatlons, one of whloh
would give an offloer oompenea~tion for hie eervlaee in addition
to his salary and the other not, the latter construotlon should
be adonted. See the oaaee of HcCalla VB. City of Rookdale,
246 S.W. 064; Eastland County vs. %x81, 288 S.W. 518; Madden
vs. Hardy, 50 8.X. 926.
The State Bangers are oompeneated by the state on a
salary bee18 and are not entltled to any ?ee in eddltion to
their ealery for the performance OS the mervlaee above mentioned.
In view of the foregoing authorities and under the
above stated facts- you are reepeotfully advised the-t It 1s the
opinion of this department that the Sherlif or his deputy or
the Constable, em the oaae may be, who was aodompanylng the
,P,,
Honorable George H. Sheppard. Page 3
,, _
Ranger on the above mentioned tripe 18 not entitled to any mlle-
age feee whatooever.
Truetlng that the foregoing fully answers your in-
quiry, we are
Pours very truly
ATTORXEYGEEKkX%OF TEXAS
BY
Ardell Willlame
AW:db Aeslstant
APPROVED
JAM 8, 1941
Gerald 0. Mann /s/a/
ATTORWEY
f3EMElU.L
OF TEXA8
WJF APPROVED OPINION CONMITTEE
By BWB
Chairman
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129011/
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 30,2003
The Honorable Scott Sherwood Opinion No. GA-0084
Carson County Attorney
303 Euclid Avenue Re: City of Skellytown’s authority to enter
P.O. Box 947 certain agreements with the Skellytown
Panhandle, Texas 79068-0947 Area Volunteer Firefighters-EMS Association
(RQ-0014-GA)
Dear Mr. Sherwood:
On behalf of the City of Skellytown (the “City”), you submit three questions about the City’s
authority to adopt a resolution concerning the Skellytown Area Volunteer Firefighters-EMS
Association (the “Association”), a nonprofit corporation incorporated on April 3,2000,’ and enter
into a lease agreement with the Association.
Backeround
At a special meeting on May 3,2000, the Skellytown City Council (the “Council”) approved
two agreements concerning the City’s relationship with the Association:
1. Resolution No. 2000-01, by which the City transferred to the Association
“all contracted and dedicated funds, existing [glovemmental budgets, and [blank
[alccounts previously designated for use by the Skellytown Volunteer Fire-EMS
Department.” Resolution No. 2000-01, Skellytown City Council (May 3, 2000),
attached to Request Brief, supra note 1; see also Skellytown City Council Special
Council Meeting Minutes (May 3,2000), attached to Request Brief, supra note 1.
2. Ratification of Titles, Lease of Facilities and Conveyance of Interest in
Realty and Personalty, under which the Council transferred to the Association (a)
“[t]he use of titles and all incidences of ownership . . . [for an annual lease payment
of $1 .OO] for a period of 10 years in the buildings, housing and related facilities
located at 412 Main Street,” in addition to “the buildings housing existing fire
equipment located at 204 Fourth Street . . ., but excluding one bay purchased and
‘See Brief accompanying Letter from Honorable Scott Sherwood, Carson County Attorney, to Honorable Greg
Abbott, Texas Attorney General, at l-2 (Jan. 30,2003) (on file with Opinion Committee) [hereinafter Request Brief].
The Honorable Scott Sherwood - Page 2 (GA-0084)
exclusively reserved by [the City] for its use,” and (b) “[a]11 property, associated
equipment, furniture and personalty related to the existing [flire-[flighting and EMS
facilities, including . . . radio equipment and antennae or other communication
equipment .” Ratification of Titles, Lease of Facilities, and Conveyance of Interest
in Realty and Personalty, $5 I-II, at l-2, attached to Request Brief, supra note 1
[hereinafter Ratification and Lease]. The Ratification and Lease also reserved to the
Association “[tlhe use of antennae space and the existing water tower and all
assigned radio frequencies or other communication spectrums.” Id. § III, at 2.
On May 2,2000, the day prior to the Council meeting, the City mayor, acting on the City’s behalf,
and the Association’s fire chief executed an Agency Agreement Between City of Skellytown and the
Association,2 which contained five covenants:
1. The City designated the Association as the City’s agent to provide City
inhabitants with “fire protection and other emergency services.”
2. The City retained “the right to supervise and control” the Association’s
“duties and activities” performed on the City’s behalf. Additionally, the City
designated the fire chief “as its agent for the purpose of day-to-day managernent and
supervision of the Department.”
3. “The agency relationship” established under this agreement “shall continue
until either party terminates the agency relationship by sixty . . . days written notice
to the other party.”
4. “The real and personal property owned by the Volunteer Fire Department
[flor providing fire protection and other emergency services are being used by and
are intended to be used by the [City] for fire protection and other emergency services.
Such property is considered to be leased to or borrowed by the [City] for fire
protection and other emergency services.”
5. The Association “allow[ed]” the City “to continue to collect the $1 SO
monthly fee attached to the water bills,” which the Association agreed “to accept
. . . for insurance and upkeep of the [City-lowned municipal pumper.“3
For brevity’s sake, we will refer to all three of these documents collectively as the “Agreements.”
*See Agency Agreement Between City of Skellytown and Skellytown Area Volunteer Firefighters-EMS Ass’n
(May 2,2000), attached to Request Brief, supra note 1, at l-2 [hereinafter Agency Agreement].
‘See id. at l-2.
The Honorable Scott Sherwood - Page 3 (GA-0084)
II. Presumed Validity of City’s Actions
Section 51.003 of the Local Government Code requires us conclusively to presume the
validity of the Council’s actions that occurred over three years ago in certain circumstances:
(a) A governmental act or proceeding of a municipality is conclusively
presumed, as of the date it occurred, to be valid and to have occurred in accordance
with all applicable statutes and ordinances if:
(1) the third anniversary of the effective date of the act or
proceeding has expired; and
(2) a lawsuit to annul or invalidate the act or proceeding has
not been filed on or before that third anniversary.
(b) This section does not apply to:
(1) an act or proceeding that was void at the time it occurred;
(2) an act or proceeding that, under a statute of this state or the
United States, was a misdemeanor or felony at the time the act or
proceeding occurred;
(3) an incorporation or attempted incorporation of a
municipality . . . ;
(4) an ordinance that, at the time it was passed, was preempted
by a statute of this state or the United States . . . ; or
(5) a matter that on the effective date of this section:
(A) is involved in litigation . . . ; or
(B) has been held invalid by a final judgment
of a court.
TEX. Lot. GOV’T CODE ANN. 8 51.003 (Vernon Supp. 2003). While section 51.003 does not
absolutely validate all past municipal actions, it provides “some defense” to an action that, although
valid and within a city’s authority to enact, was “enacted incorrectly from a procedural or clerical
standpoint.” HOUSECOMM.ONURBANAFFAIRS,BILLANALYSIS,Tex. H.B. 485,76th Leg., R.S.
(1999).
Given that the Council approved the Agreements in question on May 3,2000--cwer three
years ago-and that no litigation has been filed concerning their validity, the Agreements are valid
The Honorable Scott Sherwood - Page 4 (GA-0084)
unless any of the conditions specified in subsection (b) apply. Under the facts the City has provided,
only subsections (b)( 1) and (b)(2) must be addressed. Consequently, we examine the issues you raise
only to determine whether the Agreements are void ab initic or whether the Council’s actions in
adopting the Agreements constitute a criminal violation.
III. Dual Officeholdine, Incompatibility, and Conflict of Interest
At the time of the May 3, 2000 meeting, one Council member also served as the
Association’s EMS director and, as such, a member of the Association’s board of directors.4 He held
his Council position prior to the Association’s incorporation, at which time he was named an
“initial” director of the Association.’ The Council member voted on all of the matters concerning
the Association that were before the Council at the meeting. See Request Brief, supra note 1, at l-2.
Given his dual capacity as a Council member and an Association trustee, the City is concerned about
the Agreements’ validity.
Accordingly, the City asks first about the “legal consequences of an individual serving
simultaneously on the . . . Council and Board of Directors of the Association and voting on”
the resolution transferring numerous City assets to the Association. See Request Brief, supra note
1, at 1. You are particularly concerned about the common-law doctrine of incompatibility, but the
constitutional prohibition on dual officeholding and statutory conflict-of-interest restrictions also
must be considered. Restrictions that the municipal oath of office, the City charter, or City
ordinances may place on dual service or conflict of interest may apply, too, and you should consider
whether, under any of these, the Agreements are void ab initio; we do not consider these documents
here. See Tex. Att’y Gen. Op. No. JC-0143 (1999) at 3 (“In deference to city officials, this office
does not generally construe city charters or ordinances.“); see, e.g., TEX. LOC. GOV’T CODE ANN.
6 171.007(b) (V emon 1999) (stating that Local Government Code chapter 171, which regulates
conflicts of interest, “is cumulative of municipal charter provisions and municipal ordinances
defining and prohibiting conflicts of interest”).
A. Dual Officeholding
Article XVI, section 40 of the Texas Constitution, which prohibits a person from
simultaneously holding more than one “civil office of emolument,” does not apply. TEX.CONST. art.
XVI, 0 40. Although the Council member serves as both a volunteer emergency medical technician
and an Association director, neither of these positions are offices for constitutional purposes. See
Tex. Att’y Gen. Op. Nos. JC-0385 (2001) at 1-2; JC-0199 (2000) at 1; cJ: Tex. Att’y Gen. Op. No.
DM-303 (1994) at 1 (stating that executive director of nonprofit housing corporation is not an officer
for purposes of article XVI, section 40).
4See Articles of Incorporation of Skellytown Area Volunteer Firefighters-EMS Ass’n, art. IX, at 5 (Apr. 3,
2000), attached to Request Brief, supra note 1.
*Id. art. IX, at 4 (Apr. 3,200O); Telephone conversation with James T. Shelton, Skellytown City Attorney (May
21, 2003) (stating that Council member was appointed to office in March 1999).
The Honorable Scott Sherwood - Page 5 (GA-0084)
B. Incompatibility
The common-law doctrine of incompatibility is “not a single doctrine,” but comprises
three aspects: (1) conflicting loyalties; (2) self-appointment; and (3) self-employment. Tex. Att’y
Gen. Op. No. JC-0564 (2002) at 1-2; see also Tex. Att’y Gen. Op. No. JC-0199 (2000) at 1.
Conflicting-loyalties incompatibility applies only to the holding of two public offices. See Thomas
v. Abernathy County Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comrn’n App. 1927, judgm’t
adopted); Tex. Att’y Gen. Op. No. GA-0015 (2003) at 1-2. Because a director of a volunteer fire
department is not a public officer, conflicting-loyalties incompatibility does not apply here.
Self-appointment and self-employment incompatibility preclude an officer from being
appointed to or employed in a position over which the officer has appointment or employment
authority. See Ehlinger v. Clark, 8 S.W.2d 666,674 (Tex. 1928). Determining whether either self-
appointment or self-employment incompatibility applies to a member or a director of a volunteer fire
fighters association traditionally requires an analysis of the municipal charter or the association’s
articles of incorporation or bylaws to ascertain the degree of control the municipality has over the
association. For example, where a city charter authorizes the fire chief to appoint fire fighters
without city approval, a city council member is not precluded from appointment to the fire
department. See Tex. Att’y Gen. Op. No. JC-0199 (2000) at 1. Similarly, where a municipality does
not own, control, or supervise a volunteer fire department, a member is not precluded from serving
on the city council. See Tex. Att’y Gen. Op. No. JC-0385 (2001) at 2; Tex. Att’y Gen. LO-94-070,
at 2. If the facts indicate that an appointment or employment is incompatible with an office already
held, the appointment or employment is void. See Tex. Att’y Gen. Op. No. JC-0455A (2002) at 2.
The materials you have submitted suggest, but do not demonstrate conclusively, that the City
had little control over the Association at the time the Agreements were executed. For example,
under the Association’s bylaws, its members elect directors from among themselves; thus, the City
has no role in appointing the fire chief, assistant fire chief, fire captains, and ambulance director!
Nonetheless, the Agency Agreement reserves to the City “the right to supervise and control the duties
and activities of the Volunteer Fire Department performed on” the City’s behalf.7
Even if the City retained sufficient control over the Association so that the Council member’s
dual positions are incompatible, however, the Agreements are not void. See TEX.LOC.GOV’T CODE
ANN. 9 5 l.O03(b)( 1) (V emon Supp. 2003). The effect of any incompatibility is to void the Council
member’s acceptance of a position on the Association’s board of directors. See Tex. Att’y Gen. Op.
No. JC-0455A (2002) at 2. Accordingly, his votes as a member of the Council were valid.’
6See By-Laws of Skellytown Area Volunteer Firefighters-EMS Ass’n, art. III, $0 3.01-3.04, at 2, attached to
Request Brief, supra note 1.
‘Agency Agreement, supra note 2, at 1 (covenant 2).
‘Section 21.002 of the Local Government Code, which became effective May 3,2001, does not apply to this
city council meeting, which occurred a year to the day before section 2 1.002’s effective date. See Act of Apr. 20,2001,
(continued...)
The Honorable Scott Sherwood - Page 6 (GA-0084)
c. Conflict of Interest
Although the Council member’s position on the City Council on May 3,200O is not
in doubt, he was required to comply with any applicable conflict-of-interest provision set forth in
chapter 171 of the Local Government Code. See TEX. LOC. GOV’T CODE ANN. 8 171 .OOl( 1)
(Vernon 1999) (defining the term “local public official”). See generally id. ch. 17 1 (Vernon 1999)
(“Regulation of Conflicts of Interest of Officers of Municipalities, Counties, and Certain Other Local
Governments”).’
Section 17 1.004 generally prohibits a local official, including a city council member, from
participating in a matter involving a business entity, including a nonprofit corporation, in which the
official has a substantial interest if the matter will “have a special economic effect on the business
entity that is distinguishable from the effect on the public.” Id. 8 171.004(a)( 1); see id. 8 171.001(2)
(defining the term “business entity,‘); see also Tex. Att’y Gen. Op. No. DM-303 (1994) at 3
(concluding that a nonprofit corporation is a business entity for chapter 171 ‘s purposes). An official
has a substantial interest in a business entity if, in the previous year, he or she received more than
ten percent of his or her gross income from the business entity. See TEX.LOC. GOV’T CODE ANN.
0 171.002(a)(2) (V emon 1999). A local official who has such a substantial interest must “file . . .
an affidavit stating the nature and extent of the interest and . . . abstain from” participating further
in the matter. Id. 9 171.004(a). But see id. 5 171.004(c) (excepting an official from the abstention
requirement if a majority of the governmental body’s members are likewise required to file affidavits
on the same issue). Given that the Ratification and Lease required the City to lease certain buildings
*(...continued)
77th Leg., R.S., ch. 42,s 3,200l Tex. Gen. Laws 73,73; Tex. Att’y Gen. Op. No. JC-0564 (2002) at 3; Skellytown City
Council Special Council Meeting Minutes (May 3, 2000), attached to Request Brief, supra note 1. Section 21.002
expressly authorizes a member of a municipal governing body to volunteer in certain organizations only if the governing
body officially permits the service:
A member of the governing body of a municipality may serve as a volunteer for an
organization that protects the health, safety, or welfare of the municipality regardless of whether the
organization is funded or supported in whole or part by the municipality if the governing body adopts
a resolution allowing members of the governing body to perform service of that nature.
TEX.LOC.GOV’TCODEANN.0 2 1.002 (Vernon Supp. 2003). Section 2 1.002 preempts the common-law incompatibility
doctrine “with regard to that aspect of self-employment involving dual service on city councils and volunteer fire
departments. . . . [D]ual service in those specific instances is necessarily prohibited unless a city council adopts the kind
of resolution” section 2 1.002 describes. Tex. Att’y Gen. Op. No. JC-0564 (2002) at 4. Currently, therefore, neither the
Council member being discussed here nor any other Council member currently may serve as “a volunteer for an
organization that protects the health, safety, or welfare of the municipality,” TEX.LOC.GOV’T CODEANN. 6 2 1.002
(Vernon Supp. 2003), unless the City has adopted a resolution under section 2 1.002, but no such resolution was necessary
on May 3,200O.
‘The Association’s bylaws regulate conflicts of interest, but the conflict-of-interest provision pertains solely to
a financial transaction between the Association and an Association director, officer, or member. See By-Laws of
Skellytown Area Volunteer Firefighters-EMS Ass’n, art. VII, $ 7.05, at 7, attached to Request Brief, supra note 1. It
does not apply here.
The Honorable Scott Sherwood - Page 7 (GA-0084)
to the Association for an annual lease payment of $1 and authorized the City to collect a fee with
utility payments to give to the Association, the Council’s actions on May 3, 2000 may be found
to have a “special economic effect” on the Association for purposes of section 171.004. Id.
8 171.004(a)(l); see also Tex. Att’y Gen. Op. No. DM-279 (1993) at 7 (stating that this office
ordinarily does not decide whether a particular action will have a special economic effect on a
particular entity).
An uncompensated director of a nonprofit corporation does not have a substantial interest
in the corporation for purposes of section 171.004 and is, therefore, not required to comply with
section 171.004’s affidavit and abstention requirements. See Tex. Att’y Gen. Op. No. GA-0068
(2003) at 3-4. Section 171.009 expressly permits a local public official to serve as an
uncompensated director of a private nonprofit corporation: “It shall be lawful for a local public
official to serve as member of the board of directors of private, nonprofit corporations when such
officials receive no compensation or other remuneration from the nonprofit corporation or other
nonprofit entity.” TEX.Lot. GOV’T CODE ANN. 8 17 1.009 (Vernon 1999). Thus, a city council may
engage in transactions with a nonprofit corporation even if a council member also serves as an
uncompensated director of the nonprofit corporation. See Tex. Att’y Gen. Op. No. GA-0068 (2003)
at 2-3. Under the Association’s bylaws, a member of the Association’s board of directors receives
no salary for serving on the Association’s board.”
Section 171.009 does not apply to a council member who is compensated for his or her
services to the corporation, however, either as a director or as a member. It is not clear whether, at
the time of the Council meeting, the Council member received compensation from the Association
for his services as an Association member.” Some municipalities compensate their volunteer fire
fighters. The legislature has noted, for example, that “many city charters allow for a modest level
of compensation for volunteer fire fighters.” HOUSE COMM. ONURBANAFFAIRS, BILL ANALYSIS,
Tex. S.B. 738,77th Leg., R.S. (2001) at 1; see Tex. Att’y Gen. Op. No. JC-0199 (2000) at 2 (stating
that a Gilmer volunteer fire fighter “is compensated at the rate of $4.00 per fire and $4.00 per drill,
and receives an annual contribution from the city to the Fire Fighters Relief and Retirement Fund,‘).
If the Council member, in fact, received more than ten percent of his gross income in 1999 from the
fire department for his services as a member, section 171.004 obligated him to file an affidavit
describing his interest prior to the May 3,200O meeting and to decline participation in the discussion
and vote on the matters specially affecting the Association. See TEX. LOC. GOV’T CODE ANN.
8 171.004(a) (V emon 1999). Failure to have done so may have rendered the Agreements voidable
under chapter 17 1, see id. $9 17 1.003,17 1.006, but the Agreements are not void ab initio in any case
under chapter 17 1. Accordingly, the Agreements are conclusively presumed valid under section
51.003 of the Local Government Code. See id. 5 51.003(a), (b)(l) (Vernon Supp. 2003).
“See id. art. VI, 3 6.09, at 6.
“See Letter from James T. Shelton, Skellytown City Attorney, to Kim Oltrogge, Office of theAttorneyGeneral
at 1 (May 5,2003) (on file with Opinion Committee) [hereinafter Shelton Letter of May 5,2003] (indicating that Mr.
Shelton would inform the office when he received compensation information)
The Honorable Scott Sherwood - Page 8 (GA-0084)
IV. Lease and Conveyance of City Property to the Association
The City asks second about the legality of the Ratification and Lease, which served to convey
to the Association (1) buildings, housing, related facilities, and (2) “[a]11 property, associated
equipment, furniture, and personalty” related to the facilities. See Request Brief, supra note 1, at 2;
Ratification and Lease, supra page 2, art. II, at 1. Under the Ratification and Lease, the buildings
and related facilities are leased to the Association for a period of ten years for $1 per year, while title
to the personal property is “relinquished and . . . conveyed.” Ratification and Lease, supra page 2,
art. II, at 1. Citing article III, section 52 of the Texas Constitution and Attorney General Opinion
JC-0439, the City avers that the conveyances are legal because they “serve[] a public purpose of the
City and . . . [are] subject to adequate controls to ensure that the public purpose is accomplished
during the term of’ the agreement between the City and the Association. Request Brief, supra note
1, at 2; see also Agency Agreement, supra note 2.
Attorney General Opinion JC-0439, which the City cites, analyzes a county’s authority to
transfer county funds to six different nonprofit organizations under article III, section 52. See Tex.
Att’y Gen. Op. No. JC-0439 (2001) at 2. To ascertain whether a grant to a particular nonprofit
organization serves legitimate county purposes, that opinion first considered specific statutes that
authorized counties to take on certain responsibilities. See id. at 5-7; see also TEX. FAM. CODE
ANN. $5 264.006,264.402,264.403 (Vernon 2002); Tex. Att’y Gen. Op. No. JC-0582 (2002) at 2
(declining to address whether a lease agreement between a county and a museum is valid under
article III, section 52 if the county “lacked an affirmative grant of express or implied authority to
enter into the lease agreement”).
The analysis Attorney General Opinion JC-0439 uses applies by analogy to a general-law
municipality. Both a county and a general-law municipality have authority to exercise onlythose
powers expressly granted to them or necessarily implied.12 Thus, the City’s authority to transfer
property to the Association must be found in, or necessarily implied from, a statute.
Section 5 1.015(a) of the Local Government Code provides the requisite authority for both
the lease of buildings and related facilities and the conveyance of personal property and equipment.
Under section 5 1.015, a Type A general-law municipality may “lease, grant, or convey property
located in or outside the municipality.” TEX.Lot. GOV’T CODE ANN. 8 51.015(a) (Vernon 1999).
Given this statutory authority, we next consider the transaction’s constitutionality.
Article III, section 52 of the Texas Constitution withholds from the legislature all power to
authorize a municipality “to lend its credit or to grant public money or thing of value in aid of; or to
any individual, association or corporation.” TEX.CONST. art. III, 9 52(a). The Texas Supreme Court
‘*See also id. (stating that the City is a Type A general-law city). Compare Guynes v. Galveston County, 861
S.W.Zd 861,863 (Tex. 1993) (stating that article V, section 18 of the Texas Constitution permits a commissioners court
to exercise broad discretion to conduct county business, although “the legal basis for any action taken must be grounded
ultimately in the constitution or statutes”), with City of Soccorro v. U.S. Fireworks of Am., 842 S.W.2d 779, 780 n. 1
(Tex. App.-El Paso 1992, writ denied) (stating that a general-lawmunicipality’spowers are “limited to those specifically
granted by the legislature as enumerated in the relevant statutes”).
The Honorable Scott Sherwood - Page 9 (GA-0084)
has interpreted this provision to prohibit legislation requiring “gratuitous payments to individuals,
associations, or corporations.” Tex. Mun. League Intergov ‘tl Risk Pool v. Tex. Workers ’Comp.
Comm’n, 74 S.W.3d 377, 383 (Tex. 2002). But, as the court has pointed out, “[a] political
subdivision’s paying public money is not ‘gratuitous’ if the political subdivision receives return
consideration.” Id. The court will uphold the constitutionality of legislation requiring payments to
individuals, corporations, or associations if the statute “( 1) serves a legitimate public purpose; and
(2) affords a clear public benefit received in return.” Id. The court uses a “three-part test” to
determine “if a statute accomplishes a public purpose consistent with section 52(a)“:
Specifically, the Legislature must: (1) ensure that the statute’s predominant purpose
is to accomplish a public purpose, not to benefit private parties; (2) retain public
control over the funds to ensure that the public purpose is accomplished and to
protect the public’s investment; and (3) ensure that the political subdivision receives
a [sufficient] return benefit.
Id.; see id. at 384 (stating that a public subdivision must receive “sufficient-not equal-return
consideration” to render payment of public funds constitutional under article III, section 52). “This
oftice has identified similar principles for determining if a particular expenditure serves a public
purpose.” Tex. Att’y Gen. Op. No. GA-0078 (2003) at 4. Thus, the governing body of a general-law
municipality “‘will avoid violating article III, section 52 if it (i) determines in good faith that the
expenditure serves a public purpose and (ii) places sufficient controls on the transaction, contractual
or otherwise, to ensure that the public purpose is carried out.“’ Id. at 4-5 (quoting Tex. Att’y Gen.
Op. No. JC-0582 (2002) at 6). A transaction that violates article III, section 52 is void ab initio. See
Tex. Att’y Gen. LO-90-99, at 2.
Provided that the lease and conveyance satisfy the three-part test under article III, section 52
of the constitution, the City was authorized to lease and convey its property in this situation. See
TEX.CONST.art. III, 8 52; TEX.Lot. GOV’TCODEANN. 5 5 1.034 (Vernon 1999); Tex. Mun. League
Intergov’tl Risk Pool, 74 S.W.3d at 384.
The City suggests, in relation to the second question, that if the Agency Agreement is void
due to the Council member’s dual service, the transfer of City property may therefore be invalid.
Request Brief, supra note 1, at l-2. Because the Agency Agreement is not affected by the dual
service, we need not answer this question.
v. Collecting a Mandatory Fee in Water Bills to Pav for Volunteer Fire Fiehtine Services
We understand that the City has, for many years, “included a mandatory fee in the water bills
to help pay for volunteer fire fighting services. In May[] 2000, the mandatory fee included in the
monthly water bill was $1.50 per bill. The Agency Agreement between the City and the Association
provides that the City may continue to collect the mandatory fees” for the Association’s use. Id.
at 2. Accordingly, the City asks whether it may “include a mandatory fee in the water bills to pay
for volunteer fire fighting services.” Id.
The Honorable Scott Sherwood - Page 10 (GA-0084)
In November 2002, the City obtained an opinion from the Texas Municipal League, which
suggests that the City lacks authority to impose such a fee.13 Citing a 1985 attorney general opinion,
JM-338, and a 1924 decision of the Texas Court of Civil Appeals, the Municipal League reasoned
that the City did not have the necessary statutory authority to collect a tax to pay for volunteer fire
services:
Any fee attached to a utility bill by a general law city, which is not used to
cover the expenses of providing the utility service for which customers are being
billed, is a tax. General law cities, however, possess only those taxing powers that
the legislature or the constitution expressly grants them. I am aware of no statutory
authority for such a tax used to pay for volunteer fire services. The Texas Attorney
General has similarly concluded that a general law city may not attach a monthly fee
on utility bills to finance the police department.
TML Letter of Nov. 4, 2002, supra note 13, at 1 (citations omitted); see Vance v. Town of
Pleasanton, 261 SW. 457,458 (Tex. Civ. App.-San Antonio 1924, writ granted), affil, 277’S.W.
89 (Tex. Comm’n App. 1925, judgm’t adopted); Tex. Att’y Gen. Op. No. JM-338 (1985) at l-2.
Attorney General Opinion JM-338 determined that a $6 charge, which a general-law city
assessed against all home and business owners in the city, for financing the city’s police department
is an unlawful tax. See Tex. Att’y Gen. Op. No. JM-338 (1985) at 1-2. The charge appeared “on
monthly utility bills,” but because it was intended for the police department’s use, it ‘had no
connection to the costs of providing utility services. Id. at 1. Accordingly, the charge was “intended
to raise revenue” and was a tax. Id. Because a general-law municipality had no “statutory authority
. . . for [this] method of taxation,” the opinion concluded that the $6 charge was “not a proper
method for raising revenue to support the police department.” Id. at l-2.
A Type A general-law municipality has the prerequisite specific statutory authority to levy
certain taxes. See also TEX. CONST.art. XI, $ 4 (permitting a general-law municipality to “levy,
assess and collect such taxes as may be authorized by law”). For example, a municipality in which
a fire control, prevention, and emergency medical services district is established must impose an
additional sales and use tax “in the area of the district” to finance the district’s operation. TEX.TAX
CODEANN. 8 321.106(a) (Vernon 2002). A general-law municipality has no statutory authority to
levy a tax for fire protection services by adding a tax to each utility user’s bill, however.
Consequently, the City may not levy the tax in this manner, and the provision in the Agency
Agreement allowing the City “to continue to collect the $1.50 monthly fee attached to the water
bills”‘4 is void.
13Letter from Bennett Sandlin, Assistant General Counsel, Texas Municipal League, to Honorable Lucille
Lawrence,Mayor of Skellytown, at 1 (Nov. 4,2002) [h ereinafter TML Letter ofNov. 4,2002], attached to Shelton Letter
of May 5,2003, supra note 11.
14see Agency Agreement, supra note 2, at 2 (covenant 5).
The Honorable Scott Sherwood - Page 11 (GA-0084)
SUMMARY
Because the City of Skellytown executed various agreements
(the “Agreements”) with the Skellytown Area Volunteer Firefighters-
EMS Association (the “Association”) over three years ago and no
lawsuits to invalidate them have been filed, the Agreements are
“conclusively presumed” to be valid unless, among other things, the
Agreements were void ab initio. See TEX.LOC.GOV’TCODEANN.
8 5 1.003 (Vernon Supp. 2003). The fact that a city council member
was, at the time the City approved the Agreements, also a director of
the Association does not affect the Agreements’ validity.
The City had statutory authority to convey to the Association
personal property, such as equipment and furniture, and to lease City
buildings and facilities to the Association. A conveyance or lease
complies with article III, section 52 of the Texas Constitution if (1)
it primarily accomplishes a public purpose; (2) the City retains
sufficient control to ensure that the public purpose would be
accomplished; and (3) the City receives a sufficient return benefit.
A Type A general-law municipality has no statutory authority
to attach a $1.50 charge to water bills to fund the costs of volunteer
fire fighting services.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly IS. Oltrogge
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4128879/
|
ATTORNEY GENERALOFTEXAS
GREG ABBOTT
July 12,2004
The Honorable Kurt Sistrunk Opinion No. GA-02 16
Galveston County Criminal District Attorney
722 Moody, Suite 300 Re: Procedure for filling a vacancy in the office
Galveston, Texas 77550 of district clerk (RQ-0165GA)
Dear Mr. Sistrunk:
You ask about the proper procedure for filling a vacancy in the office of district clerk.’ You
relate that the district clerk of Galveston County serves six district courts. See Request Letter, supru
note 1, at 1. The former clerk announced that she would retire “on or about March 3 1, 2004,”
vacating her office approximately midway through her term. Id. Section 51.301(b) of the
Government Code describes the procedure for filling a vacancy in the office of district clerk:
(b) If a vacancy in the office of district clerk occurs in a
county that has two or more district courts, the vacancy shall be filled
by agreement of the judges of the courts. If the judges cannot agree
on an appointee, they shall certify that fact to the governor, who shall
order a special election to fill the vacancy.
TEX.GOV’T CODEANN. § 51.301(b) (Vernon 1998) (emphasis added). You suggest that “[i]t is
unclear whether the phrase ‘agreement of the judges’ requires a unanimous vote of the district
judges, or whether a majority of the judges may select the new district clerk.” Request Letter, supra
note 1, at 1.
Because section 51.301(b) is silent on the meaning of the term “agreement” for purposes of
selection of a district clerk, we turn to the common meaning of the term as established in case law.
In GonzaZez v. State, 954 S.W.2d 98 (Tex. App.-San Antonio 1997, no writ), the court said that “[a]n
agreement is a harmonious understanding or an arrangement as between two or more parties, as to
a course of action.” Id. at 104. In Zanone v. RJR Nabisco, Inc., 463 S.E.2d 584 (N.C. App. 1995),
the court stated that “[tlhe word ‘agreement’ implies the parties are all of one mind - all have a
common understanding of the rights and obligations of the others - there has been a meeting of the
minds.” Id. at 587. And in Haynes v. Allen, 482 S.W.2d 85 (MO. App. 1972), the court declared that
‘Letter fromHonorable Kurt Sistrunk, Galveston County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General (Jan. 13,2004) (on file with Opinion Committee, also avaiIabZe at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Kurt Sistrunk - Page 2 (GA-0216)
“‘agreement’ . . . implies mutuality of consent and forecloses the interpretation . . . that it means
consent or agreement by a number less than all of the partners.” Id. at 88; see also TLZ Props. v.
Kilburn-Young Asset Mgmt. Corp., 937 F. Supp. 1573,1578 (M.D. Fla. 1996), afd, 119 F.3d 10
(11 th Cir. 1997) (“‘agreement’ is defined as a manifestation of mutual assent by two or more legally
competent parties to each other”); In the Matter of Turner, 156 F.3d 713, 718 (7th Cir. 1998)
(“Fundamental to the concept of an agreement is an expression of mutual assent between the two (or
more) parties to that agreement.“); MacCuZZoch v. Caroline Mines, Inc., 145 F. Supp. 421, 424
(W.D.N.C. 1956) (“An agreement is the meeting of minds in a common intention and implies two
or more parties.“).
This judicial authority, combined with the lack of any language in section 51.301(b)
suggesting that the term “agreement of the judges” should be read as “agreement of a majority of the
judges,” supports the view that an “agreement” under the statute requires the unanimous assent of
the six district judges in Galveston County. By contrast, chapter 84 of the Local Government Code
describes the process for the appointment of a county auditor. Section 84.002 thereof provides that,
“[i]n a county with a population of 10,200 or more, the district judges shall appoint a county
auditor.” TEX. LOC. GOV’T CODE ANN. 5 84.002(a) (Vernon Supp. 2004). Section 84.001(b) states
that “[a] majority vote of the district judges is required to perform an act required or permitted of the
district judges unless the law specifically provides otherwise.” Id. $ 84.001(b) (Vernon 1999).*
Thus, where the legislature has intended that an appointment made by a group of district judges be
made by a majority vote of those judges, it has explicitly so declared. In the case of a district clerk,
however, the legislature has failed to include any “majority vote” requirement. Its use of the term
“agreement” in section 51.301(b), without any qualifying language, provides persuasive evidence
that, for purposes of that statute, an “agreement” requires the unanimous assent of all the district
judges. In addition, section 5 1.301(b) prescribes a special procedure if the judges cannot agree on
the selection of a particular individual: they must certify such fact to the governor, who is then
required to order a special election to fill the vacancy.
We conclude that, for purposes of section 5 1.301(b) of the Government Code, 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 must order a special election
to fill the vacancy.
*Section 84.005 provides that “[i]n a county with a population of 3.3 million or more, the distict judges shall
hold a meeting for the purpose of appointing a county auditor. For a county auditor to be appointed, a majority of the
district judges must be present at the meeting and a candidate for the office must receive at least a two-thirds vote of the
district judges who are present and voting at the meeting.” TEX. Lot. GOV’T CODE AN-N.0 84.005(a) (Vernon Supp.
2004).
The Honorable Kurt Sistrunk - Page 3 (GA-0216)
SUMMARY
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.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4128892/
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 14,2004
The Honorable Ben W. “Bud” Childers Opinion No. GA-0203
Fort Bend County Attorney
301 Jackson Street, Suite 728 Re: Whether, in accordance with an order from
Richmond, Texas 77469-3 108 the board of county court at law judges, a county
clerk may redact Social Security numbers from
documents available on the county clerk’s
website, although the numbers are not redacted
from the hard copies of the same documents filed
in the clerk’s office (RQ-0154-GA)
Dear Mr. Childers:
On behalf of the Fort Bend County Clerk (the “Clerk”), you ask whether, in accordance with
an order from a board of county court at law judges, a county clerk may redact Social Security
numbers from documents available on the clerk’s website, although the numbers are not redacted
from hard copies of the same documents filed in the clerk’s office.’
You explain that the Clerk has scanned all public documents filed in her office into the
computer, where they are available to the public on the Clerk’s website’ and at a computer terminal
in the Clerk’s office. Request Letter, supra note 1, at l-2. “[Jluvenile records and other records
deemed confidential by law” have not been scanned into the computer and generally are not available
to the public. Id. at 1. “The Board of County Court at Law Judges has ordered the County Clerk to
redact Social Security numbers . . . from the imaged documents available” online, but the “judges
do not want the Social Security numbers redacted from the paper copy maintained by the . . . Clerk
for use by the judges and walk-in public customers who request to view the hard copy.” Id. at 2.
The Clerk has informed us that the order pertains only to case-related filings, although some case-
related documents are placed in other records (for example, probate court case documents affecting
the chain of title of real property may be placed among the real-property records).3
‘See Letter from Honorable Ben W. “Bud” Childers, Fort Bend County Attorney, to Honorable Greg Abbott,
Texas Attorney General, at 1 (Dec. 23,2003) (on file with the Opinion Committee, also available at http:/lwww.oag.state
.tx.us) Fereinafier Request Letter].
‘See http://www.co.fort-bend.tx.us/Admin_of_Justice/County_.
3See Telephone conversation with Honorable Dianne Wilson, Fort Bend County Clerk, and Mary Reveles,
Assistant Fort Bend County Attorney (May 4,2004).
The Honorable Ben W. “Bud” Childers - Page 2 (GA-0203)
Your letter suggests that adhering to the order would affect the use of resources, including
employees, in the Clerk’s office:
[A]t the time a request for a copy is made,by a member of the public,
a copy of the imaged document is printed and a deputy clerk certifies
that copy. . . . This process saves the deputy clerks a great deal of
time, as it does away with the need to locate a physical file, remove
the requested document from the file, make the copy and put the file
back together . . . . Additionally, in the event a specific file is not in
the clerk’s office, but is with a specific court, the requestor does not
have to wait until the file is returned to the clerk’s office to obtain
copies. If the . . . Clerk is required to redact [Social Security]
information from the imaged’document, [she believes she will be]
unable to certify that document as a. certified copy of the original
document on file.
Request Letter, supra note 1, at 2.
Based on the situation you have described, you pose three questions:
1. Whether the . . . Clerk may redact social security numbers
only from the imaged court document available on the . . .
Clerk’s website of public documents filed in her office,
rendering the information inaccessible to the public who view
the documents on the intemet?
2. Whether the . . . Clerk has the authority to designate a
document filed in her office as the original document,
contrary to the opinion of the County Court at Law Judges
. . . as to what constitutes the original?
3. Whether the . . . Clerk is able to issue a certified copy of an
‘.
imaged document [from which] certain mformation . . . has
been redacted . . . ?
Id. at 1. Given the facts you provide, however, the ultimate issue is whether a county clerk must
comply with the order of a board of judges (the “Board”) to redact Social Security numbers on
electronic copies of case-related documents filed in the clerk’s office. This office typically does
not consider the validity of a court order issued in a particular case. See Tex. Att’y Gen. Op. No.
JC-0364 (2001) at 10. But the Board’s order is not a court order. See Request Letter, supra note 1,
at 2.
We consider the order only as it relates to Social Security numbers that are not confidential
by law. In certain cases, statutes mandate the redaction of Social Security numbers, but we do not
understand you to ask about situations in which Social Security numbers are subject to such statutes.
The Honorable Ben W. “Bud” Childers - Page 3 (GA-0203)
For example, federal law makes Social Security numbers confidential if the governmental body
possessing the number obtained it or maintains it under a law enacted on or after October 1, 1990.
See 42 U.S.C. $405(c)(2)(C)(viii)(I) (2002). And in probate cases, although a court may request an
applicant to produce information identifying the applicant or a decedent, including a Social Security
number, the information may not be filed with the clerk; it must be maintained by the court. See
TEX. PROB. CODE ANN. 9 36(b) (Vernon2003); see also TEX. CODE GRIM. PROC. ANN. art. 35.29
(Vernon Supp. 2004) (restricting the disclosure of jurors’ Social Security numbers).
A county clerk is an elected officer, whose position is created under article V, section 20 of
the Texas Constitution. See TEX. CONST. art. V, 5 20. Under that provision, the county clerk “shall
be clerk of the county . . . Courts,” and the clerk’s duties “shall be prescribed by the Legislature.”
Id. The county clerk is the custodian of county court records in civil and criminal cases and in
probate matters. See TEX. Lot. GOV’T CODE ANN. $192.006(a) (Vernon 1999); TEx. CODE C&M.
PROC. ANN. art. 2.21(a) (v emon Supp. 2004) (listing a county clerk’s duties in a criminal
proceeding). And the clerk may receive papers filed in guardianship and mental-health actions. See
OFFICEOFCOURTADMINISTRATION,COIJNTYCLERKMANIJAL V-7through-8,-19,-28(2003). The
clerk provides an “attested,” or certified, copy of an instrument recorded in the clerk’s office in
certain circumstances. See TEX. LOC. GOV’T CODE ANN. § 191.004(a) (Vernon 1999); see also id.
$9 118011(a)(3), .014 (Vernon 1999 & Supp. 2004) (providing for fee for certified papers).
Certification signifies that the copy is a “true copy.” Tex. Attorney Gen. v. Litten, 999 S.W.2d 74,
78 n.7 (Tex. App.-Houston [ 14th Dist.] 1999, pet. denied) (quoting BLACK's LAWDICTIONARY 287
(4th ed. 1968)); seealso BLACK'S LAW DICTIONARY 337 (7th ed. 1999) (defining a “certified copy”
as “[a] duplicate of an original document certified as an exact reproduction usu[ally] by the officer
responsible for issuing or keeping the original”).
As an elected officer, the clerk occupies a sphere of authority within which another elected
officer may not interfere. See Abbott v. PoZZock, 946 S.W.2d 5 13,5 17 (Tex. App.-Austin 1997, writ
denied); Renken v. Harris County, 808 S.W.2d 222,226 (Tex. App.-Houston [ 14th Dist.] 1991, no
writ); Tex. Att’y Gen. Op. No. GA-0126 (2003) at 9. The clerk’s sphere of authority encompasses
authority over both (1) records in the clerk’s offrce and (2) resources in and personnel employed in
the clerk’s office.
First, a clerk is, by statute, “custodian” of case-related records, with a statutory responsibility
for keeping the records “properly indexed and arranged.” TEX. Lot. GOV’T CODE ANN. $192.006
(Vernon 1999); see Hooten v. Enriquez, 863 S.W.2d 522,530 (Tex. App.-El Paso 1993, no writ)
(stating that a clerk has the duty to manage, protect, and preserve records in the clerk’s custody). The
El Paso Court of Appeals has described the clerk as holding “‘virtually absolute sway over the
particular tasks or areas of responsibility entrusted to [the clerk].“’ Hooten, 863 S.W.2d at 531
(quoting Familias Unidas v. Briscoe, 619 F.2d 391,404 (5th Cir. 1980)). Thus, for example, while
a commissioners court may “provide for the establishment and operation of a computerized
electronic information system through which it may provide on a contractual basis direct access to
information” in the clerk’s office, the commissioners court may do so “only if’ the county clerk, as
records custodian, “agrees in writing.” TEX. Lot. GOV’T CODE ANN. 9 191.008(a) (Vernon 1999).
Similarly, the county commissioners court may not expend records management and preservation
The Honorable Ben W. “Bud” Childers - Page 4 (GA-0203)
fees, collected under sections 118.01 l(b)(2) and 118.0216 of the Local Government Code, without
consulting with the countyclerk. See Tex. Att’y Gen. Op. No. GA-01 18 (2003) at 8; see also TEX.
Lot. GOV’TCODEANN. 5 9 118.02 11 (b)(2), .02 16 (Vernon Supp. 2004) (providing for the collection
and use of records management and preservation fees).
Second, a clerk has authority to determine how to use resources allocated to the clerk’s office
to accomplish the clerk’s constitutional and statutory duties. See Tex. Att’y Gen. Op. No.
JC-0214 (2000) at 5. This includes authority to determine how personnel in the clerk’s office use
their time. See Tex. Att’y Gen. Op. No. GA-0037 (2003) at 3 (quoting Tex. Att’y Gen. Op. No.
JC-0239 (2000) at 4); see also Tex. Att’y Gen. Op. No. JC-0239 (2000) at 4 (stating that an elected
county officer has authority “to determine what activities constitute a legitimate use of an employee’s
time”). l
The Board’s order in this case improperly infringes upon the Clerk’s sphere of authority to
accomplish constitutional and statutory duties, as well as upon her authority to determine how to use
the resources, including personnel, allocated to her office. For example, the Board’s order affects
the Clerk’s “exclusive and absolute discretion to develop policies and records management
procedures that will preserve permanent records in the most efficient and cost-effective manner.”
Hooten, 863 S.W.2d at 531. The Board’s order also affects the Clerk’s authority to provide the
public with access to records belonging to her office, as section 191.006 of the Local Government
Code requires. See TEX.Lot. GOV’TCODEANN. $19 1.006 (Vernon 1999). Likewise, the Board’s
order affects the Clerk’s decision that her employees’ time is better spent responding to records
requests by printing a hard copy of an exact electronic copy of the original, rather than finding the
filed original, copying it, and returning it to the correct place in the file. A board ofjudges may not
control a clerk’s discretion in this way.
Moreover, case-related documents are generally presumed to be open to the public. See
Nixon v. Warner Communications, Inc., 435 U.S. 589,597 (1978); Taylor v. Tex., 938 S.W.2d 754,
757 (Tex. App.-Waco 1997, no writ) (quoting Nixon). Rule 76a of the Texas Rules of Civil
Procedure establishes a presumption that court records generally “are. . . open to the general public.”
See TEX.R. CIV. P. 76a(l). Records of criminal proceedings are likewise presumed open to the
public. See TEX.CODEGRIM.PROC.ANN. art. 1.24 (Vernon 1977) (“The proceedings and trials in
all courts shall be public.“); Star-Telegram, Inc. v. Walker, 834 S.W.2d 54,57 (Tex. 1992) (stating
that documents filed in a criminal action are, in accordance with article 1.24, “part of the public
record”); In re Ehoma, 873 S.W.2d 477, 496 (Tex. Rev. Trib. 1994, no appeal) (affirming “our
judicial system’s abiding commitment to providing public access to civil and criminal proceedings
and records”).
While the public’s right to access judicial records is not absolute and a court has the power
to supervise its own records, see Nixon, 435 U.S. at 598; Dallas Morning Navs v. Fift Court of
Appeals, 842 S.W.2d 655,658 (Tex. 1992) (quotingNixon); Taylor, 938 S.W.2d at 757, we believe
that a court may limit public access to case-related documents only in accordance with statutes and
rules of the Supreme Court of Texas or the Court of Criminal Appeals of Texas authorizing such
limitations. See TEX.CONST.art. V, 5 3 1(a), (c) (delegating rule-making authority to the supreme
The Honorable Ben W. “Bud” Childers - Page 5 (GA-0203)
court and court of criminal appeals). For example, civil court records may be sealed, and
information within therefore made inaccessible to the public, only in accordance with rule 76a of the
Texas Rules of Civil Procedure, which requires a showing, among other things, of a predominant
specific, serious, and substantial interest. See TEX.R. CIV. P. 76a( 1). Cases that have examined a
court’s authority to close certain records to the public have done so in the context of a motion that
was fully aired by the court in specific cases. See Nixon, 435 U.S. at 595 (concerning a motion for
the release of tapes); Dallas Morning News, 842 S.W.2d at 655 (concerning a motion to limit the
disclosure of certain documents under rule 76a of the Texas Rules of Civil Procedure); Taylor, 938
S.W.2d at 754 (concerning a motion to inspect materials the trial court used in a hearing). No statute
authorizes a board of judges, or a court, to order the redaction of Social Security numbers on
electronic copies of case-related documents, nor do we find any statute authorizing a court to issue
a blanket order requiring certain information to be redacted from all electronic copies of case-related
documents, without reference to a particular case.
We conclude that a board of judges has no authority to order a county clerk to redact Social
Security numbers on the electronic copies of case-related documents. A clerk need not comply with
such an order. Because we believe this conclusion resolves the situation in the Clerk’s office, we
do not answer your specific questions.
The Honorable Ben W. “Bud” Childers - Page 6 (GA-0203)
SUMMARY
A board of judges has no authority to order the county clerk
to redact Social Security numbers on the electronic copies of case-
related documents. The county clerk is not required to comply with
such an order.
Very truly yours,.
Attoweneral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143625/
|
,-
.
8bOVS lp ulfl.ed, a a m.
to thr
mo r eth M th a lrount aoodod pay
sh a bll.
ade-6
m-8
OXO~~
f~o and ohdl k dispo8.dof la
hdual’t.r poprldad.
the -or
*In aouatiro tuuitpfive tlum-
wd (25,000)or 1~08 Fllstrict
andcouRtyoo'ifiouoMud k a r dll la1.l retain
OM-thM Of OU?h UMO8 fU8 Until SUUh @M.
wick tlm *WJtU&Slpealfbd in
o mua to
o TJWO TQ h o uBud
ml-
P r uiuo t o h & rlo b in
ofriaus
onethird utll auuh one-t&-d,
t&o mulat d.fbd in ktioi8 ) ~%iOi%
7.r
to Fourtoon 'Qndmd ml&r8 (#uoo).:..*
,-
~ploionHe.o-2582 ofthsada rtm~#lt doaltuiaba
to the laluLea o ftre o ffta uo
oLtuat* r ela tive o fTravLa
i-ioawr4bl.m
Than8 A. &bent,
Ar’kid~ 39Ua, %JtiOn X3, V.A.C.3. aadtht thmmnxl-
h o a llo wa l4och off&oarYJI the mxtmm
afflorrby. laws eal&nc Austut 26, 1935,
W melon hueuithrcopyof
OplalenHo. O-2560 of'thlade~artmmntholds
that tbn CdLh4mmrd court of LlmsstonmCot7nt.y
Tun8,sh o uld fixt& ilalarlaeo fthe o ffia lao l*
fa & i
couaty rmmd. la&rGlclr 39120, Sm. 13, V.*.C.3.,for
the yeu low4 thatha mlalmm ml4x-y OfO4Ch mnch
offloaraamwc br lerr thaatho Mt3 au' onrnoda8
omtloa b h&o la htr oftlaW cnpacity for the
fbl)ul9$5ala8t~ttho-~ofsllch
rhoYe macloa4d 0fflo.reouu k the audwm uottat
Oa Aryut24 1935, the
Co unty
%x 4lccordfal:
8; to
pulntlm of Liberty
the t r en hat proceding
hmsi cenmu of 1930 CIU 19 bbd khabiunta and
ntthmttiam co-wit ~u@st 24 1935 the arlauo
amoaatrllo&l the c&nty a& dbtrld offlcrrsof
Texzw,aadbr Arttcles3883 uut $391,
LibertyCouaty',
Verxwa~cr
hniwtated &mm Civil Statutes, uas tbs IU~
of &3,oMwxL
Ten nrr) rmqeatfullpadvlamd tht it la tb
0pirJo.n of this &pwtm@ls the naldma aalwlen of tb
uouat offlciirlr
of LlbartyZouuty,T-6, nmed fn
melo L 39Ue, Sat.lcm13 ~.A.C.S., for the y-r 19J4
apnacrt
exceed
the aUa of 43 000.00 +Sla OTPIpU' aetrt
char*& for each mllllondoh.ar veluntlcra or fractlond.
fi th m r so f ln lx a mea o f ftfc mmnmllllo n cloU4rs.
Pm aanple, If tile88II(LSmu3 val~litlark
of L%bertY
. glrornS~
.
,.. ..
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4289071/
|
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YS BUILT LLC, No. 17-35044
Plaintiff-Appellant, D.C. No. 2:15-cv-01411-BJR
v.
MEMORANDUM*
YA HSING CHIANG CIND HUANG and
GEORGE HUANG, and their marital
community,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted June 7, 2018
Seattle, Washington
Before: BYBEE and N.R. SMITH, Circuit Judges, and HUCK,** District Judge.
Appellant YS Built LLC (“YS”) appeals the district court’s judgment in favor
of Appellees Ya Hsing Chiang Huang and Sheng Tan Huang (“the Huangs”) on YS’s
copyright infringement and breach of contract claims related to the construction of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
a home on the Huangs’ lot in Bellevue, Washington, entered after a three-day bench
trial. YS also appeals the district court’s award of attorney’s fees and costs to the
Huangs under § 505 of the Copyright Act. The parties are familiar with the facts
and proceedings, and we will not state them except as necessary to explain our
decision.
We have jurisdiction under 28 U.S.C. § 1291. And for the reasons below, we
affirm.
I. Copyright Infringement
The Huangs and YS spent almost a year negotiating a potential construction
agreement. During their negotiation, the Huangs worked with and paid YS’s
architect to prepare architectural plans for their home (“Schneider Plans”). The
parties ultimately failed to finalize the agreement, mostly because they could not
agree on a price, and the Huangs hired Stanbrooke Custom Homes (“Stanbrooke”)
to build the home for them. Stanbrooke developed a new set of architectural plans
for the Huangs (“Stanbrooke Plans”). YS alleged that the Stanbrooke Plans infringed
upon the copyrighted Schneider Plans.1
In order to prove infringement, “a plaintiff must show that (1) he or she owns
the copyright in the infringed work, and (2) the defendant copied protected elements
1
Though the Huangs had paid for the Schneider Plans, the architect transferred the
Schneider Plans copyright to YS at no cost.
2
of the copyrighted work,” which may be proven by “fact-based showings that the
defendant had ‘access’ to the plaintiff’s work and that the two works are
‘substantially similar.’” Williams v. Gaye, 885 F.3d 1150, 1163 (9th Cir. 2018).
Because the Huangs do not dispute the validity of YS’s copyright or that they had
access to the Schneider Plans, the only relevant issue is whether the Stanbrooke
Plans are substantially similar to the Schneider Plans. The district court’s substantial-
similarity findings are findings of fact, reviewable for clear error. Data E. USA, Inc.
v. Epyx, Inc., 862 F.2d 204, 206 (9th Cir. 1988).
This Circuit “use[s] a two-part test for [determining] substantial similarity: an
extrinsic test and an intrinsic test.” Williams, 885 F.3d at 1163. In order to prevail,
YS must satisfy both the extrinsic and intrinsic similarity tests. Id. “The intrinsic test
. . . is subjective” and considers “whether the ordinary, reasonable person would find
the total concept and feel of the works to be substantially similar.” Id. “Since the
intrinsic test for expression is uniquely suited for determination by the trier of fact,
this court must be reluctant to reverse it.” Sid & Marty Krofft Television Prods., Inc.
v. McDonald’s Corp., 562 F.2d 1157, 1166 (9th Cir. 1977), superseded in part on
other grounds, 17 U.S.C. § 504(b).
The district court did not clearly err in finding that the Stanbrooke Plans
were not intrinsically similar to the Schneider Plans. The district court explained
that unlike the Stanbrooke Plans, the Schneider Plans were elegant and artistic,
3
showing “an airy, light structure focused on aesthetic value rather than utility as a
dwelling,” and had a “relatively minimalistic and spare” floor plan. The
Stanbrooke Plans, on the other hand, were “more utilitarian and pragmatic[ly]
focus[ed],” and incorporated a “closed,” “walled,” and more “confin[ed]” floor
plan driven by “cost-conscious[] and practical[]” considerations. These intrinsic
differences rendered “the total concept and feel of each . . . not substantially
similar.” On review, we find no clear error in the district court’s intrinsic-similarity
findings, and, as the district court noted, that finding alone “[wa]s determinative
for [this] decision . . . .” We therefore need not reach YS’s arguments as to the
district court’s finding that the plans also lacked extrinsic similarity.
II. Breach of Contract
YS also alleged that by hiring Stanbrooke instead of YS, the Huangs breached
a letter of intent (“LOI”) and a land-purchase agreement (“Land Agreement”) that
bound the Huangs to use only YS to build the home.
The district court did not err in holding that YS and the Huangs did not form
an enforceable construction agreement. As the record reveals, the parties never
mutually assented to an enforceable construction agreement, despite expressing in
the LOI and Land Agreement that they intended to enter into one in the future.
Keystone Land & Dev. Co. v. Xerox Corp., 94 P.3d 945, 949 (Wash. 2004)
(explaining that under Washington law, “for a contract to form, the parties must
4
objectively manifest their mutual assent.”). References to what the Huangs “will,”
“wish[] to,” or “shall be required to” do at some later time show only their future—
not a then-present—intention of entering into a construction agreement with YS.
Also, the parties’ continued negotiations, particularly over a price, further
demonstrate that they had not yet reached a final, mutually-assented-to construction
agreement when they executed the LOI and Land Agreement. The district court was
therefore correct that the clauses on which YS’s breach-of-contract claim rests
merely established an “agreement to agree,” which is not enforceable under
Washington law. P.E. Sys., LLC v. CPI Corp., 289 P.3d 638, 644 (Wash. 2012).
We thus affirm.
III. Attorney’s Fees and Costs
The district court did not abuse its discretion in awarding the Huangs their
attorney’s fees and costs under § 505 of the Copyright Act. See Smith v. Jackson, 84
F.3d 1213, 1221 (9th Cir. 1996). The district court carefully weighed the five non-
exclusive factors set out in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994).
Specifically, as for the degree of success obtained, the district court noted that the
Huangs prevailed completely against YS’s copyright claim. As for the frivolousness
and reasonableness of YS’s claim, it found that “Plaintiff[’s] [claim] did not have a
reasonable likelihood of success,” because the Schneider and Stanbrooke Plans
shared few meaningful similarities, and “the lack of overall similarity between [the
5
Plans] was apparent.” That rendered YS’s claim “objectively unreasonable, if not
frivolous.” As for YS’s motivation, the district court found that rather than “advance
the public good envisioned by the Copyright Act,” YS leveraged its copyright to
“bully [the Huangs] into building a project they did not want to be part of.” Lastly,
as for the need to compensate and deter, the district court found that “a fee award
[wa]s appropriate to deter similar abuses of copyright and to compensate the Huangs
for time spent defending against this suit,” which, it stressed, was “improperly
motivated.”
The district court appropriately assessed the Fogerty factors and made
findings well within the range of its discretion. We thus affirm the district court’s
award of attorney’s fees and costs.
AFFIRMED.
6
|
01-03-2023
|
06-27-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/4289086/
|
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
VADA KIMEY, *
* No. 16-1325V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: June 1, 2018
*
SECRETARY OF HEALTH * Attorneys’ fees and costs
AND HUMAN SERVICES, *
*
Respondent. *
******************** *
John R. Howie, Jr., Howie Law, P.C., Dallas, TX, for Petitioner;
Ann D. Martin, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Vada Kimey prevailed in her claim brought in the National Childhood
Vaccine Compensation Program. She is now seeking an award for attorneys’ fees
and costs. She is awarded $52,740.92.
* * *
Represented by attorney John R. Howie, Jr., Ms. Kimey filed her petition on
October 12, 2016, alleging that an influenza vaccination caused her to suffer from
Parsonage-Turner syndrome, also known as brachial neuritis. After the Secretary
found the evidence insufficient to support this claim, Ms. Kimey retained three
experts, infectious diseases specialist Patrick Anastasio, orthopedist Charles Banta,
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
and neurologist Russell Glantz, to present opinions. After discussions, the parties
resolved this case. The parties submitted a stipulation that was incorporated by a
decision. Decision, 2018 WL 818264 (Jan. 17, 2018).
On January 21, 2018, Ms. Kimey filed a motion for an award of attorneys’
fees and costs. The motion seeks a total of $54,162.92, comprised of $45,461.41
in attorneys’ fees and $8,701.51 in attorneys’ costs. Ms. Kimey did not incur any
costs personally.
The Secretary filed a response to Ms. Kimey’s motion. The Secretary
represented that he “is satisfied the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Resp’t’s Resp., filed Feb. 5, 2018,
at 2. With respect to amount, the Secretary recommended “that the special master
exercise his discretion” when determining a reasonable award for attorneys’ fees
and costs. Id. at 3.
This matter is now ripe for adjudication.
* * *
Because Ms. Kimey received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the
unresolved question is what is a reasonable amount of attorneys’ fees and costs?
I. Attorneys’ Fees
The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs. 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
2
A. Reasonable Hourly Rate
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Ms. Kimey requests compensation for two attorneys, John Howie and Zara
Najam, as well as a paralegal and legal assistant who assisted them. The proposed
rates are reasonable.
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See Shea v. Sec’y of Health & Human
Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr Dec. 10,
2015) (“special masters are not obligated to evaluate an attorney’s billing records
on a line-by-line basis in making the reasonableness determination … and certainly
need not do so when Respondent has not attempted to highlight any specific
alleged inefficiencies”).
The entries from the attorneys, paralegal, and legal assistant generally
describe the activities with sufficient detail that the reasonableness of the work
may be assessed. However, some entries are vague and/or the attorney has lumped
together several discrete tasks. E.g. Mr. Howie’s entries for July 9-14, 2017; the
paralegal’s entry for Nov. 10, 2016. In addition, Ms. Najam, the associate
attorney, performed duties that a paralegal or a legal assistant could have
performed.
3
For these reasons, Ms. Kimey’s requested amount is reduced by $1,000.00.
Ms. Kimey is awarded $44,461.41 for attorneys' fees.
II. Costs
In addition to seeking an award for attorneys’ fees, Ms. Kimey seeks
compensation for costs expended, totaling $8,701.51. The costs of $1,171.18, for
routine items such as medical records and the filing fee, are reasonable and
adequately documented.2 Ms. Kimey is awarded them in full.
Most of the balance is for the work of Dr. Banta ($2,250.00) and Dr. Glantz
($4,858.33). Each of their invoices presents a reasonable hourly rate and a
reasonable number of hours. However, the billing records list a $440.00 expert fee
for Dr. Anastasio, but no invoice has been attached that details his services. Thus,
absent any supporting documentation, Ms. Kimey will not be awarded Dr.
Anastasio’s expert fee.
For these reasons, Ms. Kimey is awarded $8,279.51 in attorneys’ costs.
* * *
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§15(e). The undersigned finds $52,740.92 ($44,461.41 in fees and $8,279.51 in
costs) to be a reasonable amount for all attorneys’ fees and costs incurred. The
undersigned GRANTS the petitioner’s motion and awards $52,740.92 in attorneys’
fees and costs. This shall be paid as follows:
A lump sum of $52,740.92 in the form of a check made payable to
petitioner and petitioner’s attorney, John R. Howie, Jr., for attorneys’ fees
and costs available under 42 U.S.C. § 300aa-15(e).
2
This cost total includes an additional $18.00 that was not identified in the
billing records but an invoice was submitted to support it. Pet’r’s Mot. at 31-32,
61-62.
4
In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the
parties’ joint filing of notice renouncing the right to seek review.
5
|
01-03-2023
|
06-27-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/4143479/
|
P
OFFICE OF THE AHORNEYGENERAL OF TEXAS
AUSTIN
we have your letter
read8 La part ar ToXlowrt
dkreten% from t&e first quctk
which to be recognized In Faxes8 howewr,
the portion of the last qprctationwhich no hare
undsr8oaredmuld lead us to believe that only
x and m en;yoi the ooam3ltleo rafartwd~to
In that paragraph drs wetiaheQ tw determfne the
raount sola or aeliooreu,wui* the weight man-.
tioned in the artlolr be the Uetemintng faotar
in estr;blishing‘Cme Cubic Yard,* while tn in-
stmcee wherctthe mount dellvereclis dstermln-
Depsrtaent of Agrloulture,Page 2
ad by lo tua 8weuruent,
l *one cubio Y81d8 would
#IOU *ii? SUbi iSOt’ PQ$CUah+S Of thS d.@t
of tho OoBBodltJ.
FUr f&IA In Artto1r 1048 of the Pen&l cm
o uta iap ua ltio l
eetabllehedior those who fall
to M srd the unltg ot measure as eetabllaiwl
in *ce1010 lW4, ROJ, 1926.
*~a mtioie 108, ma, 196s we fina the roi-
lowing: 'The fOuoWl~? StUtUd8 of C+W8Anur
?or the ibipunt of fruit and vegotabl.8 in this
dtato uo hembl oeliablished aad abopted as
Stat* etenduU8.
'1. Standax’ Euehol 6Mk.t. The etam%u'd
buehelba8kot rhll @oattin net1oeet&a %lso.r
oubb iao&oe &a the bmkot opu, ro#amale8e
of the saanor Sn whloh the g3: a is Me.'
WttUg to the faot that the t8tuidud guelaol
Ba8k.t’ WhSB QrOpSFlJ pS@kSd and ZtllOd with
gnu 8pQlO8will not wo%gh '80 poundr’ a& in
most lnetanera,vi11 velgh oonaiderabl~lees than
'50 paw&at, uo *ro ffeqwntly tmnfroated with
the quortlon of Just what shall oonetltute a
qt3taaUar% mu&l* of green applo8.*
jfehave given oarriul ooneiduat~on to th&r rod
perplexing problu, and have rreohed the ooaolaeioa that
the wall-roaeoaodumly'rie oontafned in Tour letter abwa
quoted ir o0rroot~ I. 0.. that green applee whoa sold In
bulk or when ~easur.c%br wlght are to bo @old upon the
b&ta ;f If2;oundr to the bush01 as preeoribedby Article
but that when green epplee uo aold in
bush;1 ;?oai&&e the weight of euoh bushel ie lmaoterial;
y-z
- ..- .
,., t
aopartmental Agriculturr, Page 3
so long as euah bushel basket oontaine %l60.4 oubio inohee
as pre8oriboU br Artiolr100, R. c. 8. In eaoh inetaaoo
the *alo 58 in oocordarm with the understandlagand taten-
tier,of tho gertlee.
Pours very truly
ATTORNEYGEHXRALOF TSXAS
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/7606065/
|
Affirmed.
|
01-03-2023
|
07-29-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/4143468/
|
._
481
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
Elonorablr 0. &rtt Potter
County Attorney
San Patrloio 0ou.W
Slntoa, Taxer
Doer Slrl
Wo aro in room
1940, in rhloh thlr depsrtnwiai
to whOth6r or a1tr of corpus Chrlrfl
rbrrrrolr ~urposrr ir
8hall ba aqua1 an6
Oi 8ubjOOt8 rlthla
tho
7l4 the tar but the
law, rr4mp t from
J we4 Sor pub110 put-
Of ktiOl0 11 Of tb ~OlWtitUt;Oll Oi FOX88
robarty of OOUnti@I, aitiO8 an6 tomu,
14 oall for
pub114 purpose8, ruoh a8
$hO bUi:diIwr rod the 8it.8 tber*tC'S~ sir0 @D&38
an4 th8 furnihrb theraoi, an6 all gropr?t7 uad, or
1 nta ntWlio r l%tln&al8hinu firrr, $ublio grounU8 and
all othr property d8tOtd 8xo1urirr1~ to the 010
and bmrilt Of 8hr FUbliO rhall b@ lxampt *Or fOrO4d
rrlr and froa fixation, proridrd, nothln hsrbla ohs11
protent ah8 enforo4!BWlt of tbr v4ndOr8 1 P. 8n, th0
uoh8niO8 Or bullb4t8 lien, Or other 110138DOW
lJl8Slllg.~
!
I
!.
Honorable 0. Burtt itttar, k--g4 &
Artlola 7180 of the R4rls4Q v
“1 vi1 $tatut44 of Texer,
rradr in part a8 fO11OW8l
*The followln~ property rhsll bo exempt
rr0m tax4tlon, to-rltr
a440
'4. Pub110 property - rll property, whether
real or ?erron41, belon(rln(( lxolurir41~ to thi8 State,
or my po+l$tfiel rubdltirlon thereof, or the United
Stat48,
Court Of Civil Appal8 1n the 0~4
Th4 Esrtlend or
City of ~4bllenr vs. State
113 5. ii. (ti) 631, nit OS error
di8Pi844d by th0 3Upr4ZI4 Court, Oonatruad t& above quoted
portion8 0r the Oonrt1tutlon of feras and krtlcle 7160 ln oon-
motion r1th tbe exsfiptlon oi Property purohassd by tho City
oi Abllenr far the puipoaar of-a keaerrolr, whloh i)urpos4 ii
ldantfoal with the on4 for sbiob tb8 property la belw used
by tho City OS bOT&Ml8 S3riatl in yollr naae. The oourt rtstod
(I8 rOiiWd8 I
w+ ” l There oonsldsratlonr le?d.ys to _
.
the oonolu8lon that 88 to tn4 poa~3r Or ta4 Iagls-
laturo, to lxeapt pub110 property from tsxatlon,
all ruoh property rhould be regarded a8 ‘used Sor
pub110 mOS48' n&n it 18 Owned azid held for
publis purp0S4S, but not ownad or held orolualr4l~
ror 8uoh purp0serl 4nd fhgr$ haS keen a0 obsndon-
nent of ruoh &mfOO8Wv
“* l l It 18, tbrrorore, our view tbct
when thr SeObB of l @ire13 0460 rstebllrh the
onrrerShlp cl property by 4 munlolpal corporation,
rhloh ha8 t44B ropu1r.d for l0 ruthorlzed pub110
purpose, and tkb purpose ior wh1oh it 18 wened
-“end held ha8 not b44n rber,doneb, ruch property
18 to b4 rrgardrd 48 us4d for pub110 purposoa,
and the Ia.gl~n)aturo hSr the pO%er to proridr tp, 4"
wnerrl law for It8 sxemptlon from t6xhtlon.
The pro;osltion that beforr pro;ertr 1r tax 0X42&t
it ha8 to be botb osmd and held for pub114 p~cpoeer wa8 an-
nounoad by t%! tiupreme Court of Tessa in Sn oplnlon w'rlttrn
by Justlor Gainer in the oaie Or Morris t8. tin4 Star Chaptor
No. 31x, s 3. w. s19. The Court rtatrd a8 fQllOw8l
Honorable C. Furtt rotter, pare 3
.Thle poaltion ia also luatelned by the
lnslo(ly of thr aeotlon, whloh oxeagta the pro;rrty
or aountlr~, oitlsr, 8nd town,. Tbr exeaptlon lr
llmitod to thrir property owned an6 told only for
pub1 lo purpooar , euoh ee pub110 bulldlncr a ndllter
thereicr.’
The aam proporitlon or law wa8 announoed by the
Ecau..nt Court or Clrll ~ppeala in the oaae or ;an Antonio In-
d4pender.t 5oho01 Xstrict va. :;rter k’crke Eoerd of Trustee@,
120 2. ‘i;, (cd) 681. The Court etated a8 follows:
a * l * The deoislon of thla oaoe turne
upon t>e a018 ;uastlon of whether or not the Xater
Xorks Lyzten, w!?loh supplier the L‘ltyor z:anaa-
tonio lr ‘0%ned and held’ by tha Zlty of San antonlo
80 88 to oom vilthln the protlslons 0r the -tste
Constitution mhioh exaapts ruoh property from
tsxct~on. * + +*
In th1.a otisa we have both ths o\imr of the property,
e private indlvl~iusl, sn;l a lessee, n-k1oh 1s t>e City of Corpus
Chrlsti. Thererore we 0311 your ettectloa to Artlole 7171 0r
the Revlaad Xrll jtstuter oi Tcr~s, RhlOh reudr as iollOzce:
“All real property subject to taxation
rhell be aaaeased to the omera thereof In the
mmer herein provided but no assesment of real
property ahall be oom i awed Illegal by realon
or the an.1 aot being llatod or lrse88ed la the
neze of the owner or owrrme thereor.”
The ap llcable ru?a of lar we8 laid dam by the
3qre.m Zourt 0r Tares in an opinion n’rittaa by Chief JI;:tlce
tayt:n iti the o~.se of 1)EuFherty vs. ?hcmFscn, 71 Ter. l9fi,
zhs Ccjurt st-.tsa at3 r0ii04~
“The ue:-ersl rule la thtt ttmanar of ma1
lat.tte leesed is trx*blr upon t&a ectlre valur Or
the property a::2 ttir aetlstle4 the oon~tit*~tlcnal
reguirr;ent that ‘611 property in this atate, whe-
thtr orntd by n?ltursl fsrrone or cor~or%tloaS, otb.ar
than munlolpal, ahsll be taxed in proportion to lta
vtlue*”
- 484
Honorable 0. Burta Potter, pegr 4
3~ answering year qwstlon la this OOS*, m aurt
sonsldor the tax as belag asseresd against ths omar and as
bslng a llablllty oa~hls part daspltr the Saot that _ ._.
uodor the
leans oontraot ths City of Qorpos Ohrletl has oontraotea m
ay all taxes that mar baoonw due. V!o 60 not belier. then
1 8 any quastloa but that if thls gropart~ was owned by ths
Oltf oi Corpus Ohrlsti the saaa woul6 met the ssnstltutional.
nqulremsats of property being onaed and bald only ior publie
ggg-,‘Y,t*‘p’gP;’ achy& ,“,:; “,$-g~~~,““,~,o,,’
suprai and San &toalo*I.*S. llatar Korks Board oi Trusties,
D. ~8~
However, under the you lub mlt
iaots the propertyb not
%%*br the Oitr of Corpus ChrIsti but 1s owaed by an lndlrldual
who has privately leased ths saras to suoh oity. Xe do not
ballerr that the oonetltutIonal and stetutor~ exemption as quoted
above and as interpreted by ths oases above olted would apply
in your oaaea To thIn.k ths dlsoneaion la the oass of Cltr of
Dallas tar Ooohraa, 166 3. ‘U. 32, IS lpplloablo In this sase.
In that oaso a private lndltldual had laaaed property to a
ohuroh and he tbarsfora ooatendad that ths property was tax exempt
under the authority o? Seotloa t of ATtlols 8 of the Oonstltutlon
or Texas. The Court atatad as follows1
Vha Saot thet tha le8aee used tbr pramlees
under a rantal oontraot for ohuroh purpoeos would
be opposed by the faot wet tte owner, 01aImIng the
exe=ptlon, was hkueali putting his property to ths
UIS 0r private galxba
A llka sltuetlon was dlsoussed by ths Supreme Court
or Texas In the oase 31 Rsd vs. MOrrlS, 10 3. 1. 881, by Juetloe
Cainas. In dlaouasine the proposltloa that the propertywould
hare to be owned by the sob001 in order to bs tax lxampt the
Court stated as followsr
“iie think, that pursuant to the same policy,
tba Laglslature, meant, by tha lmployzaant of tha term
of tha OonetltutIoa, to prerrnt the owners of proport
iron taklag adrantaga oi the lxemptloa, when thry
leased the proparty1, others tar profit, to ba used
by the latter ror the maIateaanoe 0r eohools.W
The Attorney Ganeralta Departnsnt In an opinion
written by Assistant Attornay Oaneral Joa f. Alsup, to Bonoreble
Oherlas 2. Raagan, Dletrlot Attornsy, ?a118 County dated
Tebruery 1, 1935, held that a bullding that was prI tataly
.
.
. *
Bonombls C. Burtt Potter, page 8
owned but used for oharltabls purposes was not exempt from
taxation. The Attorney Oaneral~s Departaant in aa oplaloa
wrlttaa by Anthony Msnlaouloo, to Charles Br Thompson, “Xla-
burg, Texas, dated yabrusry Zl, 1936, held that e bulidla~
that was privately owned but the ufe was donated to th
Federal Emargenay Relief MmInlstratlon was not exempt from
taurtloa. Thls Deportmnt In Opinion 0-1bU held that where
a lot and bulldlng which was privately owned was leasod to
the TiorksProgress Adxln:etration the rams was not exempt
from taxatloa. This Departmnt also ruled in Opinion lo.
O-93b that bulldings leased by the Austin 3ohool of Buslaess
and IUIron-Clay Cormarolel Oollege were not uenipt from taxa-
tion beoause the same wers not owned by said sohools but
ware leased by then from grlrate ladlvlauals.
Zt Is the opinion of this dopmtzant that under
the re0t8 sub?iItted, the property laasad by the City 0r Corpus
Christ1 ror reservoir pur>osea la not caxonpt iron ad valoran
taxes.
Yor;re very truly
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4128916/
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 152004
Mr. Mac Tristan Opinion No. GA-0179
Chairman, Texas Automobile Theft
Prevention Authority Re: Whether the Texas Automobile Theft Prevention
4000 Jackson Avenue Authority may assess a fee for insurance on, and use
Austin, Texas 7873 1 its funds to investigate the theft of, self-propelled farm
equipment, construction equipment, boats and aircraft
(RQ-0127-GA)
Dear Mr. Tristan:
You ask whether the Texas Automobile Theft Prevention Authority may assess a fee for
insurance on, and use its funds to investigate, the theft of self-propelled farm equipment,
construction equipment, boats and aircraft.’
The Texas Automobile Theft Prevention Authority (the “Authority”), established under
article 4413(37) of the Revised Civil Statutes, was initially created as a part of the criminal justice
division of the governor’s office. See Act of May 25,1991,72d Leg., R.S., ch. 243,§ 1,199l Tex.
Gen. Laws 1138,1138-41. The agencywas transferred to the Department of Transportation in 1997.
See Act of May 14, 1997,75th Leg., R.S., ch. 305, 8 3, 1997 Tex. Gen. Laws 1349, 1349. The
Authority is composed of seven members, six appointed by the governor and the director of the
Department of Public Safety, or a designee appointed by the director. See TEX. REV. CIV. STAT.
fiNN. art. 4413(37), $ 3(a) (V emon Supp. 2004). The governor’s appointees must include two
representatives of motor vehicle insurance consumers, two representatives of motor vehicle
insurance companies, and two representatives of law enforcement. See id. 0 3(b)(1)-(3).
The Authority is empowered to adopt rules. See id. 9 6(a). It is required to “develop and
implement a plan of operation” that includes “an assessment of the scope of the problems of
automobile theft and economic automobile theft”*; “an analysis of various methods of combating
the problems of automobile theft and economic automobile theft”; and “a plan for providing
financial support to combat automobile theft and economic automobile theft.” Id. 8 7(a)-(b).
‘See Letter fromMr. Mac Tristan, Chairman, Texas Automobile Theft Prevention Authority, to Honorable Greg
Abbott, Texas Attorney General at 2 (Nov. 12, 2003) (on file with Opinion Committee, also avadable at
http://www.oag.state.tx.us) [hereinafter Request Letter].
*“Economic automobile theft” is defined as “automobile theft committed for financial gain.” TEX. REV. CIV.
STAT.ANN. art.4413(37), 5 l(2) (Vernon Supp. 2004).
Mr. Mac Tristan - Page 2 (GA-0179)
One of the Authority’s principal duties is to “develop a statewide automobile registration
program to be administered by the Department of Public Safety.” Id 3 9(a). The Authority is
directed to “identify a period of the day during which most automobiles are not used. An owner of
an automobile that does not usually use the automobile during that period may register the
automobile with the Department of Public Safety in accordance with the program developed by
the authority.” Id. § 9(b). The registration program includes the issuance “to the owner of an
automobile registered under this section a decal or other appropriate identifying marker to be affixed
to the automobile to indicate that the automobile is registered with the program.” Id. 8 9(e). “A
peace officer who observes a registered automobile that is being operated during the period of the
day identified by the authority under Subsection (b) of this section may stop the automobile to
determine whether the automobile is being operated by the owner or with the owner’s permission.”
Id. 5 9(f).
Section 8 of article 4413(37) describes the Authority’s use of appropriated funds. Much of
its funding is derived from a fee imposed on insurers. Section 10(b) requires that an insurer “pay
to the authority a fee equal to $1 multiplied by the total number of motor vehicle years of insurance
for insurance policies delivered, issued for delivery, or renewed by the insurer.” Id. 8 10(b).
“Insurer” is defined in article 44 13(37) as “any insurance company writing any form of motor vehicle
insurance in this state, including an interinsurance or reciprocal exchange, mutual company, mutual
association, or Lloyd’s plan.” Id. 0 1O(a)(1) (emphasis added). The term “motor vehicle insurance”
is not defined in article 4413(37). The Authority looks to the Insurance Code to define the term. See
Request Letter, supra note 1, at 2. Article 5.01 (e) of the Insurance Code provides:
(e) Motor vehicle or automobile insurance as referred to in
this subchapter shall be taken and construed to mean every form of
insurance on any automobile or other vehicle hereinafter enumerated
and its operating equipment or necessitated by reason of the liability
imposed by law for damages arising out of the ownership, operation,
maintenance, or use in this State of any automobile, motorcycle,
motorbicycle, truck, truck-tractor, tractor, traction engine, or any
other self-propelled vehicle, and including also every vehicle, trailer
or semi-trailer pulled or towed by a motor vehicle, but excluding
every motor vehicle running only upon fixed rails or tracks.
Workers’ compensation insurance is excluded from the foregoing
definition.
TEX. INS. CODE ANN. art. 5.01(e) (Vernon Supp. 2004) (emphasis added).
You first ask whether the Authority may “adopt a rule defining the term ‘any other self-
propelled vehicle’ to include self-propelled farm equipment, construction equipment, boats [and]
aircraft.” Request Letter, supra note 1, at 2. You also ask whether the Authority may assess the
article 44 13(37) fee only upon vehicles insured under motor vehicle or automobile insurance policies
or whether it may also assess the fee on types of insurance that cover heavy equipment. See id. We
gather from these two questions that the Authority proposes to adopt a rule broadening the meaning
Mr. Mac Tristan - Page 3 (GA-0179)
of “motor vehicle” that would require insurers to pay the article 4413(37) fee based on insurance
policies other than motor vehicle insurance policies. See id. (noting that certain kinds of mobile
equipment may be insured under general liability insurance policies as opposed to motor vehicle
insurance policies).
The scope of the term “motor vehicle” in article 5 .O1(e) is not dispositive of the proper basis
for the article 4413(37) fee, and a rule providing a broad definition of the term would not permit the
Authority to expand the basis for the fee. Chapter 5 of the Insurance Code is divided into a number
of subchapters. Subchapter A, of which article 5.01 is a part, deals with “motor vehicle or
automobile insurance.” TEX. INS.CODEANN.art. 5.01-.12 (Vernon Supp. 2004). Other subchapters
govern “aircraft insurance” (subchapter K), id. art. 5.91-.98; fire and allied lines (subchapter C),
which includes marine insurance, id. art. 5.25-.53A; and general casualty insurance (subchapter B),
id. art. 5.13-.24. Article 5.01(e) describes a variety of vehicles, both self-propelled and otherwise,
that may be insured under a “motor vehicle insurance” policy. But the Authority does not assess its
fee upon “vehicles,” but upon “insurers” based on the number of “motor vehicle insurance” policies
they write. See TEX. REV. CIV. STAT. ANN. art. 4413(37), $ IO(a)-(b) (Vernon Supp. 2004). If an
insurer writes a “motor vehicle insurance” policy, the Authority may assess its fee upon that insurer
for those policies. See id. If a vehicle is not insured under a “motor vehicle insurance” policy,
however, but under some other kind of policy, such as aircraft, marine, or general casualty policy,
the insurer is not an “insurer” for purposes of article 4413(37), and as a result, no fee may be
imposed on the policy. See id.
In sum, to answer your specific questions, the Authority may not by rule define the term
“self-propelled motor vehicle” to impose the article 4413(37) fee on insuranbe policies other than
motor vehicle insurance policies. Moreover, the Authority may not assess the fees on other kinds,
of insurance policies that may insure against liability relating to motor vehicles, such as general
liability policies, marine and aircraft policies.
Your third question is whether appropriated funds of the Authority may be used to fund
projects that relate to thefts of self-propelled farm equipment, self-propelled construction equipment,
and boats and aircraft. See Request Letter, supra notel, at 2. Section 8 of article 4413(37) describes
the permissible uses of appropriated funds to include:
(1) establishing and funding the automobile registration
program required by Section 9 of this article;
(2) providing financial support to law enforcement
agencies for economic automobile theft enforcement teams;
(3) providing financial support to law enforcement
agencies, local prosecutors, judicial agencies, and neighborhood,
community, business, and nonprofit organizations for programs
designed to reduce the incidence of economic automobile theft;
Mr. Mac Tristan - Page 4 (GA-0179)
(4) conducting educational programs designed to inform
automobile owners of methods of preventing automobile theft;
(5) providing equipment, for experimental purposes, to
assist automobile owners in preventing automobile theft; and
(6) establishing a uniform program to prevent stolen
motor vehicles from entering Mexico.
TEX. REV. CIV. STAT. ANN. art. 4413(37), 6 8(a)(l)-(6) (V emon Supp. 2004) (emphasis added).
Thus, article 4413(37) requires the Authority to take steps to prevent “automobile” theft, and in one
instance, to prevent stolen “motor vehicles” from entering Mexico. Id. art. 4413(37), 0 8(4), (6).
Article 4413(37) contains no definition of either “automobile” or “motor vehicle.” We must
therefore look to other statutes and case law to discern the meaning of those terms. See La Sara
Grain Co. v. First Nat ‘IBank, 673 S.W.2d 558,565 (Tex. 1984). In Nichols v. State, 242 S.W.2d
396 (Tex. Crim. App. 195 1), the court held that the word “automobile,” as used by the legislature
in describing the offense of driving while intoxicated, “is a generic term which includes the motor
vehicle commonly known as a ‘truck.“’ Id. at 397. In SmaZZv. State, 631 S.W.2d 201 (Tex.
App.-Corpus Christi 1982, no writ), the court held that, for purposes of the offense of driving while
intoxicated, “automobile” is broad enough to include “motorcycle.” No Texas case has held,
however, that self-propelled farm or construction equipment is embraced within the definition of
“automobile” for purposes of article 4413(37).
The Texas Supreme Court has held that, in common usage, the terms “automobile” and
“motor vehicle” are not synonymous:
The courts have held the term “motor vehicle” to be different from
and broader than the term “automobile.“. . . Common usage has
made the phrase “motor vehicle” a generic term for all classes of self-
propelled vehicles not operating on stationary rails or tracks, and
therefore, as a result all automobiles are motor vehicles, but the
contrary proposition is not true. The term “motor vehicle” is much
broader than the word “automobile” and includes various vehicles
which cannot be classified as automobiles.
Slaughter v. Abilene State Sch., 561 S.W.2d 789’791-92 (Tex.. 1977). There is no single definition
of “motor vehicle” under Texas law. Under the Certificate of Title Act, for example, “motor
vehicle” includes “any motor driven or propelled vehicle required to be registered under the laws of
this state; a trailer or semitrailer . . . that has a gross vehicle weight that exceeds 4,000 pounds; a
house trailer; a four-wheel all-terrain vehicle . . .; [and] a motorcycle, motor-driven cycle, or moped.”
TEX. TRANSP. CODE ANIN.5 501.002(14) (Vernon Supp. 2004). For purposes of Motor Vehicle
Safety Responsibility Act, a “motor vehicle” is “a self-propelled vehicle designed for use on a
highway, a trailer or semitrailer for use with a self-propelled vehicle, or a vehicle propelled by
Mr. Mac Tristan - Page 5 (GA-0179)
electric power fkom overhead wires and not operated on rails.” Id. 0 601.002(5) (Vernon 1999).
Other statutes define “motor vehicle” in various but similar ways. A number of statutes emphasize
the “highway use” aspect in defining the term. See, e.g., id. 0 647.001 (Vernon Supp. 2004) (relating
to the motor transportation of migrant agricultural workers); TEX. TAX CODE ANN. Ej162.001(44)
(Vernon Supp. 2004) (relating to motor fuel taxes); TEX. NAT. RES. CODE Am. $ 116.001(8)
(Vernon 2001) (relating to compressed natural gas).
Considering the purpose of article 4413(37) - to establish a mechanism for the prevention
of automobile theft -we believe that the term “motor vehicle” as used in section 8(6) of that statute,
is a more inclusive term than that of “automobile,” but that it should be restricted to motor vehicles
that are intended for use on a highway. Thus, the Authority may establish a uniform program to .
prevent self-propelled farm and construction equipment from entering Mexico only if those vehicles
are designed for highway use. If, on the other hand, such vehicles are operated entirely within the
confines of private property, they may not be included in the uniform program established by section
8(6) of article 4413(37).
An aircraft, however, is clearly not a “motor vehicle” within the contemplation of article
4413(37). SeeMcBoyZev. UnitedStates, 283 U.S. 25’26 (1931) (,‘in everyday speech ‘vehicle’ calls
up the picture of a thing moving on land,” and thus, an airplane is not a “motor vehicle”). Neither,
under Texas law, is a motorboat included within the definition of “motor vehicle.” See WiZZiamsv.
State, 698 S.W.2d 266,268 (Tex. App.-Fort Worth 1985), affd, 725 S.W.2d 258 (Tex. Crim. App.
1987). Case law thus excludes boats and aircraft from the definition of “motor vehicle” for purposes
of section 8 of article 4413(37). As a result, the Authority may not fund projects that relate to thefts
of boats and aircraft.
Mr. Mac Tristan - Page 6 (GA-0179)
SUMMARY
The Texas Automobile Theft Prevention Authority may assess
a fee only upon insurers who insure vehicles under a “motor vehicle
insurance” policy. It may not assess a fee upon insurers that insure a
vehicle under any other kind of policy. The Authority may establish
a program to prevent the theft of “automobiles,” including trucks and
motorcycles, but not including self-propelled farm and construction
equipment. The Authority may establish a uniform program to
prevent self-propelled farm and construction equipment from entering
Mexico only if that equipment is intended for highway use. It may
not do so if such equipment is operated entirely within the confines
of private property. The Authority may not fund any projects that
relate to thefts of boats and aircraft.
Yours very truly,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4128960/
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 14,2004
The Honorable David K. Walker Opinion No. GA-01 35
Montgomery County Attorney
210 West Davis, Suite 400 Re: Whether a bail bond licensee may operate
Conroe, Texas 77301 under one or more assumed names, and whether a
bail bond board may regulate the number of names
under which a licensee operates (RQ-0075-GA)
Dear Mr. Walker:
You ask whether a bail bond licensee may operate under one or more assumed names, and
if so, whether a bail bond board may regulate the number of names under which a licensee operates.’
Pursuant to Occupations Code chapter 1704, a Texas county has authority to license and
regulate bail bond sureties within the county. See Smith v. Tarrant County Bail Bond Bd., 997
S.W.2d 870, 871 (Tex. App.-Fort Worth 1999, pet. denied). A “bail bond surety” is a person who
(1) “executes a bail bond as a surety or cosurety for another person,” or (2) “for compensation
deposits cash to ensure the appearance in court of a person accused of a crime.” TEX. OCC. CODE
ANN. tj 1704.001(2) (V emon 2004). The statute creates a county bail bond board in every county
with a population of 110,000 or more and authorizes the creation of a board in a county with a
smaller population. See id. §§ 1704.05 l-.052.
Chapter 1704 provides for licensing individuals and corporations as bail bond sureties. See
id. $8 1704.001(5) (defining the term “person” to include individuals and corporations), 1704.152
(eligibility of individuals and corporations for licensing); Harris County Bail Bond Bd. v.
Blackwood, 41 S.W.3d 123, 124 (Tex. 2001). Because corporate sureties act through agents who
are individually licensed as bail bond sureties, corporations must comply with requirements not
applicable to individual licensees. Before a corporation may execute bail bonds, it must file with
the county clerk in the county where it intends to operate a power of attorney designating an agent
authorized to execute bonds on its behalf. See TEX. OCC. CODE ANN. 5 1704.2 11 (a) (Vernon 2004).
The corporation must also name its agents in its application for a license. See id. fj 1704.21 l(b).
‘Letter from Honorable David K. Walker, Montgomery County Attorney, to Honorable Greg Abbott, Texas
Attorney General (June 26,2003) (on file with Opinion Committee).
The Honorable David K. Walker - Page 2 (GA-0135)
An individual who acts as a bail bond surety or as an agent for a corporate surety must hold
a license issued under chapter 1704. See id. 8 1704.15 1; see also id. 8 1704.163 (exception for
licensed attorney giving bond for person represented in a criminal case); Tex. Att’y Gen. Op. No.
GA-0058 (2003). An individual, “including an agent designated by a corporation in an application,”
must comply with statutory requirements for a license, except that an individual “acting only as agent
for a corporation” licensed as a bail bond surety does not need to comply with the financial
requirements set out in section 1704.160. TEX. OCC. CODEANN. 5 1704.152(a) (Vernon 2004)
(emphasis added). Instead, the corporation must make a separate deposit of financial security “for
each license granted to it in a county.” Id. 5 1704.160(b). See g enerally Blackwood, 41 S.W.3d at
124 (a corporation must obtain a separate license for each agent it authorizes to issue bonds).
Nothing in chapter 1704 prohibits an individual licensee from conducting business under an
assumed name. Tex. Att’y Gen. Op. No. JM-1023 (1989) at 3, MW-32 1 (198 1) at 3; Tex. Att’y Gen.
LO-96-044, at 1. The licensee must comply with the filing requirements of the Assumed Business
or Professional Name Act (the “Assumed Name Act”), Business and Commerce Code, chapter 36.
See TEX. BUS.& COM. CODEANN. 8 36.10 (Vernon 2002) (filing requirements for use of an assumed
name). Nor does chapter 1704 prohibit a corporate surety from using an assumed name, but the
Insurance Code, not the Assumed Name Act, governs the corporation’s use of an assumed name.
Tex. Att’y Gen. LO-98-068, at 3-4. See TEX. BUS. & COM. CODEANN. 5 36.03 (Vernon Supp. 2004)
(Assumed Name Act does not apply to certain insurance companies); id. 5 36.03 cmt. (Vernon 2002)
(exclusion of insurance companies from Assumed Name Act reflects the Department of Insurance’s
long-standing policy prohibiting an insurance company from doing business under an assumed name
except where the Insurance Code provides otherwise). An insurance company may do business
under an assumed name subject to compliance with Department of Insurance regulations. See 28
TEX. ADMIN.CODE $5 7.701-.702 (2003) (standards governing Insurance Commissioner’s approval
of corporate names); 19.1904(b) (requirements applicable to applicant wishing to use an assumed
name to conduct an insurance business under a specialty insurance license).
The licensing requirements applicable to bail bond sureties, both individual and corporate,
demonstrate that a surety may not use more than one assumed name. See Tex. Att’y Gen. Op. No.
JM-1023 (1989) at 3. An application for a license must state:
(A) the applicant’s name, age, and address;
(B) if the applicant is a corporation, whether the applicant is:
(i) chartered or admitted to do business in this
state; and
(ii) qualified to write fidelity, guaranty, and
surety bonds under the Insurance Code;
(C) the name under which the bail bond business will be
conducted, including a bail bond business that is conducted by an
agent of a corporation;
The Honorable David K. Walker - Page 3 (GA-0135)
(D) each place, including the street address and municipality,
at which the business will be conducted; and
(E) [information about showing financial responsibility if application
is approved].
TEX. Oct. CODEANN. 5 1704.154(b)(2)(A)-(E) (V emon 2004) (emphasis added). A licensee’s bail
bond business is to be conducted under a single name, which may be an assumed name, even if it
will be conducted at more than one location. See id. 6 1704.154(b)(2)(C)-(D).
Moreover, a county bail bond board may not issue more than one bail bond license to any
person. See Tex. Att’y Gen. Op. Nos. JC-0128 (1999) at 3, JM-1023 (1989) at 3, MW-321 (1981)
at 3. This limitation is reflected in a licensing provision applicable to persons who have been
licensed as bail bond sureties under chapter 1704 in another county. See TEX. OCC. CODEANN 4
1704.154(b)(4)(G) (V emon 2004). In this case, the application must be accompanied by “a list of
each county in which the applicant holds a license.” Id. 8 1704.154(b)(4)(G)(i) (emphasis added).
An individual licensee, including an individual acting as an agent for a corporate surety, may not
conduct business under more than one assumed name.
A corporate surety, however, may appoint as agents various individual ‘licensees, each of
whom may use a distinct assumed name. The Texas Department of Insurance (the “Department”)
has addressed this matter in a Commissioner’s Bulletin on the use of assumed names by persons
executing bail bonds on behalf of a corporate surety. See TEXAS DEP’T OF INSURANCE,
Commissioner’s Bulletin No. B-0079-98, available at http://www.tdi.state.tx.us/comrnish/
bulletins/b-0079-8.html (last visited on Dec. 9,2003). See generally TEX. INS.CODEANN. 8 3 1.02 1
(Vernon 2004) (commissioner shall administer and enforce Insurance Code). The bulletin comments
on Attorney General Letter Opinion 98-068, which concluded that the authority of a corporate bail
bond licensee and its agents to use assumed names is governed by the Insurance Code and
Department of Insurance regulations. See Tex. Att’y Gen. LO-98-068, at 1. The bulletin states in
part:
Attorney General Letter Opinion No. 98-068, dated August 2 1,1998,
discussed in general the use of assumed names by individual
bondsmen and bondsmen acting as licensed agents of the corporate
surety. . . .
It is the opinion of the Department that the Texas Insurance Code
does not prohibit corporate sureties from transacting the business of
bail bond insurance by their duly designated agents, who operate
under assumed names, so long as the powers of attorney fully disclose
the person acting as agent and his assumed name, and so long as any
posted listing of the person under his assumed name also notes that
he is agent for the corporate surety. This opinion is based on our
finding that there is no statutory prohibition nor public policy reason
The Honorable David IS. Walker - Page 4 (GA-0135)
to prohibit the use of an assumed name by an agent acting through a
power of attorney for a corporate bail bond surety.
TEXAS DEP’T OFINSURANCE,
Commissioner’s Bulletin No. B-0079-98, supra, at l-2.
In construing a statute, a court may consider among other matters the administrative
construction of the statute. See TEX. GOV’T CODEANN. 0 3 I 1.023(6) (Vernon 1998); Osterberg V.
Peca, 12 S.W.3d 31,51 (Tex. 2000), cert. denied, 530 U.S. 1244 (2000) (reasonable construction
of a statute by the administrative agency charged with its enforcement is entitled to great weight);
Ins. Co, of State of Pa. v. Stelhik, 995 S.W.2d 939 (Tex. App.-Fort Worth 1999, pet. denied)
(interpretation of Texas Workers Compensation statute in memo to field officer by executive director
who is charged with enforcing statute was entitled to serious consideration in construing statute).
The insurance commissioner is the chief executive and administrative officer of the
Department, with the duty to “administer and enforce this code, other insurance laws of this state,
and other laws granting jurisdiction or applicable to the department or the commissioner.” TEX. INS.
CODEANN. 5 31.021(a) (V emon 2004). The commissioner “has the powers and duties vested in the
department” by the Insurance Code, id. 8 3 1.021(b), which includes the duty to ensure that the
Insurance Code and other laws regarding insurance and insurance companies are executed. See id.
8 31.002(2). C ommissioner’s Bulletin No. B-0079-98, in determining that the Insurance Code does
not prohibit a bondsman acting as agent for a corporate surety from using an assumed name, is
consistent with the applicable statutes. The Assumed Name Act excludes an “insurance company”
from its terms, see TEX. BUS. & COM. CODEANN. 9 36.03 (Vernon Supp. 2004), but an individual
bail bond surety is not a “company” and therefore is not within the exclusion. See id. §fj 36.02(2)
(Vernon 2002) (defining “company”); 36.02(7)(A), (E) (defining “assumed name” as it pertains to
an individual and to a company). The bulletin articulates a reasonable construction of the Insurance
Code by the administrator charged with enforcing and administering the code and we defer to its
conclusion. Attorney General Letter Opinion 98-068 is overruled to the extent it conflicts with this
opinion. See Tex. Att’y Gen. LO-98-068, at 4.
Thus, an individual bail bond licensee who acts as a corporate agent may use an assumed
name, as long as he or she complies with the Assumed Name Act and his or her relationship with
the corporate surety is disclosed where required. See, e.g., TEX. OCC. CODEANN. fj 1704.105(a)
(Vernon 2004) (board shall post in county criminal courts and shall provide to local officials
responsible for detaining prisoners a list of each licensed bail bond surety and agent of the bail bond
surety in the county). A corporate agent, like any individual bail bond surety, may not use more than
one assumed name, but a corporation may operate through various individual agents, each of whom
uses a distinct assumed name.
You ask whether a bail bond board may regulate the number of names under which a licensee
operates. Chapter 1704 authorizes a county bail bond board to “exercise powers incidental or
necessary to the administration of this chapter,” to “supervise and regulate each phase of the bonding
business in the county,” and to “adopt and post rules necessary to implement this chapter.” Id.
r 5 1704.101; see Tex. Att’y Gen. Op. No. GA-001 1 (2003) at 3. A bail bond board may adopt only
such rules as are authorized by and consistent with statutory authority, and may not adopt rules that
The Honorable David K. Walker - Page 5 (GA-0135)
impose additional burdens, conditions, or restrictions in excess of or inconsistent with statutory
provisions. See Garcia-Marroquin v. Nueces County Bail Bond Bd., 1 S.W.3d 366, 372 (Tex.
App.-Corpus Christi 1999, no pet.); Tex. Fire & Cas. Co. v. Harris County Bail Bond Bd., 684
S.W.2d 177, 178 (Tex. App.-Houston [ 14th Dist.] 1984, writ ref d n.r.e.); Tex. Att’y Gen. Op. No.
GA-001 1 (2003) at 3. A county bail bond board may not prohibit a licensee from using an assumed
name, but it may exercise its administrative and regulatory powers to prevent a licensee from using
more than one assumed name. See, e.g, TEx. OCC. CODEANN. $9 1704.101 (Vernon 2004) (general
administrative authority); 1704.109 (authority to regulate solicitations or advertisements to protect
public from harassment, fraud, or misrepresentation); 1704.159 (authority to approve or deny
application for license).
The Honorable David K. Walker - Page 6 (GA-0135)
SUMMARY
In a county with a bail bond board, an individual who acts as
a bail bond surety or an individual who acts as an agent for a
corporate surety may operate under an assumed name, but may not
use more than one assumed name. A corporate surety, like an
individual bail bond surety, may not use more than one assumed
name, but the corporation may operate through various individual
agents, each of whom uses a distinct assumed name. Attorney
General Letter Opinion 98-068 is overruled to the extent it conflicts
with this opinion.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143503/
|
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
floaorable George F’. Cor
State Xeelth Offloor
mlrtln, T8X88
D8ar Sir:
of ma108aad.
cmulgatod by the
Hsalth under thm
eotioo 5 of the
$ubdlvislon (9) of +otlon 6 of tha hot then ProVl688:
-any permit lmmml ln~ aoaordanoe wlth tho pro-
vlelans mrry bs revoked by the State Health Offloer
upon proof or vlolatlon 0r any of the proviaionr 0r
Ronorable Oeor&s --. COX, pago 2
this hot. . . ."
Your latter of October 24, 1940, requests 6 leg*1
opinion frooP tbla DoperWent a6 to whether the state Xealth
Officer would be authorized to revoke the permit of an operator
who has vloiated the rul46 and regulations promulgated by the
State Board of Health under the rula-mekl~ power of the Boer4
net out above in Section 5. You alao ask what procedure ehould
ba followed by the state Health Cffloer in doing so.
The purpose of empowsrlng the State Board of Haalth
to promulgate rule6 and regul6tlona was ‘to enable the more ef-
fective enforcamant of the Rot which ~64 enactad under the
State*8 police power for the protaotlon of health and for the
~avaation of tha spread of dlaeaaa.
A vital requfrensnt of the $ot 1s that any psraon en-
g6sged in tha business of manutaaturlng, repairing or ranovat-
lng bedding ahall obtain a permit from the Depsrtmsnt of Realth
and shell register eny &srmloldal prooeaa used in such bualneaa
and aeoure the approv61 of the Depertment of auoh prooaaa.
The permit provlelons of the Aot era emong those
touching which the State Board of Bealth waa ampowerad to pro-
muleate rules and regulatlona. That oompllenoe thar6wlth la
required of the permittoe la lndloated by tha languaga of sub-
aeoticn (b) of Seotlon 6 whloh luthorlzea a ranawel permit
-upon aubmiaalon or moor 0r oontlnued oomvllanoa with the pro-
vlilona of this AOt in4 tha regulation6 of-the Degertmant.*-
(Bnpharle oura) -~
Tha validity of leglolatlon whloh Oont6re rul6-meking
powera upon admlnl6tr6tlv6 aganaiaa ha* bean conaiatently upheld
by our oourta.
In San Antonlo v. Joaea, 28 Tar. 33 (quoted wfth ap-
proval in O’Brien v. ~Unemmn, 112 Tex. 264, 247 8. X’. 270). it
wan daolarsd by the 9uprme Court of Teraat
“The La~lalature say grant authority aa well aa
give oomands, and a&a done under it6 authority are
aa valid as if dons in obedlenoe to its commanan.
Nor 1s a statute, whore complete lxeoution an4 appll-
oetlon to the aubjectslattsar la, by its provlalona,
meda to depend on the aaaant of 6ome other boQy, a
Aalegatlon of laglolatlve power. The dlaoretlon &or6
Honorable Oaorge 1%. cox, fgge 3
to the eraroloe of the power conferred by the law,
but not to maks ths lew itsslf. The law, in such
c4668, may depend ror its praotloal efflolenoy on
the sat of some other body or lndlvlAua1; still
it in not &erlved from auoh sot, but from the lagla-
latlve authority.*
It wae llkewlaa etated by the San Antonio Court of
Civil AppeSlS in Tuttle v. Wood, 35 5. X. (2d) 1001, (writ
or error refussd)r
*It is true. of Course thst the Legislature
cannot dalegate to an aAmln~atratlvs board the power
to make a law praaorlblllg a penalty, but It la
equally true that it 1s oompdxmt for the Leglalatura
to author126 a ooauaiaaim or board oraatad for that;
purpose to preaorlba dutlea or aaaertain oondltiona
upon whioh an axlstlng law say operata ln imposing a
penalty and in affeQtuatlng ths ;lurpoae daalgned in
enaotlng the law. It la 1~ pursuance of this au-
thority thet railroad oomlaalonm, publla utility
a~leaeione, liveGtock sanitary oomutiasioaa, health
boards and like ag;enoiee exerolae their iunotlona
and admlnleter and enforce laws ralatlng to their
aev*ral aepertmentm. In their varg natQr6 such lara
muat be flaxlble in order to glte thraP pr~otloable
&ppllaetfon to tha Elvarae oondltlona whloh adat
wlthln the savers1 states."
In Re Rahrar, 140 0. S. 554, it war said by Xr. Chief
Justiae Puller:
'The power of the mtata to impose raatrafaj;m
anA burden:: upn parsons and property in 0onaerve-
tlon and promotion of ths public health, good order
and prosperity la a pomr cri&~~lly end almya bo-
longing to the states, not a~rranderad by them to
the general government, nor direotly reetralnad by
the Constitution of the United States, ain4 eeaentlally
*xclu*lv4."
Sam also the oaaaa of Rash &ardware Company v. tcorria,
105 Tar. 817, 146 Y. :f. 874~ Henry v. Wate, 260 8. 3. 19Or
Ex Part6 xhlte, 1QR ti. 3. 5331 FJebbla v. Hew York, 291 U, S.
502.
335
Honorable George w. Cox, Faga 4
It is the opinion of this Department that a vlola-
tion of the rules and regulations promulgated by tha State
Board of Health in accordance with Seotion 5 of the Aot, by
a person engaged in the bualnesa of manufacturing, repairing
or renovating bedding would constitute a Violation of any
of the provlslone of this AOt" within the purview of Subdivi-
slon (e) of Ssctlon 6 of the Aot, and upon proof of such, the
gtate Health Officer would be authorized to revoke a permit
theretofore laeued to such operator.
The Aot does not provide any particular procedure
for the State Health Offloer to follow in the revooatlon of
a permit. The State Board of Health is, however, authorized
by Qeotion 5 of th& hot to "make . . . general rules and
regulations of prooedure ror carrying into efreot all the
provlalone of this Act". It la our opinion that the Board
should promulgate reaaoueble rules whereunder the permittea
would be given notlos and a hearing before the State Health
Offloar prior to the revocation of a permit. This would in-
volve the giving of notice to the permittee of the exlatenoe
of evldanoe before the State Health Officer of violations by
the permittee of the rules and regulations promulgated'by the
Board, togather with the right of the permittee to a hearing
berora the Offloer at the time designated. If at such hear-
ing it is establlahed that the permittea has violated the
rules and regulation6 of the Board, the State Health Orflcer
would be authorized to revoke the permit.
Yours very truly
ATTORNEYGENERAL
OF TEXAS
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4289067/
|
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0318n.06
No. 17-2250
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
MATTHEW BECKMAN, ) Jun 27, 2018
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
WAL-MART STORES, INC., ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
Defendant-Appellee. )
)
)
Before: KEITH, ROGERS, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Wal-Mart Stores, Inc. employed Matthew Beckman as a
shipping loader. Wal-Mart fired him after he failed to show up for work more than a dozen times.
He thereafter sued Wal-Mart, asserting claims under the Family Medical Leave Act and the
Americans with Disabilities Act. The district court granted summary judgment to Wal-Mart. We
affirm.
I.
In August 2013, Beckman’s doctor diagnosed him with a double hernia. Over the next 14
months, Wal-Mart approved four of Beckman’s requests for leave under the FMLA. Beckman
took over 10 weeks of medical leave in total. Beckman was also repeatedly absent from work
without receiving authorization from Wal-Mart. In early October 2014, a supervisor told Beckman
No. 17-2250
Beckman v. Wal-Mart Stores, Inc.
that he had been absent without leave for a total of 110 hours. Beckman knew that—per Wal-
Mart’s attendance policy—he would lose his job if he had additional unauthorized absences.
Yet on October 21 and 22 Beckman left work early without authorization; and on October
23 and 24 he did not show up for work at all. When Beckman arrived to work on October 28, his
supervisor told him that he had violated Wal-Mart’s attendance policy, and then sent him home.
That same day Beckman asked Wal-Mart to count his absences from October 23 to 30 as leave
covered by the FMLA. Wal-Mart later denied that request because, Wal-Mart said, Beckman had
not worked at least 1,250 hours over the past year and thus lacked eligibility to take FMLA leave.
On November 12, Wal-Mart fired Beckman for “excessive absences” in violation of its attendance
policy.
Beckman thereafter brought this suit, alleging among other things that Wal-Mart had
violated the FMLA and the ADA. See 29 U.S.C. § 2601; 42 U.S.C. § 12101. The district court
granted summary judgment to Wal-Mart, reasoning that Beckman lacked eligibility to take FMLA
leave from October 23 to 30, and that Wal-Mart had not unreasonably refused to accommodate
Beckman’s disability or discriminated against him because of it. Thus the court granted summary
judgment to Wal-Mart on all of Beckman’s claims. This appeal followed.
II.
We review the district court’s grant of summary judgment de novo, and can affirm the
court’s decision on any grounds supported by the record. See Loyd v. Saint Joseph Mercy Oakland,
766 F.3d 580, 588, 592 (6th Cir. 2014).
A.
Beckman argues that he established a genuine issue as to whether Wal-Mart interfered with
his FMLA rights when it denied his request to take medical leave and then fired him. Under the
-2-
No. 17-2250
Beckman v. Wal-Mart Stores, Inc.
FMLA, an employee with a serious health condition may take up to 12 weeks of leave per year.
See 29 U.S.C. § 2612. The FMLA also provides that “[i]t shall be unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt to exercise” that right. See 29 U.S.C.
§ 2615(a)(1). Here, Beckman must establish that Wal-Mart violated the FMLA when it denied his
request for leave, and that the violation caused him damages. See Ragsdale v. Wolverine World
Wide, Inc., 535 U.S. 81, 89 (2002); see also 29 U.S.C. § 2617. We focus on whether Wal-Mart’s
decision to deny Beckman’s request for FMLA leave caused him damages, namely his termination.
Beckman’s termination did not result from Wal-Mart’s decision to deny Beckman’s request
for leave. Instead, Wal-Mart fired Beckman because he had violated its attendance policy on
October 21. On that day, Wal-Mart’s human resources manager testified, Beckman left work early
and thereby accumulated more than 110 hours of unauthorized absences. “Mr. Beckman’s absence
on October 21,” she said, “qualified him for termination” under Wal-Mart’s attendance policy.
Beckman’s timesheet and disciplinary record confirm that he violated Wal-Mart’s attendance
policy on October 21. Moreover, Beckman himself admitted that—when he showed up for work
on October 28—his supervisor told him to go home because he had too many unauthorized
absences. When Wal-Mart formally fired him a few weeks later, it recited “Excessive Absences
and/or Tardies” as the “Termination Reason.” Thus, regardless of whether Wal-Mart had granted
Beckman’s request for FMLA leave from October 23 to 30, Beckman had violated Wal-Mart’s
attendance policy on October 21, and Wal-Mart fired him for that violation. And Beckman
provides no evidence to show that Wal-Mart’s reason for firing him was a pretext for an unlawful
reason.
Instead, Beckman contends he was in fact eligible to take FMLA leave from October 23 to
30. Specifically, he says that he worked at least 1,250 hours in the 12-month period before his
-3-
No. 17-2250
Beckman v. Wal-Mart Stores, Inc.
initial request for leave on July 8. See 29 C.F.R. § 825.110(a)(2). In Beckman’s view, Wal-Mart
violated the FMLA by determining his eligibility based on the hours he worked in the 12-month
period before October 23, instead of the 12-month period before July 8.
But that disagreement makes no difference to whether Beckman can prove causation for
his FMLA claim. Again, as shown above, Wal-Mart fired Beckman because by October 21 he had
accumulated more than 110 hours of unauthorized absences. His problem, therefore, was not that
he was ineligible for FMLA leave, but that he was so frequently absent from work without
authorization—whether he was eligible for leave or not. He therefore has presented no basis on
which a jury could find the element of causation, and thus the district court properly granted
summary judgment on his FMLA claim.
B.
Beckman also challenges the district court’s decision to grant summary judgment to
Wal-Mart on his ADA claims. The ADA requires an employer to “mak[e] reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability who is an . . . employee[.]” See 42 U.S.C. § 12112(b)(5)(A). A “qualified
individual” is someone who can perform the essential functions of his job with or without a
reasonable accommodation. See 42 U.S.C. § 12111(8).
Beckman argues that Wal-Mart denied him a reasonable accommodation for his hernia
when it denied his request for extended medical leave from October 23 to 30. But “[a]n employee
who cannot meet the attendance requirements of the job at issue cannot be considered a ‘qualified’
individual protected by the ADA.” Brenneman v. MedCentral Health Sys., 366 F.3d 412, 419 (6th
Cir. 2004) (citation omitted). Here, even if Wal-Mart had granted Beckman’s request for extended
medical leave from October 23 to 30, Beckman would not be able to meet the requirements of
-4-
No. 17-2250
Beckman v. Wal-Mart Stores, Inc.
Wal-Mart’s attendance policy due to his excessive absenteeism. Thus he was unqualified, and his
ADA claim fails. See id. at 420.
Beckman next argues that Wal-Mart denied him a reasonable accommodation when it
denied his request for light-duty work. But a “suggested accommodation is not reasonable if it
requires eliminating an essential function of the job.” Rorrer v. City of Stow, 743 F.3d 1025, 1039
(6th Cir. 2014) (internal quotation marks omitted). Here, according to Wal-Mart’s employee
handbook, a shipping loader must be able to “lift . . . without assistance” merchandise and
equipment that weigh more than 60 pounds. Beckman himself admitted that this ability was an
essential part of his job. Thus, Beckman’s light-duty accommodation would have eliminated one
of the essential functions of his job. That accommodation was therefore unreasonable. See
E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 763 (6th Cir. 2015).
Beckman responds that Wal-Mart could have employed its “Temporary Alternate Duty”
policy to transfer him to a different job without a heavy-lifting requirement. Under the ADA,
however, an employee who wants a transfer to another job as an accommodation must ask for a
transfer. See Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 870 (6th Cir. 2007). Beckman
never asked to transfer jobs under this policy; instead he asked only to continue working in the
shipping department without the lifting requirement. Hence he is not entitled to relief on this
ground either.
According to Beckman, Wal-Mart initially refused to grant his requested accommodation
for light-duty work because Wal-Mart had an illegal policy of barring injured employees from
returning to work until they were 100% healed. But what matters for purposes of the ADA is
whether Beckman’s request for light-duty work was a reasonable one. And—as detailed above—
that request would have eliminated an essential function from his job and therefore was not
-5-
No. 17-2250
Beckman v. Wal-Mart Stores, Inc.
reasonable. Thus the question of whether Wal-Mart had a so-called “100% policy” is immaterial
to Beckman’s ADA claims.
Finally, Beckman argues that Wal-Mart did not engage in a dialogue with him to explore
possible accommodations for his hernia condition. But Beckman did not make that argument in
the district court, so it is waived. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.
2008).
The district court’s judgment is affirmed.
-6-
|
01-03-2023
|
06-27-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/4129334/
|
OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
February 22,200l
The Honorable Jeff Wentworth Opinion No. JC-0347
Chair, Committee on Redistricting
Texas State Senate Re: Whether section 143.006(b) of the Texas
P. 0. Box 12068 Local Government Code authorizes a
Austin, Texas 787 1 l-2068 municipality’s chief executive officer to appoint
a person to fill the position of a member of the
Fire Fighters’ and Police Officers’ Civil Service
Commission whose term has expired, and related
questions (RQ-0294-JC)
Dear Senator Wentworth:
Your predecessor as chair of the Committee on Redistricting, Senator Gallegos, asked this
office a series of questions concerning section 143.006 of the Local Government Code, especially
with respect to the issue of appointments to the Fire Fighters’ and Police Officers’ Civil Service
Commission. We conclude that the end of a term is not a “vacancy” for the purposes of that statute,
and further that the power to nominate a member to such a cornmission is given to the chief
executive of the municipality, not to its governing body. Questions concerning the criminal
provisions of the statute would require considerations of facts and circumstances of a sort in which
this office does not engage in the opinion process, and accordingly we cannot answer them.
Section 143.006(b), which is central to your predecessor’s concern, reads as follows:
The commission consists of three members appointed by the
municipality’s chief executive and confirmed by the governing body
of the municipality. Members serve staggered three-year terms with
the term of one member expiring each year. If a vacancy occurs or
if an appointee fails to qualify within ten days after the date of
appointment, the chief executive shall appoint a person to serve for
the remainder of the unexpired term in the same manner as the
original appointment.
TEX. Lot. GOV'T CODE ANN. 0 143.006(b) (Vernon 1999) (emphasis added).
The Honorable Jeff Wentworth - Page 2 (JC-0347)
Your predecessor asked first whether the expiration of a term is “considered a vacancy in the
sense expressed by this section.“’ In our view it is not. A “vacancy” in this context clearly occurs
during, and not at the end of, a term of office. Otherwise the provision that “the chief executive shall
appoint a person to serve for the remainder of the unexpired term” would be meaningless. See TEX.
GOV’T CODE ANN. 6 311.021(2) (Vernon 1998) (p resumption that entire statute is intended to be
effective).
Section 3 of article 1269m, Revised Civil Statutes, the pre-codification source law, is to the
same effect. “Any such vacancies in said Commission, caused by death, resignation, or otherwise,
or by failure of any appointee to qualify within ten (10) days after appointment, shall be filled in the
manner hereinafter specified . . . .” See Act of May 15, 1947, 50th Leg., R.S., ch. 325, 1947 Tex.
Gen. Laws 550,55 1. This language makes it even more clear that the concern of the legislature was
with filling vacancies within a term, such as might be caused by “death, resignation, or otherwise.“*
The second question asked is whether, if “vacancy” includes the expiration of a term, “the
appointment of another member to the commission need[s] confirmation by the governing body.”
Request Letter, supra note 1, at 1. As we noted above, “vacancy” is not to be so construed.
Accordingly, we do not answer this question.
Your predecessor next questions whether the governing body of the municipality, by itself,
may appoint commission members. While the statute gives the power of confirmation to the
governing body, with equal clarity it gives the power to nominate to the chief executive. Nothing
in the statutory language suggests that the governing body may usurp what the request letter refers
to as “the right or responsibility to appoint commission members without consent or approval of the
chief executive.” Id.
A letter on this issue from the Mayor Pro Tempore of the City of South Houston draws our
attention to a city ordinance, section 2-3(c)(2) of the Code of Ordinances, which provides that the
mayor shall make vacancy appointments “not later than the second regular meeting of the city
council after the vacancy occurs,” and that in the event “the mayor fails or refuses to do so, the city
council shall make such appointment[s] . . . .“3 However, a municipal ordinance, even if enacted by
a home rule city, is subordinate to a statute such as section 143.006. See TEX. CONST. art. 11, 8 5
(“no charter or any ordinance passed under said charter shall contain any provision inconsistent with
‘Letter from Honorable Mario Gallegos, Jr., State Senator, to Honorable John Comyn, Attorney General of
Texas at 1 (Oct. 9, 2000) (on file with Opinion Committee) [hereinafter Request Letter].
‘Pursuant to the Code Construction Act, TEX. GOV’T CODE ANN. 5 3 11.023 (Vernon 1998), prior law may be
considered as an aid to construction, so long as it is not “used to alter or disregard the express terms of a code
provision.” Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278,284 (Tex. 1999). In this instance there is no
substantive difference between the prior law and the code.
3Letter from Eloise Smith, Mayor Pro Tempore, City of South Houston, to Office of the Texas Attorney
General (Dec. 11,200O) (on file with Opinion Committee) [hereinafter Smith Letter].
The Honorable Jeff Wentworth - Page 3 (JC-0347)
. . . the general laws enacted by the Legislature of this State”). The City of South Houston is, we are
informed, “a Type A General Law City.” Smith Letter, supra note 3, at 1. As such its authority is
yet more limited than that of a home rule city. “[Ml unicipalities have no inherent right of self-
government which is beyond the legislative control of the state. . . .” 52 TEX. JUR. 3D MunicipaZ
Corporations 5 136 (1999). Accordingly, the provisions of the city’s ordinance may not contravene
the statutory scheme.
The final two questions concern another provision of the statute, section 143.006(h), which
reads:
The chief executive of a municipality or a municipal official
commits an offense if the person knowingly or intentionally refuses
to implement this chapter or attempts to obstruct the enforcement of
this chapter. An offense under this subsection is a misdemeanor
punishable by a fine of not less than $100 or more than $200.
TEX. Lot. GOV’T CODE ANN. 5 143.006(h) (Vernon 1999).
We are asked, in relation to this statute, how many times a municipality’s governing body
may refuse to confirm the chief executive’s appointment, and “[wlhen are these refusals considered
a violation” of section 143.006(h). Request Letter, supra note 1, at 1. We note first that the statute
is silent as to this question. It sets no particular limits in this regard. Further, a confirmation, like
an appointment, would appear to be discretionary rather than ministerial. See Tex. Att’y Gen. Op.
No. JC-0140 (1999) at 3 (appointment of constable to fill vacancy is discretionary, and mandamus
will not lie against commissioners court to compel appointment). “An act is ministerial when the
law clearly spells out the duty to be performed by the official with sufficient certainty that nothing
is left to the exercise of discretion.” Anderson v. City of Seven Points, 806 S.W.2d 791,793 (Tex.
1991). If confirmation by the city council were merely ministerial, it would be supererogatory.
Finally, as to what would constitute sufficient evidence that either the chief executive or any
other municipal official was “knowingly or intentionally rems[ing] to implement . . . or attempt[ing]
to obstruct the enforcement of’ this statute, such a determination would require fact-finding of the
type in which we cannot engage in the opinion process.
The Honorable Jeff Wentworth - Page 4 (JC-0347)
SUMMARY
A “vacancy” on the Fire Fighters’ and Police Officers’ Civil Service
Commission, for the purposes of section 143.006 of the Texas Local
Government Code, does not occur upon the expiration of a member’s term.
The appointment of another member by a municipality’s chief executive
requires confirmation by its governing body. However, the governing body
has no independent power to appoint such members.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4128944/
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 182004
The Honorable Harvey Hilderbran Opinion No. GA-01 5 1
Chair, State Cultural and
Recreational Resources Committee Re: Whether a person who purchases water from the
Texas House of Representatives Jonah Water Special Utility District but who resides
Post Office Box 29 10 in an area outside the district’s boundaries is eligible
Austin, Texas 78768-29 10 to vote in a district election (RQ-0098GA)
Dear Representative Hilderbran:
You ask whether a person who purchases water from the Jonah Water Special Utility District
(the “District”) but who resides in an area outside the district’s boundaries is eligible to vote in a
district election.’
Chapter 49 of the Water Code applies “to all general . . . law districts to the extent that the
provisions of this chapter do not directly conflict with a provision in any other chapter of’ the Water
Code or any special law. TEX. WATER CODE ANN. 8 49.002(a) (Vernon 2000). Section 49.101
provides that, in general, all district elections “shall be . . . conducted in accordance with the Election
Code.” Id. 0 49.101. When a district is initially created by order of either the district or the Texas
Commission on Environmental Quality (the “Commission”),2 see id. $5 49.001 (a)(2), .Ol 0, .Ol 1
(Vernon 2000 & Supp. 2004) (defining the term “commission” and providing for district creation),
“an election shall be held within the boundaries of theproposed district to determine if the proposed
district shall be established and, if. . . required . . . , to elect permanent directors.” Id. 8 49.102(a)
(Vernon Supp. 2004) (emphasis added).
Chapter 65 of the Water Code pertains specifically to special utility districts that may be
created to, among other things, “acquire sources of water supply; to build, operate, and maintain
facilities” for transporting water; and to sell water to public and private entities, including
individuals. Id. 0 65.012( 1). Section 65.014 permits a water supply corporation to file a resolution
‘Letter from Honorable Harvey Hilderbran, Chair, State Cultural and Recreational Resources Committee, Texas
House of Representatives, to Honorable Greg Abbott, Texas Attorney General (Aug. l&2003) (on file with the Opinion
Comrnittee) [hereinafter Request Letter].
2Effective September 1,2002, the name of the Texas Natural Resource Conservation Commission changed to
the Texas Commission on Environmental Quality. See Act of May 28, 2001, 77th Leg., R.S., ch. 965, 0 18.01(a)(l),
2001 Tex. Gen. Laws 1933, 1985; “TNRCC is Now the TCEQ,” at http://www.tceq.state.tx.us/name_change.html.
The Honorable Harvey Hilderbran - Page 2 (GA-0151)
with the Commission requesting that a district be created. See id. 9 65.014; see also id. 6 65.001(4)
(defining the term “commission”). The resolution must, among other things, “describe” the
proposed district’s “boundaries . . . by metes and bounds or by lot and block number . . . , or by any
other commonly recognized means in a certificate attached to the resolution.” Id. tj 65 .O15( 1). After
a hearing on the resolution, the Commission may redefine the district’s proposed boundaries in an
order authorizing the district’s creation, pending approval at a confirmation and directors’ election.
See id. 8 65.021(a), (c). If approved, the district is considered a water conservation and reclamation
district under article XVI, section 59 of the Texas Constitution. See id. 8 65.011 (Vernon 1988).
Section 65.025, which formerly provided specifically for the confirmation and directors’ election,
has been repealed. See Act of May 25, 1995,74th Leg., R.S., ch. 715, 0 48, 1995 Tex. Gen. Laws
3755,3803. A confirmation and directors’ election is now held in accordance with chapter 49 and,
consequently, with the Election Code. See TEX. WATER CODE ANN. 0 8 49.10 1-. 102 (Vernon 2000
& Supp. 2004) (p roviding that district elections generally must be held in accordance with the
Election Code and providing for confirmation and director elections); see also Act of May 25,1995,
8 2, 1995 Tex. Gen. Laws at 3762 (enacting section 49.102, Water Code).
We understand that the Jonah Water Supply Corporation (the “Corporation”) was formed in
197 1 as a member-owned nonprofit water supply corporation “to provide rural central Williamson
County with a potable water supply.” Request Letter, supra note 1, at 2.3 In accordance with its
certificate of convenience and necessity, the Corporation served a portion of the community of Weir,
which subsequently incorporated as a municipality in 1987. See id. Then, in 1992 the Corporation
was dissolved and “reformed” as the District, a general-law special utility district (which we will
refer to as a conservation and reclamation district, see TEX. WATER CODE ANN. 0 65.011 (Vernon
1988)), operating under chapters 49 and 65 of the Water Code.4 See Request Letter, supra note 1,
at 2.
The District’s creation order specifically excludes from the District’s boundaries “all
municipalities within the geographic area that makes up the [Dlistrict,” including the City of Weir.’
The boundaries have not been changed since the District’s creation! In accordance with its
certificate of convenience and necessity, the District provides water utility services for some Weir
residents, however. See id. “In 2002, some Weir citizens, whose water meters are with the District,
desired to vote in the District’s election. Prior to voting, they were required to submit challenge
voter affidavits because their eligibility to vote in the election was disputed.” Id. You accordingly
3See Letter from Susan Walton, Texas Commission on Environmental Quality, to Board of Directors, Jonah
Water Special Utility District, at 2 (Sept. 26, 2002) (on file with the Opinion Committee) [hereinafter Commission
Letter].
4See Letter from Karl H. Moeller, to Nancy S. Fuller, Chair, Opinion Committee, Office of the Attorney
General, at 1 (Oct. 7,2003) (on file with the Opinion Committee).
‘See also Letter from Karl H. Moeller, to Susan Walton, Texas Commission on Environmental Quality, at 1
(Oct. 8,2002) ( on f 11e with the Opinion Committee) [hereinafter Moeller Letter].
‘jSee Letter from Susan Walton, Texas Commission on Environmental Quality, to Mrs. Tommy Walker, at 1
(Oct. 14,2002) (on file with the Opinion Committee).
The Honorable Harvey Hilderbran - Page 3 (GA-0151)
ask whether these citizens, who are in an area served by the conservation and reclamation district,
may be “lawfully denied the right to vote in a district’s election.” Id.
Under section 11 .OOl of the Election Code, to be eligible to vote in an election, a person
must, among other things, reside in “the territory covered by the election for the office or measure
on which the person desires to vote,” unless a specific law provides differently. TEX. ELEC. CODE
ANN. fj ll.OOl(2) (V emon 2003); see TEX. WATER CODE ANN. 4 49.101 (Vernon 2000) (providing
that, in general, a general-law district that is subject to chapter 49 must conduct its elections “in
accordance with the Election Code”); see also TEX. ELEC. CODE ANN. 0 1.015 (Vernon 2003)
(providing for determination of residence). Nothing in chapter 49 nor in chapter 65 provides that
a nonresident landowner or user of district facilities is qualified to vote in a district election. Section
49.102 makes clear that the initial confirmation and directors’ election is to be held “within” the
proposed district’s boundaries. TEX. WATER CODE ANN. 4 49.102(a) (Vernon Supp. 2004).
Moreover, section 65.102, which lists qualifications to serve as a district director, suggests that a
person owning land in the district or a person using district facilities may be distinguished from a
person who is qualified to vote in district elections: Among the qualifications, a director must
“either own land subject to taxation in the district,” use district facilities, or “be a qualified voter of
the district.” Id. 9 65.102(3) (Vernon 1988).
In addition, the District’s territory, as the creating order describes it, excludes areas within
the boundaries of incorporated municipalities. See Moeller Letter, supra note 5, at 1 (“The creation
order incorporates by reference a metes and bounds description of the boundaries of the District,
which description is appended to the order.“). The fact that a person is within the territory served
by a conservation and reclamation district, in accordance with the district’s certificate of convenience
and necessity, is insufficient to put them within the district’s “territory” for purposes of section
11.00 1, Election Code. A letter between the Commission and the District’s board informs us that
“it is not unusual for a District’s boundaries not to match its . . . Certificate of Convenience and
Necessity . . . ‘license to serve’ area,” and “therefore[,] a district’s [certificate of convenience and
necessity] area should not be used to determine a voter’s eligibility” for purposes of section 11 .OOl
of the Election Code. Commission Letter, supra note 3, at 1.
We therefore conclude, consistently with section 11 .OOl of the Election Code, that a person
who purchases water from a general-law conservation and reclamation district, such as the District,
but who resides outside the district’s boundaries is ineligible to vote in a district election. Only a
person who resides within the District’s territory may vote in the election.
The Honorable Harvey Hilderbran - Page 4 (GA-0151)
SUMMARY
In accordance with section 11 .OOl of the Election Code, a
person who purchases water from a general-law conservation and
reclamation district operating under chapters 49 and 65 of the Water
Code, such as the Jonah Water Special Utility District, may vote in a
district election only if he or she resides within the district’s
boundaries.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4128953/
|
ATTORNEYGENERALOF TEXAS
GREG ABBOTT
February 4,1004
The Honorable John L. Forrest Opinion No. GA-O 142
Parker County Attorney
118 West Columbia Street Re: Obligation of a state agency to pay for the
Weatherford, Texas 76086 services of an attorney ad litem appointed for a
parent under section 107.013 of the Family Code
(RQ-0090-GA)
Dear Mr. Forrest:
You ask whether the Texas Department of Protective and Regulatory Services, now the
Department of Family and Protective Services,’ (the “Department”) may be required to pay the
attorney fees for the attorney ad litem appointed for a parent cited by publication, whether by name
or as an unknown, and there is no evidence that the parent is indigent.2 See TEX. FAM. CODE ANN.
0 107.015 (Vernon Supp. 2004) (payment of attorney fees for attorney ad litem for a parent). An
“attorney ad litem” within the relevant Family Code provisions is “an attorney who provides legal
services to a person, including a child, and who owes to the person the duties of undivided loyalty,
confidentiality, and competent representation.” Id. 8 107.001(2).
In suits under the Family Code involving the parent-child relationship, citation may be
served by publication to persons entitled to service who cannot be notified by personal service or
registered or certified mail and to persons whose names are unknown. See id. 0 102.010(a). When
a governmental entity files a suit requesting termination of the parent-child relationship, Family
Code section 107.013 requires the court to appoint an attorney ad litem for
(1) an indigent parent of the child who responds in opposition
to the termination;
(2) a parent served by citation by publication.
Id. 0 107.013(a). In addition, an attorney ad litem must be appointed for an alleged father if his
identity or location is unknown or attempts to serve process at his address have been unsuccessful.
‘The Department of Protective and Regulatory Services has been renamed the Department of Family and
Protective Services. See TEx. HM. RES. CODE ANN. 5 40.002 (Vernon Supp. 2004); see also Act of June 1,2003,78th
Leg., R.S., ch. 198, 0 1.27, 2003 Tex. Gen. Laws 611, 641 (“A reference in law to the Department of Protective and
Regulatory Services means the Department of Family and Protective Services.“).
2Letter from Honorable John L. Forrest, Parker County Attorney, to Honorable Greg Abbott, Texas Attorney
General (Aug. 4,2003) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable John L. Forrest - Page 2 (GA-0142)
See id. 8 107.013(a)(3)-(4). S ee also id. 5 107.012 (court shall appoint attorney ad litem for the child
in a suit filed by a governmental entity requesting termination of the parent-child relationship or to
be named conservator of a child).
Attorney fees may not be recovered unless provided for by statute or contract. See Dallas
Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex. 1992). The authorization of
attorney fees in civil cases may not be inferred but “‘must be provided for by the express terms of
the statute in question. “’ Travelers Indem. Co. of Corm. v. Mayfield, 923 S.W.2d 590, 593 (Tex.
1996) (quoting First City Bank-Farmers Branch v. Guex, 677 S.W.2d 25,30 (Tex. 1984)). Section
107.015 of the Family Code provides as follows for paying fees to an attorney ad litem appointed ’
under chapter 107:
(a) An attorney appointed under this chapter to serve as an
attorney ad litem for a child, an attorney in the dual role [of guardian
ad litem and attorney ad litem for the child],3 or an attorney ad litem
for a parent is entitled to reasonable fees and expenses in the amount
set by the court to be paid by the parents of the child unless the
parents are indigent.
(b) If the court determines that one or more of the parties are
able to defray the fees and expenses of an attorney ad litem or
guardian ad litem for the child as determined by the reasonable and
customary fees for similar services in the county of jurisdiction, the
fees and expenses may be ordered paid by one or more of those
parties, or the court may order one or more of those parties, prior to
final hearing; to pay the sums into the registry of the court or into an
account authorized by the court for the use and benefit of the payee
on order of the court. The sums may be taxed as costs to be assessed
against one or more of the parties.
(c) If indigency of the parents is shown, an attorney ad litem
appointed to represent a child or parent in a suit filed by a
governmental entity in which termination of the parent-child
relationship is requested shall be paid from the general funds of the
county according to the fee schedule that applies to an attorney
appointed to represent a child in a suit under Title 3 as provided by
Chapter 5 1. The court may not award attorney ad litem fees under
this chapter against the state, a state agency, or a political
subdivision of the state except as provided by this subsection.
TEX. FAM. CODE ANN. 8 107.015 (Vernon Supp. 2004) (emphasis added) (footnote added).
‘Chapter 107 of the Family Code requires the court to appoint a guardian ad litem and an attorney ad litem for
the child in a suit tiled by a governmental entity seeking termination of the parent-child relationship or the appointment
of a conservator for a child. See TEX. FAM. CODE ANN. $0 107.011 (Vernon Supp. 2004) (mandatory appointment of
guardian ad litem for the child), 107.012 (mandatory appointment of attorney ad litem for the child). The court may
appoint an attorney ad litem to serve in the dual role of attorney ad litem and guardian ad litem. See id. 9 107.0125(a).
The Honorable John L. Forrest - Page 3 (GA-0142)
You ask whether the Department is a party that can defray the costs of the parent’s attorney
ad litem under section 107.015(b). See Request Letter, supra note 2, at 2. Section 107.015(a)
requires the parents to pay the fees of their attorney ad litem “unless the parents are indigent.” TEX.
FAM. CODE ANN. 8 107.015(a) (Vernon Supp. 2004). The trial court determines based on the
evidence presented to it whether a parent is indigent, and the court’s decision is subject to review
on an abuse of discretion standard. See In re Smith, 70 S.W.3d 167, 169 (Tex. App.-San Antonio
2001, no pet.). See generaZZy TEX. CIV. PRAC.& REM. CODEANN. ch. 13 (Vernon 2002), TEX. R.
CN. P. 145 (affidavit of inability to pay costs). The mere fact that an individual has been served by
publication does not mean that he or she is indigent.
The Department may not be ordered to pay attorney ad litem fees under section 107.015(b).
See In Re Tex. Dep ‘t ofprotective & Regulatory Sews., 990 S.W.2d 848,85 1 (Tex. App.-Amarillo
1999, orig. proceeding). In that case, a trial court ordered the Department to pay attorney ad litem
fees to the attorneys ad litem appointed to represent a child and her indigent father. The appellate
court found that the then current version of section 107.015(b) did not authorize this order. This
provision read as follows:
If the court or associate judge determines that the parties or litigants
are able to defray the costs of an ad litem’s compensation as
determined by the reasonable and customary fees for similar services
in the county of jurisdiction, the costs may be ordered paid by either
or both parties . . . .
Act ofMay26,1995,74thLeg., R.S., ch. 751,§ 15,1995 Tex. Gen. Laws 3888,3894-95;In Re Tex.
Dep ‘t of Protective & Regulatory Sews., 990 S.W.2d at 850-51. The court interpreted section
107.015(b) in connection with section 107.015(a), which requires ad litem fees to be paid by the
parents unless they are indigent. It construed section 107.015(b) as instructing the trial court about
the manner in which it may direct the non-indigent parent or parents to pay the ad litem fees it
assesses. See In Re Tex. Dep ‘t ofprotective & Regulatory Sews., 990 S.W.2d at 85 1. Thus, section
107.0 15(b) “authorizes the trial court to assess the fees against one or both parents and to order the
payment of the fees prior to final hearing into the registry of the court.” Id. The statute did not
authorize the court to assess the ad litem fees against the Department. See id.
You also ask whether the county should pay the fees of an attorney ad litem appointed for
a parent cited by publication, when there is no information as to whether the parent is indigent.
Request Letter, supra note 2, at 2. Section 107.015(c) provides that an attorney appointed to
represent an indigent parent “shall be paid from the general funds of the county.” TEX. FAM. CODE
ANN. fj 107.015(c) (V emon Supp. 2004). Subsection (c) further provides that “[t]he court may not
award attorney ad litem fees under this chapter against the state, a state agency, or a political
subdivision of the state except as provided by this subsection.” Id. Thus, except for the express
provision in section 107.015(c) that an attorney appointed to represent an indigent parent shall be
paid from county funds, the court may not award attorney ad litem fees under chapter 107 against
the county, any other political subdivision, a state agency, or the state.
The Honorable John L. Forrest - Page 4 (GA-0142)
SUMMARY
A court does not have authority to order the Department of
Family and Protective Services to pay for the services of an attorney
ad litem appointed for a parent under Family Code section 107.013.
Except for the express provision in section 107.015, which states that
an attorney appointed to represent an indigent parent shall be paid
from county funds, the court may not award attorney ad litem fees
under chapter 107 against the county, any other political subdivision,
a state agency, or the state.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4288699/
|
Fourth Court of Appeals
San Antonio, Texas
June 25, 2018
No. 04-18-00252-CR
Benjamin ESCOBEDO,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR4634
Honorable Kevin M. O'Connell, Judge Presiding
ORDER
After we granted the reporter’s first two requests for extensions of time to file the
reporter’s record, the reporter’s record was due on July 3, 2018. See TEX. R. APP. P. 35.1.
Before the extended due date, court reporter Carol N. Castillo filed a third notification of late
reporter’s record. The notification included a status report indicating the number of pages
remaining. The court reporter requests an extension of time to file the record until July 5, 2018.
The request is GRANTED. The reporter’s record is due not later than July 5, 2018.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 25th day of June, 2018.
___________________________________
Keith E. Hottle
Clerk of Court
|
01-03-2023
|
06-26-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/4396134/
|
Order entered May 10, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00985-CV
ALAA MOHAMAMD WEISS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court of Appeals No. 2
Dallas County, Texas
Trial Court Cause No. M0474358
ORDER
Pursuant to Texas Rule of Appellate Procedure 34.5(c)(1), we ORDER Dallas County
Clerk John F. Warren to file, no later than May 20, 2019, either a supplemental clerk’s record
containing a copy of the order on the petition for nondisclosure, signed on or about May 4, 2018,
or written verification no order exists. See TEX. R. APP. P. 34.5(c)(1). The supplemental clerk’s
record shall also contain a copy of the trial court’s docket sheet or case summary.
We DIRECT the Clerk of the Court to send a copy of this order to Mr. Warren and the
parties.
/s/ BILL WHITEHILL
JUSTICE
|
01-03-2023
|
05-13-2019
|
https://www.courtlistener.com/api/rest/v3/opinions/4143499/
|
GERALDC. MANN AusTI&- 11. TEXAS
Honorable G. A. Neal
County Auditor
Ellis County
Waxahachle, Texas
Dear Sir: 0pinloiN0,~ O-2673
Rer Whether or not electors may
‘ scratch names of Democratic
. . nolhlnee~.Tkw Mfice Cif Gormhjis-
sloner?: of Agriculture and
write In the name of another,
.” his ‘opponent ~ln the ~Demo-
cratlc ‘primaries,
This will acknowledge receipt of’,your’letter of October 30 1940
requesting the opinion of this Department upon the above siated ’
matter. Specifically your questions are as follows:
“1 . Is it legal to scratch the name of J. E. McDonald,
,and write. In the name of his opponent, Bill Corry?
“2 . If Bill Corry should receive a majority of the
votes cast in the general election on Tuesday,
November 5, 1940, would he be duly elected as the
Commissioner of Agriculture?”
Article 2981 of the Revised Civil Statutes of Texas,, 1925,
reads as follows:
“When a voter desires to vote a tfcket straight; he shall
runs a pencil or pen through ally other tickets on the ”:
official ballot, making a dlstlnct marked Ilne~through
such. ticket not, lntended to be voted; and when he shall
desire to vote a mixed ticket he shall do so by running
a fine line through the names of such candidates as he
I
shall desire to vote.:against In the ticket he is voting,
and by writing the name of the candidate for whom he
desires to vote in the blank column and’ln the apace
rovlded for such office; same to be,written with Blacks
nk or pencil, unless the names of the candidates for
which he desires to vote appear on the ballot, in whlcfi
event he shall leave the same ‘not scratched.” (Under
scoring ours)
Honorable G. A. Neal, Page 2, O-2873
Note that this article speclflcally authorizes a voter when he
desires to vote a mixed ticket to do so by running a line
through the names of such candidates he desires to vote against
and write In the name of the candidate for whom he desires to
vote in the blank column in the space provided for such office.
The writer in 9 Ruling Case Law at p. lo%, In speaking of
statutes like Article 2951 said:
“Another rule followed Is to leave blank spaces upon the
ballot so that a voter who may not be satisfied with
any of the candidates whose names appear prlnted thereon
may write In the names of his choloe. This rule, Is
generally adopted In statutes providing for an official
ballot; and unless such statutes are so explLclt as to
prevent It they will be so construed by the courts. It
is manifest that a failure to afford this right Is a
serious Interference wlth the freedom of the exercise
of the right of franchise, and whiZi4 the legislature may
limit the number of names to be printed upon the official
ballot to those regularly nomlnated,or running as
Independents, the voter must be left free to vote for
candidates of his own chowby giving him the means and
a reasonable oppportunlty to write in or lnsert the
names of ‘such candidates. ” See also 20 C.J. 160.
Again, it la stated in 18 Am. Jur. p. 307:
“The majority view, however, seems to be that a statute
prohibiting the writing in of names of candidates upon
the ballot Is unconstitutional, and In most states
the lnsertlon,,of names of candidates upon the ballot
is permitted.
The Identical question you raised in your letter has been before
the courts in this State. Ins ‘CunnIngham v. McDermett (CCA 1925)
277 S.W. 218, writ dismissed, it appeared,that Cunningham and
McDermett were both candidates for the Democratic nomination
to the office of County and Dlstrlct Clerk of Reagan County,
Texas. Cunningham was successful, and his name appeared on the
ballot at the general election as,the Democratic nominee. At
the general election McDermett and twenty-five others who had
participated in the Democratic primary scratched Cunningham’s
name and wrote In the name of McDermett. Only 175 votes were
~;c~~,~8.:for Cunningham and 97 for McDermett, who was declared
. Had the ones who participated In the Democratic primary
either voted for Cunningham or refrained from voting, Cunningham
would have been elected. The court held McDermett duly elected
and declared:
“It cannot be sald’that because a candidate’s name did not
Honorable G. A. Neal, Page 3, 0-2873
appear on the official ballot that,therefore he could
not be legally elected, If he was otherwise not
ineligible to hold the office to which he aspired,
for to so hold would be, in effect, to say that a citizen
of this state who aspired to 'office must either help
pay the expenses of some party primary or must, within
30 days after primary election day, deliver to the
secretary of state on application signed by the required
percentage of qualified voters in his district who had
not participated in any party primary.
"The Constitution has laid down rules in regard to the
ineliglbi3,lty of persons to hold office, and the legislature,
in article 3082, Vernon's Ann. Clv. St. Supp. 1922, has
provided that all persons are ineligible to any state,
county, precinct, or munic~ipal office in the state unless
they are,eligible to hold office under the Constitution,
and though conviction of high crimes makes a person
ineligible, according to the Constitution, we find nowhere
any law which disqualifies a person from holding office
on account of the breach of,a purely moral obligation such
as the primary pledge has been held to be by our Supreme
Court in Westernianv. Mlms, supra. Therefore, we must
disagree with ,appellant on his proposition that, because
McDermett had theretofore participated in the Democratic
primary, and had filed a contest before the county
Democratic executive committee, he was legally disqualified
to be elected to the' office of county and district clerk.
"Appellant also contends that the 25 votes cast by
McDermett'sfriends, who had voted in the primary, were
illegal an'd fraudulent,,because in so casting their votes
for McDermett and against Cunningham they violated the
" primary pledge to support Cunningham, the Democratic
nominee, and that they should not be counted.
"We are of the ooinion that the 25 voters aforesaid came
within the qualifications specified in the Constitution,
and that, they being qualified voters, ballots cast by
them would be legal ballots and should be counted unless
they were mutilated to such an extent, as to render their
being counted impossible, or otherwise failed to conform
to the requirements of the statutes.
"If there is anything in ,the declarations in our Constitu-
tion that 'all political power is Inherent in the people,
and all free governments,are founded on their authority,
and instituted for their benefit', and there should be
none who,would gainsay it, how could any court, which has
,Honorable G. A. Neal, Page 4, 0-2873
any respect for established law and order, nuIllfy the
will of the people of a subdlvlslon of this state as
expressed by their votes; and we are of the oplnlon that
for this, or any other court, to hold that the will of
the majority as to the selection of their officers
should be set aside and'held for naught would be violating
both the spirit the letter of our Constitution.
"Believing that the Legislature, in enacting article 3096,
merely intended it to carry out a practice which had been
In vogue by political parties of requiring a test in party
primaries,, and that they had no intention of attempting
to limit the right of suffrage In general electlons, we
hold that the judgment rendered by the trial court was
correct."
In Moore v. Plott (CCA 1918) 206 S.W. 958, It appeared that
appellee PIott was the Democratic nominee for the offlce of
sheriff and,his was the only name appearlng upon the official
ballot at the general election. Appellant Moore, however,
conducted a write-in campaign at said general election and
received lib54 votes to 934 for appellee. Appellee contended
that at least 1,000 of the votes cast for Moore were void
"because Moore was not the nominee of the Democratic party, or
of any other political party having a ticket in the said
general election; and because the electors who had attempted
to vote for Moore prepared their ballots by drawing a line
through the name of appellee, and writing in the name of C. 0.
Moore, In the space left by appellee on said Democratic ticket,
and that they did not write Moore's name In the blank column
on the ballot, in 'the space leftfor the office of Sheriff, as
required by law; further, that some of the said electors did
write the name of Moore in the blank space on the Republican
ticket, the Socialist ticket, the Independent ticket, and other
places on the ballot used at the election.' The court held
Moore to be duly elected, and the votes cast for him legal
although not strictly in accordance with the letter of the
statute, (Art. 2969, Vernon's Sayles Civil Statutes-- now
Article 2981, Vernon's Annotated Civil Statutes) -and said:
"It will be seen that llterally this statute requires a
voter, In a case like this, where he desires to vote
against a candidate whose name appears upon the official;
ballot, and for another whose name does not appear thereon,
to write the name of the candidate for whom he wishes to
vote in the blank column and in the space provided for such
If this statute be mandatory, it is clear that
~%"~~'the votes cast for app,ellant Moore under the
allegations of appellee's petltlon::were illegal and void,
and that, so far as this question alone Is concerned, It
was not error to grant appellee his temporary Injunction.
On the other hand, If the statute is merely directory,
Honorable 0. A. Neal, Page 5, O-2873
then the failure to observe its directions would
constitute, at most, an Irregularity, which under the
authorities would not avoid the election, or render the
votes so cast Illegal, and, independently of any other
question, the action of the trial court in granting the
injunction would be fundamental and reversible error.
“In this case we think it clear, from the averments of
appellee's petition, that It was the Intention of the
voters who cast the votes assailed to choose the appellant
C. 0. Moore as sheriff of Falls county, rather than the
appellee, whose name they scratched. The manner in
which they expressed this choice, although not literally
following the terms of the statute; was in substantial
compliance therewith."
Consequently, it is our considered o&ion, and you are so
advised that electors in the forthcoming general election may in
accordance with Article 2981 legally scratch the name of the
Democratic nominee for the office of Commissioner of Agriculture
and write in the name of another in the blank space provided
therefor on the ballot. Furthermore, in accordance with the case
of Moore v. Plott, supra, a ballot may be properly counted
whereon an elector has stricken the Democratic nominee and
written in the name of,another candidate inthe same space.
In answer to your second question, it is our opinion and you are
so advised that one whose name is written-in upon the official
ballot in the forthcoming general election, and who receives a
majority of the votes cast for the.offlce of Commissioner of
Agriculture, if qualified to hold the office, will be the duly
elected Commissioner of Agriculture.
Very truly yours
ATTORNEY
GENERALOF TEXAS
BY a/ James D. Smullen
James D. Smullen
Assistant
JDS:eaw/cge
GERALDC. MANN
Approved Opinion Committee
By BWB, Chairman
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143538/
|
.,-- .
Gerald C. Mann
Hon. ,A. E. Hickerson Opinion No. O-2834
County Auditor Re: It would be legal to pay the
Montgomery County expense of a county-wide local
Conroe, Texas option election mentioned herein.
Dear Sir:
Your letter of October 17, 1940, requesting an opin-
ion of this Department upon the question as herein stated has
been received.
We quote from your letter as follows:
“On October 14, 1940, the Commissioners’
Court of Mont,gomery County sitting in Regular
Session received a petition calling for a
county wide local. option for or against the
sale of beer. This election was called for
November 2, 1940.
“My attention has been called to the fact
that the following local option elections have
been called and held in the following Just ice
Precincts of Montgomery County:
“J. P. Precinct 4, Nlection held April 27 1940.
J. P, Precinct 8, Xlection held May 4, 1440.
J. P. Precinct.2, mlection held Sept. 28, 1940.
“In view of the above elections? would
. it - be
legal to pay the expense of the local- optlon elec-
tion called for county wide November 2, 1940?”
This Department held in Cpinion No. O-286 that “a
local option election may be held in a justice precinct to
determine whether to prohibit or legalize the sale of beer
containing in excess of 4% by weight, regardless of the fact
there is within the precinct a city which voted less than one
year ago to prohibit the sale of’ this type of beer. If the
election results in a majority of the voters of the entire
precinct favoring the prohibition, the entire justice precinct
will be dry insofar as the type of beverage is concerned; if
a majority vote favorable to sale of such alcoholic beverage,
.-.
Hon. A. 1’. Hickerson, page 2
the dry status of the city will remain as it now is, until and
unless another election be held within and for said city chang-
ing its status. In such event, that part of the justice’s pre-
cinct outside of the limits of such city will be wet to the
extent that sales of beer not exceeding 4% alcohol by weight
will be legal.”
Montgomery County as a whole is now wet as far as the
sale of beer is concerned. However, there are certain precincts
within the county which are dry.
The election provisi.ons of the present Ii uor Control
Act are contained in Sections 32 and 40 of Article %66, Vernon’s
Annotated Penal Code, based on paragraph (c) of Section 20,
Article AVI of the Constitution. The constitutional provision
sanctions local option elections in the following olitical sub-
divisions of a county: (1) the entire county; (27 a justice
precinct; (3) an incorporated city or town.
E,ection 32 of the Liquor Control Act provides the
commissioners1 court of each county in the State upon its own
motion may order an election for the whole county; but upon
petition of 10 per cent of the qualified voters of the county
or of any justice precinct, city or town, it shall order such
election for such political subdivision. Provided, however,
after the first local option election held as provided in this
Act in any county, justice precinct, incorporated town or city,
no subsequent election upon the same issue in the same politi-
cal subdivision shall be held within one (1) year from the
date of the preceding local option election in said county or
said political subdivision of said county.
Xe construe your question to be whether or not a
county-wide local option election can be legally held for the
county on November 2, 1940, and if the county can legally pay
the expense of such an election since certain justice precincts
in the county have held similar elections within the respective
precincts less than a year prior to the time for which the
county-wide local option election is to be held.
In the case of Griffin v. Tucker, 118 .s.:J:. 635, the
Supreme Court held a larger subdivision might hold an election
irrespective of the status of the smaller subdivisions therein.
;yn;at case local option had prevailed in a justicels pre-
but an election was subsequently called in a commission-
ers’ &ecinct which embraced within its territorial limits
the justice’s precinct. The Court said:
Hon. A. E. Hickerson, page 3
"It is true that, when the prohibitory
rule is put in force it cannot be repealed
or displaced except iiy the vote of the dis-
trict which adopted it. It is quite as true
that an election however resulting, in a
larger including subdivision, has no such ef-
feet. If it results in the defeat of prohi-
bition, the rule remains unaffected in the
territory that has before adopted. If it re-
sults in the adoption of prohibition, that
rule is extended to the whole, where before
it was enforced only, in part of the terri-
tory. We see nothing in the statutes
or the ~o&~itution by force of which the
right of a subdivision to have the election
thrown out throughout its extent may be taken
away by the action of part of its territory
constituting a smaller one. . . .'I
In a local option "stock law" election it was held a
commissioners' precinct included a city which had theretofore
adopted the ":ztoCk law" did not render the election void. Lam-
bert v. .:;c.ur3.oc.:,, 285 S.W. 679; Bishop v. State, 167 S.':!. 363.
In view of the foregoing authorities you are respect-
fully advised that it is the opinion of this Department that the
above mentioned county-wide local option election can be legally
held notwithstanding the fact that justice precincts have held
similar elections within one year prior to the county-wide elec-
tion and thtit the county can legally pay the expense of such
election.
tie are enclosing herewith a copy of our Opinion No.
O-286, above referred to.
Trusting that the foregoing fully answers your in-
quiry, we are
Yours very truly
ATTORNEY GENERAL OF TUAS
By /s/ Ardell Williams
Ardell Williams, Assistant
&PRoVE;DOCT 25, 1940
/s/ Gerald C. i%nn
ATTORNEY GENUUUOF TEXAS
APPROVEiD: OPINIONCOMMITTEE
BY: BWB. CH,AIRMAN
AW:BBB:wb '
ENCLOSURE
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4128942/
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 19,2004
The Honorable Myles K. Porter Opinion No. GA-01 53
Fannin County Attorney
Fannin County Courthouse Re: Whether the Fannin County Commissioners
101 East Sam Raybum Drive, Suite 301 Court may retain counsel to advise it on legal
Bonham, Texas 75418 matters without the consent of the county attorney
(RQ-0106-GA)
Dear Mr. Porter:
You ask whether the commissioners court may retain private counsel, paying him a salary
and benefits, without the county attorney’s consent. ’ If it may, you ask whether the private counsel’s
salary and benefits may be paid from the county’s road and bridge fund. See Porter Brief, supra note
1, at 2.2
I. Factual Backmound
You state that the Fannin County Commissioners Court has retained the services of a private
attorney to advise it on general legal matters without the express consent of the elected county
attorney. See id. at 1. The county has paid the private counsel on a salary basis, including benefits,
from the general fund. See id. You have informed the commissioners court that you do not approve
of its retention of private counsel and that you are ready to provide whatever legal advice and
services the court may require. See id. at l-2. The court has indicated that “in light of the county’s
current budgetary situation,” the court intends to retain its private counsel and to pay his salary and
benefits from the county’s road and bridge fund. Id. at 2.
‘See Letter and Brief from Honorable Myles K. Porter, Tannin County Attorney, to Honorable Greg Abbott,
Texas Attorney General, at 2 (Sept. 15,2003) (on file with Opinion Committee) [hereinafter Porter Brief].
2You have supplemented your request with questions about paying private counsel from road and bridge money
raised fromproperty taxes, fees collected by the tax assessor-collector, grants, fines, and other specific sources. See Brief
from Honorable Myles K. Porter, Pannin County Attorney, to Honorable Greg Abbott, Texas Attorney General (Oct.
29, 2003) (on file with Opinion Committee) [hereinafter Supplemental Briefl.
The Honorable Myles K. Porter - Page 2 (GA-0153)
II. Authoritv of County Attorney
The Texas Constitution provides that a county attorney shall be elected in counties that do
not have a resident criminal district attomey.3 See TEX. CONST. art. V, § 21. The legislature may
create the office of district attorney and criminal district attorney. See id. “County Attorneys shall
represent the State in all cases in the District and inferior courts in their respective counties,” but if
a county is included in a district with a district attorney, the legislature shall regulate the respective
duties of district and county attorneys. Id. Because the legislature has not created the office of
district attorney in Fannin County, see Porter Brief, supra note 1, at 1, the Fannin County Attorney
performs the duties of a district attorney. See TEX. GOV’T CODE ANN. 5 46.002(3) (Vernon Supp.
2004).
District and county attorneys are charged primarily with enforcing criminal statutes. See
TEX. CONST. art. V, 8 21; Brady v. Brooks, 89 SW. 1052, 1056 (Tex. 1905). The legislature has
granted county attorneys certain other powers and duties. A district or county attorney is required
“on request . . . [to] give to a county or precinct official of his district or county a written opinion or
written advice relating to the official duties of that official.” TEX. GOV’T CODE ANN. $ 41.007
(Vernon 1988). See also id. 8 41.009 (county attorney authorized to sue county officer entrusted
with public funds to compel performance of duties). The legislature has also charged county
attorneys with civilly enforcing certain regulatory statutes. See, e.g., TEX. AGRIC. CODE ANN.
5 161.133 (Vernon 1982) (county attorney shall file and prosecute civil suit against corporation
violating provisions on control of animal diseases); TEX.GOV’T CODE ANN. 0 552.32 15(c) (Vernon
Supp. 2004) (county attorney’s authority as to civil enforcement of Public Information Act).
It is usually not the county attorney’s statutory duty “‘to represent the county in its general
legal business”’ or in conducting “‘ordinary civil actions.“’ See Guynes v. Galveston County, 861
S.W.2d 861, 864 (Tex. 1993) (quoting Hill Farm, Inc., v. Hill County, 425 S.W.2d 414,419 (Tex.
Civ. App.-Waco 1968), afd on other grounds, 436 S.W.2d 320 (Tex. 1969)); Tex. Att’y Gen. LO-
97-011, at 2. The legislature has, however, promulgated special statutes regulating the duties of
county attorneys in specific counties, in some cases expressly requiring a county attorney to represent
the county in civil actions. See TEX. GOV’T CODE ANN. $3 45.171 (Vernon Supp. 2004) (County
Attorney of El Paso County), .179 (County Attorney of Fort Bend County), .261 (County Attorney
of Matagorda County), ,201 (Vernon 1988) (County Attorney of Harris County); see also Driscoll
v. Harris County Comm ‘rs Ct., 688 S. W.2d 569,572-74 (Tex. App.- Houston [ 14th Dist.] 1984, writ
ref d n.r.e.) (construing predecessor of Government Code section 45.201; noting that certain
populous counties had, either with or without special legislation, provided for representation of the
county in civil matters by the county attorney, district attorney, or criminal district attorney). No
such special statute addresses the Fannin County Attorney’s duties. See TEX. GOV’T CODEANN. ch.
45 (Vernon 1988 & Supp. 2004) (section 45.174 reserved for Fannin County).
3Acriminal district attorney is the district attorney in counties without a county attorney. See TEX. CONST. art.
V, 0 21; Hill County v. Sheppard, 178 S.W.2d 261,263 (Tex. 1944).
The Honorable Myles K. Porter - Page 3 (GA-0153)
III. Authority of Commissioners Court to Retain Private Attorneys
The commissioners court, pursuant to its implied power to accomplish its constitutional and
statutory directives, may contract with experts when necessary, including attorneys. See Guynes, 86 1
S.W.2d at 863 (commissioners court established legal department to conduct county’s civil legal
affairs); Pritchard&Abbott v. McKenna, 350 S.W.2d 333,334 (Tex. 1961) (employment of expert
to appraise all properties in county); McClintock & Robertson v. Cottle Co., 127 S.W.2d 3 19, 321
(Tex. Civ. App.-Amarillo 1939, writ dism’d judgm’t car.) (county may retain private law firm to
determine its amount of bonded indebtedness). The courts have upheld the power of a
commissioners court to hire counsel to assist it or other officials in carrying out its responsibilities,
so long as the statutory duties of other county officials are not usurped. See Guynes, 861 S.W.2d
at 863.
Driscoll considered whether the commissioners court could employ legal counsel other than
the Harris County Attorney to perform legal services for the board of the county toll road authority.
Driscoll, 688 S.W.2d at 569. The court addressed the predecessor of a statute that requires the Harris
County Attorney “to represent the state, Harris County, and the officials of Harris County in all civil
matters pending before the courts of Harris County.” TEX. GOV’T CODE ANN. 5 45.201 (Vernon
1988). It noted that this provision imposed “specific duties upon the county attorney of Harris
County which are not imposed upon county attorneys, criminal district attorneys or district attorneys
generally.” Driscoll, 688 S.W.2d at 579 (on motion for rehearing). Harris County was also subject
to the predecessor of a statute providing that in counties with a population of more than one million,
the commissioners court may employ an attorney as special counsel to be selected by the county
attorney. See TEX. LOC. GOV’T CODE ANN. 0 89.001 (Vernon 2004); see Driscoll, 688 S.W.2d at
579-80 (discussing predecessor ofLocal Government Code section 89.001, which applied to counties
of more than 500,000 population). The court determined that the commissioners court had usurped
the county attorney’s powers under these statutes by employing legal counsel other than the Harris
County Attorney to perform legal services for the county toll road authority. See Driscoll, 688
S.W.2d at 575-76,582-83. See also Terrell v. Greene, 3 1 S.W. 63 1,633 (Tex. 1895) (where county
attorney had statutory right and duty to sue county treasurer on his bond, commissioners court had
no authority to displace him by employing private counsel to handle suit).
In Maud v. Terrell, 200 S. W. 375,376 (Tex. 19 18), the court addressed the constitutionality
of a statute authorizing the comptroller to employ persons to bring tax collection suits in district and
inferior courts to collect inheritance taxes. See Maud, 200 S.W. at 375-76. It found the statute
consistent with Texas Constitution article V, section 21, by construing it as allowing other persons
to assist the county attorney in subordination to his authority. See id. at 378; see also Seagler v.
Adams, 238 S.W. 707, 708 (Tex. Civ. App.-Galveston 1922), aff’d, 250 SW. 413 (Tex. 1923)
(commissioners court may contract with attorneys to assist county or district attorney to bring suits
to collect debts against officials and others).
In Guynes, the supreme court for the first time considered whether a commissioners court
may employ a permanent legal staff to advise it in its various civil affairs. See Guynes, 861 S.W.2d
at 86 l-62. The court determined that the Galveston County Commissioners Court, under the unique
The Honorable Myles K. Porter - Page 4 (GA-0153)
facts presented in Guynes, could “legally employ staff attorneys to advise and represent it concerning
civil matters.” See id. at 862. The court addressed Government Code section 44.184, which
provided that the Galveston County Criminal District Attorney “shall exclusively represent the state
in all criminal matters before” the district courts and inferior courts in Galveston County and “shall
represent Galveston County in any court in which the county has pending business.” TEX. GOV’T
CODE ANN. 0 44.184(a) (Vernon 1988). Reading this provision in connection with the
commissioners court’s long-standing authority to seek legal assistance, the court found that the
statute imposed on the Galveston County Criminal District Attorney an exclusive duty to represent
the state in criminal matters, but no corresponding exclusive duty to represent the county in civil
matters. See id. at 864. It noted that “the summary judgment record presents no evidence” that the
commissioners court had delegated the criminal district attorney’s duties. Id. Moreover, the
criminal district attorney “clearly and unequivocally consented to the present arrangement for
handling the county’s civil legal affairs.“4 Id. “[Blecause the Commissioners Court has not usurped
or interfered with the duties of the Criminal District Attorney, because it may employ counsel to
advise it concerning the affairs of the county, and because the Criminal District Attorney consented
to the arrangement,” the commissioners court could fund and use its legal department in conducting
its civil legal affairs. Id. The Guynes court expressly reserved the question of the “limitations [that]
might be imposed on the present arrangement should the Criminal District Attorney withdraw his
consent .” Id.
Attorney General Opinion GA-0074, in concluding that the El Paso County Bail Bond Board
could not hire outside legal counsel, distinguished the facts and law in the question before it from
those in Guynes. See Tex. Att’y Gen. Op. No. GA-0074 (2003) at 3. The legislature had vested the
county attorney for El Paso County with “the primary duty. . . to represent the state, El Paso County,
and the officials of El Paso County in all civil matters pending before the courts of El Paso County
and any other courts in which the state, the county, or the officials of the county have matters
pending.” TEX. GOV’T CODE ANN. 0 45.171 (Vernon Supp. 2004). The El Paso County Attorney
moreover explicitly refused to consent to the employment of outside counsel. See Tex. Att’y Gen.
Op. No. GA-0074 (2003) at 3.
IV. Authoritv of Fannin County Commissioners Court to Employ Private Counsel
You suggest that Attorney General Opinion O-7474 (1946) resolves your question. See
Porter Brief, supra note 1, at 3. Attorney General Opinion O-7474 stated that the judicial decisions
on a commissioners court’s authority to employ private attorneys “have contemplated employment
and remuneration of counsel by the Commissioners’ Courts only for a specific litigation, or advice
on a particular matter or problem.” Tex. Att’y Gen. Op. No. O-7474 (1946) at 2. It concluded “that
the law does not intend that the Commissioners’ Court shall employ counsel on a salary basis to
advise and represent it in whatever matters might arise.” Id. However, the court in Guynes held that
the commissioners court was authorized to employ a permanent legal staff to conduct its civil legal
affairs. See Guynes, 86 1 S.W.2d at 864. Guynes effectively overruled the reasoning and conclusion
4The criminal district attorney’s consent to the arrangement suggests that he found that the county legal offke
was providing assistance to him and not usurping his statutory duties. See Guynes, 861 S.W.2d at 864.
The Honorable Myles K. Porter - Page 5 (GA-0153)
of Attorney General Opinion O-7474. The answer to your question is controlled by Guynes. See
Tex. Att’y Gen. Op. No. GA-0074 (2003) at 3 (distinguishing Guynes to conclude that the El Paso
County Bail Bond Board may not seek outside legal counsel without the consent of the county
attorney).
A commissioners court may employ a private attorney to provide legal services as long as
it does not encroach on the constitutional or statutory authority vested in the county attorney. See
Guynes, 861 S.W.2d at 863. The constitution requires a county attorney to “represent the State in
all cases in the District and inferior courts in their respective counties,” but does not impose civil
duties on county attorneys. TEX. CONST. art. V, $21. The Fannin County Attorney does not have
a general statutory duty to represent the ci>unty and its officers in civil actions. The Fannin County
Commissioners Court will not usurp the county attorney’s authority if it employs a private attorney
to provide legal services that neither the constitution nor a statute vests in the county attorney. Under
these circumstances, the commissioners court may retain private counsel as a salaried employee,
without the county attorney’s consent.
A private attorney employed by the Fannin County Commissioners Court may also give legal
advice to the commissioners court, without usurping the county attorney’s power to give legal
opinions to the court. Government Code section 41.007 provides that
[a] district or county attorney, on request, shall give to a county or precinct
official of his district or county a written opinion or written advice relating to the
official duties of that official.
TEX. GOV’T CODE ANN. 0 41.007 (Vernon 1988) (emphasis added). The court in Gibson v. Davis,
236 S.W. 202 (Tex. Civ. App.-Galveston 1921, no writ), addressed the commissioners court’s
authority to employ private attorneys to advise it about the preparation of road bonds and render
opinions about the legality of the bonds. See Gibson, 236 S.W. at 212. It stated that the predecessor
of Government Code section 41.007
was intended to impose a duty upon the county and district attorneys,
and not as a restriction upon the commissioners’ court in the
employment of attorneys to advise and render services to the court in
important matters coming before it for its consideration.
Id. Thus, section 41.007 does not bar the commissioners court from employing private attorneys to
advise it. The Fannin County Commissioners Court may employ a private attorney as a salaried or
hourly employee to provide it with legal advice.
v. Payment of Private Counsel from Road and Bridpe Funds
You ask whether private counsel retained by the commissioners court on either a salary or
hourly basis may be paid from road and bridge funds raised from (1) property taxes, (2) fees
collected by the tax assessor-collector under Transportation Code chapter 508, (3) fuel taxes
The Honorable Myles K. Porter - Page 6 (GA-0153)
collected by the state and disbursed to the county, (4) grants, (5) fines colleted by the district clerk,
county clerk, or justice courts, (6) or grassland tinds. See Supplemental Brief, supra note 2, at 1.
Whether any of these funds may be used to compensate a private attorney retained by the
commissioners court depends on the constitutional, statutory, or contractual provisions governing
their disposition.
A. Property Taxes
Article VIII, section 9 of the Texas Constitution provides that a commissioners court
may levy an annual property tax rate for each of four constitutional purposes: the general f&d, the
permanent improvement fi,md, the road and bridge tind, and the jury fund, the total not to exceed
eighty cents per one hundred dollar property valuation. See TEX. CONST. art. VIII, 0 9(b). Fannin
County maintains the four constitutional tinds? A 1967 amendment to article VIII, section 9,
authorizes a county to place all tax moneys into one general fund, without regard to the purpose or
source of each tax. See TEX. CONST. art. VIII, 0 9(d); Tex. H.J. Res. 3,6Oth Leg., R.S., 1967 Tex.
Gen. Laws 2979. The commissioners court of a county that maintains the four funds may by order
transfer money from one constitutional fund to another. See Lewis v. Nacogdoches County, 461
S.W.2d 5 14, 5 18 (Tex. Civ. App.-Tyler 1970, no writ); Tex. Att’y Gen. Op. No. H-194 (1974) at
3-4. The fact that Fannin County places property tax funds in the county road and bridge fUnd does
not prevent the commissioners court from transferring those taxes f?om that fund to the general fund
to pay a private attorney on an hourly or salary basis.
Article VIII, section 9 permits the legislature to authorize an additional annual ad valorem
tax to be levied and collected for the tirther maintenance of the public roads. See TEX. CONST. art.
VIII, 8 9(c). The legislature has adopted Transportation Code section 256.052 implementing this
provision. See TEX.TRANSP.CODEANN. 5 256.052 (Vernon 1999). The special road tax authorized
by article VIII, section 9 may be used only for “the further maintenance of the public roads.” TEX.
CONST. art. VIII, 8 9(c). A county may also levy an additional property tax under Texas Constitution
article VIII, section 1-a, for the “construction and maintenance of Farrn to Market Roads or for Flood
Control, except as herein otherwise provided.” See TEX. CONST. art. VIII, 0 l-a. This additional
property tax may be used only for its constitutionally designated purposes. See Tex. Att’y Gen. Op.
No. H-530 (1975) at 2.
B. Motor Vehicle Registration Fees Collected by the County Tax Assessor-
Collector
Article VIII, section 7-a of the Texas Constitution, which governs the use of motor
vehicle registration fees, provides in part:
Subject to legislative appropriation, allocation and direction,
all net revenues remaining after payment of all refunds allowed by
‘Telephone Conversation with Michael Skotnik, Assistant County Attorney, Fannin County (Dec. 29,2003).
The Honorable Myles K. Porter - Page 7 (GA-0153)
law and expenses of collection derived from motor vehicle
registration fees . . . shall be used for the sole purpose of acquiring
rights-of-way, constructing, maintaining, and policing such public
roadways, and for the administration of such laws as may be
prescribed by the Legislature pertaining to the supervision of traffic
and safety on such roads . . . .
TEX. CONST. art. VIII, 8 7-a. See Tex. Att’y Gen. Op. No. JC-0250 (2000) at 1. Pursuant to its
constitutional authority to allocate and direct the use of motor vehicle registration fees, the
legislature has adopted Transportation Code chapter 502, which requires the annual registration of
motor vehicles. See TEX. TRANSP. CODE ANN. 5 502.002 (1999). A county tax assessor-
collector or a deputy county tax assessor-collector is authorized to collect registration fees. See id.
8 502.004(2). Section 502.102 requires the county tax assessor-collector to credit a stated amount
of registration fees to the county road and bridge fund. See id. 8 502.102 (Vernon Supp. 2004). See
also id. 8 502.103 (Vernon 1999) (crediting funds from optional fee imposed under Transportation
Code section 502.172 to road and bridge fund). The registration fees credited to the county road and
bridge fund may be used for the purposes stated in section 502.108, which generally relate to road
and bridge construction, maintenance, and repair. See id. 0 502.108(a) (Vernon Supp. 2004). See
Tex. Att’y Gen. Op. No. JC-0250 (2000) at 2. These revenues are designated by the constitution and
statutes to be used “for the sole purpose of acquiring rights-of-way, constructing, maintaining, and
policing such public roadways, and for the administration of . . . laws . . . pertaining to the
supervision of traffic and safety on such roads.” TEX. CONST. art. VIII, 0 7-a. These revenues may
not be diverted to other purposes. See Gulf Ins. Co. v. James, 185 S.W.2d 966 (Tex. 1945); Tex.
Att’y Gen. Op. No. JM-593 (1986) at 2 (if the constitution earmarks money for specific purposes,
that money may be used for no other purpose).
c. Fuel Taxes Collected by the State and Disbursed to the County
Article VIII, section 7-a of the constitution also provides that revenues received from
taxes on motor fuels and lubricants, subject to specific exceptions, may be used only for the purposes
it states. See TEX. CONST. art. VIII, 0 7-a. Thus, any fuel taxes within article VIII, section 7-a that
are allocated to the county may be used only for the constitutionally authorized purposes.
D. Grants
You ask in general terms, without referring to a particular grant, whether road and
bridge funds from grants may be used to compensate an attorney retained by the commissioners
court. Grants are generally subject to terms and conditions, and the receiving entity must agree to
comply with these as a condition of receiving the grant funds. See generaZZy Tex. Att’y Gen. Op.
No. M-894 (1971). Whether particular grant funds may be used to compensate an attorney depends
upon the terms of the grant.
The Honorable Myles IS. Porter - Page 8 (GA-01 53)
E. Traffic Fines
Transportation Code section 542.402 requires a county to use fines collected for
highway violations under Transportation Code, title 7, to
(1) construct and maintain roads, bridges, and culverts in the
municipality or county;
(2) enforce laws regulating the use of highways by motor vehicles;
and
(3) defray the expense of county traffic officers.
TEX. TRANSP.CODEANN. 9 542.402(a) (Vernon Supp. 2004). See Tex. Att’y Gen. Op. No. JM-158
(1984) at 2-4 (county must use DWI fines and related revenue for roads and can allocate it to
treatment center). These fines must be used for the purposes stated in the statute.
F. Grassland Funds
Fannin County receives federal revenues in connection with the Caddo National
Grasslands.6 The Caddo grasslands were purchased by the United States Department of the Interior
during the 1930s under the federal Bar&head-Jones Farm Tenant Act in an effort to return eroded
land in the area to its natural state. See 7 U.S.C. 5 1010 (2000) (title III, Bar&head-Jones Farm
Tenant Act).7 The Secretary of Agriculture* is required to pay to the county in which national
grasslands are located 25 percent of the revenues the secretary receives from the use of the land
during the year. See id. 9 1012. Payments to counties “shall be made on the condition that they are
used for school or road purposes, or both.” Id. The county must use the federal payments of national
grassland revenues for the purposes stated in the federal statute.
In summary, property taxes allocated to the Fannin County road and bridge fund established
pursuant to article VIII, section 9(b) of the Texas Constitution may be transferred to the county’s
general fund to compensate a private attorney employed by the commissioners court on an hourly
or salary basis to advise it and represent it in civil matters. Any county funds dedicated by the
constitution, a statute, or the terms of a grant to road construction and maintenance may not be
allocated to other purposes. Whether the commissioners court may use particular funds to
compensate an attorney must be decided on a case-by-case basis.
6See id.
‘See also “CADDO NATIONAL GRASSLAND,” The Handbook of Texas Online, available at http://www.tsha.
utexas.edtiandbooWonlinelarticles/printXClgkc8.htrnl.
‘The grasslands are administered by the United States Department of Agriculture as part of the National Forest
System. See 36 C.F.R. 5 213.1 (2003); 16 U.S.C. 9 1609(a) (2000).
The Honorable Myles K. Porter - Page 9 (GA-0153)
SUMMARY
Provided that it does not delegate duties constitutionally or
statutorily vested in the county attorney’s office, the Fannin County
Commissioners Court may employ legal counsel to advise and
represent it in civil matters, without securing the county attorney’s
consent. County funds dedicated by the constitution, a statute, or the
terms of a grant to road construction and maintenance may not be
allocated to other purposes.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4400423/
|
Court of Appeals
of the State of Georgia
ATLANTA, May 22, 2019
The Court of Appeals hereby passes the following order
A19A1913. TERRENCE T. PARKER v. THE GEORGIA DEPARTMENT OF HUMAN
SERVICES, EX. REL., TERREN CHANEL PARKER.
The appellant in this case failed to comply with the notice of docketing mailed by this
Court and with Court of Appeals Rule 23 (a), regarding the filing of an enumeration of errors
and brief within twenty days after the appeal was docketed. See also Court of Appeals Rule 13.
On May 13, 2019, this Court ordered the appellant to file an enumeration of errors and a
brief no later than May 20, 2019. As of the date of this order, the appellant's enumeration of
errors and brief still have not been filed. Accordingly, this appeal is deemed abandoned and is
hereby ordered DISMISSED. Court of Appeals Rules 7, 23 (a).
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, May 22, 2019.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk.
|
01-03-2023
|
05-24-2019
|
https://www.courtlistener.com/api/rest/v3/opinions/4129161/
|
OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
June 28,2002
The Honorable Gwyn Shea Opinion No. JC-05 19
Secretary of State
State of Texas Re: Whether a 1999 amendment to article XVI,
P.O. Box 12697, Capitol Station section 65 of the Texas Constitution, which
Austin, Texas 78711 removed the staggered terms for certain county
offices, substantively affects offices created after
that date (RQ-0488-JC)
Dear Secretary Shea:
You ask about the effect of the 1999 amendment to article XVI, section 65 of the Texas
Constitution on newly created offices. The amendment deleted provisions establishing staggered
terms of office for certain district and county offices listed therein, with consequences you describe
as follows:
Before the 1999 amendment, it was clear that if a new county or
district office listed in the Article XVI, Sec[.] 65 schedule was
created in time to place the office on the ballot in an even numbered
year, the new office followed the constitutional schedule. . . . If the
even-numbered year was a year during which that office was not
regularly scheduled for a full term, it appeared on the ballot as, and
the officer was elected for, the remainder of the unexpired term. . . .
[I]f the legislature created a new county court at law during the 76th
Session in 1999, that new county court would have appeared on the
2000 ballot for a two-year unexpired term. The office would again
appear on the ballot two years later in 2002 for a full term, pursuant
to the constitutional schedule.’
You wish to know whether newly created offices subject to article XVI, section 65 may be
placed on a staggered election schedule and whether the county or the state has the authority to put
the office on the ballot for any term other than four years. A newly created office listed in article
XVI, section 65 may not be placed on the ballot for any term of office other than four years.
However, constitutional provisions mandating the election of specific officers to four-year terms do
not prevent the legislature from bringing the office into existence partway through a four-year term
‘Letter from Geoffrey S. Connor, Assistant Secretary of State, to the Honorable John Cornyn, Texas Attorney
General (Jan. 4,2002) (on file with Opinion Committee).
The Honorable Gwyn Shea - Page 2 (JC-0519)
with the vacancy to be filled pursuant to law, generally by appointment until the next general
election. The staggered election schedule may be continued for newly created offices enumerated
by article XVI, section 65. Section 202.003 of the Election Code establishes the date when a newly-
created office is first placed on the ballot, and in some instances that date may conform to the
staggered election schedule. TEX. ELEC. CODE ANN. 9 202.003 (Vernon Supp. 2002). If the 202.003
date does not conform to the staggered election schedule, the legislature may expressly provide in
the statute creating the office for conformity to the staggered election schedule. Id. In this case, the
legislation creating an office should provide that the officeholder shall be elected to a four-year term
at the first general election date that conforms to the election schedule, and that the vacancy in the
office that exists as of its creation shall be filled as provided by law.
We turn to your question. Article XVI, section 65 was adopted in 1954 by a constitutional
amendment that also established four-year terms of office for elective district, county, and precinct
officers. See Tex. S.J. Res. 4,53d Leg., R.S., 1953 Tex. Gen. Laws 1164 (caption). See also TEX.
CONST. art. V (four-year terms), 8 8 7 (district judge), 9 (clerk of district court), 15 (county judge),
18 (justice of the peace, constable, and county commissioners), 20 (county clerk), 21 (county
attorney), 23 (sheriff), 30 (judges of courts of county-wide jurisdiction and criminal district
attorneys); art. VIII, 8 14 (four-year terms for tax assessor collector); art. XVI, $6 44 (four-year
terms for county treasurer and county surveyor), 64 (four-year terms for inspector of hides and
animals). The increase of local officers’ terms of office from two to four years made it necessary
“to stagger the effect of the amendment, so that all the elective district, county, and precinct offices
would not expire in the same year.” TEX. CONST. art. XVI, 0 65 interp. commentary (Vernon 1993).
The 1954 amendment staggered the terms of office by providing that certain officeholders would be
elected for terms of varying length in the November, 1954 general election. Article XVI, section 65,
as adopted, provided that:
The following officers elected at the general election in
November, 1954, and thereafter, shall serve for the full terms
provided in this Constitution: (a) District Clerks; (b) County Clerks;
(c) County Judges; (d) Judges of the County Courts at Law, County
Criminal Courts, County Probate Courts, and County Domestic
Relations Courts; (e) County Treasurers; (f) Criminal District
Attorneys; (g) County Surveyors; (h) Inspectors of Hides and
Animals; (i) County Commissioners for Precincts Two and Four; (j)
Justices of the Peace.
See Tex. S.J. Res. 4, supra. It then provided for staggering the election of persons to fill certain
other offices, stating that:
Notwithstanding other provisions of this Constitution, the
following officers elected at the general election in November, 1954,
shall serve only for terms of two years: (a) Sheriffs; (b) Assessors
and Collectors of Taxes; (c) District Attorneys; (d) County Attorneys;
The Honorable Gwyn Shea - Page 3 (JC-0519)
(e) Public Weighers; (f) County C ommissioners for Precincts One
and Three; (g) Constables. At subsequent elections, such officers
shall be elected for the full terms provided in this Constitution.
Id. The amendment also provided for staggered terms of an office held by two or more persons in
the same district, county, or precinct and distinguished on the ballot as “Place No. 1,” “Place No. 2,”
and so forth, again by providing that one group of officers elected in November, 1954 would serve
initial terms of two years, while the other group would serve initial terms of four years. See id. See
also TEX. ELEC. CODE ANN. 8 52.092(g) (Vernon Supp. 2002) (listing on ballot of two or more
offices having the same title except for a place number). Thereafter, all such officers would be
elected for terms provided by the constitution. See Tex. S.J. Res. 4, supra.
A 195 8 amendment added a “resign-to-run” provision to article XVI, section 65. See Tex.
H.J. Res. 31,55th Leg., R.S., 1957 Tex. Gen. Laws 1641. The amendment stated that “if any of the
officers named herein shall announce their candidacy, or shall in fact become a candidate,” in any
election for any other office at a time “when the unexpired term of the office then held shall exceed
one (1) year,” the announcement or candidacy would constitute an automatic resignation of the office
then held. Id.
You inquire about the effect ofthe 1999 amendment to article XVI, section 65, which deleted
all provisions relating to the staggered terms of office and left only the “resign-to-run” provision
for the offices listed in that section. See Tex. H.J. Res. 62, 76th Leg., R.S., 1999 Tex. Gen. Laws
6611, 6642-43. The 1999 amendment to article XVI, section 65, was included in House Joint
Resolution 62, which proposed “a constitutional amendment to eliminate duplicative, executed,
obsolete, archaic, and ineffective constitutional provisions.” Id. (caption). A bill analysis of House
Joint Resolution 62 described the amendment to article XVI, section 65 as “removing provisions
providing for the original staggering of county offices when the terms of such offices were extended
in 1954.” HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. Comm. Subst. H.J. Res. 62,76th
Leg., R.S. (1999) at 2; see also SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. H.J. Res. 62,
76th Leg., R.S. (1999) at 4 (deletes text regarding certain precincts, officer terms, and officer
elections; makes conforming and nonsubstantive changes).
The language deleted from article XVI, section 65 in 1999 appeared on its face to be
obsolete, and its deletion appeared to be nonsubstantive, because it referred to staggering the terms
of local officers elected in the November, 1954 general election. However, the Texas Supreme Court
has held that article XVI, section 65 mandated a staggered election schedule for all the offices
enumerated therein, rather than only those in existence when the provision was adopted. See
Fashing v. El Paso County Democratic Executive Comm., 534 S.W.2d 886,889 (Tex. 1976). See
also Tex. Att’y Gen. Op. Nos. H-726 (1975) at 2, M-566 (1970) at 2, C- 147 (1963) at 2-3, WW- 1292
(1962) at 4 (holding that newly created local offices must be filled by election according to the
election schedule established by article XVI, section 65).
The Honorable Gwyn Shea - Page 4 (JC-0519)
In Fashing, the court harmonized article XVI, section 65 of the Texas Constitution with
article V, section 30, which provided a four-year term for judges of courts of county-wide
jurisdiction. The Fashing court determined that “[tlhe clear intent of Article 16 5 65 is to stagger
elections so that all county and district offices do not expire simultaneously.” Fashing, 534 S.W.2d
at 890. Article XVI, section 65 established the schedule for electing persons to the four-year terms
set by article V, section 30, “both as to offices in existence in November 1954, and those created
thereafter.” See id. at 889. A newly created local office thus had to be filled by electing an
individual to the remainder of the unexpired term where necessary to maintain the election schedule
established by article XVI, section 65. See id. at 890. Thus, article XVI, section 65 governed the
election years in which particular local offices were filled, using 1954 as the base year, and newly
created offices had to be filled by election in the year applicable to each office. See Chenault v.
Bexar County, 782 S. W.2d 206,207 (Tex. 1989) (setting out schedule for electing justices of the
peace, place 1 and place 2).
It is well established that the legislature may not authorize the election of an officer for a term
that differs from the term provided in the constitution. See Draughn v. Brown, 65 1 S.W.2d 728,730
(Tex. 1983); E a d es v. Drake, 332 S.W.2d 553 (Tex. 1960); Tex. Att’y Gen. Op. No. MW-536 (1982)
at 4. Newly created offices listed in article XVI, section 65 are not exempted from this general rule.
Thus, a newly created office within the list in article XVI, section 65, may not be placed on the ballot
for a term of less than four years.
However, the legislature may continue to maintain the staggered election schedule if it
wishes to do so. A general rule for placing newly-created offices on the ballot is found in section
202.003 of the Election Code. Section 202.003(a) provides that “an election for the first full term
of an office for which no previous election has been held is governed by the same provisions as an
election for the remainder of an unexpired term, and for that purpose, references in this chapter to
an unexpired term include a full term in the case of those offices.” TEX. ELEC. CODE ANN. 8
202.003(a) (Vernon Supp. 2002). See id. $5 202.004-.006 (Vernon 1986 & Supp. 2002) (nomination
to an unexpired term). Section 202.003(b) establishes the date when the new office first appears on
the ballot:
(b) If an Act of the legislature creating an office prescribes a
date of creation that is later than the effective date of the Act, and if
an authority authorized to create the office at an earlier date has not
done so, the office shall appear on the ballot as follows:
(1) if the date of creation occurs in an even-
numbered year, the office appears on the ballot in that
even-numbered year;
(2) if the date of creation occurs on or before
March 1 of an odd-numbered year, the office appears
on the ballot in the preceding even-numbered year;
and
The Honorable Gwyn Shea - Page 5 (JC-05 19)
(3) if the date of creation occurs after March 1
of an odd-numbered year, the office appears on the
ballot in the subsequent even-numbered year.
Id. 8 202.003(b) (Vernon Supp. 2002).
In some cases, the date established for offices enumerated in article XVI, section 65 by
section 202.003 of the Election Code will conform to the staggered election schedule. If the section
202.003 date does not conform to the staggered election schedule, the legislature may continue to
maintain the staggered election schedule for newly-created offices of the kind listed in article XVI,
section 65. A Texas Supreme Court opinion about a newly-created district court, an office that is
not mentioned in article XVI, section 65, explains how this can be done. See Eades v. Drake, 332
S.W.2d 553 (Tex. 1960). The court in Eades addressed a statute providing that, at the first general
election after the creation of the 160th District Court, the judge of the court would be elected for a
term of two years and thereafter to a four-year term. See id. at 554. The court stated that “[t]he
constitution provides for elective four-year terms for judges of permanent constitutional district
courts [see TEX. CONST. art. V, $9 7,301 and there can be no elective two-year terms by virtue of
legislative enactment.” Id. at 556. Eades then determined that there was a vacancy in the office
when the statute creating it became effective and that the governor should fill the vacancy by
appointing a qualified person “who shall hold such office until the next succeeding general election
and until his successor shall be duly qualified.” Id. at 556; see TEX. CONST. art. IV, 8 12, art. V, $0
7,28, art. XVI, 6 17. At the next general election, the voters would elect a judge to a four-year term.
Eades, 332 S.W.2d at 556. Thus, the constitutional provisions mandating the election of district
court judges to four-year terms, see TEX. CONST. art. V, §§ 7,30, do not preclude the legislature from
bringing a district court into existence halfway through a four-year term, with the vacancy to be
filled by the governor.
Accordingly, the legislature may maintain the staggered election schedule for newly created
offices enumerated in article XVI, section 65, if it wishes to do so. The legislation creating the office
must provide for electing the officeholder to a four-year term at the first general election date that
conforms to the election schedule formerly established by article XVI, section 65 and for filling the
vacancy that exists in the office from its creation until the elected officeholder qualifies for it. See,
e.g., TEX. CONST. art. V, 5 28 (vacancy in office of justice of the peace filled by commissioners
court); TEX. GOV’T CODE ANN. 5 25.0009 (Vernon 1988) (vacancy in office of judge of statutory
county court, including vacancy existing on creation of office). See also Act of May 23,2001,77th
Leg., R.S., ch. 692, 8 4(a)-(b), 2001 Tex. Gen. Laws 13 17, 13 18 (creating Probate Court No. 1 of
Collin County and stating initial vacancy in office of judge of shall be filled by election) (enacting
TEX. GOV’T CODE ANN. 5 25.0453).
The Honorable Gwyn Shea - Page 6 (JC-05 19)
SUMMARY
Article XVI, section 65 of the Texas Constitution, before it
was amended in 1999, required a staggered election schedule for the
offices it listed, newly created offices as well as offices existing in
1954, when the constitutional provision was adopted. The 1999
amendment deleted the language requiring a staggered election
schedule. A newly created office listed in article XVI, section 65,
may not be placed on the ballot for any term other than four years,
and the date when it would first be placed on the ballot would be
determined by section 202.003 of the Election Code. In some cases,
the section 202.003 date will conform to the election schedule for the
office. If it does not, the legislature may continue the staggered
election schedule for newly created article XVI, section 65 offices by
providing in the legislation creating the office that the officeholder
shall be elected to a four-year term at the first general election date
that conforms to the election schedule, and that the vacancy that
exists in the office from its creation shall be filled by appointment or
as otherwise provided by law.
Yo s ve truly, +
42 i
JOHN
.
--
/
CORNYN
cJ--y-
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129394/
|
OFFltE OF THEATTORNEY
GENERAL.STATEOF nx*s
JOHN CORNYN
October 3,200O
The Honorable Homer0 Ramirez Opinion No. JC-0287
Webb County Attorney
1110 Victoria, Suite 403 Re: Which county is responsible for mental
Laredo, Texas 78040 health services proceeding costs under section
571 .018 of the Texas Health and Safety Code and
related question (RQ-0227-JC)
Dear Mr. Ramirez:
You ask about the collection of mental health services proceeding costs under section
571.018 ofthe Health and Safety Code. We understand you to ask which county is responsible for
mental health services proceeding costs under section 571.018, and the costs for which it is
responsible. Because you do not ask about a particular situation, we answer your questions in
general terms. The county that initiates emergency detention procedures or, if no such procedures
are initiated, the county that accepts an application for court-ordered mental health services, issues
an order for protective custody, or issues an order for temporary mental health services is generally
responsible for paying mental health services proceeding costs under section 571.018. A
nonresponsible county conducting mental health services proceedings is authorized to collect the
cost of those proceedings from the responsible county. A county’s responsibility for paying mental
health services proceeding costs is not limited to actions that are “derivative” of the initial
commitment proceeding. The costs ofmental health services proceedings payable by the responsible
county include, but are not limited to, those enumerated in section 571.018(c).
You inform us ofthe following facts giving rise to your request: San Antonio State Hospital
(SASH) in Bexar County serves as the regional hospital providing inpatient care for various Texas
counties, including Webb County. Bexar County, using its resources, conducts hearings for mental
health services for patients committed to SASH by Webb County or patients admitted to SASH from
Webb County under the emergency detention procedures as set out in subchapters A or B of chapter
573 of the Health and Safety Code. Examples of such proceedings include petitions for an order to
administer psychoactive medication, applications for a temporary mental health services order, and
applications for extended mental health services. Bexar County sends Webb County bills of costs
for these proceedings. Webb County has not entered into any local intergovernmental agreement
with Bexar County agreeing to be responsible for these mental health services proceeding costs.’
‘Letter fromHonorable Homero Ramirez, Webb County Attorney, to Honorable John Comyn, Texas Attorney
General at 2 (Apr. 28,200O) (on tile with Opinion Committee) [hereinafter Request Letter].
The Honorable Homer0 Ramirez - Page 2 (X-0287)
We understand you to ask, first, which county is responsible for mental health services
proceeding costs under section 571.018 and, second, what are the costs for which it is responsible.
See Request Letter, supra note 1, at 2-3; Webb Brief at 2-5$ Telephone Conversation with
Honorable Homer0 Ramirez, Webb County Attorney (Aug. 3 1,200O).
The Texas Mental Health Code, codified as subtitle C of title 7, Health and Safety Code,
provides for access to care and treatment for mentally ill persons. See TEX. HEALTH & SAFETY CODE
ANN. chs. 571 - 577 (Vernon 1992 & Supp. 2000). Chapter 574 of the Health and Safety Code
governs proceedings for court-ordered mental health services. A county or district attorney or other
adult may tile an application for court-ordered mental health services for an individual. See id.
4 574.001 (Vernon Supp. 2000). The application must be tiled with the county clerk in the county
in which the proposed patient resides, is found, or is receiving mental health services by court order
or pursuant to apprehension by a police officer under subchapter A of chapter 573 of the Health and
Safety Code. See id. 5 574.001(b).
Section 571.018 of the Health and Safety Code deals with the mental health services
proceeding costs, and subsection (a) of that section provides that they shall be paid by:
(1) the county that initiates emergency detention
procedures under Subchapter A or B, Chapter 573 [for temporary
detention of a person believed to be mentally ill, where there is a
substantial risk of serious harm to the person or others]; or
(2) ifno emergency detention procedures are initiated, the
county that accepts an application for court-ordered mental health
services, issues an order for protective custody, or issues an order for
temporary mental health services.
Id. 5 571.018(a)(l), (2). The county responsible for the mental health services proceeding costs
under subsection (a) is responsible for paying the costs of all subsequent hearings or proceedings for
that person until he or she is discharged. Id. 5 571 .018(b). A proposed patient’s county of residence,
however, must pay certain court-approved expenses for an indigent patient if ordered by the court
under section 574.010. Id. $5 571.018(f) (Vernon Supp. 2000), 574.010 (Vernon 1992). A county
is entitled to reimbursement for costs actually paid by the county from the patient or “a person or
estate liable for the patient’s support in a department[al] mental health facility.” Id. 5 571.018(d)
(Vernon Supp. 2000).
With this background, we turn to your first question regarding the county responsible for
mental health services proceeding costs under section 571 ,018. The county that initiates emergency
detention procedures or, if no such procedures are initiated, the county that accepts an application
for court-ordered mental health services, issues an order for protective custody, or issues an order
2Brieffrom HonorableHomero Ram&z, Webb County Attorney, to Honorable John Comyn, Texas Attorney
General (Apr. 28,200O) (on file with Opinion Committee) [hereinafter Webb Brief].
The Honorable Homer0 Ramirez - Page 3 (X-0287)
for temporary mental health services is generally responsible for paying for the costs of a mental
healthservicesproceeding. See-id. 4 571.018(a),(b). Responsibilityundersection 571.018(a)isnot
based on residency. See id. The responsible county may be, but is not necessarily, the proposed
patient’s county ofresidence. See id.; id. 5 574.001(b) (application for court-ordered mental health
services must be filed in the county in which person resides, is found, or is receiving mental health
services by court order or pursuant to apprehension by police officer). If ordered by a court,
however, the county of the proposed patient’s residence is responsible for court-approved expenses
incurred for psychiatric evaluation and expert testimony for an indigent person. See id.
$5 571.018(f) (Vernon Supp. 2000), 574.010 (Vernon 1992).
Which county is the responsible county will vary in each case and will depend upon how the
case was initiated. Webb County would generally be the responsibIe county for mental health
services proceeding costs if it initiated the emergency detention proceedings, accepted a court-
ordered mental health services application, or issued an order for protective custody or temporary
mental health services. Because responsibility for the mental health services proceedings will vary
with the facts of each case, we cannot advise you, as a matter of law, whether Bexar County or Webb
County is responsible for the costs of mental health services proceedings.or hearings conducted in
Bexar County.
Relying on Attorney General Opinion JC-0088 (1999), you appear to suggest that a county
is responsible under section 571.018 only for “derivative proceedings” to the commitment
proceedings initiated by or conducted in that county. Webb Brief, supra note 2, at 2-5. We disagree.
Section 571.018 does not allocate responsibility based on the “derivative” or “original”
nature of the mental health services hearings or proceedings. Again, under section 571 ,018, the
county that initiates emergency detention procedures or, if no such procedures are initiated, the
county that accepts an application for court-ordered mental health services, issues an order for
protective custody, or issues an order for temporary mental health services is responsible for mental
health services proceeding costs; and that county is also responsible for the costs of all subsequent
mental health services proceedings under subtitle C of title 7 of the Health and Safety Code until the
person who is the subject of these proceedings is discharged. TEX. HEALTH & SAFETY CODE ANN.
5 571.018(a), (b) (Vernon Supp. 2000). Subtitle C oftitle 7 comprises chapters 571 through 577 of
the Health and Safety Code. If no emergency detention proceedings are initiated, the county that
conducts the hearing on the application for court-ordered mental health services for a person, see id.
$5 574.031, ,034, ,035, which we assume is ihe “commitment hearing” to which you refer, is
responsible for the costs of all subsequent proceedings under these chapters for that person. That
county would be responsible, for instance, for paying the costs of a hearing on a petition to
administer psychoactive medication under section 574.106 of the Health and Safety Code.
Attorney General Opinion JC-0088 is inapposite. Attorney General Opinion JC-0088 deals
with whether a county clerk under the clerk’s statutory authority to assess a separate filing
fee only for each “original action” is permitted to charge a separate fee for a section 574.106
medication hearing. See Tex. Att’y Gen. Op. No. JC-0088 (1999) at 2; see also Tex. Att’y Gen. Op.
No. DM-174 (1992) at 2 (“The fee collected by a county clerk for filing of an original action under
The Honorable Homer0 Ramirez - Page 4 (Jc-0287)
section 118.052 [of the Local Government Code] is intended to cover ‘all clerical duties in
connection with an original action tiled in a county civil court.“‘). The opinion concludes that a
section 574.106 medication hearing is not a derivative or ancillary proceeding to the initial
involuntary mental health commitment action, but a separate original action for which the county
clerk is permitted to charge an additional fee. See Tex. Att’y Gen. Op. No. JC-0088 (1999).
Attorney General Opinion K-0088 does not speak to the mental health proceedings costs for which
a county is responsible under section 571.018.
You also appear to suggest that the nonresponsible county conducting the mental health
services proceedings is not authorized to collect the costs of those proceedings from the responsible
county in the absence of an agreement by the responsible county to pay those costs. We disagree.
First, the responsible county by definition is statutorily obligated to pay the mental health services
proceeding costs. See TEX. HEALTH & SAFETYCODE ANN. 5 571 .018(a), (b) (Vernon Supp. 2000).
Second, a nonresponsible county conducting the mental health services proceedings is clearly
authorized to bill the responsible county for those costs under section 571.018(b):
The county responsible for the costs of a hearing or
proceeding under Subsection (a) shall pay the costs of all subsequent
hearings or proceedings for that person under this subtitle until the
person is discharged from mental health services. The costs shall be
billed by the clerk of the court conducting the hearings.
Id. 5 571.018(b) (emphasis added); see also Tex. Att’y Gen. Op. No. JC-0222 (2000) at 3
(concluding that “section 571 ,018 now expressly requires the clerk ofthe court to bill the responsible
county for the costs of the mental health services proceedings.“).
You next ask about the mental health services proceeding costs which the responsible county
is required to pay under section 571.018. As discussed above, the responsible county is required to
pay the costs of all mental health services proceedings relating to a proposed patient that are
provided for under chapters 571 through 577 of the Health and Safety Code until that person is
discharged. See TEX. HEALTH & SAFETYCODE ANN. § 571 .018(a), (b) (Vernon Supp. 2000). The
costs of mental health services proceedings payable by the responsible county include, but are not
limited to, those enumerated in section 571.018(c), which provides that:
Costs under this section include:
(1) attorney’s fees;
(2) physician examination fees;
(3) compensation for court-appointed personnel listed
under Section 571.017 [court shall order payment of reasonable
compensation to attorneys, physicians, language interpreters, sign
interpreters, and masters];
The Honorable Homer0 Ramirez - Page 5 (K-0287)
(4) expenses of transportation to a mental health facility
or to a federal agency not to exceed $50 if transporting within the
same county and not to exceed the reasonable cost of transportation
if transporting between counties;
(5) costs and salary supplements authorized under Section
574.031(i) and (j) [for a judge who holds hearings at locations other
than the county courthouse]; and
(6) prosecutor’s fees authorized under Section 574.031(k).
Id. 3 571.018(c) (emphasis added). The Code Construction Act provides that “‘includes’ and
‘including’ are terms of enlargement and not of limitation or exclusive enumeration, and use of the
terms does not create a presumption that components not expressed are excluded.” TEX. GOV’T
CODE ANN. 5 3 11.005(13) (Vernon 1998); see also id. (these definitions apply unless statute or
context requires a different definition). Accordingly, the enumerated costs in section 571.018 are
not exclusive.
Additionally, a patient’s county of residence, rather than the responsible county, must pay
court-approved expenses incurred for psychiatric evaluation and expert testimony for an indigent
patient if ordered by the court under section 574.010. TEX. HEALTH & SAFETY CODE ANN.
5 571.018(f) (Vernon Supp. 2000). Section 574.010 authorizes the court to order an independent
psychiatric evaluation of a proposed patient by a psychiatrist chosen by the patient; and to order the
patient’s county of residence to pay for cow-approved expenses for expert testimony if the court
determines that the proposed patient is indigent. Id. 5 574.010 (Vernon 1992).
The Honorable Homer0 Ramirez - Page 6 (X-0287)
SUMMARY
The county that initiates emergency detention procedures or,
if no such procedures are initiated, the county that accepts an
application for court-ordered mental health services, issues an order
for protective custody, or issues an order for temporary mental health
services is generally responsible for paying mental health services
proceeding costs under section 571.018 of the Health and Safety
Code. A nonresponsible county conducting mental health services
proceedings is authorized to collect the costs of those proceedings
from the responsible county regardless of whether the responsible
county has agreed to pay those costs. A county’s responsibility for
paying mental health services proceeding costs is not limited to
actions that are “derivative” of the initial commitment proceeding.
The costs of mental health services proceedings payable by the
responsible county include, but are not limited to, those enumerated
in section 571.018(c) ofthe Health and Safety Code.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVJN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129440/
|
OPFKE OF THE ArrORNLY GENERAL. STATE OF TrxAr
JOHN CORNYN
June 29,200O
Ms. Pamela B. Tackett Opinion No. JC-0241
Executive Director
State Board for Educator Certification Re: Whether the State Board for Educator
1001 Trinity Street Certification’s Internet website may serve as a
Austin. Texas 78701-2603 portal for distance-learning courses developed and
offered by other entities, and related questions
(RQ-0179-JC)
Dear Ms. Tackett:
You inquire about the authority of the State Board for Educator Certification (the “SBEC”)
to use its Internet website as a portal for distance-learning courses developed and offered by other
entities. You ask several questions:
1. Through the agency’s Internet website, may SBEC serve as
a portal for distance-learning courses developed and offered
by other entities as an alternative to site-based programs for
certification candidates satisfying educator preparation
requirements; renewable certificate holders needing
continuing education credit; and school personnel seeking
professional or career development training?
2. If the answer to Question No. 1 is “Yes,” may a third-party,
information technology (IT) vendor contract with SBEC to
facilitate the delivery of distance-learning courses through
SBEC’s website? If so, would the services of such a third-
party vendor need to be procured through the competitive
bidding process, even if one of the potential contractors was
willing not to charge SBEC?
3. If the answers to Questions No. 1 and 2 are “Yes,” may a
Board member of SBEC lawfully serve as such and also be
employed by a third-party IT vendor that contracts with
SBEC to facilitate the delivery of other entities’ distance-
learning courses through SBEC’s website?
Ms. PamelaB. Tackett - Page 2 UC-0241)
Letter from Ms. Pamela Tackett, Executive Director, SBEC, to Honorable John Comyn, Texas
Attorney General, at 1-2 (Jan. 27,200O) (on file with Opinion Committee) [hereinafter “Request
Letter”]. In connection with the first question, you ask us to consider “any liability issues related
to SBEC’s hosting of distance-learning opportunities for educators,” including issues under the
Americans with Disabilities Act, the Texas Commission on Human Rights Act, and the Family
Educational Rights and Privacy Act. Id. at 4.
We conclude that the SBEC’s authority does not encompass authority to use its Internet
website as a portal for distance-learning courses developed and offered by other entities. Given this
conclusion, we do not answer your remaining questions.
You explain the proposed portal arrangement:
SBEC has been asked to serve as a portal for distance-learning
courses offered by educator preparation programs and continuing
professional education providers. Related to educator certification,
these courses would be delivered over the Internet. The persons
taking the courses would be educator preparation students seeking
certification and certificate holders satisfying certification renewal
requirements. Entities delivering the courses would include the
following:
. SBEC-accredited educator preparation programs;
. SBEC-approved providers offering continuing education
courses to holders of renewable certificates; and
. providers of professional development training, such as
school districts that require their staff to participate in
professional development programs.
The educator preparation courses would meet Board
standards, but SBEC would not participate in developing the courses.
The prospective educators would apply for admission to an educator
preparation program and register for courses by accessing SBEC’s
website, but staff at the preparation program would process the
admission application and course registration materials. The
preparation program would administer the course[]work. The student
would enter the virtual classroom at SBEC’s website and travel down
a cybernated corridor to a server operated by the preparation program
or by a third-party contractor on behalf of the program and SBEC.
Ms. Pamela B. Tackett - Page 3 (X-0241)
The continuing education courses might be developed by
SBEC in collaboration with other approved entities, but they could
also be offered independently of SBEC as a provider. Educators
wanting to obtain continuing education credits would register for
courses through SBEC’s website, but the registration would be
processed and the course delivered by the provider. The same would
be true for career development courses not taken for credit.
All course providers would process any fees charged for the
offerings.
Request Letter, supra, at 3.
We examine the SBEC’s authority to permit its website to be used as such a portal in light
ofthe SBEC’s statutory powers. A state agency created by the legislature has only those powers that
are explicitly or implicitly delegated to it. See City of Sherman v. Public Util. Comm ‘n, 643 S.W.2d
681, 686 (Tex. 1983); accord Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961);
Texas Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145,148 (Tex. App.-Austin 1998, no pet.);
Tex. Att’y Gen. Op. Nos. JC-0064 (1999) at 4; DM-101 (1992) at 6.
Chapter 21, subchapter B of the Education Code establishes the SBEC to “regulate and
oversee all aspects of the certification [and] continuing education . of public school educators.”
TEX. EDUC. CODE ANN. 5 21.031(a) (Vernon 1996). The SBEC has explicit authority to:
(1) provide for the regulation of educators and the general
administration of this subchapter. . ;
(2) specify the classes of educator certificates to be issued . . . ;
(3) specify the period for which each class of educator certificate is
valid,
(4) specify the requirements for the issuance and renewal of an
educator certificate:
(5) provide for the issuance of an educator certificate to a person who
holds a similar certificate issued by another state or foreign country
....
(6) provide for special or restricted certification of educators . ;
Ms. PamelaB. Tackett - Page 4 (X-0241)
(9) provide for continuing education requirements; and
(10) provide for certification ofpersons performing appraisals under
Subchapter H.
Id. 5 21.041(b) (footnote omitted).
No person may be employed as a teacher unless the person has obtained an educator
certificate. See id. $ 2 1.003(a). With respect to educator certificates, the SBEC must establish the
training requirements and minimum academic requirements for a person who wishes to obtain a
certificate. See id. $ 21.044; see also id. $5 21.046, .0481 (Vernon 1996 & Supp. 2000)
(superintendent or principal certification; master reading teacher certification); 19 TEX. ADMIN.CODE
$5 230.191 - ,199 (1999) (SBEC Program Requirements for Preparation of School Personnel for
Initial Certificates and Endorsements). The SBEC must establish standards for the approval and
continuing accountabilityofeducator-preparationprograms. %~TEX.EDUC.CODEANN. 5 21.045(a)
(Vernon Supp. 2000); 19 TEX. ADMIN. CODE $5 229.1 - .5 (1999) (SBEC Accountability System for
Educator Preparation); id. $5 230.151 - ,161 (SBEC Professional Educator Preparation and
Certification). The SBEC also must develop the process by which “centers for professional
development” may be established through institutions of higher education “for the purpose of
integrating technology and innovative teaching practices in the preservice and staff development
training ofpublic school teachers and administrators.” TEX. EDUC. CODEANN. 9 21.047(a) (Vernon
1996); see 19 TEX. ADMIN. CODE 5 230.121 (1999) (SBEC Centers for Professional Development
and Technology). The SBEC must adopt rules “providing for educator certification programs as an
alternative to traditional educator preparation programs.” TEX. EDUC. CODE ANN. 9 2 1.049 (Vernon
1996); see also 19 TEX. ADMIN. CODE 4 230.231 (1999) (SBEC Alternative Certification of
Teachers).
With respect to continuing-education and career-development programs, the SBEC must
adopt rules to establish a process “for identifying continuing education courses and programs that
fulfill educators’ continuing education requirements.” TEX. EDUC. CODEANN. $21.054(a) (Vernon
1996); see also 19 TEX. ADMIN. CODE $4 230.199, ,610 - ,611 (1999) (SBEC Endorsements and
Continuing Education). Certified educators must complete a total of 150 “clock hours” of
continuing professional education every five years to renew a certificate. See SBEC, FAQs:
IssuanceoftheStandard Cert~ificateandRenewalRequirements, Including ContinuingProfessional
Education (visited Apr. 24, 2000) .
Superintendents, principals, and assistant principals must complete 200 clock hours of continuing
professional education every five years. See id. And the SBEC by rule must provide for “a certified
educator to qualify for additional certification to teach at a grade level or in a subject area not
covered by the educator’s certificate.” TEX. EDUC. CODE ANN. 5 21.056 (Vernon Supp. 2000); see
also 19 TEX. ADMIN. CODE 5 230.199 (1999) (SBEC Endorsements).
In sum, the SBEC’s rule-making authority extends to establishing standards for various
certification and continuing-education programs and to establishing a system for evaluating
Ms. Pamela B. Tackett - Page 5 (X-0241)
certification and continuing-education programs. Additionally, the SBEC has authority to identify
“continuing education courses and programs that fulfill educators’ continuing education
requirements.” TEX. EDUC. CODE ANN. $J21.054(a) (Vernon 1996).
In our opinion, the SBEC lacks authority to use its Internet website as a portal that may be
used to directly access certification, continuing-education, or career-development courses offered
by other entities. The authority to establish standards for and evaluate certification and continuing-
education courses and to identify approved courses does not encompass authority to allow the SBEC
to use its website to directly facilitate the sale ofvarious courses to consumers. Nor can the SBEC’s
statutory authority to “regulate” and “oversee” the certification and continuing education of public
school educators be stretched to suggest that the legislature contemplated that the SBEC would use
its identity to provide direct access to approved courses. See id. 5 21.03 l(a). The authority to
regulate is the authority to control or direct by rule, see XIII OXFORD ENGLISH DICTIONARY524
(1989); the authority to oversee is the authority “to watch over,” “to inspect,” or “to supervise.” X
OXFORD ENGLISHDICTIONARY1115-16 (1989).
Your remaining questions, regarding the SBEC’s potential liability for illegal conduct on the
part of those course providers to which the SBEC provides access on its website, are premised upon
a conclusion that the SBEC may, in fact, use its website as an Internet portal. See Request Letter,
supra, at 4. You also suggest that the SBEC’s proposed use of its website might be viewed by
consumers as endorsing those courses to which the SBEC provides direct access, and you ask
whether such a use might conflict with the SBEC’s statutory authority. Id. Given our conclusion,
we do not answer these questions.
Nevertheless, the issues you raise underline important policy reasons for concluding as we
have. Where, as here, a state agency proposes to participate in Internet commerce by allowing third-
party course providers to use a state website as a method of direct access between consumers and
course providers, we believe the agency should have legislative approval. The legislature is the
appropriate public body to determine whether and the extent to which a state agency created by the
legislature may use its government website to participate in Internet commerce or to facilitate others’
participation in such commerce.
Ms. PamelaB. Tackett - Page 6 (JC-0241)
SUMMARY
The State Board for Educator Certification has no authority to
use its Internet website as a portal for distance-learning courses that
other entities have developed and offered.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143581/
|
:_
:“--f329
OFFICE OF THE A’ITORNEY GENERAL OF TEXAS
AUSTIN
Dear Sir:
en employer of
rlJMnt station her
a against thr State
tlryraa*l+db'illtbr
of amplo#jwlt,an4
what proaedure ehoald
low to Baoura aomprnsa-
r the aooidrnt?
er 27, l?@T, a8 to
m~plo~sr of Subatatlon
an lnjurr in the
t a hoes bsiag do-
with tha result that a strean o?
eye eubmqusatlf
ed, and after oamful
following eonalueioa:
830
Bonorablo A. B. Conner, paa 2
In the abrrnoo.oi moh a provieion, no
ello~anaa aan ba made by the State.
Youre ~8x7 truly
ATTORBSY QElWML OF TEXAS
BY
Amiatant
APPROVEDNOV 15, 1940
.
ATTORNEY GENFRATU OF TEX,.S
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143601/
|
THEA~JTORNEY GENERAL
OFTEXAS
Honorable J. J. Brown, Director
Vocational Rehabilitation Division and
Crippled Children's Work
State Board'for Vocational Education
Austin, Texas
Dear Mr. Brown: Opinion No. O-2771
Re: Authority ~of the Vocational
Rehabllltatlon Division of the
State Department of Rducatlon
to purchase braces directly
without a previous contract by
the Board of Control.
We have your request of September 20, 1940, as fol-
lows:
"We request your opinion asto whether
or not it is legal for the Vocational Re-
habilitation Division of the State Department
of Education to purchase braces directly from
the companies manufacturing the appliances
rather than under contracts awarded by the
State Board of Control to the.company present-
ing the lowest bid under the competitive bid-
ding plan."
It IS the opinion of this department that your ques-
tion should be answered In the affirmative.
The prlnclples announced In our opinion No. O-2612
control the answer to your question. In that oplnlon we dis-
cussed the relative rights of the Board of Control and the
State Board of Vocational IEducatIonwith respect to purchases
and more especially with respect to the power of the Board of
Control to approve claims for payment, saying:
"If the items of purchase In the present case
were such as that the pu.rchaseshould have been
made upon competltfve bids, then the Board of
Control would have no authorfty to approve the
audit for payment. If, on'~theother hand, the
items were of such nature as that the Board could
have purchased them without competitive bids,
Honorable J, J. Brown, page 2 o-2771
then~the Board in Its discretion would have
the authority to approve the claim the ef-
fect of which approval would In our opinion
be a substantial compliance with the statutes
of purchase and would en'cftlethe claim to be
passed for a warrant of payment."
We further said,
"In this connection we are of.the
opinion that if these items of equlpment
or 'supplleswere of such~nature as that
competitive bids would be Impossible the
law would have no application to such a
case. It does not require an Impossible
thing."
From what you say in your letter of request, --land
your statement comports with common understanding; --'a br~ace
for a crippled child.is not such a thing as is contemplate&
by our statutes calling for competitive bidsin 'purchasingsup-
plies for an institution. ~A brace is not a commodity carrid
in stocks from which a purchase may be qulcklg made, like a
hat or a pair of shoes, for the simple reason that a brace for
a crippled child is a specialty and must be precisely fitted
to the particular need and condition of the injured'or abnor-
inallimb. It Is of a kind with the fitting of glasses or the
setting of a broken limb inplaster. The purchase of such'
brace is not in its nature a commercial purchase from a store
or dealer; It is in the nature of a servlce'ln ~connectlon
with the treatment of the broken, deformed or maladjusted~ I'
limb. -It is as much a'service as is the surgeon's operation;
indeed, it Is a species of mechanical operation. Every such
case presents an individual situation and must be'treated~ac-
cordlngly; so that, In our opinion, the purchase of a brace~"~
does not fall within the scope of the statutes requiring com-
petitive bids by the Board of Control.
If we are mistaken in this, we are further of the
opinion that the statutes themselves, when liberally or even
reasonably construed, compel the same conclusion,
House Bill No. 502, passed at the Regular Session of
the 44th Leglslature (General Laws, 44th Leg.. p0 328) pro-
vides:
"At the discretion of the State Depart-
ment of Rdtacation,transportation, appliances,
braces and material necessary in the proper
handling of crippled children may be In part OP
entirely provided..
Honorable J. JT.Brown, page 3 o-2771
"The Rehabilitation Division of the
Sta,teDepartment of Education is directed
to provrde in Rules and Regulations, the
necessary detafls for the conduct of this
work, Fnaccordance with the purposes of
this Act; which shall permit as far as
possible, the free choice of patients fn
their selection of physicians and hospftals,
and shall arrange with hospitals, brace de-
partmentsand-other services providing for
cr-fppledchildren's work, compensation for
such services9 provided that such"fees or
charges shall not exceed the average mini-
mum charges for the same services rendered
to average ward patients in the hospitals
approved for purpose of this Act -- such
Rules and Regulations shall be approved by
the State Department of Education."
You are respectfully advised as herein above answered.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Ocle Speer
0ci.eSpeer
Assfstant
OS :LW:wc
APPROVED SEP 30, 1940
s/Gerald C, Mann
ATTORNEY GENERAL OF TEEAS
Approved Opinion Committee By s/BwB Chafrman
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143618/
|
HEA~~ORNEY GENERAL
OFTEXAS
Honorable Foster Davis
County Attorney
Foard County
Crowell, Texas
Dear Sir: Opinion Number Q-2755
Re: May a county invest its permanent
school fund in time warrants?
This acknowiedges receipt of you* opinion request of
recent date, and we quote from your letter as follows:
“I would like to have an opinion on the fol-
lowing matter:
“Foara County’s Permanent School Fund now
has on ‘handapproximately $4,000000 to invest
and the Commissioners’ Court of Foard County
would like to invest the same in time warrants.
They would appreciate an opinion advising whether
or”not a county can Invest their permanent school
fund in time warrants.”
The Peimanent School ‘Fund is a trust fund for educa-
D The counties ar’emere .t’msteesfor the funds
t:Fonalpur:‘poses
and the’public schoo’lsape the beneficiarfes. The Commissioners 1
Court has the responsibility of investing and safeguarding this
fund. ~37Texas JurispMidence, ,pages 860-861, and cases crted
-therein.
The Permanent School Fund must be invested as direct-
ed by the Constitution and the Statutes of Texas,
7, Section 6, of the Constitution of Texas,
ArJ”;icle
provides9 in part -‘-
‘I** * * be fnvasted in bonds of the United
States, the State of Texas, or counties in said
State, OP in such o,thersecurities, ana under such
raestrictlonsas may be prescribed by ‘law;and the
coti,nties
shall be responsible for all inveatmentsO”
(Underscorfng ours)
Ar;tfc:e28~4~ of ,theRevised Civfl Statu’tes,provrdes
for the investment of said fun.das follows:
Honorable Foster Davis, page #2 O-2755
' * * * shall be invested in bonds of the
United States, the State of Texas, the bonds of
the counties of the State, and the Independent or
common school districts, road precinct, drainage,
irrigation, navigation and levee.districts In this
State, and the bonds of incorporated cltles and
towns, and held by such county alone as a trust for
the benefit of the schools therein * * *rr. (Under-
scoring ours)
We note that the above quoted section of the Constitu-
tion and Statutes of this State specifically name the type of
bonds in which the Commissioners ' Court may invest the County
%?%?nent School Fund, and time warrants are not included.
Therefore, it is the opinion of this department'.thbt
a c'ountycannot invest its Permanent School Fund in time warrants.
Said fund mst be invested in the securities specifically named'
in Article 7, Section 6, of the Constitution of Texas, and ARticle
2824, Revised Civil Statutes of Texas.
Trusting that this answers your question, we are
Yours very truly
ATTORNEY GENERAL OF TFXAS
By s/ Claud 0. Boothman
Assistant
COB-S-WC
APPROVED OCT 17, 1940
s/Gerald'C. MAnn
ATTORNEY GENERAL OF TEXAS
Approved ,OpinionCommittee By s/%WR Chairman
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4162737/
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4512
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GERALD WAYNE TIMMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:15-cr-00169-BO-1)
Submitted: April 20, 2017 Decided: April 24, 2017
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Keating Wiles, CHESHIRE PARKER SCHNEIDER & BRYAN, PLLC, Raleigh,
North Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P.
May-Parker, First Assistant United States Attorney, Donald R. Pender, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald Wayne Timms appeals his conviction for possession of contraband in
prison, in violation of 18 U.S.C. § 1791 (2012). Timms contends that his conviction was
improper, because as a civil detainee under the Adam Walsh Act, 18 U.S.C. § 4248
(2012), he was not an “inmate” under the meaning of § 1791. Timms argues that
“inmates” are held in the custody of the Bureau of Prisons, while Adam Walsh detainees
are in the custody of the Attorney General. We affirm.
Section 1791 prohibits an “inmate of a prison” from possessing a prohibited
object. 18 U.S.C. § 1791(a)(2). While “inmate” is not specifically defined, “prison” is
defined as “a Federal correctional, detention, or penal facility or any prison, institution, or
facility in which persons are held in custody by direction of or pursuant to a contract or
agreement with the Attorney General.” 18 U.S.C. § 1791(d)(4). Adam Walsh Act
detainees are committed to the custody of the Attorney General. 18 U.S.C. § 4248(d).
Thus, we find that Timms is an inmate under the meaning of § 1791. See 28 C.F.R.
§ 500.1(c) (including “detainees” and other “persons held” in the definition of “inmate”
in Bureau of Prisons regulation); see also United States v. Savage, 737 F.3d 304, 309 (4th
Cir. 2013) (noting that, “for purposes of § 4248, there is no substantive difference
between vesting legal custody in the Attorney General and legal custody in the [Bureau
of Prisons]”).
2
Accordingly, we affirm Timms’ conviction. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
3
|
01-03-2023
|
04-24-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129312/
|
OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
April 13,200l
The Honorable Bruce Isaacks Opinion No. JC-0369
Denton County Criminal District Attorney
127 North Woodrow Lane Re: Whether a commissioners court is authorized
Denton, Texas 76205 to establish certain policies restricting employees
associations for whose benefit payroll deductions
for membership dues may be made and related
question (RQ-03 14-JC)
Dear Mr. Isaacks:
Pursuant to section 155 .OOl(b) of the Local Government Code, a county commissioners
court, on the request of a county employee, may authorize payroll deductions from the employee’s
wages or salary to pay membership dues in a labor union or a bona fide employees association. You
ask whether a commissioners court is authorized to establish policies restricting employees
associations, for whose benefit such payroll deductions may be made, to those associations having
a specified minimum membership or of specified duration.’ We conclude in the affirmative. You
also ask this office to define a “bona fide employees association.” Request Letter, supra note 1, at
1. We conclude that a “bona fide employees association,” as used in section 155.001(b) of the Local
Government Code, means an organization of employees, formed in good faith to promote a common
purpose.
It is well-established that a county commissioners court can exercise only such powers as the
constitution or the statutes specifically confer. See TEX. CONST. art. V, 0 18; Canales v. Laughlin,
214 S.W.2d 45 1,453 (Tex. 1948). However, it is equally well-established that “[wlhere a right is
conferred or obligation imposed on said court, it has implied authority to exercise a broad discretion
to accomplish the purposes intended.” Anderson v. Wood, 152 S.W.2d 1084,1085 (Tex. 1941).
Neither section 155 .OOl of the Local Government Code or any other provision that we have
found expressly authorizes a commissioners court to establish policies regarding employees
associations eligible for the payroll deduction. Section 155.001 (b)( 1) authorizing the payroll
deduction simply provides that:
‘Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable JohnCornyn,
Attorney General of Texas (Nov. 16,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Bruce Isaacks - Page 2
In a county with a population of 20,000 or more,2 the
commissioners court, on the request of a county employee, may
authorize a payroll deduction to be made from the employee’s wages
or salary for:
(1) payment of membership dues in a labor union or a
bona fide employees association;
TEX.Lot. GOV’TCODEANN. 8 155.001(b)(l) (V emon Supp. 2001) (emphasis added); see also Tex.
Att’y Gen. Op. No. M-334 (1969) ( commissioners court may not authorize payroll deductions for
union dues without express authority).
But, as you note, the commissioners court’s authority to establish a payroll deduction
program under section 155.001 is discretionary. Under the permissive language of section
155 .OO1(b), a commissioners court may decline to establish a payroll deduction program. See TEX.
Lot. GOV’T CODE ANN. § 155.001(b)(l) (V emon Supp. 2001) (commissioners court “may”
authorize deduction); TEX.GOV’T CODE ANN. 8 3 11 .016( 1) (Vernon 1998) (Code Construction Act)
(unless context requires different construction, “‘[m-Jay’ creates discretionary authority or grants
permission or a power”). In fact, prior to its codification in the Local Government Code, the source
law for section 155.001 (b) specifically provided that “[p]articipation in the program authorized by
this Act is voluntary on the part of any county employee and the county.” See Act of May 28,1969,
61st Leg., R.S., ch. 419, 1969 Tex. Gen. Laws 1380, repealed by Act of May 1, 1987,7Oth Leg.,
R.S., ch. 149,1987 Tex. Gen. Laws 707,937,1307 (formerly TEX.&V. CIV. STATANN. art. 2372h-
4 5 (d)). This provision was omitted during the statute’s codification as unnecessary given that it
was clear from the remaining statutory language that participation was voluntary in that deductions
can only be made “on the request” of the employee, and the commissioners court “may,” but is not
required to, authorize the deduction. See TEX. LOC. GOV’T CODE ANN. @ 155 .OOl revisor’s note
(Vernon 1999). In short, a county commissioners court is authorized, but not required to establish
a payroll deduction program.
We believe the commissioners court’s discretion to establish or, more accurately, not to
establish, a payroll deduction program encompasses the authority to establish such a program subject ’
to standards reasonably necessary to implement the program in the county. See Anderson, 152
S.W.2d at 1085 (where right is conferred, commissioners court has implied authority to exercise
broad discretion to accomplish intended purpose); see also City of Charlotte v. Local 660, Int ‘IAss ‘n
of Firefighters, 426 U.S. 283,286 (1976) (because right to dues checkoff is not a right entitled to
special treatment under Equal Protection Clause, city’s refusal to withhold union dues must only
meet reasonableness standard to pass constitutional scrutiny); Toledo Area AFL-CIO Council v.
2Senate Bill 134, which is pending before the legislature, would allow the commissioners court in any county
to authorize the payroll deductions. See Tex. S.B. 134,77th Leg., R.S. (2001).
The Honorable Bruce Isaacks - Page 3
Pizza, 154 F.3d 307, 322-23 (6th Cir. 1998) (because union and union officials have no
constitutional right to dues checkoff, equal protection challenge to Ohio’s wage checkoff ban must
be evaluated under rational basis standard, i.e., “whether it is rationally related to any conceivable
legitimate state interest”). A county policy requiring that an employees association have a minimum
membership or that it be in existence for a minimum period of time before it is eligible for payroll
deduction, we believe, meets this test. It is facially neutral. See City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432,440-41(1985) (when law apportions benefits or burdens on basis of classification
among citizens, it will be subject to strict scrutiny if classification involves suspect class or affects
fundamental rights). And, although you do not tell us, it is presumably designed to limit the
deductions to recognized or established entities representing the interests of more than a few county
employees or to avoid the administrative and financial burden of processing deductions for every
organization requested by employees, or both.3 See also City of Charlotte, 426 U.S. at 288 (city’s
refusal to provide dues checkoff for labor union while allowing such checkoff for insurance and
savings programs and certain charitable organizations, a “reasonable method for providing the
benefit of withholding to employees in their status as employees, while limiting the number of
instances of withholding and the financial and administrative burdens attendant thereon”).
While we conclude that the eligible employees association restrictions you ask about are
facially permissible, we caution that such restrictions may not be applied as to unconstitutionally
discriminate against particular organizations or employees or to infringe on the exercise of
constitutionally protected rights. See City of Cleburne, 473 U.S. at 440-4 1. Furthermore, we cannot
and do not express an opinion with respect to restrictions other than these you specifically ask about.
You next ask what constitutes a “bona fide employees association” and suggest that it is
synonymous with “labor organization.” See Request Letter, supra note 1, at 2. We disagree. We
construe the phrase “bona fide employees association” as used in section 155.001 (b) of the Local
Government Code to mean an organization of employees, formed in good faith to promote a
common purpose. We believe the meaning of this phrase to be broader than that of a “labor union”
or “labor organization.”
Neither section 155.001 nor any other statutory provision that we have found defines the
terms “bona fide employees association.” See TEX. Lot. GOV’T CODE ANN. 8 155.001 (Vernon
Supp. 2001); see also id. 9 141.008 (Vernon 1999) (authorizing municipalities with population in
excess of 10,000 to deduct from employee payroll membership dues for a “bona fide employees[]
association”); id. 9 174.05 l(c) (authorizing election to establish collective bargaining for fire
3Butsee Renken v. Compton City Sch. Dist., 207 Cal. App. 2d 106,114, 24 Cal. Rptr. 347,35 1(1962) (holding
invalid regulation limiting payroll deduction only if at least 50% of employees eligible for membership in association
applying for deduction so request because restriction not founded on “reasonable and substantial basis for classification
with respect to” statutes authorizing payroll deductions for dues to bona fide employees association); Sacramento
County Employees Org. v. County of Sacramento, 28 Cal. App. 3d 424,433, 104 Cal. Rptr. 619,625 (1972) (holding
that statutory provision authorizing public agency to deal with “recognized” employee organization sufficient authority
for county to restrict payroll deduction of dues to recognized employee organizations and noting that this statutory basis
for classification did not exist when Renken was decided).
The Honorable Bruce Isaacks - Page 4
fighters, police officers, or both, if majority of affected employees “favor representation by an
employees association”). Nor have we found a judicial construction of these terms. Words and
phrases that have acquired a technical or particular meaning, whether by legislative definition
or otherwise, are to be construed accordingly; otherwise they are to be read in context and construed
according to the rules of grammar and common usage. See TEX. GOV'T CODE ANN. 9 311 .Oll
(Vernon 1998) (Code Construction Act). The ordinary meaning of the term “association” is very
broad: “A body of persons who have combined to execute a common purpose or advance a comrnon
cause; the whole organization which they form to effect their purpose; a society.” I OXFORD
ENGLISHDICTIONARY~~8 (2ded.1989); accord BLACK'SLAWDIC'~IONARY 119(7thed.l999)(“[a]
gathering of people for a common purpose; the persons so joined.“). “Bona fide,” a Latin phrase,
simply means “in good faith; without fraud or deceit” or “[slincere; genuine.” BLACK'S LAW
DICTIONARY 168 (7th ed. 1999).
By definition and as used in section 155.001, we believe the phrase “ bona fide employees
association” may encompass, but is not synonymous with, the terms “labor union” or “labor
organization.” See TEX.LOC. GOV'T CODE ANN. 5 15 1.OOl(b)( 1) (Vernon Supp. 2001); see also id.
85 141.008 (Vernon 1999) (authorizing payroll deductions for only “bona fide employees[]
association”); 174.05 1(c) (authorizing election to establish collective bargaining for fire fighters,
police officers, or both, if majority of affected employees “favor representation by an employees
association”). The legislature has defined both “labor union” and “labor organization.” A “labor
union,” is a “an incorporated or unincorporated association, group, union, . . . of working persons
organized and existing to protect those persons and to improve their working conditions, wages, or
employment relationships, but does not include an organization not commonly regarded as a labor
union.” TEX.LAB. CODEANN. $8 101.051, .101(3) (V emon 1996). A “labor organization” is “any
organization in which employees participate and that exists in whole or in part to deal with one or
more employers concerning grievances, labor disputes, wages, hours of employment, or working
conditions.” TEX.GOV’TCODEANN.§~~~.OO~ (Vemon1994).4 Insection155.001(b)oftheLocal
Government Code, the legislature authorizes payroll deductions for dues to “a labor union or a bona
fide employees association.” Under established principles of statutory construction, we must
presume an “employees association” to mean something different than a “labor union” because
otherwise the former phrase would be superfluous. See Cameron v. Terre11 & Garrett, Inc., 618
S.W.2d 535, 540 (Tex. 1981) (“The legislature is never presumed to have done a useless act. . . .
[Elvery word of a statute must be presumed to have been used for a purpose. . . . Likewise, we
believe every word excluded from a statute must also be presumed to have been excluded for a
purpose.“). Similarly, we must presume “employees association” to mean something different than
“labor organization” because if the legislature had intended that meaning, it would have used these
4Texas public employees in general have no right to bargain collectively. See TEX.GOV’T CODEANN.9617.002
(Vernon 1994) (official of state or political subdivision of state may not enter into collective bargaining contract with
labor organization regarding wages, hours, or conditions of public employees’ employment). Such prohibition,
however, does not impair public employees’ right “to present grievances concerning their wages, hours of employment,
or conditions of work either individually or through a representative that does not claim the right to strike.” Id.
$ 617.005.
The Honorable Bruce Isaacks - Page 5
terms. See id. Thus, while a particular employees association may qualify as a labor organization
or a labor union, every employees association by definition is not a “labor union” or a “labor
organization.” Cf: NLRB v. Thompson Ramo Wooldridge, Inc., 305 F.2d 807,809-10,811 n.8 (7th
Cir. 1962) (concluding that because a function of an employees association was presentation of
individual grievances to employer organization, NLRB was justified in finding that association was
a “labor organization” as defined in the National Labor Relations Act).
The Honorable Bruce Isaacks - Page 6
SUMMARY
A commissioners court is authorized to establish a policy
restricting the employees associations for whose benefit payroll
deductions for membership dues may be made under section
155.001 (b) of the Texas Local Government Code to those employees
associations having a specified minimum membership or of specified
duration. The phrase “bona fide employees association,” as used in
section 155.001 (b), means an organization of employees, formed in
good faith to promote a common purpose and is broader than a “labor
union” or a “labor organization.”
You very truly
4 l
JOHN
CR-f-
CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
SUSAN D. GUSKY
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129330/
|
OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
March $2001
The Honorable Chad Cowan Opinion No. JC-035 1
Jones County Attorney
Third Floor Courthouse Re: Whether the City of Anson is a home-rule
P.O. Box 68 municipality (RQ-0295-JC)
Anson, Texas 79501
Dear Mr. Cowan:
‘you have requested our opinion as to whether the City of Anson is a home-rule municipality.
For the reasons set forth below, we conclude that it is. We begin with a summary of the information
you have provided us.’
On April 6,1920, voters in the City of Anson approved the adoption of a home-rule charter.
By letter dated the following day, the Mayor, George H. Brockett, filed with the Secretary of State:
a true and correct copy of the “New Charter of the City of Anson,
Jones County, Texas,” which was voted upon and by me declared
elected, in a regularly ordered election held in said City of Anson,
Texas, on the 6th, day of April, A.D. 1920, by the following vote, to-
wit: For the Adoption of the Charter-l 19 votes. Against the
Adoption of the Charter-50 votes.
Memorandum, note 1 (Exhibit A). On July 29,192 1, the Secretary of State certified the filing of the
charter, noting the following:
It will be presumed that a city council, or governing body of any city,
on ordering a charter election for a city of more than 5,000
inhabitants, first ascertained its population and its findings in this
respect [are] conclusive.
Id. (Exhibit B at 2).
‘See Memorandum from Honorable Chad Cowan, Jones County Attorney, to Honorable John Comyn, Attorney
General of Texas (Oct. 13,200O) (on file with Opinion Committee) [hereinafter Memorandum].
The Honorable Chad Cowan - Page 2 (JC-035 1)
Cities having a population of 5000 or fewer, under the terms of article XI, section 4 of the
Texas Constitution, may be chartered only by general law. See TEX. LOC. GOV’T CODEANN. chs.
6, 7 (Vernon 1999 & Supp. 2001). By contrast, article XI, section 5, adopted in 1912, permits a
municipality of more than 5000 persons to hold an election to adopt a charter. You indicate your
belief that the City of Anson did not have a population of 5000 in 1920, and has never, in fact, had
a population of more than 5000. The 1990 decennial census shows the population of Anson to be
2644. See 1 BUREAUOFTHECENSUS,U.S. DEP’T OFCOMMERCE,1990 CENSUSOFPOPULA~ON:
General Population Characteristics: Texas 4 (1992) (Population of City of Anson: 2644). Your
question is whether the city is at the present time a home-rule municipality under article XI, section
5, or a general-law municipality. A 1965 decision of the Texas Supreme Court provides the answer
to your question.
In State ex rel. Rose v. City ofLa Porte, 386 S.W.2d 782 (Tex. 1965), the state brought a quo
warrant0 action on behalf of three individuals challenging the home-rule charter of the City of La
Porte. The trial court held that the charter was void, apparently because it found that La Porte did
not have a population of more than 5000. Both the appellate court and the Texas Supreme Court
overturned that decision, finding that La Porte was a home-rule city. The supreme court opted to
“squarely meet” the “question of whether the governing body of a city is properly empowered to
determine whether or not, population wise, its city is eligible to adopt the powers and privileges
granted by Article XI, Section 5, of the Texas Constitution[,]” because “[a]n answer to this question
is important not only to La Porte, but to all cities in Texas which are similarly situated.” Id. at 784.
The Texas Supreme Court reasoned that, “in adopting the Home-Rule Amendment to the
Constitution, the voters had no intention of leaving the matter of population determination open
indefinitely and subject to question until finally settled by judgment in a quo warranto judicial
proceeding.” Id. “It would be wholly unrealistic,” the court found, “to hold that the electorate at the
time of the adoption of the amendment intended that the census rule should control the determination
of population.” Id. at 786. Thus, the court concluded that:
the matter of population determination is placed directly in the hands
of the City’s governing body, . . . and. . . when the governing body
once ascertained the fact that La Porte had a population of more than
5000 at the time of the adoption of its Home-Rule Charter, such
ascertainment is presumed to have been validly exercised in the
absence of allegations and of proof of fraud, bad faith or abuse of
discretion.
Id. at 785.
The letter from the Mayor of Anson to the Secretary of State indicated that the charter
election held on April 6, 1920, was a “regularly ordered election.” Memorandum, supra note 1
(Exhibit A). As the Secretary of State noted in certifying the municipal charter, it must be presumed
that, when a city’s governing body orders a charter election that is available only to a city of more
The Honorable Chad Cowan - Page 3 (JC-0351)
than 5000 inhabitants, such governing body has first ascertained that its population exceeds that
figure. See id. (Exhibit B at 2). The Texas Supreme Court’s decision in City ofLa Porte then places
that determination beyond dispute, except where there is proof of fraud, bad faith, or abuse of
discretion. In the absence of such proof, voter approval of the 1920 charter means that the City of
Anson is, and has been since April 6, 1920, a home-rule municipality operating under article XI,
section 5 of the Texas Constitution.
The Honorable Chad Cowan - Page 4 (JC-0351)
SUMMARY
The City of Anson is a home-rule municipality, and has been so since
April 6,192O.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERWIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129186/
|
OFFICE OF THE ATTORNEY GENERAL. STATE OF TEXAS
JOHN CORNYN
April 23,2002
The Honorable Jim Solis Opinion No. JC-0494
Chair, Economic Development Committee
Texas House of Representatives Re: Whether the Gun Barrel City Economic
P.O. Box 2910 Development Corporation may use Development
Austin, Texas 7876829 10 Corporation Act of 1979, section 4B sales and use
taxes to fund a project that does not promote
business development (RQ-0462-JC)
Dear Representative Solis:
When the law requires that voters approve a tax, proceeds of the tax may only be used for
the purposes approved by the voters. Under section 4B of the Development Corporation Act of
1979, article 5 190.6 of the Revised Civil Statutes (the “Act”), an eligible city may collect sales and
use tax, if approved by the city’s voters, to be used by a city-created industrial development
corporation to fund authorized projects. On May 3,1997, the voters of Gun Barrel City (the “City”)
approved the adoption of a one-half percent sales and use tax “for the promotion and development
of new and expanded business enterprises.” On behalf of the Board of Directors of the Gun Barrel
City Economic Development Corporation (the “Corporation”), you ask about its authority under
section 4B(a)(2)(A) of the Act to use the sales tax proceeds to fund a project that does not promote
business development. * Consistent with the voter-approved election proposition, the sales taxes
collected in the City may be used only for the promotion and development of business enterprises.
The Board may not use the sales tax proceeds to fund a project that does not promote business
development.
To provide a legal context for your request, we briefly review the Act’s provisions regarding
approval and use of the section 4B sales taxes. The Development Corporation Act of 1979
authorizes a city, county, or district to create an industrial development corporation to finance the
cost of authorized “projects” that generally promote economic development. See TEX. REV. CIV.
STAT. ANN. art. 5 190.6 (Vernon 1987 & Supp. 2002). In particular, section 4B of the Act authorizes
an eligible city to create an industrial development corporation governed by that section, see id.
5 4B(b) (Vernon Supp. 2002), and authorizes the city to levy a sales and use tax for the benefit of
the corporation, but only if approved by a majority of the voters at an election called for that
‘See Letter from Honorable Jim Solis, Chair, Committee on Economic Development, Texas House of
Representatives, to Honorable John Cornyn, Texas Attorney General (Nov. 7,200l) (on file with Opinion Committee)
[hereinafter Request Letter].
The Honorable Jim Solis - Page 2 (JC-0494)
purpose, see id. 8 4B(d). Other than the rate of the tax and descriptions ofparticular projects, section
4B does not generally specify the contents of the tax election proposition or ballot to be submitted to
the voters. See id.; see also id. $5 4B(a-3)(2) (re q uiring voter approval for specific venue projects
“clearly described on the ballot”); (a-5) (requiring ballot proposition at election to adopt tax to
clearly describe project if project involves water supply facilities or water conservation
programs); (p) (requiring ballot to provide for voting for or against use of sales tax for “cleanup of
contaminated property”). Upon receipt of the sales tax proceeds, the city must deliver the tax
proceeds to the corporation, see id. 8 4B(g), to be used to finance costs of authorized “projects.” See
id. 8 4B(g)(l)-(2). Th ose “projects” include “facilities and improvements” found by the board of
directors of the corporation to:
(A) be required or suitable for use for professional and amateur
(including children ‘s) sports, athletic, entertainment, tourist, conven-
tion, and public park purposes and events, including stadiums, ball
parks, auditoriums, amphitheaters, concert halls, learning centers,
parks and park facilities, open space improvements, municipal
buildings, museums, exhibition facilities, and related store, restaurant,
concession, and automobile parking facilities, related area
transportation facilities, and related roads, streets, and water and
sewer facilities, and other related improvements that enhance any of
those items;
(B) promote or develop new or expanded business enterprises,
including a project to provide public safety facilities, streets and
roads, drainage and related improvements, demolition of existing
structures, general municipally owned improvements, as well as any
improvements or facilities that are related to any of those projects and
any otherproject that the board in its discretion determinespromotes
or develops new or expanded business enterprises.
Id. 8 4B(a)(2)(A)-(B) (emphasis added).
With this background, we turn to your question. You inform us that there is “a desire in Gun
Barrel City to utilize Section 4B tax revenues to construct a youth league football field at the city
park.” Request Letter, supra note 1. Although the football field would benefit the community,
“there is no discernable economic advantage associated with the project.” See id. As we understand
it, the Corporation has determined that the project would not promote economic development much
less “business development,” arguably a more specific subset of economic development. See id.;
Tex. Att’y Gen. Op. No. JC-0362 (2001) at 5 (determination of whether particular project will
promote economic development purposes of Act is generally a question of fact within discretion of
development corporation’s board of directors in the first instance). The Corporation’s Board of
Directors requests clarification of its project funding authority under section 4B(a)(2)(A) of the Act.
Specifically, the Board asks:
The Honorable Jim Solis - Page 3 (JC-0494)
Since Section 4B[(a)](2)(A) lacks reference to job creation, expan-
sion, retention, promotion of business and commerce, etc., and since
such references are evident in similar sections, e.g., in Section
2( 1 l)(A),* Section 33 and Section 4B[(a)](2)(B), may it be presumed
that projects may be undertaken under Section 4B[(a)](2)(A) without
consideration of some predictable positive economic impact?
Request Letter, supra note 1 (footnotes added).
Section 4B(a)(2)(A) by its terms does not require that the specific projects authorized in
that section promote economic development, notwithstanding that the overarching purpose of the
Act is the promotion of economic development. See TEX. REV. CIV. STAT. ANN. art. 5 190.6,
9 4wa)ww (V emon Supp. 2002); see, e.g., id. $5 3 (legislative findings regarding economic
development purpose and supporting measures authorized by Act); 21 (authorizing city, county,
or district to utilize industrial development corporation to finance projects to promote economic
development). Given the numerous and rather selective changes to the Act since it was first
adopted in 1979, it is less than a coherent or consistent statute. See generally Tex. Att’y Gen. Op.
No. JC-0118 (1999) (reviewing sections 4A and 4B provisions); 1 OFFICE OFTHETEXASA~ORNEY
GENERAL, HANDBOOK ON ECONOMIC DEVELOPMENT LAWS FOR TEXAS CITIES2-3, 5-6 (2002)
(discussing Act’s legislative evolution). However, because the Corporation’s authority to undertake
projects is limited by the particular sales tax election proposition submitted to and approved by the
City voters, we do not reach the Corporation’s question whether section 4B(a)(2)(A) generally
allows noneconomic development projects to resolve the question presented here.
Use of section 4B sales tax is limited not only by the statutory provisions of the Act, but also
by the particular tax election authorizing the tax. Proceeds of the section 4B sales tax, of course,
*Section 2( 1 l)(A) of the Act defines the term “[plroject,” in part, as:
the land, buildings, equipment, [and] facilities . . . to promote new and expanded
business development or found by the board of directors to be required or suitable
for the promotion of development and expansion of manufacturing and industrial
facilities, job creation and retention, job training. . . .
Project also includes job training required or suitable for the promotion
of development and expansion of business enterprises and other enterprises
described by this Act, as provided in Section 38 of this Act.
TEX. REV. CIV. STAT.ANN. art. 5 190.6, 9 2( 1 l)(A) (Vernon Supp. 2002).
3Section 3(a) sets out legislative fmdings and determinations generally to the effect that the welfare of the state
requires as a public purpose the “promotion and development of new and expanded business enterprises and the
promotion and development ofjob training[;] . . . that the existence, development, and expansion ofbusiness, commerce,
industry,” higher education, and job training are essential to the state’s economic growth; and that the measures
authorized by the Act promote the economic welfare of the state “by the securing and retaining of business enterprises
and the resulting maintenance of a higher level of employment, economic activity, and stability[.]” Icl. 5 3(a)(1)-(4).
The Honorable Jim Solis - Page 4 (JC-0494)
may be used only for the purposes authorized by the statute. See Tri-City Fresh Water Supply Dist.
v. Mann, 142 S.W.2d 945, 948 (Tex. 1940) (taxing power may be exercised only for purposes
distinctly included in constitutional or legislative authorization); see also Tex. Att’y Gen. Op. No.
JC-0118 (1999) (section 4B sales tax proceeds may only be used for projects authorized by statute).
Additionally, they may be used only for the purposes expressly represented to and approved by the
voters, i.e., the contract with the voters, which may be more limited than the purposes allowed by
the statute. See Tex. Att’y Gen. Op. No. JC-0400 (2001) at 4-5 (and cases cited therein); see also
Tex. Att’y Gen. Op. No. JC-0488 (2002) at 4. “The contract with the voters clearly includes the
purposes stated in an election ordinance or order formally adopted by a governing body and the
election proposition submitted to the voters.” See Tex. Att’y Gen. Op. No. JC-0488 (2002) at 4. It
may also include representations made by the governing body outside the formal election
proceedings, for example, such as statements made before the election to the public regarding
specific purposes for which the proceeds will or will not be used. See id. at 4. We assume for the
purposes of this opinion that neither the governing body of the City nor of the Corporation made any
representations limiting the use of the sales and use tax proceeds beyond that in the election
proposition approved by the City’s voters.
The election proposition presented to the City voters limited the use of the section 4B sales
tax to business development purposes. On March 11, 1997, the City Council of Gun Barrel City
adopted an ordinance calling a special election to be held on May 3, 1997, to allow City residents
to vote on the “question of the adoption of an additional sales and use tax for the purpose of the
promotion and development of new and expanded business enterprises.” GUN BARRELCITY, TEX.,
ORDINANCE No. 1997-005 (1997). The ordinance directed the submission to the voters of the
following proposition: “The adoption of an additional [one-half] of one percent sales and use tax
for the promotion and development of new and expanded business enterprises.” Id.4 Compare id.
with Tex. Att’y Gen. Op. No. JC-0400 (2001) at 4 (City of Sonora proposition submitted to voters:
“The adoption of an additional one-half of one percent sales and use tax within the City pursuant to
the provisions of Article 5 190.6 . . . , with the proceeds thereof to be used and applied in the manner
and to the purposes authorized by Section 4B of the Act, including but not limited to . . . .“). We
understand that the sales tax revenues at issue here are collected pursuant to the May 3,1997 election
because no other sales and use tax election in the City has been called and held pursuant to the Act.
In sum, because the City’s voter-approved sales tax election proposition limits their use “for
the promotion and development of new and expanded business enterprises,” see GUNBARRELCITY,
TEX., ORDINANCE NO. 1997-005 (1997) at 1, the Corporation’s Board of Directors may use the sales
tax proceeds to fund only projects that promote business development. Accordingly, we conclude
that the Corporations’s Board of Directors may not use the section 4B tax revenues to fund a project
that does not promote business development.
4See also GUN BARREL CITY, TEX., ORDINANCE No. 1997-007 (1997) ( canvassing special election returns and
finding that the “proposition for the adoption of a Section 4B sales and use tax at the rate of one-half of one percent”
submitted at the election on May 3, 1997, was passed by voters).
The Honorable Jim Solis - Page 5 (JC-0494)
SUMMARY
Consistent with the particular 1997 voter-approved election
proposition, the sales taxes collected in Gun Barrel City under section
4B of the Development Corporation Act of 1979 may be used
only for projects that promote business development. The Board of
Directors of the Gun Barrel City Economic Development Corporation
may not use the sales tax proceeds to fund a project that does not
promote business development.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129189/
|
*’ OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
April 15,2002
The Honorable Kenneth Armbrister Opinion No. JC-0491
Chair, Committee on Criminal Justice
Texas State Senate Re: Validity of a school district policy regarding
P. 0. Box 12068 corporal punishment and physical restraint of
Austin, Texas 78711 students (RQ-0459- JC)
Dear Senator Armbrister:
You have asked the opinion of this office regarding the validity of a particular school
district’s policy on corporal punishment and physical restraint.’ While, as explained below, there
may be circumstances with regard to students receiving special education services in which this
policy may be subject to some restriction, as a general matter the policy statement in question
appears to us to be within the school district’s authority to adopt necessary rules “for the safety and
welfare of students, employees, and property.” TEX. EDUC. CODE ANN. § 37.102(a) (Vernon 1996).
The particular policy about which you are concerned is that of the Arlington Independent
School District. The two areas that are of interest are the policy statements on corporal punishment
and physical restraint:
CORPORAL PUNISHMENT The Board prohibits the use of
corporal punishment in the District. Students shall not be spanked,
paddled, or otherwise physically disciplined for violations of the
Student Code of Conduct.
PHYSICAL RESTRAINT Any District employee may, within the
scope of the employee’s duties, use and apply physical restraint to a
student if the employee reasonably believes restraint is necessary in
order to:
1. Protect a person, including the person using physical restraint,
from physical injury.
‘See Letter from Honorable Kenneth Armbrister, Chair, Committee on Criminal Justice, Texas State Senate, to
Susan Denrnon Gusky, Chair, Opinion Committee, Oftice of Attorney General (Oct. 23,200l) [hereinafter RQ-04591;
Letter and attachments accompanying RQ-0459, from Frank Hill, Hill Gilstrap, Attorneys at Law, to Honorable Chris
Harris, Texas State Senate (May 1, 2001) [h ereinafter RQ-0459 Attachments] (all documents on file with Opinion
Committee).
The Honorable Kenneth Armbrister - Page 2 (JC-0491)
2. Obtain possession of a weapon or other dangerous object.
3. Protect property from serious damage.
4. Remove a student refusing a lawful command of a school
employee from a specific location, including a classroom or other
school property, in order to restore order or to impose disciplinary
measures.
5. Restrain an irrational student.
See RQ-0459 Attachments, supra note 1 (Arlington ISD Disciplinary Policy). As we understand
it, the school district requests an opinion “regarding the legality with respect to state law” of this
policy. See id. (Frank Hill Letter of May 1,200l).
Matters of student discipline under Texas law are, generally speaking, within the authority
of local school boards. See Friona lndep. Sch. Dist. v. King, 15 S.W.3d 653, 659 (Tex.
App.-Amarillo 2000, no pet.) (“[Slchool districts not only have the obligation but also a right or
privilege to control and discipline their students. Both are part and parcel of operating schools.”
(citation omitted)). “An independent school district is governed by a board of trustees who, as a
body corporate, shall oversee the management of the district.” TEX.EDUC. CODEANN. 8 11.05 l(a)
(Vernon 1996). Each school district is required by statute to “adopt a student code of conduct for
the district.” Id. 9 37.001(a) (Vernon Supp. 2002). Further, boards “may adopt rules for the safety
and welfare of students, employees, and property.” Id. 5 37.102(a) (Vernon 1996).
As it appears from correspondence attached to your request letter that the Arlington school
district may be considering an amendment of its policy to permit corporal punishment, we note that
federal courts, and in particular the United States Court of Appeals for the Fifth Circuit, have given
wide leeway to local authorities with respect to the policy decision on whether or not to permit the
imposition of corporal punishment as a matter of student discipline. See Moore v. Willis Indep. Sch.
Dist., 233 F.3d 871, 875 (5th Cir. 2000). There are, it should be noted, relevant Texas statutory
provisions that may limit the actual application of corporal punishment. The Penal Code, for
example, provides a defense for the exercise of force against a person “if the actor is entrusted with
the care, supervision, or administration for a special purpose[,] and. . . the actor reasonably believes
the force is necessary to further the special purpose or to maintain discipline in a group.” TEX. PEN.
CODEANN. 8 9.62 (Vernon 1994). Similarly, Education Code section 22.05 1 grants immunity from
liability to professional employees of school districts for acts within the scope of their duties that
involve the exercise of judgment, “except in circumstances in which a professional employee uses
excessive force in the discipline of students or negligence resulting in bodily injury to students.”
TEX. EDUC. CODE ANN. 8 22.05 1(a) (Vernon 1996). What constitutes “reasonable” or “excessive”
force in any given situation is dependent on the facts and circumstances. See, e.g., Spacek v.
Charles, 928 S.W.2d 88, 93 (Tex. App.-Houston [14th Dist.] 1996, writ dism’d w.o.j.).
Accordingly, such questions would be beyond the scope of an attorney general opinion. See Tex.
Atty. Gen. LO-94-087, at 2 (“Determining whether the requisite intent, knowledge, or purpose are
The Honorable Kenneth Armbrister - Page 3 (JC-0491)
present would . . . require taking of evidence and finding of fact that cannot be performed in the
opinion process.“). Given that the Arlington policy at present forbids corporal punishment, such
matters are not now at issue.
With respect to the Arlington policy on physical restraint, while as a general matter it is
within the district’s authority under section 37.102 of the Education Code to adopt necessary safety
rules, we note that with respect to special education students, the policy must be implemented in
light of certain other provisions of state and federal law.
First, we note that, pursuant to section 37.002 1(d) of the Education Code, the Commissioner
of Education is required to “adopt procedures for the use of restraint and time-out by a school district
employee. . . in the case of a student receiving special education services.” TEX. EDUC. CODEAN-N.
8 37.0021(d) (V emon Supp. 2002). Based on that statutory authorization, the Commissioner, on
December 2 1,2001, proposed an addition to the Texas Administrative Code, which is to be codified
at title 19 of the Texas Administrative Code, section 89.1053. See 26 Tex. Reg. 10474 (2002). That
rule has not yet been adopted and is, accordingly, not yet in effect, but is included here for your
guidance when, as, and if it is adopted. Under that proposed rule, school employees may use
restraint on special education students only in an emergency. See id. (to be codified at 19 TEX.
ADMIN. CODE 8 89.1053(c)). “Restraint,” for the purposes of the rule, “means the use of physical
force or a mechanical device to restrict the free movement of all or a portion of the student’s body.”
Id. (to be codified at 19 TEX. ADMIN. CODE 0 89.1053(b)(2)). “Emergency” means:
a situation in which a student’s behavior poses a threat of:
(A) imminent, serious physical harm to the student or others;
or
(B) imminent, serious property destruction that would
constitute a felony under Texas Penal Code 8 28.03.
Id. (to be codified at 19 TEX. ADMIN. CODE 4 89.1053(b)). For the purposes of section 28.03 of the
Penal Code, with some limited exceptions, destruction of property constitutes a felony only if the
pecuniary loss involved is equal to or greater than $1,500. See TEX.PEN. CODEANN. tj28.03(b)(4)
(Vernon Supp. 2002). In the event of the proposed rule’s adoption, the Arlington school district
should consider its restraint policy in light of the rule.
Physical restraint must, under the proposed rule, “be limited to the use of such reasonable
force as is necessary to address the emergency.” 26 Tex. Reg. 10474 (2001) (to be codified at 19
TEX. ADMIN. CODE 6 89.1053(c)( 1)). When the emergency ceases to exist, it must be discontinued.
Id. (to be codified 19 TEX. ADMIN. CODE 8 89.1053(c)(2)). It must be implemented “in such a way
as to protect the health and safety of the student,” and must not “deprive the student of basic human
necessities.” Id. (to be codified at 19 TEX. ADMIN. CODE 8 89.1053(c)(3), (4)).
The Honorable Kenneth Armbrister - Page 4 (JC-0491)
The imposition of restraint on special education students must be consistent with the rules
of the Cornmissioner of Education promulgated under section 37.002 1, once those rules are formally
adopted. S~~TEX.EDUC. CODEANN. 9 37.0021(d) (V emon Supp. 2002). Further, one must consider
the possible implications of the Federal Individuals with Disabilities Education Act (“IDEA”). See
20 U.S.C. $5 1400-1462 (1994 & Supp. I 1995 - Supp. V 1999). Pursuant to the IDEA, students
with disabilities have an “individualized education program” (“I,,“), a written statement that
includes, among other things, a statement of the student’s level of educational performance, a
statement of “measurable annual goals,” a statement of the services provided to the student, an
explanation of the extent to which the student will not participate in regular classes, and a statement
of what modifications in the administration of assessments of achievement may be necessary for the
student to participate. See id. 8 1414. In some instances, an IEP includes a “behavioral intervention
plan,” which, as we are informed by the general counsel of the Texas Education Agency, may
“address[] specific disciplinary techniques that may or may not be used.“* Any such behavioral
intervention plan would have to be taken into account in dealing with a particular student.
With the caveat that disciplinary matters regarding special education students must be
consistent with federal law and with such rules as may be promulgated by the Commissioner of
Education under section 37.0021 of the Education Code, the policy statement of the Arlington
Independent School District presented to us is generally within the board of trustees’ authority to
manage the district under Education Code section 11.05 1(a) and its authority to adopt rules for the
safety and welfare of students, employees, and property under Education Code section 37.102.
2Letter from David A. Anderson, General Counsel, Texas Education Agency, to Susan Denmon Gusky, Chair,
Opinion Committee, Office of Attorney General at 2 n.9 (Dec. 4,200l) (on file with Opinion Committee).
The Honorable Kenneth Armbrister - Page 5 (JC-0491)
SUMMARY
The policy statement of the Arlington Independent School
District regarding corporal punishment and physical restraint is
generally within the district’s authority to manage the district and to
adopt rules for the safety and welfare of students, employees, and
property. Disciplinary matters with respect to students receiving
special education services in particular instances may implicate rules
promulgated by the Commissioner of Education under section
37.0021 of the Texas Education Code, or the Federal Individuals with
Disabilities Education Act, 20 U.S.C. §§ 1400- 1462 (1994 & Supp.
I 1995 - supp. v 1999).
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4150252/
|
[J-22-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
GREEN PARTY OF PENNSYLVANIA : No. 11 MAP 2017
AND CHERI HONKALA, :
: Appeal from the Commonwealth Court
Appellants : Order dated February 15, 2017 at No.
: 43 MD 2017.
:
v. : SUBMITTED: February 23, 2017
:
:
DEPARTMENT OF STATE BUREAU OF :
COMMISSIONS, ELECTIONS AND :
LEGISLATION AND COMMONWEALTH :
OF PENNSYLVANIA, :
:
Appellees :
ORDER
PER CURIAM DECIDED: March 3, 2017
AND NOW, this 3rd day of March, 2017, the order of the Commonwealth Court is
AFFIRMED.
Opinion to follow.
Justices Donohue, Dougherty and Wecht dissent.
|
01-03-2023
|
03-03-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129257/
|
>” OFFICE OF THE ATTORNEY GENERAL . STATE OF TEX.%S
JOHN CORNYN
October 19,200l
The Honorable David Sibley Opinion No. JC-0424
Chair, Business and Commerce Committee
Texas State Senate Re: Whether a property owner’s right of
P.O. Box 12068 access under section 25.195 of the Tax Code
Austin, Texas 787 1 l-2068 to information prepared by a private appraisal
firm and used by the appraisal district to
establish the taxable appraised value of
the owner’s property is limited by section
25 .O1(c) of the Tax Code, and related questions
(RQ-0385-JC)
Dear Senator Sibley:
You ask about a property owner’s right of access under section 25.195 of the Tax Code to
information prepared by a private appraisal firm and used by the appraisal district to establish the
taxable appraised value of the owner’s property. We conclude that under section 25.195(a), a
property owner has a right of access to information about his property prepared by a private appraisal
firm and obtained by the appraisal district from the appraisal firm pursuant to section 25 .O1(c) of the
Tax Code. In addition, section 25.195(c), a provision recently enacted by Senate Bill 1737, gives
a property owner access to information in the possession of a private appraisal firm that may not be
in the possession of the appraisal district. Finally, we conclude that neither section 39.001 of the
Utilities Code nor any other provision enacted in the 1999 legislation deregulating the electric utility
industry affects a property owner’s right of access to appraisal information under section 25.195 of
the Tax Code.
Before answering your specific questions, we briefly review the statutes governing appraisal
districts’ use of private appraisal firms and property owners’ right of access to appraisal information.
Section 25 .Ol (b) of the Tax Code authorizes an appraisal district to “contract with a private appraisal
firm to perform appraisal services for the district.” TEX.TAXCODEANN. 8 25.01(b) (Vernon 1992).
Subsection (c) provides that such a contract “is invalid if it does not provide that copies of the
appraisal, together with supporting data, must be made available to the appraisal district and such
appraisals and supporting data shall be public records.” Id. 8 25.01(c). It also provides, however,
that the term “supporting data” “shall not be construed to include personal notes, correspondence,
working papers, thought processes, or any other matters of a privileged or proprietary nature.” Id.
The Honorable David Sibley - Page 2 (JC-0424)
While section 25 -01 (c) provides that certain information used or created by an appraisal firm
must be made available to the appraisal district and deems that information public, section 25.195
of the Tax Code addresses a property owner’s right of access to information relating to the appraisal
of his or her property. This right of access is separate and apart from the public’s right of access.
Significantly, section 25.195 was substantially amended in the last legislative session in Senate Bill
1737. See Act of May 11,2001,77th Leg., R.S., ch. 372,200l Tex. Sess. Law Serv. 644. As that
bill became effective on May 26,2001, see id. 8 2, we address section 25.195 as amended.
Subsections (a) and (b) of section 25.195 address a property owner’s right of access to
information in the possession of the appraisal district while the remaining, wholly new subsections
address a property owner’s right of access to information in the possession of an appraisal firm.
Section 25.195(a) provides as follows:
(a) After the chief appraiser has submitted the appraisal
records to the appraisal review board as provided by Section 25.22(a),
a property owner or the owner’s designated agent is entitled to inspect
and copy the appraisal records relating to property of the property
owner, together with supporting data, schedules, and, except as
provided by Subsection (b), any other material or information held by
the chief appraiser or required by Section 25.01 (c) to be provided to
the appraisal district under a contract for appraisal services,
including material or information obtained under Section 22.27, that
is obtained or used in making appraisals for the appraisal records
relating to that property.
TEX. TAX CODE tj 25.195(a), as amended by Tex. S.B. 1737, 77th Leg., R.S. (2001) (emphasis
added). Senate Bill 1737 added the italicized language. That bill did not amend subsection (b) of
section 25.195, which provides as follows:
(b) The owner of property other than vacant land or real
property used for residential purposes or the owner’s agent may not
inspect any material or information obtained under Section 22.27.
TEX. TAX CODE ANN. 6 25.195(b) (Vernon Supp. 2001).
Section 22.27 of the Tax Code, referred to in the above provisions, makes confidential and
provides for the limited release of information provided by property owners to an appraisal district:
[rlendition statements, real and personal property reports, attachments
to those statements and reports, and other information the owner of
property provides to the appraisal office in connection with the
The Honorable David Sibley - Page 3 (JC-0424)
appraisal of the property, including income and expense information
related to a property filed with an appraisal office and information
voluntarily disclosed to an appraisal office or the comptroller about
real or personal property sales prices after a promise it will be held
confidential . . . .
Id. 8 22.27(a). Section 22.27 specifically authorizes the release of this information “to the person
who filed the statement or report or the owner of property subject to the statement, report, or
information or to a representative of either authorized in writing to receive the information.” Id.
5 22.27(b)(2). Th us, a property owner may always obtain information that he or she has provided
to the appraisal district or information about his or her property.
Over ten years ago, this office construed section 25.195 and section 22.27 to give a property
owner a special right of access to information filed by others and made confidential under section
22.27 that is used to appraise the property owner’s property. See Tex. Att’y Gen. ORD Nos. 550
(1990) at 8; 500 (1988) at 9. In 1997, however, the legislature amended section 25.195 to include
the express reference to section 22.27 in subsection (a) of section 25.195 and to add subsection (b).
See Act of June 1, 1997,75th Leg., R.S., ch. 1039, 8 25, 1997 Tex. Gen. Laws 3897, 3910. The
effect of these amendments appears to have been to limit the right of access to information filed by
others and made confidential under section 22.27 to owners of vacant land and residential real
property, thus precluding owners of real property used for commercial purposes from obtaining such
information. See TEX. TAX CODE ANN. 5 25.195(b) (Vernon Supp. 2001) (“The owner of property
other than vacant land or real property used for residential purposes or the owner’s agent may not
inspect any material or information obtained under Section 22.27.“).
Unlike subsections (a) and (b) of section 25.195, which address access to information in the
possession of an appraisal district, subsections (c) through (e), newly added by Senate Bill 1737,
address access to information held by a private appraisal firm. Subsections (c) and (d) provide as
follows:
(c) A property owner or the designated agent of an owner
whose property is appraised by a private appraisal firm under a
contract for appraisal services with an appraisal district is entitled to
inspect and copy, at the office of thatjkn, all information pertaining
to the property that the firm considered in appraising the property,
including information showing each method of appraisal used to
determine the value of the property and all calculations, personal
notes, correspondence, and working papers used in appraising the
property. This subsection does not apply to information made
confidential by Section 22.27, except that the property owner or agent
The Honorable David Sibley - Page 4 (JC-0424)
is entitled to inspect and copy any information relating to the owner’s
property, including otherwise confidential information.
(d) The appraisal firm shall make information covered by
Subsection (c) available for inspection and copying by the owner or
agent not later than the 15th day after the date the owner or agent
delivers a written request to inspect the information, unless the owner
or agent agrees in writing to a later date.
TEX. TAX CODE fj 25.195(c), (d), as added by Tex. S.B. 1737, 77th Leg., R.S. (2001) (emphasis
added). Under subsection (e), if an appraisal firm has not made the information available for
inspection and copying, the appraisal review board may not conduct a hearing on the merits of any
claim relating to the property and may not approve the appraisal records relating to that property.
See id. 5 25.195(e).
With this background, we turn to your questions, which involve, in your words “[a] private
appraisal firm that does a substantial amount of business with appraisal districts in Texas.“’ You
explain that this firm is “refusing to provide complete appraisals of electric utility property to the
appraisal districts that it serves, providing instead a summary of the conclusions reached in the
appraisals and the major economic assumptions used to arrive at the results.” Request Letter, supra
note 1. Apparently, “[tlhe owners of electric utility property in appraisal districts served by this firm
have been denied access to the appraisals of their property performed by the firm, despite the fact
that the results of those appraisals are relied on by the appraisal districts in setting the appraised
value of their property on the district appraisal roles for ad valorem tax purposes.” Id.
You ask the following questions about the Tax Code provisions governing access to appraisal
information:
Is a property owner’s access to appraisal information
regarding the owners property, as set forth in Section 25.195(a) of
the Tax Code, circumscribed by Section 25.01(c) of the Tax Code
which governs what information must be made available by a private
appraisal firm to an appraisal district and which limits what
constitutes supporting data?
Is a property owner entitled to copies of all appraisal material
and information regarding the owner’s property pursuant to Section
25.195(a) of the Tax Code?
‘Letter from Honorable David Sibley, Texas State Senator, to Honorable John Comyn, Texas Attorney General,
at 1 (May 17,200l) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable David Sibley - Page 5 (JC-0424)
Id. at 3. You suggest that the appraisal firm defends its refusal to provide information on the
grounds that a property owner’s right of access to information concerning the appraisal of the
owner’s property is circumscribed by the definition of “supporting data” in section 25.01 (c) of the
Tax Code. See id. at 2.
Under section 25.195 of the Tax Code as amended by Senate Bill 1737, a property owner has
a right of access to information used to appraise the owner’s property in the possession of the
appraisal district and in the possession of the private appraisal firm. As we will explain, the latter
type of access makes available to a property owner an array of information, including information
that the private appraisal firm is not required to provide to the appraisal district under section
25.01(c).
Again, a property owner’s right of access to information in the possession of the appraisal
district is governed by subsections (a) and (b) of section 25.195. Under subsection (a), an owner of
utility property would be entitled to “appraisal records relating to property of the property owner,
together with supporting data, schedules, and . . . any other material or information held by the chief
appraiser or required by Section 25.01 (c) to be provided to the appraisal district under a contract for
appraisal services . . . .” TEX.TAX CODE fj 25.195(a), as amended by Tex. S.B. 1737,77th Leg., R.S.
(2001). Given that you ask about property owned by an electric utility, we assume that the property
at issue is neither vacant nor used for residential purposes. Therefore, subsection (b) would limit the
property owner’s right of access to information obtained under section 22.27, see TEX. TAX CODE
ANN. 4 25.195(b) (Vernon Supp. 2001), except for information to which section 22.27(b)(2) provides
the utility a special right of access, see id. 8 22.27(b)(2) (authorizing the release of confidential
information “to the person who filed the statement or report or the owner of property subject to the
statement, report, or information or to a representative of either authorized in writing to receive the
information”).
In answer to your question about the relationship between section 25.195(a) and section
25.01(c), the recent Senate Bill 1737 amendment to subsection (a) makes it quite clear that a
property owner is entitled to information prepared by a private appraisal firm “required by Section
25.01 (c) to be provided to the appraisal district under a contract for appraisal services.” TEX. TAX
CODE 5 25.195(a), as amended by Tex. S.B. 1737,77th Leg., R.S. (2001). As noted above, section
25.01 (c) provides that an appraisal district is entitled to receive from a private appraisal firm with
which it contracts “copies of the appraisal, together with supporting data,” TEX. TAX CODE ANN.
9 25.01(c) (V emon 1992), but expressly excludes “personal notes, correspondence, working papers,
thought processes, or any other matters of a privileged or proprietary nature,” id., from the scope of
“supporting data.” Therefore, information that a private appraisal firm is not required to provide to
the appraisal district under section 25.01(c), such as “personal notes, correspondence, working
papers, thought processes, or any other matters of a privileged or proprietary nature,” and that the
firm has not provided to the appraisal district, does not fall within the scope of a property owner’s
right of access under section 25.195(a).
The Honorable David Sibley - Page 6 (JC-0424)
Importantly, however, Senate Bill 1737’s addition of subsections (c) and (d) to section
25.195, which gives property owners a new right of access to information in the possession of a
private appraisal firm, also expands the type of information to which a property owner has access.
Under subsection (c), a property owner has a right of access to “all information pertaining to the
property that the firm considered in appraising the property, including information showing each
method of appraisal used to determine the value of the property and all calculations,personal notes,
correspondence, and workingpapers used in appraising the property.” TEX.TAX CODE fj 25.195(c),
as enacted by Tex. S.B. 1737, 77th Leg., R.S. (2001) (emphasis added). In addition, a property
owner also has a right to inspect and copy information made confidential under section 22.27
“relating to the owner’s property.” Id.
Thus, in answer to your questions about the Tax Code, a property owner’s right of access to
information in the possession of an appraisal district under section 25.195(a) may be limited by
section 25.01(c) to the extent section 25.01(c) specifies information a private appraisal firm is not
required to give the appraisal district, namely “personal notes, correspondence, working papers,
thought processes, or any other matters of a privileged or proprietary nature,” TEX. TAX CODEAN-N.
5 25.01(c) (V emon 1992), because this information may not be in the possession of the appraisal
district. Recently enacted subsections (c) and (d) of section 25.195, however, give a property owner
a right of access to information in the possession of a private appraisal firm that the firm used to
appraise the owner’s property, including “calculations, personal notes, correspondence, and working
papers.” TEX. TAX CODE tj 25.195(c), (d), as enacted by Tex. S.B. 1737, 77th Leg., R.S. (2001).
This provision gives a property owner access to information that may not be in the possession of the
appraisal district.
Finally, we address your question about the implications of 1999 electric utility deregulation
legislation for the right of access to information used to appraise electric utility property. You state
that the appraisal firm at issue also “defends its refusal to give complete appraisals of electric utility
property to the appraisal districts that it contracts with on the grounds that Senate Bill 7, enacted by
the 76th Legislature in 1999 to restructure the electric utility industry, requires that it protect
‘competitively sensitive information,’ and that it is doing so by withholding the complete appraisals
from the appraisal districts and from property owners.” Request Letter, supra note 1, at 2. For this
reason, you ask whether section 39.001 of the Utilities Code, or any other Senate Bill 7 provision,
modifies the Tax Code provisions on a property owner’s right of access to appraisal information.
See id. at 3. We conclude that nothing in Senate Bill 7 affects a property owner’s right of access to
appraisal information under section 25.195 of the Tax Code.
The Seventy-sixth Legislature enacted numerous provisions to deregulate the electric utility
industry and open it to competitive pricing in Senate Bill 7. See Act of May 27, 1999, 76th Leg.,
R.S., ch. 405’1999 Tex. Gen. Laws 2543. The provision you mention, section 39.001 oftheutilities
Code, states that the legislature finds that it is in the public interest to “protect the competitive
process in a manner that ensures the confidentiality of competitively sensitive information during
The Honorable David Sibley - Page 7 (JC-0424)
the transition to a competitive market and after the commencement of customer choice.” TEX. UTIL.
CODE ANN. 8 39.001(b)(4) (V emon Supp. 2001). Section 39.001 is a multi-part, introductory
provision declaring the legislature’s policy and purpose with respect to restructuring the electric
utility industry. Its finding about confidentiality does not make any specific information
confidential; rather, the finding explains the purpose of specific confidentiality provisions that follow
in chapter 39 of the Utilities Code and that require the Public Utility Commission (the “PUC”) to
keep confidential information collected for certain purposes. For example, section 39.155 of the
Utility Code requires the PUC to collect information on utilities’ generating capacity and sales in
order to assess their market power. It specifically provides that the PUC “shall by rule prescribe
the nature and detail of the reporting requirements and shall administer those reporting requirements
in a manner that ensures the confidentiality of competitively sensitive information.” Id. 5 39.155(a).
Section 39.35 1 requires power generation companies to register with the PUC and authorizes the
PUC to require registrants to file information “provided that in requiring that information the
commission shall protect the competitive process in a manner that ensures the confidentiality of
competitively sensitive information.” Id. 5 39.35 1(a)(4); see also id. 8 39.352(f) (requiring the PUC
to use information it collects in certifying retail electric providers “in a manner that ensures the
confidentiality of competitively sensitive information”). None of these provisions apply to
information collected or used by a private appraisal firm or appraisal district in conjunction with the
appraisal of property.
Two other provisions enacted by Senate Bill 7 amend the Open Meetings and Public
Information Acts to protect competitively sensitive information about electric utilities. Section
551.086 of the Government Code provides that the Open Meetings Act, chapter 551 of the
Government Code, does not require the governing body of a public power utility to deliberate,
vote or take final action on any competitive matter in an open meeting. See TEX. GOV’T CODEANN.
5 55 1.086(c) (V emon Supp. 2001) (“This chapter does not require a public power utility governing
body to conduct an open meeting to deliberate, vote, or take final action on any competitive matter,
as that term is defined in Subsection (b)(3).“). This provision deals with public power utilities’
meetings and does not address a property owner’s access to appraisal information in the possession
of a private appraisal fir-n-ror appraisal district.
Similarly, section 552.13 1 of the Government Code, recently renumbered as section
552.133,* provides a new exception to the Public Information Act’s requirement that information be
disclosed to the public for public power utility information and records reasonably related to a
competitive matter. TEX. GOV’T CODE ANN. 8 552.13 l(b) (Vernon Supp. 2001) (“Information or
records are excepted from the requirements of Section 552.021 if the information or records are
*In a nonsubstantive correction of enacted codes, House Bill 2812 renumbered section 552.13 1 of the
Government Code (as added by ch. 405,76thLeg., R.S., 1999) as section552.133. See Act ofMay 22,2001,77thLeg.,
R.S., ch. 1420, 2001 Tex. Sess. Law Serv., WL TX LEGIS 1420 (2001) (to be codified at TEX. GOV’T CODE ANN.
5 552.133) (eff. Sept. 1, 2001).
The Honorable David Sibley - Page 8 (JC-0424)
reasonably related to a competitive matter, as defined in this section.“). This provision appears to
address information in the possession of a public power utility rather than information relating to a
utility in the possession of a private appraisal firm or appraisal district. See, e.g., id. (“Information
or records of a municipaZZy owned utility that are reasonably related to a competitive matter are not
subject to disclosure under this chapter, whether or not, under the Utilities Code, the municipally
owned utility has adopted customer choice or serves in a multiply certificated service area. This
section does not limit the right of apublicpower utility governing body to withhold from disclosure
information deemed to be within the scope of any other exception provided for in this chapter,
subject to the provisions of this chapter.“) (emphasis added). Furthermore, it provides an exception
to the public’s right of access under the Public Information Act; it does not address a property
owner’s special right of access to information under section 25.195 of the Tax Code.
In sum, under section 25.195(a) of the Tax Code a property owner has a right of access to
information about his property prepared by a private appraisal firm and obtained by the appraisal
district from the appraisal firm pursuant to section 25.01 (c) of the Tax Code. In addition, section
25.195(c) gives a property owner access to information in the possession of a private appraisal firm
that may not be in the possession of the appraisal district. Neither section 39.001 of the Utilities
Code nor any other provision enacted in the 1999 legislation deregulating the electric utility industry
affects a property owner’s right of access to appraisal information under section 25.195 of the Tax
Code. Finally, we caution that this opinion discusses a property owner’s right of access under
section 25.195 as amended in general terms. We do not decide what information might be available
to a property owner in a particular case.
The Honorable David Sibley - Page 9 (JC-0424)
SUMMARY
Under section 25.195(a) of the Tax Code, a property owner
has a right of access to information about his property prepared by a
private appraisal firm and obtained by the appraisal district from the
appraisal firm pursuant to section 25.01 (c) of the Tax Code. In
addition, section 25.195(c), a provision recently enacted by Senate
Bill 1737, gives a property owner access to information in the
possession of a private appraisal firm that may not be in the
possession of the appraisal district.
Neither section 39.001 of the Utilities Code nor any other
provision enacted by the Seventy-sixth Legislature in Senate Bill 7,
legislation enacted in 1999 to deregulate the electric utility industry,
affects a property owner’s right of access to appraisal information
under section 25.195 of the Tax Code.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4150260/
|
Electronically Filed
Supreme Court
SCWC-15-0000657
03-MAR-2017
08:18 AM
SCWC-15-0000657
IN THE SUPREME COURT OF THE STATE OF HAWAII
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
DARWIN RAMIREZ, Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000657; CR. NO. 98-0-2266)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, McKenna, and Pollack, JJ.,
and Wilson, J., dissenting separately)
Petitioner/Defendant-Appellant Darwin Ramirez’s
application for writ of certiorari filed on January 17, 2017, is
hereby rejected.
DATED: Honolulu, Hawaii, March 3, 2017.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
|
01-03-2023
|
03-03-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4288746/
|
Fourth Court of Appeals
San Antonio, Texas
June 19, 2018
No. 04-18-00097-CR
Ruben Gian Antonio LOPEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR5998W
The Honorable Joey Contreras, Judge Presiding
ORDER
On May 30, 2018, we granted Appellant’s first motion for a thirty-day extension of time
to file the brief—until June 10, 2018.
To date, despite two reminder phone calls to counsel, no brief or motion for extension of
time to file the brief has been filed.
We ORDER Appellant’s court-appointed attorney Patrick B. Montgomery to file either a
motion to dismiss or the brief within TEN DAYS of the date of this order. If no brief or motion
is filed by that date, we will abate this appeal to the trial court for an abandonment hearing
without further notice. See TEX. R. APP. P. 38.8(b)(2).
Appellant’s attorney Patrick B. Montgomery is cautioned that, to protect Appellant’s
rights, this court may initiate proceedings under Rule 38. See id. R. 38.8(b)(4).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 19th day of June, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court
|
01-03-2023
|
06-26-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/4143642/
|
OFFICE'OFTHE ATTORNEY GENERAL OFTEXAS
AU8TlN
Eonorable Harry Bhulta
aouuty AttOl%My
Dallam aolurtp
Palhart, Texas
a fur
hool
t.
F4 are In ceoel er of 84pt4mbor 10,
1040, recjursti~ the opin artment, uhiehklot-
ter read8 ill pert, a(I to1
sohool bur t6
1t uoul4 have
The thr4s &d.ldrea are the
i~1n.g nithlnthkdiatriot 8Itmted
iatenae from the soheol w l'r&a
es Xn the past tuo or .three pear8
!lave beoIl pying to tl?c fath4r
anmdly @lO.OO per pup11 and the tether haa
sent these ohlldrsn to a mlatlvs cm the south
plains, mine lcoomlles dfatamo, whhere the
ar4 being;sOhooleOr The iathes hes reoont I y
demanded that the allWanae be fsoreaseb to
the sun of $l.&OO per pqM. par month* In aU-
dltion, it tarpeers thet he enumeratad the ohil-
drsn In the sob001 dlstriot ez1 the mttth plains
whiah t?:ey have been attending, for the past
two or thr44 yeem The %ru4t44e er4 wdlllagg
flonoreble Xnrry Sofiult~, Faga 8
to nake srlch additional edvanaanmnt and ln faot
are BOW questioning t%Ir authority to pay any
man towsrd the sduoatlon or support oi thore
aklldren,
+ i, l
'fTlmT10~~: (a) Ar4 the tr~sttearof euah
OOEGEOB40-00 dlatrlat wsdor the a%ma isot
legally p3rmltted to make any payrmnt toward
t?le education or support of thacn ohll.drenMB
thoul;h thy were enumerated In thati own aounty?
*(b) If so, what amunt rlll the trurtaaa
be pernlttedto pey pat pupil?
*'(a) Xi anwsrated,in the oount whara
they were attendlag aoho@-s?m 800 inI lan dim-
tnnoa iron their home, may thn~~trustaoct legally
pay any SLWIout OS the clohoolfund8 tcmards the
eduostlon or support of s&t ~ehllbran? ff so,
what amountP"
Wlthout attarapting to enuraareta all ths varloua
stetuted bearing upon the pusstian, our sohool lawa oonkma-
plate thet 4 studant ahall attand'aoheol in the dimtriat of
hfr resideme. ~rovlslo~ haa baen maWIn oartain lnataaoar
for pupils ettendlng sahool In othar dlrtrlota.
krtlcrls 8696 RievlrrdCivil Statute* lW!5, pro-
vldas for tDc tranefsr o4 a ohtld iroar one dlsdot to @Bother
dlstrlot ln ttl4 sass 0ouaty. Xn suoh eases tbs aoholaatlo*a
per oaglte a;?pmtloment crrevbe tmasiarrad tc the rnoeitlng:
dlstriot. Art1014 &69?, R. a. Eirt 1985, provld4s tor the
transfer of a ohlld to nn edjoining dlatrlot In anothar oounty,
when it in shown to the Cuunty 3uparlntendant that WH dir-
trlot in -&ioh mob ahlld reaidaa, on aooocnt of &%tahaa~or
OOBLO uneontrollobla ox dsngercw sbataola is lnaooemalblr to
ouoh a5lld." Thin atstuts tnskaa no provlaion far the dlo-
trlot in -blah the child rssldsr aontrlbutin6 to the eduaetlcm
or sup;ort of nuah ahlld, other t&an for the tranefsr of t&l
St*te per ospltn e~.prtl0nnsnt~ tsuoh tranrfsra or ar aapits
appatloament 4~4 ~34 te.the roarlvlng dlstrlot en1 not to
the parent.
ustlale ~Q~ZL, Vernon's Texas ~11~113tatutas, euthor-
iree and requires t?m home diiatrlat to pay tile tultlon of lta
fionoratrle I!amy 3ohultz, ?age S
transterred !A?!: sohool atmlanta, not to exooed $7.50 par
mnt2, when the rupll*s ~,rada Is not tau&ht In tba hcnaa die-
triot. ?hls tuition Taynent Is llkawlaa made to the regaIv-
j,n!~ dlstriot on& not tc the ohilb or parsnt. ?he feats pm-
sented in your letter, however, do not ocw within this sta-
tute. 7rovfaion be been mile fm pepcnt of tuition to
sohools In e4,joiaIng states under oortaIn fasts. %a Art.
w30@g,Vernoava Texas SIvil Statuter. "'e are not aware of
any lagisletive enaotaent whloh would authorlae the trmataes
to expend sohool zoneys for tha ;urposee mentionad In your
letter. Set ArtiOle 8027; Roviesc? Civil Gtatutes 19a5,
1lElit1n; ma ;jtjrpSes for whlah pub110 fS80 SOhOd f-48
may be uasd.
Filth raterenoe to the eaum&ation of the ohlldni
In qusetion sea Artiole %Wi, R. 0. S., 1985, whIoh requires
tkat a ohlld be snumratsd In the distriot of hla rerIU+n9a
and dlrapts the oenms trustaa Co rec;nIre the parson rander-
Ing the oh116 to swear to the.information OOatained in the
0enm.mreport. If these ahIldran ware properly emUaerated
then they do not real&s In the ooacmn sohool dl6trIOt In Dallam
cotlatg .
It ia our opinion that questiona (a) and (0) lrhould
be answered in the negstivs and In view oi the ioregolng,quea-
tioa (b) dooar not require an anaw@rr
Your8 very truly
ALip u.
Oeo 1 9. Oawaaok
Aaslstant
APPR~)VEI;OCT
3, 1940
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143645/
|
Gmrrld C. Mane AUSTIN. TEXAS
Honorable T. M. Trtmble. Page 2
thtldra r*sillyl ia l 8eheol district naay k tram-
ferred to another dtstrlct, w to u Wepmdat dis-
trict, UpOmsluh tOtmU 8s mSy k 8p.84 ~~00 by tnu-
tees of aid distrtats tuto&.8tod:
Tkt pod08 d ArtMe tC99 8ithmbiU the trust008
ef iutorestad did&tS W tr8uSfn 8tl the chitdra residiq k 8
sckeol d&strictta 8uoth.r district does iot t 8 tbt mah cou-
tr8etsudtr8udmkm8dowahu8d~o(riry 3% cti it is therrtors
our apiniu8thmtrasfera m8y ks m8de tkerauder to otker tbu 8d-
Yours very thly
ATTORNKY QKBJCRAL OF TJLXAS
BY
APPROVED OCT 3.194e
(si~r~d)GealdC.Man
Attonsy GIurrl ef Teaas
APPROVED:
.opbioll c-m i
By B. W. B., Chairman
O.K. - Q.R.L.
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4288691/
|
Fourth Court of Appeals
San Antonio, Texas
June 12, 2018
No. 04-18-00370-CV
IN RE STATE NATIONAL INSURANCE COMPANY, INC.
Original Mandamus Proceeding1
ORDER
Sitting: Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Real Party In Interest’s Unopposed Motion for Extension of time to file its response to
Relator’s Petition for Writ of Mandamus is hereby granted. The response is due July 11, 2018.
It is so ORDERED on this 25th day of June, 2018.
PER CURIAM
ATTESTED TO: ___________________________________
KEITH E. HOTTLE,
Clerk of Court
1
1 This proceeding arises out of Cause No. 17-088, styled State National Insurance Co., Inc. v. Stonehouse Builders,
LLC, pending in the 451st Judicial District Court, Kendall County, Texas, the Honorable Bill R. Palmer presiding.
|
01-03-2023
|
06-26-2018
|
https://www.courtlistener.com/api/rest/v3/opinions/4129423/
|
OFFICE OF THE ATTORNEY GENERAL. STATE OF TEXAS
JOHN CORNYN
July 182000
The Honorable Florence Shapiro Opinion No. JC-0258
Chair, Committee on State Affairs
Texas State Senate Re: Authority of a peace officer to detain a
P.O. Box 12068 motorcyclist riding without a helmet to determine
Austin, Texas 78711 whether the motorcyclist has liability insurance
(RQ-0216.JC)
Dear Senator Shapiro:
You have asked this office whether a peace officer has “the authority to stop a motor cycle
driver who is obviously over 21 years of age, not wearing a helmet, and not displaying a sticker as
required by [section 661.003(d)] of the Transportation Code, for the sole purpose of determining
whether they are in compliance with the law concerning carrying liability insurance?’ Letter from
Honorable Florence Shapiro, Chair, Committee on State Affairs, Texas State Senate, to Elizabeth
Robinson, Chair, Opinion Committee, Office of the Attorney General (May 5,200O) (on file with
Opinion Committee). We conclude that a peace officer has the authority to stop amotorcyclist not
wearing a helmet or a motorcyclist whose passenger is not wearing a helmet, as required by section
661.003(a) and (b), ifthe sticker issued pursuant to section 661.003(d) is not visible to the officer,
because such a person appears to be committing a misdemeanor “punishable by a tine of not less
than $10 or more than $50.” TEX. TRANSP. CODE ANN. 5 661.003(h) (Vernon Supp. 2000).
Section 661.003(a) of the Transportation Code makes it an offense to operate or ride as a
passenger on a motorcycle on a public street or highway without protective headgear that meets
safety standards adopted by the Texas Department of Public Safety. See id. 5 661.003(a). Section
661.003(b) makes it an offense to carry a passenger not wearing such headgear on a motorcycle.
However, a person required to wear such headgear is excepted from subsections (a) and(b) provided
he or she is at least 21 years old, and has either successfully completed a motorcycle training and
safety course or is covered by a health insurance plan providing for at least $10,000 of medical
benefits for motorcycle accident-related injuries. See id. 5 661.003(c). Evidence that one has
fulfilled these conditions may be afforded by a sticker issued by the Department of Public Safety
pursuant to section 661.003(d). “A person operating or riding as a passenger on a motorcycle that
displays on the license plate of the motorcycle or the license plate mounting bracket a sticker issued
by the department under Subsection(d) is presumed to have successfully completed the training and
safety course described by Subsection (c) or to have the insurance coverage described by that
subsection.” Id. 4 661.003(g).
The Honorable Florence Shapiro - Page 2 (JC-0258)
As we understand your question, it is whether a peace officer may stop a motorcycle rider
not wearing a helmet who fails to display the sticker in question, and thereupon to inquire as to
whether the rider has the requisite insurance. We conclude that in such a case the officer is acting
properly. In this circumstance, so far as the officer can tell the motorcyclist is violating the helmet
law. The officer has the power, pursuant to article 2.13 of the Code of Criminal Procedure, to stop
a motorcyclist he perceives to be committing a misdemeanor. See TEX. CODECRIM. PROC. ANN. art.
2.13(a) (Vernon Supp. 2000).
A representative of the Texas Motorcycle Rights Association argues that motorcyclists’
rights are violated when they are stopped in the situation you describe: “If we are driving our
automobile, despite a law that requires that we have insurance to do so, we are assumed to be in
compliance and not subject to stop. I[fl we are on our motorcycle aren’t we accorded the same
privilege of assumed compliance 7” Letter from Sputnik, State Chairman, Texas Motorcycle
Rights Association, to Elizabeth Robinson, Chair, Opinion Committee, Oftice of the Attorney
General (Apr. 25, 2000) (on tile with Opinion Committee). This argument is unavailing.
The situation which is most directly analogous to driving a motorcycle without a helmet and
without the requisite sticker is driving an automobile without the valid inspection sticker required
by section 548.602 of the Transportation Code. The operator of such a car may expect to be pulled
over just as certainly as the helmetless motorcycle rider. The sticker mandated by the helmet law
and the inspection sticker serve precisely the same function in these situations. They are meant to
inform the police that the operators ofthese vehicles are acting within the law. The absence ofeither
of these stickers, on the other hand, suggests that such is not the case. In either instance, then, it is
reasonable for the police to stop the vehicle to insure compliance.
Accordingly, we conclude that a peace officer has the authority to stop a person operating
a motorcycle without a helmet, or carrying a passenger without a helmet, if the motorcycle operator
does not display on his license plate or license plate mounting bracket a sticker issued pursuant to
section 661.003(d) of the Transportation Code.
The Honorable Florence Shapiro - Page 3 (JC-0258)
SUMMARY
A peace officer has the authority to stop a person operating a
motorcycle without a helmet, or carrying a passenger without a
helmet, if the motorcycle operator does not display on his license
plate or license plate mounting bracket a sticker issued pursuant to
section 661.003(d) of the Transportation Code.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129329/
|
OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
March 52001
The Honorable Michael P. Fleming Opinion No. JC-0352
Harris County Attorney
1019 Congress, 15th Floor Re: Whether Governrnent Code section 5 5 1.125
Houston, Texas 77002- 1700 permits absent members of a governmental body
to participate in a meeting by telephone con-
ference call when a quorum of the governmental
body has convened in one location, and related
questions (RQ-0297-JC)
Dear Mr. Fleming:
You ask a number of questions about the authority of a county commissioners court to hold
an emergency meeting by telephone conference call under section 55 1.125 of the Government Code. *
See TEX. GOV’T CODE ANN. 4 55 1.125 (Vernon Supp. 2001). We conclude that a governmental
body need not state in the notice of a section 55 1.125 meeting that the meeting will be held by
telephone conference call. Section 55 1.125, in permitting a meeting by telephone conference call
only in case of an emergency or public necessity and only if it is “difficult or impossible” to convene
a quorum in one location, contemplates meetings by telephone conference call in extraordinary
circumstances and not merely when attending a meeting at short notice would inconvenience
members of the governmental body. See id. Ej551.125(b). When a quorum of the governmental
body has convened for an emergency meeting at the meeting location, section 55 1.125 does not
permit absent members to participate in the meeting by telephone conference call. Finally, given
that a court might void actions taken at a meeting for which a member does not receive notice, a
governmental body should make every effort to provide every member with actual notice of
meetings.
Before turning to your specific questions, we briefly review the statute at issue. Chapter 55 1
of the Government Code, the Open Meetings Act (the “Act”), generally requires a governmental
body, such as a county commissioners court, to hold meetings by convening a quorum of its
members in one location: “The Qpen Meetings Act contemplates that members of a governmental
body participating in a meeting must be physically present unless expressly authorized to participate
by other means. . . . [S]uch legislative authorizations must be strictly construed and may not be
expanded to allow exceptions not expressly contemplated.” Tex. Att’y Gen. Op. No. DM-478
(1998) at 4. This office has concluded that a governmental body may not permit a member to
‘See Letter from Honorable Michael P. Fleming, Harris County Attorney, to Honorable John Comyn, Texas
Attorney General (Oct. 13,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Michael P. Fleming - Page 2 (JC-0352)
participate in a meeting from a remote location by telephone or videoconference call unless
specifically authorized by statute to do so. See Tex. Att’y Gen. Op. Nos. JC-0194 (2000), DM-478
(1998), DM-207 (1993), JM-584 (1986).
Subchapter F of chapter 55 1 contains a number of provisions authorizing governmental
bodies to hold meetings using telephone and video conferencing technology. Section 55 1.125 of the
Government Code, the statute you ask us to interpret, is located in subchapter F. Section 55 1.125
provides that a governmental body may hold a meeting by telephone conference call “only if: (1)
an emergency or public necessity exists within the meaning of Section 55 1.045 of this chapter; and
(2) the convening at one location of a quorum of the governmental body is difficult or impossible;
or (3) the meeting is held by an advisory board.” TEX. GOV’T CODE ANN. 0 551.125(b) (Vernon
Supp. 2001). Section 55 1.045 of the Act provides that an emergency or an urgent public necessity
exists “only if immediate action is required of a governmental body because of: (1) an imminent
threat to public health and safety; or (2) a reasonably unforeseeable situation.” Id. 5 55 1.045(b)
(Vernon 1994). Thus, section 5 5 1.125 authorizes a meeting by teleconference only in very limited
situations.
Under section 55 1.125, a telephone conference call meeting is subject to the notice
requirements applicable to other meetings. See id. 6 55 1.125(c) (Vernon Supp. 2001). In addition,
the notice of the telephone conference call meeting must specify as the location of the meeting the
location where meetings of the governmental body are usually held. See id. § 55 1.125(d). Section
55 1.125 also imposes technical requirements, namely:
(e) Each part of the telephone conference call meeting that is
required to be open to the public shall be audible to the public at the
location specified in the notice of the meeting as the location of the
meeting and shall be tape-recorded. The tape recording shall be made
available to the public.
(f) The location designated in the notice as the location of the
meeting shall provide two-way communication during the entire
telephone conference call meeting and the identification of each party
to the telephone conference shall be clearly stated prior to speaking.
Id. 8 55 1.125(e), (f). Other provisions in subchapter F permit governing boards of institutions of
higher education to meet by telephone conference call in similar circumstances, see id. fj 55 1.12 1
(Vernon 1994), and provide that a governmental body may hold a meeting by videoconference call
if a quorum of the governmental body is physically present at one location, see id. 5 55 1.127
(Vernon Supp. 2001).
We now turn to your questions about section 55 1.125. As a threshold matter, we note that
your questions assume that a commissioners court, the meetings of which are also governed by
chapter 8 1 of the Local Government Code, is authorized to hold an emergency meeting under the
The Honorable Michael P. Fleming - Page 3 (JC-0352)
Open Meetings Act. Section 55 1.045 of the Government Code authorizes a governmental body to
hold a meeting with only two hours notice in cases of an emergency or urgent public necessity. See
id. 8 55 1.045 (Vernon 1994). Although section 8 1.005(a) of the Local Government Code requires
a commissioners court to establish a weekly, monthly or quarterly time to convene in regular term,
subsection (b) of that statute provides that “[tlhe county judge or three county cornmissioners may
call a special term of the court.” TEX.Lot. GOV’T CODEANN. 5 8 1.005(a), (b) (Vernon Supp. 2001).
As section 8 1.005(b) authorizes a commissioners court to hold a meeting other than at regular term,
we conclude that a commissioners court may hold an emergency meeting under the Open Meetings
Act.
First, you ask if “the notice of the telephone conference call meeting [must] expressly state
that the meeting will be conducted as a telephone conference call meeting?” Request Letter, supra
note 1, at 1. We conclude that the notice need not state that the meeting will be conducted as a
telephone conference call.
The legislature has expressly provided a number of requirements that the notice of a section
55 1.125 meeting must satisfy; the requirement that the notice state that the meeting will be held as
a telephone conference call is not among them. See TEX. GOV’T CODE ANN. 5 551.125 (Vernon
Supp. 2001). Again, section 55 1.125 expressly provides that notice of a telephone conference call
must specify as the location of the meeting the location where meetings of the governmental body
are usually held. See id. 8 55 1.125(d). In addition, section 55 1.125 also states that such a meeting
is subject to the notice requirements applicable to other meetings. See id. 4 551.125(c). These
requirements include the general requirements of section 55 1.041 regarding the date, hour, place,
and subject of each meeting and the special requirements for emergency meetings in sections
55 1.045 and 55 1.047, including the requirement that the notice “clearly identify the emergency or
urgent public necessity,” id. 5 55 1.045(c) (Vernon 1994) and that special notice be given to
members of the news media who request it, see id. 5 551.047. Given these detailed notice
requirements, we do not believe the legislature intended to require governmental bodies to provide
notice that a section 55 1.125 meeting will be held by telephone conference call.
Of course, although the Act does not require it, a governmental body may certainly include
in the notice the fact that the meeting will be conducted as a telephone conference call. We caution,
however, that if a governmental body has a practice of stating in its notices that a meeting will be
conducted as a telephone conference call, an unannounced change in this practice could affect the
adequacy of notice. See Tex. Att’y Gen. Op. No. JC-0057 (1999) at 4-5 (“The governmental body’s
usual practice in formulating notice may also be relevant to its adequacy in a particular case,
depending on whether it establishes particular expectations in the public about the subject matter of
the meeting.“) (relying on River Rd. Neighborhood Ass’n v, S. Tex. Sports, 720 S.W.2d 551, 557
(Tex. App.-San Antonio 1986, writ dism’d)).
Next you ask: “What is the meaning of ‘difficult or impossible’ as used in Section
55 1.125(b)?” Request Letter, supra note 1, at 1. The Code Construction Act provides that “words
and phrases that have acquired a technical or particular meaning, whether by legislative definition
The Honorable Michael P. Fleming - Page 4 (JC-0352)
or otherwise, shall be construed accordingly.” TEX. GOV’T CODEANN. 0 3 11 .O11 (b) (Vernon 1998).
Absent such a meaning, words and phrases are “read in context and construed according to the rules
of grammar and common usage.” Id. 8 3 11.01 l(a). The phrase “difficult or impossible” is not
defined in section 5 5 1.125(b) or in section 5 5 1.12 1, another Open Meetings Act provision predating
section 55 1.125 that authorizes governing boards of institutions ofhigher education to hold meetings
by telephone conference call in certain limited situations, see id. 8 55 1.121 (c)(2) (Vernon 1994).
Nor are we aware of any other statute or judicial or attorney general opinion construing the phrase.
For this reason, we construe the phrase in context and according to the common dictionary
definitions of the words “difficult” and “impossible.”
Section 55 1.125 permits a meeting by telephone conference call if an emergency or public
necessity exists and “the convening at one location of a quorum of the governmental body is difJicuZt
or impossible.” Id. 8 55 1.125(b) (emphasis added). “Difficult” means “[nlot easy; requiring
effort or labour; occasioning or attended with trouble; troublesome, hard.” IV OXFORDENGLISH
DICTIONARY 641 (2d ed. 1989). “Impossible” means “[nlot possible; that cannot be done or
effected. . . .” VII OXFORDENGLISHDICTIONARY732 (2d ed. 1989). Section 55 1.125, in permitting
a meeting by telephone conference call only in case of an emergency or public necessity and only
if it is “difficult or impossible” to convene a quorum in one location, contemplates meetings by
telephone conference in extraordinary circumstances and not merely when attending a meeting at
short notice would inconvenience members of the governmental body. Whether the convening at
one location of a quorum of a governmental body is difficult or impossible in a particular
circumstance, however, would involve questions of fact beyond the purview of an attorney general
opinion.
You also ask: “If a quorum of the Commissioners Court physically appears at the location
designated in the notice as the location of the meeting, may or must the other members of the Court
be joined in the meeting by telephone conference call?” Request Letter, supra note 1, at 1. We
conclude that if a quorum of a commissioners court appears at the meeting location, section 55 1.125
does not authorize other members to participate from other locations by telephone conference call.
Again, section 55 1.125 authorizes a meeting by telephone conference only on certain conditions,
including (except in the case of advisory boards) the condition that “convening at one location of a
quorum of the governmental body is difficult or impossible.” TEX. GOV’T CODE ANN.
5 551.125(b)(2) (V emon Supp. 2001). Section 55 1.125 permits meeting by teleconference only
when a quorum of the governmental body is not located in one place. If a quorum of the court
appears at the meeting location, section 55 1.125 does not apply and would not authorize the
participation of other members by telephone. This office reached a similar conclusion with respect
to section 55 1.121, which authorizes the governing board of an institution of higher education to
hold a special called meeting by telephone conference call if “the convening at one location of a
quorum of the governing board is difficult or impossible,” id. 0 55 1.121(c)(2) (Vernon 1994),
opining that that statute did not permit a governing board to allow absent members to participate by
teleconference call in regular meetings at which a quorum was present. See Tex. Att’y Gen. Op.
Nos. JC-0194 (2000) (affirming conclusion of Attorney General Opinion DM-478 (1998)); DM-478
(1998).
The Honorable Michael P. Fleming - Page 5 (JC-0352)
Finally, you ask: “In setting up the telephone conference call, what level of effort must be
made to contact the members of the Court not physically present at the designated location of the
meeting?” Request Letter, supra note 1, at 1. Your memorandum brief suggests that the officer in
charge of organizing the meeting need only make a good faith effort to provide notice to and to
contact members of the court. See Memorandum at 4, attached to Request Letter, supra note 1. We
caution, however, that because a court might void an action taken at a meeting for which a member
does not receive notice, a governmental body should make every effort to provide every member
with actual notice of meetings.
The Open Meetings Act establishes requirements governmental bodies must follow for
providing notice of their meetings to the public. See, e.g., TEX. GOV’T CODE ANN. $9 551.041
(Vernon 1994) (notice requirement); .043 (notice must be posted at place readily accessible’to the
public). As one court has noted, “The members of the interested public are the ‘intended
beneficiaries of the Act,’ and as long as the public is informed, the purpose of the Open Meetings
Act is fulfilled. It is irrelevant whether the individuals most likely to be affected are given notice.”
Markowski v. City of Marlin, 940 S.W.2d 720, 725-26 (Tex. App.-Waco 1997, writ denied).
Similarly, we believe the Act does not govern governmental bodies’ duty to provide notice of
meetings to their members.
We have not been able to locate any statute or case that specifies the “level of effort” that
must be made to notify members of a governmental body of a meeting of the body. Case law
predating the Open Meetings Act suggests, however, that a governmental body may not hold a valid
meeting or take a valid action without providing notice of the meeting to all of its members. As the
Texas Supreme Court stated in Webster v. Texas & PaczJic Motor Transport Co., 166 S.W.2d 75
(Tex. 1942):
[Wlhere the Legislature has committed a matter to a board, bureau,
or commission, or other administrative agency, such board, bureau,
or commission must act thereon as a body at a stated meeting, or one
properly called, and of which all the members of such board have
notice, or of which they are given an opportunity to attend. Consent
or acquiescence of, or agreement by the individual members acting
separately, and not as a body, or by a number of the members less
than the whole acting collectively at an unscheduled meeting without
notice or opportunity of the other members to attend, is not sufficient.
Webster, 166 S.W.2d at 76-77 (emphasis added); see also Cassin v. Zavalla County, 8 S.W. 97,98
(Tex. 1888) (holding illegal meeting convened by county judge and two commissioners prior to
qualification of two remaining commissioners and for which latter were not provided notice).
Following Webster, courts have voided the actions of governmental bodies taken at meetings of
which a member did not receive notice. See Singleton v. Smithers, 359 S.W.2d 152, 153-54 (Tex.
Civ. App.-Amarillo 1962, writ ref d n.r.e) (action of county board of trustees was void because one
The Honorable Michael P. Fleming - Page 6 (JC-0352)
county trustee was not notified of special called session) (citing Webster); Palmer v. Dist. Trs., 289
S.W.2d 344, 345 (Tex. Civ. App.-Texarkana 1956, writ ref d n.r.e.) (holding county board of
trustees order void where notice of meeting was not given to one member of the board and board
member did not participate in the meeting) (citing Webster); see also Cassin, 8 S.W. at 98 (voiding
contract entered into by county judge and two commissioners prior to qualification of two remaining
commissioners and at a meeting for which latter were not provided notice). Although the general
notice of a meeting provided to the public under the Open Meetings Act may be sufficient to inform
a member of a governmental body of a regularly scheduled meeting, we suggest that the
commissioners court agree to procedures for contacting each member of the court on short notice
so that the court may provide each member with actual notice of emergency meetings.
The Honorable Michael P. Fleming - Page 7 (JC-0352)
SUMMARY
A governmental body need not state in the notice of a meeting
that the meeting will be held by telephone conference call pursuant
to section 55 1.125 of the Government Code. See TEX. GOV’T CODE
ANN. 9 55 1.125 (Vernon Supp. 2001). Section 55 1.125, in permitting
a meeting by telephone conference call only in case of an emergency
or public necessity and only if it is “difficult or impossible” to
convene a quorum in one location, contemplates meetings by
telephone conference call in extraordinary circumstances and not
merely when attending a meeting at short notice would inconvenience
members of the governmental body. See id. 0 55 1.125(b). When a
quorum of the governmental body has convened for an emergency
meeting at the meeting location, section 55 1.125 does not permit
absent members to participate in the meeting by telephone conference
call. Given that a court might void actions taken at a meeting for
which a member does not receive notice, a governmental body should
make every effort to provide every member with actual notice of
meetings.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129348/
|
OFFKE OF THE ATTORNEY GENERAL. STATE OP TEXAS
JOHN CORNYN
January 22,200l
Mr. Jim Nelson Opinion No. X-0333
Commissioner of Education
Texas Education Agency Re: Whether section 323.019 of the Government
1701 North Congress Avenue Code authorizes the Texas Education Agency to
Austin, Texas 78701-1494 release to the Texas Legislative Council student
information that is confidential under federal law
(RQ-0312-JC)
Dear Commissioner Nelson:
The Texas Education Agency (“TEA”) possesses personally identifiable information from
education records that is confidential under federal law, the Family Educational Rights and Privacy
Act of 1974,20 U.S.C. 5 1232g (1994 & Supp. IV 1998) (“FERPA”). FERPA allows release of
such personally identifiable information without parental consent only under certain circumstances,
including for example, to state and local education authorities for certain purposes. Section 323.019
of the Govermnent Code provides that employees of the Texas Legislative Council are state school
officials for purposes ofFERPA. You ask whether that state statute authorizes the Texas Education
Agency to release to the Texas Legislative Council personally identifiable information that is
confidential under FERPA. We conclude that it does not.
Before turning to FERPA’s provisions governing release of education records, we begin with
a brief discussion of the Texas Legislative Council and section 323.019. Pursuant to chapter 323
ofthe Government Code, the Texas Legislative Council (the “Council”), an agency ofthe legislative
branch of state government, consists of the Lieutenant Governor, the Speaker of the House of
Representatives, the chairs of the Senate and House administration committees, four additional
Senators, and nine additional members of the House. See TEX. GOV’T CODE ANN. 5 323.001(a)
(Vernon 1998). Among other duties, the Council is charged with studying and investigating the
functions and problems of state agencies, conducting studies for the legislative branch, gathering and
disseminating information for the legislature’s use, and providing data-processing services to aid
members and legislative committees in accomplishing their legislative duties. See id. § 323.006.
Chapter 323 authorizes the Council to inspect and copy records in connection with hearings and to
issue subpoenas to compel the production ofrecords. See id. $5 323.010, .Ol 1.
Section 323.019 of the Government Code, which was enacted in 1999,’ provides that the
Council may “gather and analyze information relating to public education and other public services
‘See Act of May 18, 1999,76th Leg., RX, ch. 1X%,$2, 1999 Tex. Gen. Laws 5436
Mr. Jim Nelson - Page 2 (X-0333)
for the purpose of conducting statistical and demographic research and producing reports.” Id.
§ 323.019(a) (Vernon Supp. 2000). It requires state agencies to provide information to the Council
“to the maximum extent permitted by state or federal law.” Id. 4 323.019(b). Subsection (c) of
section 323 .O19 provides that the Council is entitled “to collect data from any state agency, including
data that is confidential under state or federal law,” id. § 323.019(c), “[i]n order to develop and
evaluate legislative policy,” id. Significantly, it also provides that “[flor the limited purpose of
collecting and matching data subject to 20 U.S.C. Section 1232g [FERPA] or other federal law
governing education records, employees of the council are considered state school officials.” Id.
FERPA protects “education records” maintained by “an educational agency or institution,”
a term that includes any public or private agency or institution that receives federal funding. See 20
U.S.C. 5 1232g(a)(3) (1994). “Education records” is broadly defined in FERPA to include records,
files, documents and other materials maintained by an educational agency or institution that contain
information directly related to a student. See id. 5 1232g(a)(4)(A). Student “directory information,”
information such as a student’s name, address, telephone number, date ofbirth, and extracurricular
activities, is subject to lesser protections. See id. 5 1232g(a)(5)(A) (defining “directory
information”); (B) (special provisions allowing release of directory information after notice). The
term “student” includes any person for whom an educational agency or institution maintains
education records or personally identifiable information, but does not include a person who has not
been in attendance at such agency or institution. See id. 5 1232g(a)(6).
FERPA provides that federal funding for education will not be made available to an
educational agency or institution that has a policy or practice of releasing “education records (or
personally identifiable information contained therein other than directory information . ) of
students without the written consent oftheir parents to any individual, agency, or organization, other
than” certain specified entities in certain limited circumstances. Id. 5 1232g(b)(l); see also Klein
Indep. Sch. Dist. v. Muttox, 830 F.2d 576, 579 (5th Cir. 1987). A number of FERPA’s exceptions
to the general rule prohibiting disclosure of student records without parental consent allow release
of information to school officials. Section 1232g(b)( 1) of FERPA permits the release of personally
identifiable student information without parental consent to:
(A) other school officials, including teachers within the
educational institution or local educational agency, who have been
determined by such agency or institution to have legitimate
educational interests, including the educational interests of the child
for whom consent would otherwise be required;
(B) officials of other schools or school systems in which the
student seeks or intends to enroll, upon condition that the student’s
parents be notified of the transfer, receive a copy of the record if
desired, and have an opportunity for a hearing to challenge the
content of the record;
Mr. Jim Nelson - Page 3 (X-0333)
(C) (i) authorized representatives of (I) the Comptroller General
of the United States, (II) the Secretary [of Education], or (III) State
educational authorities, under the conditions set forth in paragraph
(3), or (ii) authorized representatives of the [United States] Attorney
General for law enforcement purposes under the same conditions as
apply to the Secretary under paragraph (3);
m connection with a student’s application for, or receipt of,
Ilnafn?al aid;
(E) State and local officials or authorities to whom such
information is specifically allowed to be reported or disclosed
pursuant to State statute adopted-
(i) before November 19, 1974, if the allowed reporting or
disclosure concerns the juvenile justice system and such system’s
ability to effectively serve the student whose records are released, or
(ii) after November 19, 1974, if-
(1) the allowed reporting or disclosure concerns the juvenile
justice system and such system’s ability to effectively serve, prior to
adjudication, the student whose records are released; and
(II) the officials and authorities to whom such information
is disclosed certify in writing to the educational agency or institution
that the information will not be disclosed to any other party except as
provided under State law without the prior written consent of the
parent of the student.
(F) organizations conducting studies for, or on behalf of,
educational agencies or institutions for the purpose of developing,
validating, or administering predictive tests, administering student aid
programs, and improving instruction, if such studies are conducted in
such a manner as will not permit the personal identification of
students and their parents by persons other than representatives of
such organizations and such information will be destroyed when no
longer needed for the purpose for which it is conducted;
(G) accrediting organizations in order to carry out their
accrediting functions;
Mr. Jim Nelson - Page 4 (X-0333)
(II) parents of a dependent student of such parents, as defined in
section 152 of Title 26;
(I) subject to regulations of the Secretary, in comiection with an
emergency, appropriate persons ifthe knowledge of such information
is necessary to protect the health or safety of the student or other
persons; and
(J) (i) the entity or persons designated in a Federal grand jury
subpoena, in which case the court shall order, for good cause shown,
the educational agency or institution (and any officer, director,
employee, agent, or attorney for such agency or institution) on which
the subpoena is served, to not disclose to any person the existence or
contents of the subpoena or any information furnished to the grand
jury in response to the subpoena; and
(ii) the entity or persons designated in any other subpoena
issued for a law enforcement purpose, in which case the court or other
issuing agency may order, for good cause shown, the educational
agency or institution (and any officer, director, employee, agent, or
attorney for such agency or institution) on which the subpoena is
served, to not disclose to any person the existence or contents of the
subpoena or any information furnished in response to the subpoena.
.
20 U.S.C. $ 1232g@)(l)(A)-(J) (1994 & Supp. IV 1998) (emphasis added). In addition, release of
student information is not prohibited if there is written consent or in compliance with ajudicial order
or subpoena, if the parents and students are notified of the order or subpoena in advance of the
educational institution or agency’s compliance. See id. 5 1232g(b)(2)(B) (1994).
Before turning to your specific question, we briefly examine the legal status of the
information at issue. You inform us that TEA has received personally identifiable student
information from Texas school districts pursuant to section 42.006 of the Education Code.* See
TEX. EDUC. ;CODE ANN. 5 42.006 (Vernon 1996) (establishing Public Education Information
Management System). TEA’s general counsel informs us that school districts disclose personally
identifiable student information to the TEA without parental consent pursuant to subsections
2.See Letter from Jim Nelson, Commissioner of Education, to Honorable John Comyn, Texas Attorney General
at 3 n.5 (Jan. 7,200O) [hereinafter Request Letter] attached to Letter from David A. Anderson, General Counsel, Texas
Education Agency, to Honorable John Comyn, Texas Attorney General (Nov. 14, 2000) (on tile with Opinion
Committee).
Mr. JimNelson - Page 5 (JC-0333)
(b)(l)(C), (b)(3), and (b)(5) ofFERPA: provisions which, as we will discuss in greater detail below,
allow state educational authorities access to records that may be necessary “in connection with the
audit and evaluation of any federally or State supported education program,” 20 U.S.C. §
1232g(b)(5) (1994); see also 34 C.F.R. 5 99.35 (2000). The United States Department ofEducation
rules implementing FERPA provide that an educational agency or institution may disclose
information with the understanding that the party receiving the information may make further
disclosures of the information, but only if the disclosures are authorized under FERPA. See 34
C.F.R. 3 99.33(b) (2000). Thus, TEA’s authority to re-disclose information it has received from
school districts is also subject to FERPA’s limitations on disclosure.
We further note that TEA is an educational agency or institution subject to FERPA’s funding
penalty for unauthorized release of information, see 20 U.S.C. 5 1232g(b)(l) (1994), even though
it does not directly enroll students. FERPA defines the term “educational agency or institution” to
include any public or private agency or institution that receives federal funding under an applicable
education program, without regard to whether it enrolls students. See id. $ 1232g(a)(3). And,
significantly; the Department of Education rules indicate that a state agency like TEA that receives
federal education funding and has jurisdiction over public elementary and secondary educational
institutions is an educational agency or institution subject to FERPA. See 34 C.F.R. 5 99.1(a) (2000)
(defining educational agency or institution to include “an educational agency or institution to which
funds have been made available under any program administered by the Secretary [of Education],
if- (1) The educational institution provides educational services or instruction, or both, to students;
or (2) The educational agency is authorized to direct and control public elementary or secondary,
or postsecondary educational institutions.“) (emphasis added). We understand that TEA receives
federal education funding.4
We now turn to your specific question. Again, section 323.019 of the Government Code
provides that employees of the Texas Legislative Council are “considered state school officials” for
purposes of FERPA. TEX. GOV’T CODEANN. 5 323.019(c) (Vernon Supp. 2000). Thus, we must
consider whether section 323.019 authorizes the TEA to release personally identifiable student
information to Texas Legislative Council employees under one of FERPA’s exceptions to
nondisclosure. In quoting subsection (b)(l)(A)-(J) of FERPA above, we have emphasized the
exceptions to nondisclosure that allow release of information to school officials. In construing these
provisions, we are aided by interpretive regulations promulgated by the United States Department
of Education, 34 C.F.R. pt. 99 (2000). Furthermore, given that release of information in violation
ofFERPAcouldjeopardizeTEA’sfederalftmding,see20U.S.C. 5 1232g(b)(1)(1994),weinterpret
the FERPA provisions authorizing release of information without parental consent narrowly. We
conclude that none of these provisions authorizes the release of information to Texas Legislative
Council employees, even though they are considered “state school officials” for purposes of Texas
law.
‘Telephone Conversation withDavid A. Anderson, General Counsel, Texas EducationAgency(Dec. 2 1,200O).
Mr. Jim Nelson - Page 6 (JC-0333)
Subsection (b)(l)(A) allows release of information to “other school officials, including
teachers within the educational institution or local educational agency, who have been determined
by such agency or institution to have legitimate educational interests, including the educational
interests of the child for whom consent would otherwise be required.” Id. 5 1232g@)(l)(A). This
provision appears to contemplate release of information to other school officials at the local level,
i.e. within the student’s school and school district, rather than to school officials at the state level.
A Department of Education rule confirms this reading, permitting disclosure “to other school
officials, including teachers, within the agency or institution whom the agency or institution has
determined to have legitimate educational interests.” 34 C.F.R. 5 99.31(a)(l) (2000).
Subsection (b)(l)(C) allows the release of information to “[sltate educational authorities,
under the cdnditions set forth in paragraph (3).” 20 U.S.C. 5 1232g(b)(l)(C) (Supp. IV 1998).
Subpart (3) of subsection (b) permits the release of information to state education authorities to the
extent “necessary in connection with the audit and evaluation of Federally-supported education
programs, or in connection with the enforcement of the Federal legal requirements which relate to
such programs.” Id. 5 1232g(b)(3) (1994). In addition, subpart (5) of subsection (b) provides that
nothing in FERPA’s prohibitions against disclosure “shall be construed to prohibit State and local
educational officials from having access to student or other records which may be necessary in
connection with the audit and evaluation of any federally or State supported education program.”
Id. 5 1232g(b)(5). The Department of Education rule on disclosure to “state and local educational
authorities” provides that such officials “may have access to education records in connection with
an audit or evaluation of Federal or State supported education programs, or for the enforcement of
or compliance with Federal legal requirements which relate to those programs.” 34 C.F.R. 5
99.35(a) (2000). Again, section 323.019 of the Government Code contemplates the use of
information “to develop and evaluate legislative policy.” TEX. GOV’T CODE ANN. 5 323.019(c)
(Vernon Supp. 2000). Subsection (b), subparts (3) and (5) of FERPA, and the federal rule, in
permitting release of information for the “audit and evaluation of any federally or State supported
educationprogram,“20U.S.C. 5 1232g(b)(5) (1994), appearto contemplatethe audit andevaluation
of specific existing programs. Development and evaluation of state legislative policy generally is
not a purpose for which the federal provisions permit the release of information.
Subsection (b)(l)(E) provides for the release of information to state and local offkials or
authorities to whom such information is specifically allowed to be reported or disclosed pursuant
to state statute “if the allowed reporting or disclosure concerns the juvenile justice system and
such system’s ability to effectively serve the student whose records are released.” Id.
9 1232g(b)(l)(E). As section 323.019 ofthe Government Code provides for the use of information
“to develop and evaluate legislative policy,” TEX. GOV’T CODE ANN. 5 323.019(c) (Vernon Supp.
2000), and does not specifically provide for the disclosure ofthe information with respect to juvenile
justice matters, we do not believe that subsection(b)(l)(E) authorizes the TEA to release information
to Texas Legislative Council employees.
In suin, we conclude that FERPA does not permit the TEA to release personally identifiable
student information to employees of the Texas Legislative Council without consent despite the fact
Mr. JimNelson - Page 7 (X-0333)
that section 323.019 of the Government Code provides that such employees are “state school
officials” for purposes of that federal law. We note, however, that in enacting FERPA, Congress
delegated authority to enforce it to the United States Secretary of Education. The Department of
Education rules in turn provide that the Secretary has designated the Family Policy Compliance
O&e of the United States Department of Education to provide technical assistance to ensure
compliance with the Act. See 34 C.F.R. 5 99,60(b)(2) (2000). The Family Policy Compliance
Office issues advisory opinions to educational agencies and institutions regarding release of
information under FERPA. TEA has requested the advice ofthat office on the question raised in this
request.5 Should the Family Policy Compliance Office advise the TEA that it may release personally
identifiable student information to the Texas Legislative Council pursuant to section 323.019 ofthe
Government Code or any other law, that advice would prevail over this opinion. We stress that this
office must construe FERPA’s exceptions to nondisclosure narrowly given the potential
consequences of violating the Act for TEA’s federal funding, see 20 U.S.C. 5 1232g(b)(l) (1994).
While TEA funding might be jeopardized if it relied on an opinion of this office that interpreted an
exception to nondisclosure broadly, TEA would not have the same concerns in relying on the advice
of the Family Policy Compliance Office, an office of the federal agency charged with enforcing
FERPA.
‘See Request Letter, supra note 2, at 2,3 n.9.
Mr. Jim Nelson - Page 8 (JC-0333)
SUMMARY
The federal Family Educational Rights and Privacy Act of
1974,20 U.S.C. 5 1232g (1994 & Supp. IV 1998), does not permit
the Texas Education Agency to release personally identifiable student
information to employees of the Texas Legislative Council without
consent despite the fact that section 323.019 ofthe Government Code
provides that such employees are “state school officials” for purposes
of that federal law.
JOtiN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129351/
|
OFFICE
OFTHEATTORNEY
GENERAL.
STATE
OFnx*s
JOHN CORNYN
January 12,200l
The Honorable Scott W. Rosekrans Opinion No. X-0330
San Jacinto County Criminal District Attorney
P.O. Box 430 Re: Whether the wife of the chairman of the
Coldspring, Texas 7733 1 San Jacinto County RepublicanParty is prohibited
from serving as ajudge on the Early Voting Ballot
Board (RQ-0276-JC)
Dear Mr. Rosekrans:
You have asked this office whether, pursuant to section 32.054 ofthe Election Code, the wife
of the chairman of the San Jacinto County Republican Party is prohibited from serving as a judge
on the Early Voting Ballot Board (“the board”). We conclude, as has the Elections Division of the
Office of the Secretary of State, that she is not.
As you explain the situation which prompts your request, Marcella Shaw, wife of William
Shaw, chairman of the San Jacinto County Republican Party, has been appointed as a judge of the
Early Voting Ballot Board.’ Mr. Shaw has no electoral opposition for his office.’ Your office takes
the view that because Mrs. Shaw is related within the second degree of consanguinity or affinity to
the chairman of a political party, she is barred by section 32.054 of the Election Code from serving
as a judge on the board. While an attorney for the Elections Division (“the division”) of the
Secretary of State’s office had, as you inform us, agreed with your view in a telephone conversation,
see Request Letter, note 1, at l-2, the division has taken the contrary view in writing, both in a letter
to your office and in a brief submitted to this office. See McGeehan Letter of 317100, note 2, at 1.’
‘See Letter from the Oftice of Honorable Scott W. Rosekrans, San Jacinto County Criminal Dishict Attorney,
to Honorable John Comyn, Texas Attorney General (Aug. 24, 2000) (on tile with Opinion Committee) [hereinafter
Request Letter].
‘See Letter from Ann McGeehan, Director of Elections, Office ofthe Secretary of State, to Robert S. Duboise,
San Jacinto County Assistant Criminal District Attorney (Mar. 7,200O) (on tile with Opinion Committee) [hereinafter
McGeehan Letter of 3/7/00].
‘SeealsoBrieffrom AnnMcGeehan, DirectorofElections, Office ofthe Secretary ofstate, to SusanD. Gusky,
Chair, Opinion Committee, Office of the Attorney General (Oct. 6,200O) (on tile with Opinion Committee) [hereinafter
McGeehan Brief of 10/6/00].
The Honorable Scott W. Rosekrans - Page 2 (X-0330)
The Election Code section in question reads, in relevant part:
A person is ineligible to serve as an election judge or clerk in
an election if the person is employed by or related within the second
degree by consanguinity or affinity, as determined under Chapter 573,
Government Code, to an opposed candidate for a public oftice or the
party office of county chair in the election.
.
TEX. ELEC. CODE ANN. 5 32.054(a) (Vernon Supp. 2000). An “election judge” for this purpose
would include ajudge of the Early Voting Ballot Board. See id. 5 87.002; see also McGeehan Letter
of 317100, supra note 2, at 1.
In your view, as we understand it, a person is disqualified from service as an election judge
if he or she is either employed by, or related within the prohibited degree to: “(1) an opposed
candidate for public office; or (2) the party office of county chair.” Request Letter, supra note 1, at
4.
The division, on the other hand, reads the prohibition to apply to “an opposed candidate” for
either: (a) public office, or (b) the party office of county chair. See McGeehan Brief of 10/6/00,
supra note 3, at 2-3. “It has been the consistent interpretation ofthe Office ofthe Secretary of State
that ‘opposed’ applies to both phrases.” Id. at 3.
We note at the outset that the Secretary of State is Texas’s chief election offtcer. See TEX.
ELEC. CODEANN. 5 3 1.OOl(a) (Vernon Supp. 2000). As such, the Secretary is empowered to “assist
and advise all election authorities with regard to the application, operation, and interpretation of [the
Election Code] and of the election laws outside this code.” Id. 5 31.004(a) (Vernon 1986).
Accordingly, so long as the Secretary of State’s interpretation of an Election Code provision is a
reasonable one that does not do violence to the statutory language, this office will defer to it. See
Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820,823 (Tex. 1993) (“Construction of a statute by
the administrative agency charged with its enforcement is entitled to serious consideration, so long
as the construction is reasonable and does not contradict the plain language of the statute.“);
Rylanderv. B&AMktg. Co., 997 S.W.2d 326,331 (Tex. App.-Austin 1999, no pet.); Tex. Att’y Gen.
Op. Nos. JC-164 (1999) at 5-6; JC-117 (1999) at 6.
In this instance, the interpretation offered by the Elections Division is a reasonable one. The
parallel phrases “a public office” and “the party office of county chair” would both, in the division’s
reading, refer back to “an opposed candidate.” Grammar and sense in that instance are not offended.
In the interpretation offered by your office, on the other hand, some phrase like “the person holding
the party office” must be supplied because one cannot be employed by or related in the prohibited
degree to “the~party office of county chair.” See Laidlaw Waste Sys., Inc. v. City of Wilmer, 904
The Honorable Scott W. Rosekrans - Page 3 (X-0330)
S.W.2d 656, 659 (Tex. 1995) (additional words should not be read into statute unless clearly
necessary to give effect to legislative intent); Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 902
(Tex. 1988).
Nor are we persuaded by your argument that the Secretary of State’s reading renders the
provision surplusage in the context of a general election because by that point, the parties will have
chosen their county chairs. Early voting occurs in both primary and general elections. The relatives
of opposed candidates for the office of county chair may not serve on the board during those
elections in which their relatives have opposition. The legislature might have distinguished primary
and general elections in this context more explicitly had it wished, but the fact that it did not wish
to do so does not alter the statute’s meaning or render it meaningless.
Because the interpretation of the language of section 32.054 of the Election Code offered by
the Office of the Secretary of State is reasonable and does not contradict the statutory language, we
defer to it. The wife of the chairman of the San Jacinto County Republican Party, the chairman not
being an opposed candidate for that office, is not prohibited by section 32.054 ofthe Election Code
from serving as a judge on the Early Voting Ballot Board.
The Honorable Scott W. Rosekrans - Page 4 (JC-0330)
SUMMARY
The wife of the chairman of the San Jacinto County
Republican Party, the chairman not being an opposed candidate for
that office, is not prohibited by section 32.054 of the Election Code
from serving as a judge on the Early Voting Ballot Board.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129363/
|
December 22,200O
The Honorable Eugene D. Taylor Opinion No. JC-03 18
Williamson County Attorney
County Courthouse Annex, Second Floor Re: Whether article XI, section 11 of the Texas
405 Martin Luther King, Box 3 Constitution requires a municipality to fill by
Georgetown, Texas 78626 special election a vacancy in its governing
body arising from an automatic resignation
(RQ-0286-K)
Dear Mr. Taylor:
On behalf of the City of Georgetown (the “city”), a home-rule city that has extended the
terms of its mayor and city council members horn two to three years, you ask about the
consequences of a council member’s automatic resignation under article XI, section 11 of the Texas
Constitution. Your primary question is whether the city must fill the vacancy by special election or
whether the city council may appoint a person to fill the vacancy. If a special election is required,
you also ask whether the city may wait until May 2001 to hold the election, given that it has already
failed to hold an election within 120 days of the vacancy as required by article XI, section 11. We
conclude that the city must hold an election to fill the vacancy and that it must do so before the
council member’s term expires in May 2001.
A brief attached to your request explains that the council member at issue was elected to a
three year term in 1998. In March 1999, with more than a year remaining in his term, the council
member filed to run for mayor. The council member was not elected mayor in the May 1999
election, and thereafter continued to serve on the council. The council member and city attorney
recently became aware that the council member may have automatically resigned under article XI,
section 11 of the Texas Constitution. “Questions have arisen with regard to the proper procedures
and requirements which should be followed at this point since more [than] 120 days have elapsed
since [the council member] announced his candidacy and there is less than one year remaining in his
term.“’
‘Letter from Honorable Eugene D. Taylor, Williamson County Attorney, to Honorable John Comyn, Texas
Attorney General at 1 (Sept. 11,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Eugene D. Taylor - Page 2 (X-0318)
Article XI, section 11 of the Texas Constitution provides as follows:
A Home Rule City may provide by charter or charter
amendment, and a city, town or village operating under the general
laws may provide by majority vote of the qualified voters voting at
an election called for that purpose, for a longer term of office than
two (2) years for its officers, either elective or appointive, or both, but
not to exceed four (4) years; provided, however, that tenure under
Civil Service shall not be affected hereby.
Provided, however, if any of such officers, elective or
appointive, shall announce their candidacy, or shall in fact become a
candidate, in any general, special or primary election, for any office
ofprofit or trust under the laws ofthis State or the United States other
than the office then held, at any time when the unexpired term of the
office then held shall exceed one (1) year, such announcement or such
candidacy shall constitute an automatic resignation ofthe office then
held, and the vacancy thereby created shall be tilled pursuant to law
in the same manner as other vacancies for such office are tilled.
A municipality so providing a term exceeding two (2) years
but not exceeding four (4) years for any of its non-civil service
officers must elect all of the members of its governing body by
majority vote of the qualified voters in such municipality, and any
vacancy or vacancies occurring on such governing body shall not be
tilled by appointment but must be filled by majority vote of the
qualified voters at a special election called for such purpose within
one hundred and twenty (120) days after such vacancy or vacancies
occur.
TEX. CONST.art. XI, § 11.
First, because the council member at issue became a candidate for mayor, you ask whether
the office of mayor is an office of profit or trust under article XI, section 11. See Request Letter,
suprn note 1, at 1-2. Article XI, section 1 l’s automatic resignation provision applies to any city
officer who holds a term in excess of two years who “amiounce[s] their candidacy, or in fact
become[s] a candidate, in any general, special or primary election, for any of$ce ofprojit or trust
under the laws of this State or the United States other than the office then held.” TEX. CONST.art.
XI, 3 11 (emphasis added); see also Tex. Att’y Gen. Op. No. M-586 (1970) at 4 (Texas Constitution
article XI, section 11 automatic resignation provision applies only to municipal officers whose term
of office exceeds two years).
The Honorable Eugene D. Taylor - Page 3 (Jc-0318)
There are very few cases or attorney general opinions construing article XI, section 11.
However, article XVI, section 65 contains almost identical language providing for the automatic
resignation of certain county and district officers. See TEX. CONST.art. XVI, $ 65 (“If any of the
officers named herein shall announce their candidacy, or shall in fact become a candidate, in any
General, Special or Primary Election, for any office ofprotit or trust under the laws of this State or
the United States other than the office then held, at any time when the unexpired term of the office
then held shall exceed one (1) year, such announcement or such candidacy shall constitute an
automatic resignation ofthe office then held. .“). The automatic resignation provisions of article
XI, section 11 and article XVI, section 65 were both adopted by the voters in 1958’ for the same
purpose-to ensure that officeholders serving terms that had been lengthened from two years would
give their undivided attention to their offices without campaigning until their last year in office.3
Thus, we construe article XI, section 1 l’s automatic resignation provision according to case law and
attorney general opinions construing article XVI, section 65.
As a general matter, for purposes of the automatic resignation provisions of article XI,
section 11 and article XVI, section 65, the term “office of trust” is interchangeable with the term
“office.” See Tex. Att’y Gen. LO-96-107, at 2 (“office oftrust” as used in Texas Constitution article
XVI, section 65 is interchangeable with “office”). An individual who holds an office of trust “is
invested with some portion ofthe sovereign functions ofthe government, to be exercised by him for
the benefit of the public.” Tex. Att’y Gen. Op. No. JM-395 (1985) at 3 (relying upon definition of
“office of trust” in Kimbrough v. Burnett, 55 SW. 120 (Tex. 1900), and Ramirez v. Flares, 505
S.W,2d406,409 (Tex. Civ. App.SanAntonio 1973, writ ref dn.r.e.)). No cases or attorney general
opinions discuss the term “office of profit” as used in article XI, section 11 or article XVI, section
65. “Office of profit” appears elsewhere in the Texas Constitution. See TEX. CONST. art. III, 53 18,
20; id. art. XVI, $5 5,12. Courts equate the term “office ofprofit” with the term “lucrative office,”
and have concluded that an office is lucrative if the officeholder receives any compensation, no
matter how small. See Dawkins v. Meyer, 825 S.W.Zd 444,446-47 (Tex. 1992) (relying upon Willis
v. Potts, 377 S.W.2d 622, 626-27 (Tex. 1964)). In other words, a person who holds an office of
profit holds an office and receives some compensation for doing so.
The council member at issue became a candidate for the office of mayor of the City of
Georgetown, a position that we conclude is an “office of profit” within the meaning of article XI,
section 11. A home-rule city, like the City of Georgetown, “may adopt and operate under any form
‘SeeTex. H.J. Res.No.31,55thLeg., RX, 1957Tex. Gen. Laws 1641; Amendments to ConstitutionofTexas
Adopted in 1958, 1959 Tex. Gen. Laws XXXV,XXXVIII;Tex. H.J. Res. No. 48, 55th Leg., RX, 1957 Tex. Gen. Laws
1645; Amendments to Constitution of Texas Adopted in 1958, 1959 Tex. Gen. Laws XXXV, XXXVII.
3T~~s LEGISLATIVE COLNCIL, INFORMATION CONCERNNG CONSTITUTIONAL AMENDMENTS TO BE
CONSIDERED NOVEMBER4, Amendment No. 4 - H.J.R. No. 31 (1958) (purpose of automatic resignation provision to
further goal of 1954 amendment lengthening county and district terms from two to four years “to petit the office
holder to give his undivided attention to his oftice, without the necessity of campaigning, for at least three years of his
four-yearterm”);seeid. AmendmentNo. 5-H.J.R. No. 48( 1958) (notingthatmunicipal automaticresignationprovision
intended to prevent defect of 1954 amendment lengthening county and district terms).
The Honorable Eugene D. Taylor - Page 4 (JC-0318)
of government, including the aldermanic or commission form,” TEX. Lot. GOV’T CODE ANN.
5 26.021 (Vernon 1999), and may create offices and prescribe the duties of office, see id. 5 26.041.
The Georgetown City Charter and Code of Ordinances provide that, while the mayor has no regular
administrative duties, he or she is a member of the city council entitled to vote in case of a tie and
has certain emergency powers, including the authority to summon a special police force and to close
places ofpublic assembly. See GEORGETOWN,TEX., CITY CHARTER$5 2.01, .04, .06, .13; CODEOF
ORDINANCES$3 2.04.030 - .040. In addition, the mayor receives a salary of $250 a month. See
GEORGETOWN,TEX.,CODEOF~RDINANCES 5 2.16.010. As we have seen, the term “office ofprofit
or trust” is a broad term that embraces any office, paid or unpaid. The term has been specifically
construed in attorney general opinions to include membership on both a home-rule or general-law
city council. See Tex. Att’y Gen. Op. Nos. JM-553 (1986) at 2 (home-rule city council member
holds an office of trust within meaning of Texas Constitution article XVI, section 65); JM-395
(1985) at 4 (general-law city council member holds an office of trust within meaning of Texas
Constitution article XVI, section 65). Based on the Georgetown City Charter, it appears that the
city’s mayor “is invested with some portion of the sovereign functions of the government, to be
exercised by him [or her] for the benefit of the public,” including the authority to sit on the city
council, to cast a vote in case of a tie, and to exercise certain powers in case of an emergency. See
Tex. Att’y Gen. Op. No. JM-395 (1985) at 3 (relying upon definition of “office of trust” in
Kimbrough v. Barnett, 55 S.W. 120 (Tex. 1900), and Ramirez Y. Flares, 505 S.W.2d 406,409 (Tex.
Civ. App.-San Antonio 1973, writ refd n.r.e.)). Accordingly, we conclude that this paid office is
an office of profit within the meaning of article XI, section 11. Therefore, by filing for that office
with more than one year remaining in his term, the council member resigned.
Second, you ask about how a vacancy in office created by operation of article XI, section 11
should be filled. Again, the second paragraph of article XI, section 11 provides that when a
municipal officer automatically resigns “the vacancy thereby created shall be filled pursuant to law
in the same manner as other vacancies for such office are filled.” TEX. CONST.art. XI, 4 11. The
third paragraph, however, requires that certain vacancies must be filled by a special election:
A municipality so providing a term exceeding two (2) years
but not exceeding four (4) years for any of its non-civil service
officers must elect all of the members of its governing body by
majority vote of the qualified voters in such municipality, and any
vacancy or vacancies occurring on such governing body shall not be
filled by appointment but must be filled by majority vote of the
qualified voters at a special election called for such purpose within
one hundred and twenty (120) days after such vacancy or vacancies
occur.
Id. (emphasis added).
The Georgetown City Charter provides that vacancies in the city council shall be tilled by
a majority vote ofthe remaining members ofthe council for the unexpired term or until the next city
The Honorable Eugene D. Taylor - Page 5 (JC-0318)
general election. See Request Letter, supra note 1, at 3; GEORGETOWN, TEX., CITYCHARTER5 2.03.
You ask: “Should a municipal office be tilled pursuant to law in the same manner as other vacancies
for the office are tilled, as stated in Paragraph 2 of Article [XI], or must a municipal office be filled
in the manner set out in paragraph 3 of that section. 7” Request Letter, supra note 1, at 2. You ask
in essence whether the vacancy caused by the council member’s automatic resignation may be tilled
by the remaining members of the council pursuant to the City Charter or if the city must hold a
special election.
We conclude that article XI, section 11 requires that any vacancy in a municipal governing
body with terms exceeding two years must be filled by majority vote of the qualified voters at a
special election and that a city may not till such a vacancy by appointment, even if the vacancy is
the result of an automatic resignation. While paragraph two of article XI, section 11 generally
provides that vacancies in municipal offtces arising from automatic resignation “shall be tilled
pursuant to law in the same manner as other vacancies for such office are tilled,” TEX. CONST.art.
XI, 5 11, paragraph three establishes special requirements for vacancies occurring on municipal
governing bodies. Paragraph three provides that “any vacancy occurring on [a municipal]
governing body shall not befilled by appointment but must befilled by majority vote ofthe qualified
voters at a special election.” Id. (emphasis added). This special requirement for tilling vacancies
in municipal governing boards prevails over the more general language in paragraph two allowing
for the tilling of automatic-resignation vacancies “pursuant to law.” See id. Furthermore, this
constitutional requirement prevails over a provision in a home-rule city charter. See TEX. CONST.
art. XI, 5 5 (providing that no home-rule city charter shall contain any provision inconsistent with
the Texas Constitution). Accordingly, we conclude that in amunicipality with terms exceeding two
years, a vacancy in the municipal governing body arising from an automatic resignation must be
filled by majority vote of the qualified voters of the city at a special election.
Third, you ask whether a municipal officer who automatically resigns pursuant to article XI,
section 11 may hold over as a “de jure” officer. Request Letter, supra note 1, at 3. The Attorney
General has concluded that an officeholder who automatically resigns under article XVI, section 65
continues in office as a de jure officer by operation of the constitutional holdover provision, article
XVI, section 17, until his or her successor is appointed and qualities for office. See Tex. Att’y Gen.
Op. No. DM-377 (1996) at 4. In that opinion, this office noted that the holdover provision does not
generally apply in cases where an officer is disqualified to serve under another constitutional
provision, but found the automatic resignation more akin to a generic resignation than a
constitutional disqualification. See id. at 5. The opinion also gave great weight to the purpose of
the holdover provision - the preservation of the orderly processes of government. See id. Applying
those considerations here, we see no reason why a municipal officer who automatically resigns
pursuant to article XI, section 11 would not also hold over pursuant to article XVI, section 17.
Therefore, we conclude that the council member at issue holds over in office until his successor
qualifies for office.
In your third question, you suggest that the city may avoid holding a special election to till
the vacancy by allowing the council member to serve as a holdover until May 2001 “where no public
The Honorable Eugene D. Taylor - Page 6 (JC-0318)
policy would be served by calling a special election.” Request Letter, supra note 1, at 3. In your
fourth question, you ask about the proper date to hold the election to fill the vacancy, if one is
required. See id. at 4. Because these issues are closely related, we address them together.
Again, article XI, section 11 requires that “any vacancy or vacancies occurring on such
[municipal] governing body must be filled by majority vote of the qualified voters at a special
election called for such purpose within one hundred and twenty (120) days after such vacancy or
vacancies occur.” TEX. CONST.art. XI, 5 11. Here 120 days has passed since the council member
automatically resigned, and less than a year remains in the term. Therefore, you ask, in essence,
whether the city may avoid holding a special election to till the vacancy and allow the council
member to continue in office as a holdover until May 2001. We conclude that the city may not avoid
holding a special election to till the vacancy.
Chapter 201 of the Election Code provides that if a vacancy in office is to be filled by special
election, the election shall be ordered as soon as practicable after the vacancy occurs. See TEX.
ELEC.CODEANN. 5 201.051 (Vernon 1986). “[A] special election to fill a vacancy shall be held on
the first authorized uniform election date occurring on or after the 30th day after the date the election
is ordered.” Id. 5 201.052(a). Section 41.001(a) of the Election Code provides for four uniform
election dates, including the third Saturday in January and the first Saturday in May. See id.
3 41 .OOl (Vernon Supp. 2000). In addition, section 41 .OOll provides that an election may be held
on an earlier nonuniform date if the Governor determines that an emergency warrants holding a
special election before the appropriate uniform election date. See id. 5 41.001 l(a); see also id.
5 41.001 l(b) (political subdivision must seek permission from Governor), (c) (proclamation for
emergency election must identify nature of the emergency). Thus, the city may hold an election on
the third Saturday in January or, if that is not possible, some date prior to the first Saturday in May,
provided the Governor determines that an emergency warrants holding an election on an earlier
nonuniform date. See Op. Tex. Sec’y State No. DAD-23 (1982) (concluding that although city had
not held election to fill a vacancy in city council within 120 days as required by Texas Constitution
article XI, section 11, a city may hold an election to fill the vacancy at the next uniform date or on
an earlier date if Governor declares an emergency exists).
We note that section 41.004(b) provides that “[i]f the constitution requires a special election
to be held within a particular period after the occurrence of a certain event,” the uniform date
requirements of section 41.001(a) do not apply. See TEX. ELEC.CODEANN. § 41.004(b) (Vernon
1986). This provision permits a city to hold an election on a nonuniform date in order to comply
with the article XI, section 11 requirement that a special election be held to fill a vacancy in a
municipal governing body within 120 days. See Op. Tex. Sec’y State No. MAM-1 (1984).
However, this exception authorizes an election on a nonuniform date only when “the constitution
requires a special election to be held within a particular period after the occurrence of a certain
event.” TEX. ELEC.CODEANN. 5 41.004(b) (emphasis added). We do not believe that this exception
to the uniform election date requirement authorizes an election on a nonuniform date after the
expiration of a constitutional deadline.
The Honorable Eugene D. Taylor - Page 7 (K-0318)
With respect to whether the city is required to hold a special election, we note that this office
recently addressed whether a county commissioners court is required to make an appointment to fill
a vacancy in office when an officer automatically resigns by operation of article XVI, section 65.
See Tex. Att’y Gen. Op. No. JC-0140 (1999) (addressing commissioners court duty to fill vacancy
in the office of a constable who had automatically resigned by announcing his candidacy for
school district trustee more than one year before the expiration of his term). Attorney General
Opinion JC-0140 concluded that a commissioners court has no enforceable duty to make an
appointment to till such a vacancy, see id. at l-3, although it suggested that in some extraordinary
circumstances there may be a basis for removing commissioners for their failure to till a vacancy,
see id. at 3-4. In concluding that a commissioners court has no enforceable duty to till a vacancy,
the opinion relied primarily upon the absence in both the constitution and laws of this state “of any
specified consequences resulting from a commissioners court’s failure to exercise its power of
appointment.” Id. at 2. The opinion also relied upon the fact that a commissioners court could not
be mandamused to till the vacancy because appointment of officials is not a ministerial act. See id.
at 3.
Because the vacancy at issue here must be tilled by an election, we believe Attorney General
Opinion JC-0140 is distinguishable. Article XI, section 11 requires that “any vacancy or vacancies
occurring on such governing body must be tilled by majority vote of the qualified voters at a
special election called for such purpose within one hundred and twenty (120) days after such
vacancy or vacancies occur.” TEX. CONST. art. XI, 4 11. The Election Code provides for a writ of
mandamus “to compel the performance of any duty imposed by law in connection with the holding
of an election regardless of whether the person responsible for performing the duty is a public
officer.” TEX. ELEC. CODE ANN. 5 273.061 (Vernon 1986). A writ of mandamus is appropriate to
compel a public official to perform a ministerial act. See Anderson v. City of Seven Points, 806
S.W.2d 791,793 (Tex. 1991). “An act is ministerial when the law clearly spells out the duty to be
performed by the official with sufficient certainty that nothing is left to the exercise of discretion.”
Id. Article XI, section 11 clearly spells out the duty to be performed by the official charged with
ordering a municipal election to fill a vacancy with sufficient certainty that nothing is left to the
exercise of discretion.
The Honorable Eugene D. Taylor - Page 8 (JC-0318)
SUMMARY
Article XI, section 11 of the Texas Constitution requires a
city that has extended the terms of its city council members from two
to three years to fill a vacancy resulting from a council member’s
automatic resignation by holding a special election within 120 days.
Such a vacancy may not be filled by appointment. A city council
member who automatically resigns holds over in office. A city that
fails to hold a special election within 120 days after the date of the
automatic resignation as required by article XI, section 11 may not
avoid holding a special election until the holdover’s term expires.
JOkN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143715/
|
THE i%'X7?ORNEY CENEKAL
OF %?LCXAS
Honorable W. Lee O'Danlel
Governor ofTexas
Austin, Texas
Dear Sir: Opinion NO. o-2662
Re: Constitutionality of Article
4413, Section 11, Vernon's Re-
vised Civil Statutes.
In your letter of August 28, 1940, you ask for an
opinion upon the constitutionality, under Article 4,~Section
10, of the Constitution of the State of Tejlas,of Se&Ion 11
of Article 4413, Vernon's Revised Civil Statutes.
Article 4, Section 10 of the Constitution provides
In part as follows:
"He (the Governor) shall cause the laws to be
faithfully executed, . . . .'
In 1901, the Legislature passed legislation which
provided for the organization of the Ranger Force and pro-
vided that this force should always be under the command of
the Governor, for the purpose, among others, of aiding in
the enforcement of the laws of the State. In the act of the
44th Legislature, incorporated Ln Vernon's Civil Statutes as
Article 4413, the Texas Ranger Force was transferred to and
placed under the jurisdiction of the Department of Public
Safety, constituting such Texas Rangers a division of the
Department of Public Safety.
You ask whether this later law is constltutlonal,
under the section of the Constitution above referred to. You
also ask that we advise you, If we find that the law Is con-
stitutional, what means the Governor has of carrying out his
constitutional duty of "causing the laws to be falthfully ex-
ecuted."
The provision of the Constitution above quoted does
not require or contemplate that the Governor is himself to
execute the laws of the State, but is intenaed only to obll-
gate him to see that the proper officers of the State do ex-
ecute such laws. shields VS. Bennett, 8 W. Va. 74. Such
Honorable W. Lee O'Daniel, page 2 0 -2662
general words as are found In this constitutional provision
cannot be made the basis of an lmplicatlon of want of legls-
latlve authority to vest the execution of the laws of the
State fn such officers as may seem to the Legislature neces-
sary or advisable. Henry vs. State, 87 Miss. 1, 39 so. 856.
Insofar as the'matter of the means by which the Gov-
ernor may compel the laws to be faithfully executed Is con-
cerned, there is little that he can do save to bring about
the faithful execution of the laws by moral suasion. In ex-
ceptional circumstances, when the civil arm of~the government
Is powerless because of invasion, InsurrectIon, or anarchy,
the Governor has the power to call forth the M~lltla~to ex-
ecute the laws of the State. Constitution Article 4, Set-~
tlon 7; Rose Manufacturing Company vs. Western Union Tele-
graph Company (Civil Appeals) 251 3. W. 337. In instances
where the Governor has the power to remove officers of the
government, he has, by virtue of that authority, a means of
compelling the laws to be falthfullg executed.
In the case of Houston Tap and Brazoria Rallway
Company vs. Randolph, 24 Tex., 343, the court said:
.
"The Governor 1s the head of the executive
department of the State, and it is made his duty,
by the constitution, to 'take care that the laws
be faithfully executed.' It is evidently contem-
plated, that he shall give direction to the man-
agement of affairs, in all the branches of the ex-
ecutive department. Otherwise he has very little
t0 do. Where he has the power of removal, he can
assume authoritative control absolutely, Ln all of
the departments. This being the caee in the United
States government, results in the entire unity of its
executive department. The absence of that absolute
power of the chief executive in this state, must
occasionally produce a want of harmony in the exe-
cutive administration, by the inferior officers of
that department declining to comply with the wishes,
or to follow the judgment of the governor. That
is an inherent difficulty in the organization of
that department, and the conflicts arising out of
It, cannot be adjudicated or settled by the judi-
ciary. The fact that there is no remedy for an
Injury growing out of such conflict, cannot justify
another department, to wit, the judiciary, in over-
stepping the boundary of its prescrlbed,,authority,
for the purpose of furnishing a remedy.
The court in that case goes on to point out that the
Honorable W. Lee O'Daniel, page 3 o-2662
authority to provide means by which the governor may be able
effectively to 'cause the laws to be faithfully executed"
rests In the legislative branch of the government, and until
the leglslatlve branch of the government shall provide those
means, there is little that the executive is able to do in
order to effectively compel the faithful execution of the
laws of the State of Texas.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/R. W. Fairchild
Richard W. Fairchild
Assistant
RWF: rw : WC
APPROVED SEP 5, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143778/
|
.
-..; - .
. . .._
La r ue&
lauutlooohailnot hareh loor hrr nome
plaoedon tho.0ff1e1uBoll08for Tlotorlu lbprr-
oontat~tounl.80rad until ho 6? oh@ ohallha*.Pai4
a.., k qr Ohahoao of tho Uoutr bnoutlte Oaa4tt.o of
ott whose namlmtlon hr or ohm.oooko,
$‘. it%%$,. D&r8 (#no, ), in iuh of raid
oountloo.'
5oet1oa05 of Artlolr8 of oha Of T.1~0,
conotitutloR
D?OVidiO, ia Dart:
-fh@b iOh tW Oh 4 1 1
.M t OXOODt l0
.Oth 08~iHp ?Otidq
f i5 th i0
a OIIi$ a dO
p M
It0lY
lowl or lprqlallw, lthor$s~a(I‘** 1
.
In OpinionRo. @444T, a ooprof +hlohlo w~oli+d,thlo
dopart~nthold that on alaost ldratlotirtatuto, Art1010 bll60,
~WEOA’O &UM3t&tOd @iTit %tOtUt~O a Dlf to oountl~o rlthin
th. DODUbtion bnokoto 48 -‘di 4@%-4~ 1m mad ob 000.
99,000, WO ntil. and teid,‘b@b# :.&SiU¶i 80 5&O& 56 of irt&-
alo S oftthe ~notlt~tlon of Tezao.
Pot nolo.1 the oaae rowon we bWrrr that 8. B. 1051
is une0n&t1oaJ. At the tlmo pq~~nto worn ib~o'to thr
Count Sxreut%V.tr Uouiait8.e thr “1a.t DZ’Ooedim(l t.drnl’oamu”
was8 L $O?lP5q. Uo o r dliq to lu8h aoeouothe onlf oountioo
fallia((rithin thr pOQUhtiO!l bFaoket8 de~oTft+ed ia X. B. %061
we?@ Jmfforooa lod Ona bountlrr, Tehtao‘ uhloh had po ulatloao
of 150 se1 Ma 15 149 wubltuktr n8Q.otlr.l~'.ma P64800 for &*
the o&o ‘offtoe fkm Xl jwo Go& with a OptiatlOtiof 15&559
wrro reqoiw4 to pay only on0 40110r. Oaad dates frfm lrtaorou
nq ulr to
od p & ofnly
OM dollar lo lD~UOnt mithhrrfroathe bill
nor My ruia reanon 10 oan oonou+o.
-
IO
P’or the ro~o~nootato(l
o& underthe ruthorltlro ret
forth in oplnloa 80. O-aUT, w hold aad you are n~~ra$-
~hll ,driord that %. Be 1061 Aoto iOS0 45th La5 P. 5l1,
‘.Uh. i lo Mooa~titutioad b&q mpg&t to 5don 55
i of Aolr 21of the 0onotibttloa
of Taao.
i
varytrulyyours
AU62.2, 1940
sYRW2 O? l'XXM
, :
Q
--
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129445/
|
June 22,200O
The Honorable Chris Harris Opinion No. JC-0236
Chair, Administration Committee
Texas State Senate Re: Time when municipal tax abatement ends for
P.O. Box 12068 a property owner elected to the city council that
Austin, Texas 7871 l-2068 granted the abatement: Clarification of Attorney
General Opinion JC-0155 (1999) (RQ-0177.JC)
Dear Senator Harris:
You request claritication ofAttorney General Opinion JC-0155 (1999), which addressed the
following provision of chapter 312 of the Tax Code, the Property Redevelopment and Tax
Abatement Act:
Property that is in a reinvestment zone and that is owned or
leased by a member of the governing body of the municipality or by
a member of a zoning or planning board or commission of the
municipality is excluded from property tax abatement or tax
increment financing.
TEX. TAX CODE ANN. 5 312.204(d) (Vernon Supp. 2000). This office concluded that the owner of
property receiving a municipal tax abatement was not barred from serving on the city council that
granted the abatement, but the property “maynot continue to receive amunicipal tax abatement once
its owner is elected to the city council.” Tex. Att’y Gen. Op. No. JC-0155 (1999) at 2.
You now ask when the tax abatement stops-at the moment of election or at the end of the
year? The exemption for tax abatement stops when the owner of the property assumes office as a
member of the city council.
Chapter 3 12 of the Tax Code allows the governing body of a municipality to enter into a tax
abatement agreement with the owner of taxable real property located in a reinvestment zone “to
exempt from taxation a portion of the value of the real property or of tangible personal property
located on the real property, or both, for a period not to exceed 10 years.” TEX. TAX CODE
ANN. 5 312.204(a) (Vernon Supp. 2000). The tax abatement agreement entitles the property owner
“to exemption from taxation by an incorporated city or town of all or part of the value of the
property as provided by the agreement.” Id. 5 11.28 (Vernon 1992). The tax exemption created by
the agreement is subject to the Tax Code provisions that generally apply to property tax exemptions.
The Honorable Chris Harris Page 2 (X-0236)
See Fina Oil & Chemical Co. v. Port Neches Indep. Sch. Dist., 861 S.W.2d 3, 6-7 (Tex. App.-
Beaumont 1993, writ denied) (notice provision ofTax Code section 11.43(h) applied to cancellation
of partial exemption created by abatement agreement).
Eligibility for a tax exemption is usually determined by a claimant’s qualifications on
January 1. TEX. TAX CODE ANN. 5 11.42 (Vernon Supp. 2000). If a tax exemption applicable to a
property on January 1 is lost during the year, the tax due for the year is prorated according to section
26.10 ofthe Tax Code. Id. 5 26.10 (Vernon Supp. 2000); see also id. 5 22.02 (Vernon 1992) (person
who owns the property when the exemption terminates must render it for taxation within thirty days).
The tax due on the property is prorated by determining the tax for the entire year according to the
usual method set out in section 26.09 of the Tax Code and multiplying this amount “by a fraction,
the denominator of which is 365 and the numerator of which is the number of days the exemption
is not applicable.” Id. 5 26.10 (Vernon Supp. 2000). Thus, the loss of the tax exemption affects the
tax rate as of the date the exemption is lost.
The tax exemption at issue in Attorney General Opinion JC-0155 was lost when the owner
of the property became a member of the governing body that granted the abatement. See id.
5 312.204(d). An elected officer ordinarily does not assume office at the time ofthe election. Ifthe
person is elected to a new term ofoffice, he or she may not assume office until the new term begins.
See generally TEX. GOV’T CODE ANN. § 601.003 (Vernon 1994) (regular term of elective state,
district, county or precinct office begins on January 1 of the year following the general election for
state and county officers). Even if the individual is elected to till a vacancy in an unexpired term,
he or she must qualify for office by taking the oath of office and complying with any other
requirements. See Purcell v. Carrillo, 349 S.W.2d 263, (Tex. Civ. App.-San Antonio 1961, no
writ); Tex. Att’y Gen. Op. No. Jlv-589 (1986) at 2. The attorney for the city in question should
consult the city charter, ordinances, and minutes of the city council meetings to determine the date
at which the property owner assumed office as a member of the city council. The property tax
exemption granted by the city in the tax abatement ends as of that date.
The Honorable Chris Harris - Page 3 (JC-0236)
SUMMARY
Attorney General Opinion JC-0155 (1999) determined that
property owned or leased by a member of a municipality’s governing
body is not eligible for a tax abatement agreement authorized by the
Property Redevelopment and Tax Abatement Act, chapter 3 12 of the
Tax Code. Attorney General Opinion JC-0155 is clarified by
determining when the property loses the tax exemption granted by the
tax abatement agreement.
If the owner of property subject to the tax abatement
agreement is elected to the municipality’s governing body, the tax
exemption created by the agreement is lost on the date the property
owner assumes offtce as a member of the governing body. The tax
due on the property for the year is determined according to the
method set out in section 26.10 of the Tax Code.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143680/
|
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
--=-
Eonorrblo Bamom Oil.8
Comclrsioner, Geaeral Land Ofiiao
Awtln, Tmxar
Dear Mr. aUes1
pinion upon the
sire to we In
opolal fund aooru-
Ootad in 1931 orrem SOT
ed along the hth bee.ee
east aide of tb Paahandlo
the rest 8ldO or tlm sttste
were adjudged to b looated
finaldecree of the Supreme
SO Stntcr eatered Marah lT, 1930, In
tat0 of oklahom8 1. The state of
The Aot sete Sorth ooaditionr and re letions
whioh rhall govern the #ale of suoh land, and Tn Seotlon
2 provides es r0il0mt
-The of the dsaeral
Coxmni,rs:oner Land
Offloo, t& Attornr7
Ceaeral, and the uovsrnor
are herrby designated and ooastituted a Spcola i
Lax16 Board to aaoorhin the p emOn# lltitled
to pumAare said la&Ire Said Board 18 htreb-
authorized to employ a6 many a8 three Qerron8,
Hon. Besoom Oiler - Pa&r 2
ii deemed neo er eer toyl88lstin asoertaln-
fag the boas iid8 o i almntr of 8aId land8 a8
8hown by the pub110 reoordr aad under the 1~8
or the State or Oklahom, and to make ruoh
8urve78 and l.ave8tlgatIon8 88 m87 b8 n80088ar7
to earn out the provl8Ions of thlr Aot, and
laid Board 18 hereby luthorlsed to adopt luoh
rulon re,platlonr aad form8 a8 it may deem
erped Ient.’
Seotlon 5, in part, provide8 a
*Any olaImaat to any portion of raid land8
who would havo had title to 8~ had It been
looated la Oklahoma, may make applioatloa to the
ConmLsIoner of the Oeaeral Land Offloe to pur-
ohase the land claimed. Suoh applloatlon 8ball *
be aooom?enIed by field note8 of the treat claimed,
together with a fIli* fee of One ( 1.00) Dollar,
6a examlar3tlon fee of Fifteen (.15$ 3 Cent8 per
aore, and with suoh other Iafonmtloa a8 the Land
Board may require to be given, Inoludlag oer-tlfled
ooplea of all munlmeat8 of title under the laws
of Oklahoma.w
Seotloa 6 provides,
‘The exmiaatIoa fees provided for Ia SeotIon
3 of thlr Aot shall be deposited In a apeolel fund
to the oredIt.of the Land Board oreeted in Saotlon
2 of thlr Aot, and 8eIa ftmd~ shall be wed to
derrajr the expense8 lnoident to the enforcement
of thlr Aot. ThIr had rhall be dlrbursed by the
Board with vouohera drawn on th8 State Treasurer
aad rlgaed by the Oovernor and oouaterslgaed by
the Land Commll~loa8r. Aay 81~8 remaining la
auoh fund after all lxpea8es shave been pald rhall
be tramferred to the Pmmanent Sohool Fuad.
The amount of mon8y aoorulng to the State of Texas
for the rale of the land a8 provided for In Seotlon
3 hereof ehall be plaoed to the credit of the
Pemanent Sohool Fund.”
The method you desire ‘to apply in the hendlIag
of the exminatloa fez8 provided for Ia Seotlon 3 18
8tated in your letter a8 follows:
“. . .lt Is our desire to plaoe oaoh
..“&a. “PO”“rn tiLLem - r3pe 3
spplIoaat~8 remlttanoe of exsmlnatlon recs
to this OfriO to the oredlt Of th8 8ttOr7ie
ati appolnt~d b7 tha Spealal Lama Board, w r th
tha Stata Treasurer, la a 8u#pm#@ l#OOPnt
known as a ~Speolal Iand Board 8USpen8O Aocouat *.
Tbn upon I flat31 doterminatIoa or the amount
duolaoh attorney for th0 8erVloe8 p%rfOrnml
we would dlrrot tho State Treasurer, by a
rouohor duly #I&aed by the Gatornor end oounter-
Sig~iOb b7 the Land COI&S~~OYBT, to pay the r%-
apeotlvr sunw due oaoh attomoy, 0ttdlllmvrlse
4ny othor 8ooottnt8 dw agalmt Said ruad.”
Tha I.e ialature ha8 not, within the last two
pears, 8peol?loa k ly approprlatsd the epeolal fund or%at%d
by suOh erambatlon fees to the purpo8es for wh1Oh they
em authoxlzed to b% used by iWSol% S330a.
TIKI question presented 18 wh%th%r or not th%
imthod proposed for &:sbur#In~ the fund In questlcm IS
in vlolatlon or Artlole 8, Sootion 6 of th8 Texea Con-
StitUtiOa, whloh provide8 thatt
"No money shall be drmn from the Treasury
but la pursuanoe of spaoifio approprIntlons made
by law! nor shell any appropriation of to:e;f bs
made for s loqq- term than tm years, "
The QIWiOUS opIaIoas of thIk~~d%partment ar%
umnlmous In holding that speoial funds, 8ubstantially
Slmiler in nature to the fund provided for by Artial%
8330a, are rubjeot to the rOViSiOa8 Of Artiola 8,
Seotloa 6 of the Comatltut s on, for the reason that SUOh
fnw.ls ooxmtltut% Wmey drawn from the Treasury* within
the msning of the oon8tItutIonel provlsIoa, and that
suah fund8 oau only be disbursed by speoifio appropriation
sffeotlve for a tern no lone.or than tvm yeara.
In Opinion No. o-700 of thI8 department, ad-
dressed to Bonorsblr 2. H. Thornton, Jr., Chair-; Can-
mittes on Appropriations, House of ~epresentatlves, dated
May 5, 1939, this ruestlon was exhsustlvely rOVI%'2:ed with
respeot to a greet nwnbe.- of spuoial funds ox-sated b
t&e b&iSl.3tUT%, zany Of whioh SwdS am substantial 17
rlnilar to the Bxemlaetloa Fee Fuad rovlded la Artlal%
S330a. It was there held that B #pee s ii0 appropriation
was neoO8sar for suoh Sp%OIal fWd8 before they 00ula
lo&ally b% d I %bWS%d.
. 42
Hon. Besoom Ollea - Page 4
In OpI.aIonNo, O-320 0s this department, dated
May 4, 1939, addrrssed to Honorable Jo% KunsohIk, oom-
mI8sIon%r of Labor, It wa8 deoldod that a epeolal fund
d%8i~aat%d by the Legislature as the State BoIl%r In-
sp%otIon yuzkd oould not be disbursed without a speolflo
appropriation and that ruoh appropriation oould not be
lffeotlve for mare than two years ln the future.
The 8-e holding was mad% in Opinion ~0.0-1176,
apprOV%d Auguet 23, 1939, addressed to Honorable Walter
C. Woodwsrd, Chelrman, Board of Insuraaoe Comm.l88Ioaer%,
with reepeot to %xemlnetIon tses ooorulng fran Insuranae
oompanles whloh had been examined by the Board of tisur-
aaoe ConunIsoIonera.
A oopy 0s Oplnloa NO. O-320 referred to above
18 herewith enoloaed. Copies of tha other opinions
referred to will be mede avalleble to you, should you
dealrs them. A repetition of the argument and oltatlon
of authorities Inoludsd In those oplnlons will not be
made here. fn vlew of those opinions, whloh m believe
to be oorroot, we muat advlse you that the examlnstlon
fee fund in question is State m:ney wlthln the meaning
of Article 8, Section 6 of the Constitution, end es there
has been no apeolflo apgropriatlon of suoh fund within
the last two years, Its dlsburaezent In the manner you
outline would be Illegal.
In Conferenos Opinion No. 3048, eddre.saed to
Honorable Tom C. King, State Auditor, It was, in etfeot,
held that Artlolo 43e8, as amended by Chapter 242 of the
Aots of the 4206 Legislature, does not euthorlze the
pleolug In e suspense fund ln t&e State Treasury fees
suoh a8 the eramlnstlon fees In question, the 8tatus Of
suoh fees not being undetermined, and no dispute or protest
having been made by the pertles who paid suoh fees. A
oopy of Opinion No, 3048 Is elao enclosed herewith.
For the reasons stated, you are advised thst
the method proposed In your letter for the handling Of
Hon. Bacoom Oiler - Peee 5
the feea in qucrtlon doe8 not oora~ly with the law.
Your8 very truly
ATTORNEYWIXRAL OF TEXAS
Robert E
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143739/
|
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
i
Hon. A. Na 3t.&Ue
aolnltyattorney
Atasoosa Ctoimty
Jourdantm, Texal
Aepeirtment
stat
orrioer 0f Atas
tenu of offiae
by ths Oomnisal
county, who &all holA affioh for
ounty BoaltihorffoclrrhaU taho
and subsoribe to the,ofiioial oath, and ahall
file a qapy of SUOD oath and a oopyof h5.a ap iat-
ment with the Texas Stat@ Board of Health; anr
until suoh oopiesaare.so file4, saiA otfioor &all
atjotbe tleaiwdlegally quali~iisd.Compumatfon
of said oounty health ofil~er aball bs fix04 by
the ocii?dlseioRoral oourt prclvi6w3,that no 9culb-
ponsntloB or SilSaIy&a t be allowed eroept for
rrervioee aotually rBtldaratlr*
Hon. A. N. st0iAl0, P&g6 3 -
As pointed out by you this atntutd olearly am-
pow%rs the ooamlssionars~ aourt to bimmially appoint the
county health cjffioer but ie silent bath as to the filling
of au umxpired tom~unii ss to th% period of tims auoh ap-
p&m5eIit, when z&s, sciall run,
There being no other statute touohlng this zoatter,
It is our opltion thst the powerto fill the unexpired term
of one originally aTpointed by the oomiseionsrs~ oourt
woufd fol10w froiti the wait of pow%r to make tha orlgiaal
appoillt5mt. Claarly Artlale 4423 oonte~plats8 that tha,
power of filling the offioe of oounty health offloer &all
rselc?eLz the ooatabsio~er8court of the oounty$ ths erprasa
gmmtlng of power as to tha blannll appointmmt wdmld in-
%lUA%, ~II ths sb68AOa Of OthW StatutOrY pNVisiOWB, tha
lesser gmw%r to fill the ucmqired term of an original ap-
point80 of tlisaomalse:oh%rs OOIJ&.
Your second guest&h likawlse involverJ a 5att6r
not expresslyregulated by Artlole 4483, or by any other
8tntaAte. The two0 *biennially” ha8 a well defined moaning
88 mn;ething hap&~&~, or takfng plaOe, on08 ti tW4 years.
BRurn V. K4TLocE, ill 8.W. 990, 86 Arkr 658. Artiole 4483
in its provisions that the appointsmut of a oou&y heatth
ofriocshall b% dana biennially wfartL4WMBU to i&x a toneoi
two year8 en ot ah origfaal appoMiaa&t, rs
temening oi.rotutmtah%%b. This being,true, r%: z%
that in the evant of the B%ath of the preormt holder of
the affioe of county haalth offio~, oha term of offios
which tecamtr fixed by the aobion of the OGsrPis5imeS8 oourt
in making ths biennial appointm%nt, only, i0 8Ubjaot $0
being completed. At the %xpiwtioIk or thks two-p8aP term
of office the oorvaiesion%rs oourt thsreupcin rouJ.A make an-
other biennial agpoihtment in aooordahoe with Artiola 45233,
Aooordin&ly, you are respestful.Jy u&lared th8t it
is the o?iIiiOTi Of titi6 deQ~tUi6Uit that W&%X tha faOtP Of
your Letter the ooam.lssionere aourt of Atarodaa County my
neka an fQpOiAtiLi3At to %onipl%t% th% uaex Lr.4 term of tb%
eoucty health offfoer who has disd. ana t&t auoh ap~lntso
my only serve Aur3.n~ the un%a&red tsnn of the d%oeas%&
Very truiy your0
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4111619/
|
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VILLARDO D. DULLAS, DOCKET NUMBER
Appellant, SF-0831-16-0165-I-1
v.
OFFICE OF PERSONNEL DATE: December 28, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Rufus F. Nobles, I, Zambales, Philippines, for the appellant.
Sarah Murray, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM), denying his request for a Civil Service Retirement System (CSRS)
annuity. Generally, we grant petitions such as this on e only in the following
*
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the cas e; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and mater ial
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
¶2 The administrative judge, in an initial decision, found that the appellant
failed to meet his burden of proving that he was entitled to a CSRS annuity.
Initial Appeal File (IAF), Tab 9, Initial Decision (ID). He correctly concluded
that the appellant’s service between August 1971 and January 1980 consisted of
numerous temporary appointments limited to 1 year or less, which are excluded
from Civil Service Retirement Act (CSRA) coverage. ID at 6-7; IAF, Tab 6
at 31-48; see 5 C.F.R. § 831.201(a)(1) (excluding from retirement coverage
“[e]mployees serving under appointments limited to one year or less, except
annuitants appointed by the President to fill unexpired terms of office on or afte r
January 1, 1976”); see also Encarnado v. Office of Personnel Management,
116 M.S.P.R. 301, ¶ 8 (2011) (recognizing that temporary, intermittent, term, and
excepted indefinite appointments have been excluded from CSRS coverage ). He
also correctly concluded that the appellant’s subsequent service in an indefinite
excepted‑service position from January 1980 to July 1992 was similarly excluded
from CSRA coverage. ID at 7-11; IAF, Tab 6 at 49‑54; see 5 C.F.R.
§ 831.201(a)(13) (excluding indefinite employees from CSRS coverage); see also
Encarnado, 116 M.S.P.R. 301, ¶ 8.
¶3 On review, the appellant reasserts that he is covered by the CSRS for a
portion of his service, between 1971 and 1982, regardless of the nature of his
3
appointments and despite his failure to contribute to the CSRS. Petition for
Review File, Tab 2 at 1-12. He argues that 5 C.F.R. § 831.303(a) retroactively
implemented automatic coverage under the CSRS for all Federal employees that
rendered service between July 1920 and September 1982. Id.
¶4 As the administrative judge correctly found, the appellant’s reliance on
5 C.F.R. § 831.303(a) is misplaced. ID at 11-13. Two types of Federal service
are pertinent to a determination of whether an individual is entitled to a CSRS
retirement annuity, “creditable service” and “covered service.” Encarnado,
116 M.S.P.R. 301, ¶ 7. Almost all Federal civilian service is creditable service,
but covered service is more limited in scope, referring to the status of Federal
employees who are subject to the CSRS and are thus required to deposit part of
their basic pay into the Civil Service Retirement and Disability Fund. Id.
Completion of 5 years of creditable civilian service, ending with at least 1 out of
the last 2 years in a position covered by the CSRS, is a prerequisite for a civil
service retirement annuity. Id. The regulation the appellant relies on, 5 C.F.R.
§ 831.303(a), addresses whether service is creditable. It does not convert
noncovered service such as the appellant’s into covered service, nor does it
otherwise render him eligible for a CSRS annuity.
¶5 After fully considering the filings in this appeal, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
4
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law and other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional
information is available at the court’s website, www.cafc.uscourts.gov. Of
particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”
which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
|
01-03-2023
|
12-28-2016
|
https://www.courtlistener.com/api/rest/v3/opinions/4111622/
|
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1322
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Tou Chi Fang
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota - St. Paul
____________
Submitted: October 20, 2016
Filed: December 28, 2016
____________
Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.
____________
SMITH, Circuit Judge.
On September 17, 2015, a jury convicted Tou Chi Fang of possession with
intent to distribute methamphetamine (“meth”), in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C). Before trial, Fang moved to exclude certain past convictions of felony
drug possession. The district court,1 finding the prior convictions relevant to proving
the elements of the crime, allowed testimony regarding the convictions. At the close
of the government’s case-in-chief, Fang moved for judgment of acquittal based on
insufficiency of the evidence and rested his case. The district court denied the motion.
The jury found Fang guilty, and the district court sentenced him to 110 months’
imprisonment.
On appeal, Fang seeks reversal of his conviction or, in the alternative, a new
trial. He argues that (1) the evidence presented at trial was insufficient to support his
conviction, and (2) the district court erred by admitting into evidence his prior
convictions. We disagree and affirm the judgment of the district court.
I. Background
On November 6, 2014, the St. Paul Police Department conducted a warrant-
authorized search of the housing unit of a suspect in an unrelated offense. During the
search, two officers—Sergeant Kent Cleveland and Officer Daniel Mack—entered the
living area of the unit and saw Fang and the suspect standing in the back of the room.
Both Fang and the suspect immediately began moving toward the rear kitchen area,
while the officers commanded them to get on the ground and raise their hands. Both
officers testified that Fang placed his hand in his pocket and refused to remove it.
Officer Mack testified that he saw Fang pull a plastic bag from his pocket and
slide it across the floor under a nearby table. Sergeant Cleveland testified that
although he did not see what Fang held in his hand, he did see Fang reach underneath
the table after he eventually removed his hand from his pocket. Sergeant Cleveland
recalled hearing the sound of a plastic bucket move underneath the table as if
something had hit it. He also saw cash fall out of Fang’s pocket during the encounter.
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
-2-
After the officers handcuffed Fang and the suspect, they discovered a plastic bag
containing 25 grams of meth with a thin bungee cord on top of it underneath the table
next to a plastic bucket. Both officers testified that they recovered no other items from
the area where Fang had placed his hand. Fang possessed on his person more than
$3,900 in small bills and a plastic bag containing ten smaller plastic bags. The bag
type was consistent with those used for distributing user quantities of meth.
At trial, the government presented testimony from Sergeant Erik Johnston, who
arrested Fang in 2006 for possession of meth. Then-Officer Johnston witnessed Fang
discard a baseball cap in a flowerbed immediately before Fang encountered the police.
Johnston recovered the cap from the flowerbed and found 36.8 grams (including
weight of packaging) of meth hidden inside a secret compartment. Fang later pleaded
guilty to possession of meth in state court. The government also presented testimony
from Officer Adam Bravo, who arrested Fang in 2012. Officer Bravo testified that
Fang fled when he saw the police approach his residence. As the police pursued him,
Fang grabbed a plastic bag from his pocket and threw it toward a house. When
officers located the discarded bag, it contained a small quantity of meth. Fang again
pleaded guilty to possession of meth in state court.
Fang’s pretrial suppression motion sought to exclude both of these convictions.
But, the district court denied Fang’s motion. Before the district court admitted the
evidence at trial, it instructed the jury that it could use the testimony only to help
establish whether Fang had knowledge that he possessed a controlled substance or had
the intent to possess and distribute the controlled substance. After the government
presented its case, Fang moved for judgment of acquittal, which the court denied.
Without presenting evidence, he rested his case. The jury found Fang guilty.
-3-
II. Discussion
On appeal, Fang asks this court to reverse his conviction because the district
court erred in denying his motion for judgment of acquittal. Fang also argues for a
new trial because the district court erred in admitting into evidence his prior
convictions. We examine each of these contentions in turn.
A. Motion for Acquittal
“We review de novo the denial of a motion for judgment of acquittal based on
the sufficiency of the evidence.” United States v. Griffith, 786 F.3d 1098, 1102 (8th
Cir. 2015). We evaluate the evidence in the light most favorable to the verdict,
reversing only if “no reasonable jury could have found the defendant guilty beyond
a reasonable doubt.” United States v. Serrano–Lopez, 366 F.3d 628, 634 (8th Cir.
2004) (quoting United States v. Frank, 354 F.3d 910, 916 (8th Cir. 2004)). “If the
evidence rationally supports two conflicting hypotheses, the reviewing court will not
disturb the conviction.” Id. (quoting Ortega v. United States, 270 F.3d 540, 544–45
(8th Cir. 2001)). “This is a ‘very strict standard of review.’” United States v. Thunder,
745 F.3d 870, 875 (8th Cir. 2014) (quoting United States v. Cook, 356 F.3d 913, 917
(8th Cir. 2004)).
Fang argues that no reasonable jury could have found him guilty based on the
evidence presented at trial. He specifically points to alleged conflicts in testimony
between Officer Mack and Sergeant Cleveland: Officer Mack saw the plastic bag exit
Fang’s pocket; Sergeant Cleveland did not. Sergeant Cleveland’s testimony alone,
however, provides the reasonable inference that the plastic bag came from Fang’s
possession. Nevertheless, Fang contends that the discrepancies in testimony preclude
a reasonable jury from finding that he actually tossed the bag of meth under the table.
We disagree. Viewing the testimony in the light most favorable to the verdict, a
reasonable jury could resolve the testimonial discrepancies between the two officers
as resulting from the differences in observational vantage points. As the trier of fact,
the jury had access to all of the testimonial discrepancies. The record reflects that the
-4-
jury properly did its job of determining credibility and weighing the evidence. “A
jury’s credibility determinations are well-nigh unreviewable because the jury is in the
best position to assess the credibility of witnesses and resolve inconsistent testimony.”
United States v. Hodge, 594 F.3d 614, 618 (8th Cir. 2010). We will not overturn a jury
verdict if the jury picks one of two plausible scenarios presented by testimonial
evidence.
Fang also argues that even if a reasonable jury could find that he possessed the
bag of meth based on the conflicting testimony, no reasonable jury could find that he
had the intent to distribute it. Our precedent indicates otherwise. Circumstantial
evidence alone can establish an intent to distribute, including the possession of large
quantities of a controlled substance. See United States v. Ojeda, 23 F.3d 1473, 1476
(8th Cir. 1994). The $3,900 in small bills and ten small plastic bags found on Fang’s
person, plus the plastic bag under the table containing 25 grams of meth—which
amounts to 125 individual doses of the drug—provide adequate evidentiary support
for the conviction. We have held that a reasonable jury could find the intent to
distribute in cases with similar circumstantial evidence. See, e.g., United States v.
Thompson, 686 F.3d 575, 585 (8th Cir. 2012) (finding 33.03 grams of crack cocaine,
260 grams of marijuana in 153 small zip-top bags, and unexplained cash resources
sufficient to support a finding of the intent to distribute); United States v. Brett, 872
F.2d 1365, 1370 (8th Cir. 1989) (finding 46.66 grams of crack cocaine, $6,800 in
cash, and loaded pistol sufficient to support a finding of the intent to distribute). The
instant facts align with our circuit’s precedent enabling a reasonable jury to find intent
to distribute by circumstantial evidence alone.
For these reasons, we affirm the denial of Fang’s motion for judgment of
acquittal.
-5-
B. Evidence of Prior Convictions
Federal Rule of Evidence 404(b) requires courts to exclude evidence of a
defendant’s past crimes if those convictions are offered only for the purpose of
proving that a defendant acted in accordance with the bad character evidenced by
those crimes. United States v. Walker, 428 F.3d 1165, 1169 (8th Cir. 2005). This is
a rule of inclusion, however, allowing such evidence to be admitted for the
permissible purposes of showing “motive, opportunity, intent, preparation, plan,
knowledge, or absence of mistake or accident.” Id. We will reverse a Rule 404(b)
ruling “only when the evidence clearly had no bearing on the case and was introduced
solely to show defendant’s propensity to engage in criminal misconduct.” United
States v. Gant, 721 F.3d 505, 509 (8th Cir. 2013) (quoting United States v. Farish,
535 F.3d 815, 819 (8th Cir. 2008)). We review the district court’s application of
Rule 404(b) for clear abuse of discretion, “reversing only when an improper
evidentiary ruling affected the defendant’s substantial rights or had more than a slight
influence on the verdict.” United States v. Picardi, 739 F.3d 1118, 1124 (8th Cir.
2014) (quoting United States v. Summage, 575 F.3d 864, 877 (8th Cir. 2009)).
In this case, the district court permitted the government to introduce into
evidence Fang’s two prior convictions that occurred in 2006 and 2012. Fang argues
that the government presented this evidence to the jury solely to prove that because
he possessed meth on two prior occasions, he was the type of person who would
distribute it. “To be admissible under 404(b), evidence must be (1) relevant to a
material issue; (2) similar in kind and not overly remote in time to the crime charged;
(3) supported by sufficient evidence; and (4) higher in probative value than prejudicial
effect.” United States v. Tyerman, 701 F.3d 552, 562 (8th Cir. 2012). Fang contends
that these prior convictions were irrelevant, too remote in time, and unduly prejudicial.
We will examine each of these contentions in turn.
First, Fang argues that his prior convictions are not relevant to a material issue
in this case. For a jury to convict Fang under 21 U.S.C. § 841(a)(1), however, the
-6-
government had to prove beyond a reasonable doubt that Fang “(1) possessed [meth],
(2) knew that what he possessed was a controlled substance, and (3) intended to
distribute the substance he possessed.” Serrano–Lopez, 366 F.3d at 634. Fang made
a general denial of the crime charged, which put Fang’s state of mind at issue. In such
instances, evidence of prior convictions become relevant to prove knowledge. United
States v. Gaddy, 532 F.3d 783, 789 (8th Cir. 2008). The government carried the
burden of demonstrating that Fang both possessed meth and knew that it was a
controlled substance. Fang’s prior convictions for possession are relevant because
they go directly to proving knowledge.
Second, Fang argues that his prior convictions were too remote in time to be
relevant to this current charge. This argument also fails. After Fang’s 2006 possession
arrest, the court sentenced him to 86 months’ imprisonment. He was released in
May 2012, only to be arrested for the 2012 possession offense four months later. Fang
was once again released from custody in December 2013, and in less than 12 months,
he was arrested for this current offense. As the government points out, Fang had only
15 months of freedom between the first arrest in 2006 and this current offense. These
convictions occurred, respectively, two and eight years before the current offense, and
we have upheld prior convictions within similar date ranges. See, e.g., United States
v. Trogdon, 575 F.3d 762, 766 (8th Cir. 2009) (allowing a prior conviction of 11
years); Gaddy, 532 F.3d at 789 (finding prior convictions of 4, 10, and 11 years “not
so remote as to be inadmissible”); United States v. Jackson, 278 F.3d 769, 772 (8th
Cir. 2002) (listing cases upholding the admission of evidence up to 7 years). Fang’s
prior convictions are not too remote.
Third, Fang argues that the evidence of his previous convictions created undue
prejudice. At the outset, we note that all prior criminal convictions tend to be
prejudicial to a defendant, but “the question is whether the evidence is unfairly
prejudicial.” Tyerman, 701 F.3d at 563. We “give[] great deference to the district
court’s weighing of the probative value of evidence against its prejudicial effect.” Id.
-7-
“Moreover, the use of a limiting instruction decreases the danger that unfair prejudice
will result from admission of the evidence.” United States v. Thomas, 398 F.3d 1058,
1063 (8th Cir. 2005). To establish unfair prejudice, we look for evidence that causes
a verdict to be based on an improper basis, an inquiry into the interplay between the
Federal Rules of Evidence 404(b) and 403. See United States v. Williams, 796 F.3d
951, 960 (8th Cir. 2015) (“Though all Rule 404(b) evidence is inherently prejudicial,
the test under Rule 403 is whether its probative value is substantially outweighed by
the danger of unfair prejudice.” (quoting United States v. Cook, 454 F.3d 938, 941
(8th Cir. 2006)); see also United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir.
2007) (describing unfair prejudice under Rule 403 as causing an improper emotional
response affecting the outcome). In this case, the prior convictions contained no
shocking facts that would infect the jury’s deliberations with information likely to lead
to an unfair verdict. As noted above, these prior convictions provided an evidentiary
foundation for knowledge, an element of the crime charged. The district court’s
limiting instruction likely reduced any possible prejudicial effects as well. See Gaddy,
532 F.3d at 790. The prior-convictions evidence did not unfairly prejudice Fang. The
district court, therefore, did not abuse its discretion by admitting the prior convictions.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
______________________________
-8-
|
01-03-2023
|
12-28-2016
|
https://www.courtlistener.com/api/rest/v3/opinions/4129401/
|
OPFlCE OF THE ATTORNEY GENERAL. STATE OF TEXAS
JOHN CORNYN
September 6,200O
F. M. (Skip) Langley, D.V.M., M.D., J.D. Opinion No. JC-0280
Executive Director
Texas State Board of Medical Examiners Re: Whether the Board of Medical Examiners
P.O. Box 2018 may release to the Equal Employment
Austin, Texas 78768-2018 Opportunity Commission information that is
confidential under section 164.007 of the
Occupations Code (RQ-0225-JC)
Dear Dr. Langley:
Under section 164.007 of the Occupations Code, negative or investigative information
possessed by the Board of Medical Examiners relating to an application for license is “privileged
and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for
release to anyone other than the board or its employees or agents.” TEX. Oct. CODE ANN.
5 164.007(c) (Vernon 2000). The federal Equal Employment Opportunity Commission (“EEOC”),
which investigates charges of discrimination related to disability by a public entity, see 42 U.S.C.
5 12133; see also 29 U.S.C. 8 794a(s)(l); 42 U.S.C. 5 2000e-5(b) (1994), is entitled to obtain
information that relates to an investigation of a charge of discrimination. See 42 U.S.C. 5 2000e-
8(a); University of Pa. v. EEOC, 493 U.S. 182, 192 (1990). Your predecessor in office asked
whether the State Board of Medical Examiners (the “Board”) may release to the EEOC requested
documents relating to all applications the Board has denied from January 1,1983 through September
9, 1999.’ Because current federal statutes that empower the EEOC to investigate a charge of
discrimination preempt inconsistent state statutes, see EEOC v. City of Orange, 905 F. Supp. 380,
382 (E.D. Tex. 1995), we cannot construe section 164.007 of the Occupations Code to permit the
Board to withhold from the EEOC information that relates to an EEOC investigation. Assuming that
the requested information relates to a pending EEOC investigation, the Board not only may, but
must, release the information to the EEOC.
Your predecessor indicated that the Board received two requests for information from the
EEOC. See Request Letter, note 1. “The initial request pertained to the application of a physician
who filed a complaint with the EEOC,” he stated. Id. at 1. Although fhe Board did not believe that
the EEOC was an entity to which the Board could release information under section 164.007 of the
Occupations Code, the Board “released the complaining physician’s application file based upon the
‘See Letter from Bruce A. Levy, M.D., J.D., to Honorable John Comyn, Texas Attorney General
(Apr. 16.2000) (on file with Opinion Committee) [hereinafter Request Letter].
F. M. (Skip) Langley, D.V.M., M.D., J.D. - Page 2 (X-0280)
EEOC’s promise of confidentiality.” Id. Since that time, “the EEOC has requested similar
information for all applicants to whom licensure has been denied by the Board from
January 1, 1983[,] through September 9, 1999.” Id. It appears that the EEOC’s
request may arise from allegations of violations of the Americans with Disabilities Act, 42 U.S.C.
$5 12101- 12213 (1994 & Supp. 1997).* Yourpredecessorwished to know whetherthe Boardmay
release the requested information to the EEOC. See Request Letter, supra note 1, at 2.
Your predecessor did not suggest that the requested information does not relate to a charge
under investigation by the EEOC. We accordingly assume that the information is relevant for the
purpose of 42 U.S.C. 4 2000e-8 (1994).
No person may practice medicine in Texas without a license from the Board. See TEX. OCC.
CODE ANN. $ 155.001 (Vernon 2000). In certain circumstances, the Board may refuse to admit an
applicant to the licensing examination or the Board may refuse to license an applicant. See id.
5 164.051; seealso id. 5 155.003 (“General Eligibility Requirements”). For example, theBoardmay
deny a license to an applicant who has submitted a false document to the Board in a license
application or has taken or passed the examination using fraudulent means; who has been convicted
of a felony or a misdemeanor involving moral turpitude; or who “is unable to practice medicine with
reasonable skill and safety to patients because of ‘mental or physical illness or chemical dependency.
See id. $5 164.051(a), .052(a). The Board apparently investigates an applicant to ensure that the
applicant is eligible to be licensed. See id. 5 155.003(a).
Documents that the Board compiles in investigating an applicant are confidential under state
law:
Each complaint, adverse report, investigation tile, other
investigation report, and other investigative information in the
possession of or received or gathered by the board or its employees
or agents relating to a license holder, an application for license, or a
criminal investigation or proceeding is privileged and confidential
and is~not subject to discovery, subpoena, or other means of legal
compulsion for release to anyone other than the board or its
employees or agents involved in discipline of a license holder.
Id. 5 164.007(c). Subsequent subsections ofsection 164.007 provide explicit exemptions, situations
in which information may be released without violating subsection (c). Under subsection (f), the
Board may disclose. investigative information in the Board’s possession “relating to discipline of a
license holder” to a licensing authority in another state or jurisdiction or to a medical peer review
‘SeeLetter from Sidney B. Chesnin, Senior Trial Attorney, Dallas District Office, EEOC, to Kerstin E. Arnold,
Assistant General Counsel, Texas State Board ofMedical Examiners (July 23, 1999) (on file with Opinion Committee).
F. M. (Skip) Langley, D.V.M., M.D., J.D. - Page 3 (JC-0280)
committee. Id. $ 164.007(f). The Board may, under subsection (g), release to the appropriate law-
enforcement agency investigative information that tends to show that a crime has been committed.
See id. 5 164.007(g). And, under subsection (h), the Board must provide to an investigating law-
enforcement agency relevant information regarding a license holder who is under criminal
investigation. See id. § 164.007(h). Information that the Board discloses to an investigative agency
“remains confidential and may not be disclosed by the investigating agency except as necessary to
further the investigation.” Id.
Your agency generally has presumed that the EEOC was not “considered to be among those
entities identified in section[] 164.007(d) - (h).” Request Letter, supra note 1, at 1. While we do not
consider whether the EEOC may be considered a “law enforcement agency” for the purposes of
subsections (g) or(h), we agree that the circumstances around the request suggest that the exceptions
do not apply.
A public licensing agency may not discriminate against a qualified individual with a
disability on the basis ofthat disability in the administering of its licensing program. The Americans
with Disabilities Act, 42 U.S.C. $5 12101 - 12213 (1994 & Supp. 1997), forbids a public entity,
including a public licensing board, to discriminate against any qualified individual with a disability.
See 42 U.S.C. 5s 12132, 12133 (1994); 28 C.F.R. $ 35.130(b)(6) (1999); Clurkv. Virginia Bd. of
Bar Exam ‘rs, 880 F. Supp. 430, 442 (E.D. Va. 1995) (stating that public entity is specifically
prohibited from discriminating in administration of licensing program); Deborah Piltch, Jamie W.
Katz, & Janine Valles, The Americans with Disabilities Act and Professional Licensing, 17 MENTAL
&PHYSICAL DISABILITYL. REP. 556,557 (1993); see also 29 U.S.C. $ 794a(a) (1994); 42 USC.
3 2000e-5(b) (1994). This prohibition applies to a licensing program’s administration. See 28
C.F.R. 5 35,130(b)(6) (1999); Clark, 880 F. Supp. at 442.
The EEOC is authorized to investigate and enforce violations of this prohibition. See 42
U.S.C. 5 12133; see also 29 U.S.C. 5 794a; 42 U.S.C. 5 2000e-5(b) (1994). In connection with an
investigation, the EEOC “shall at all reasonable times have access to, for the purposes of
examination, and the right to copy any evidence of any person being investigated or proceeded
against that relates to unlawful employment practices and is relevant to the charge under
investigation.” Id. § 2000e-8(a).
The EEOC’s right to access information that is material and relevant to an investigation
preempts, to the extent the state statute “thwarts the EEOC’s efforts to” investigate in a prompt and
timely fashion, a state statute that deems particular documents confidential. EEOC v. Ci(v of
Orunge, 905 F. Supp. 381,382 (E.D. Tex. 1995).
Even though Congress does not explicitly preempt a state law, the
state law will be preempted if it would frustrate the scheme
established by federal law. [Citations omitted.] The federal scheme
concerning the EEOC involves the agency investigating allegations
of discrimination. In conducting these investigations, the EEOC is
F. M. (Skip) Langley, D.V.M., M.D., J.D. - Page 4 (JC-0280)
entitled to have access to relevant evidence. The EEOC,
moreover, is supposed to conduct its investigations expeditiously.
EEOCv. County ofHennepin, 623 F. Supp. 29,32 (D. Minn. 1985); cf: University ofPa. v. EEOC,
493 US. 182, 194 (1990) (declining to require EEOC to demonstrate specific reason for disclosure
of requested document, “beyond a showing of relevance,” because such requirement would “‘place
a potent weapon in the hands of employers who have no interest in complying voluntarily with the
[Civil Rights] Act, who wish instead to delay as long as possible investigations by the EEOC.’
EEOC v. Shell Oil Co., 466 U.S. [54,] 81 (1984).“).
Assuming that the information the EEOC has requested under 42 U.S.C. 5 2000e-8(a) is
material and relevant to an investigation, the EEOC has a right to obtain the information, which right
cannot be compromised by a state statute, such as section 164.007 of the Occupations Code. See
University of Pa., 493 U.S. at 192 (stating that EEOC has “right to obtain” information related to
investigation, “not a mere license to seek it”). In EEOC v. City of Orange, the federal district court
for the Eastern District of Texas specifically concluded that a Texas statute that thwarts an EEOC
investigation is preempted to the extent it does so:
“Where a state statute conflicts with or frustrates federal law,
the former must give way.” CSX Tramp., Inc. v. Basterwood, 507
U.S. 658, [663] (1993). Congress has designed an elaborate statutory
scheme to combat discriminatory employment practices. As the
federal agency with primary responsibility in this area, EEOC is
empowered by statute to investigate charges of discrimination in
employment. 42 U.S.C. 5 2000e-5. Congress charged EEOC
with conducting its investigations in a prompt and timely fashion. Id.
5 2000e-8(a). EEOC’s investigative efforts into the employment
practices of entities subject to the provisions of the Texas
Government Code would be delayed significantly if a court order
were required to enforce every administrative subpoena served upon
these entities. Accordingly, the Texas statute is preempted to the
extent that it thwarts the EEOC’s efforts to carry out the manifest
intent of Congress.
City of Orange, 905 F. Supp. at 382. To the extent that section 164.007 of the Occupations Code
requires the Board to withhold documents material and relevant to an EEOC investigation and
requested in relation to the investigation, it thwarts Congress’ intent and is preempted by federal law.
See also id.
Consequently, we conclude not only that the Board may release the requested information
to the EEOC, but that the Board must do so. Information released to the EEOC does not lose its
confidential character. See 42 U.S.C. 5 2000e-8(e) (1994); EEOC v. Associated Dry Goods Corp.,
449 U.S. 590,599 (1980); County ofHennepin, 623 F. Supp. at 33.
F. M. (Skip) Langley, D.V.M., M.D., J.D. - Page 5 (JC-0280)
Analogously, this office has construed chapter 552 ofthe Government Code to permit a state
agency that is holding confidential information to transfer the information to a federal agency if the
law requires that the information be disclosed to the federal agency. See Tex. Att’y Gen. ORD-650
(1996) at 3-4. Because federal law provides the EEOC with a right to obtain information that relates
to an investigation of alleged discriminatory practices, chapter 552 does not prohibit the Board from
releasing the information to the EEOC.
F. M. (Skip) Langley, D.V.M., M.D., J.D. - Page 6 (~~-0280)
SUMMARY
In accordance with a request from the Equal Employment
Opportunity Commission (“EEOC”), the Board of Medical Examin-
ers must transfer to the EEOC information that relates to a charge the
EEOC is investigating under the Americans with Disabilities Act, 42
U.S.C. $5 12101- 12213 (1994& Supp. 1997). Totheextentscction
164.007 of the Occupations Code deems the information strictly
confidential, section 164.007 is preempted by federal law. Compare
TEX. Oct. CODE ANN. 5 164.007(c) (Vernon 2000) with 42 U.S.C.
5 2000e-8(a) (1994).
You ve truly,
4JQkT
JOkN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143774/
|
Hon. Morris Holston Opinion No. O-2605
County ,Attorney Re: Authority of Commissioners1
Titus county Court to issue ,a warrant payable
Mt. Pleasant, Texas out of the permanent improvement
fund for services rendered in the
refunding of warrants theretofore
Dear Sir: issued against such fund.
We have your letter in which our opinion is request-
ed on the following state of facts, which are, briefly, that
during the year 1940 the Commissioners’ Court of Titus County
issued certain warrants to remodel the courthouse, and in
June of 1940 the court ,published notice of intention to do
all things necessary to refund such warrants into Permanent
Improvement Bonds, bearing interest at three and one-fourth
per cent with maximummaturity date 1950. On July 12, 1940,
the Commissioners1 Court issued to a bond and warrant company
a warrant in the amount of $2400 for services rendered in the
refunding of the above mentioned warrants into bonds, such
warrant being due on March 1, 1941, bearing interest at the
rate of four per cent and to be paid by the levy of a tax
against the twenty-five cent constitutional permanent improve-
ment fund levy. Your question being --
“Does the Commissioners ’ Court of Titus County
have the authority to issue a warrant to a bond
and warrant company payable out of the Permanent
Improvement Fund for services rendered by said
company in the refunding of the above described
warrants into bonds?e
The power to levy a tax for permanent improvements
is conferred in Section 9 Article 8 of the Constitution Andy
by Article 2352 of Vernonjs Annotated Civil Statutes. The per-
tinent part of the constitutional article reads as follows:
“***And no county *** shall levy more than
twenty-five cents for county purposes and not ex-
ceeding fifteen cents for road and bridges, and not
exceeding fifteen cents to pay jurors***; and for
t;hej,, *** and other im-
provements, +** not to exceed twenty-five cents on
the one hundred-dollars’ valuation in any one year
***II
Hon. Morris Holston, page 2 (O-2605)
Article 2352, above mentioned, reads the same as the
constitutional provision. In the case of Ault v. Hill County,
116 S.W. 359 the Supreme Court, speaking through Justice
Williams, heid in substance that when no improvements within
the limits of the constitutional provision are contemplated,
the power to levy the tax does not exist. This conclusion was
followed in the case of W. L. Slayton & Company v. Panola County,
283 Fed,. 330.
It seems clear that there is sufficient authority to
levy a tax of not exceeding twenty-five cents on the one hun-
dred dollars’ valuation for the erection of public buildqngs
and other permanent improvements and it is equally as clear
that the purpose for which suah levy is authorized does not in-
clude “refunding services or fees”. It may be that the obliga-
tions sought to be refunded were properly issued for purposes
within the authority conferred, but, in our oplnlon, a refinanc-
ing or refunding thereof comes strictly under the head of county
business so as to bring it under the twenty-five cent levy for
county purposes or the general fund.
You are, therefore, advised that In our opinion, the
Commissioners~ Court is without authority 40 issue a warrant of
any description to anyone payable out of the Permanent Improve-
ment Fund for services rendered in refunding time warrants or
bonds previously issued.
Trusting that this fully answers your inquiry, we are
Very truly yours
ATTORNEY
GENWALOF T&XAS
By /s/ Clarence E. Crowe
Clarence 6. Crowe, ,Assistant
APPROVED OCT 23, 1940
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
This opinion considered and approved in limited conference.
CEC-srwb
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129566/
|
September 24, 1999
The Honorable Jose R. Rodriguez Opinion No. X-01 15
County Attorney, El Paso County
County Courthouse Re: Whether a school district may award back pay
500 East San Antonio, Room 203 to employees who were indicted, suspended, and
El Paso, Texas 79901 subsequently acquitted (RQ-0035)
Dear Mr. Rodriguez:
You have requested our opinion regarding whether the El Paso Independent School District
(the “District”) is precluded either by article III, sections 52 and 53 ofthe Texas Constitution, or by
section 45.105 of the Education Code from awarding back pay to employees who were indicted,
suspended, and subsequently acquitted. We conclude that the District may award back pay, but that
it is not required to do so.
You indicate that a number of employees of the El Paso Independent School District were
indicted on charges ofthet? and bribery. They were first suspended without pay, and then terminated
from employment. Several were subsequently acquitted, and those individuals were thereafter
reinstated after filing grievances. These reinstated employees are now seeking back pay from the
period of time of their initial suspension until their reinstatement.
Article III, section 52 of the Texas Constitution provides, in part: “[Tlhe Legislature shall
have no power to authorize any county, city, town or other political corporation or subdivision ofthe
State to lend its credit or to grant public money or thing of value in aid of, or to any individual . .”
Similarly, article III, section 53 of the Texas Constitution, provides, in relevant part: “The
Legislature shall have no power to grant, or to authorize any county or municipal authority to grant,
any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after
service has been rendered. .” Although this constitutional prohibition is literally applicable only
to counties and municipalities, it has been construed to apply to an independent school district. See
Harlingen Indep. Sch. Dist. v. C.H. Page & Bra., 48 S.W.2d 983,986 (Tex. Comm’n App. 1932,
holding approved).
Attorney General Opinion H-402 considered whether a county employee who was suspended
and later reinstated could be awarded back pay in light of article III, section 53. The opinion
concluded that the commissioners court was not authorized to grant back pay unless there had
existed, prior to the award of back pay, a policy permitting the practice. Under such circumstances,
the policy could be viewed as a term of the employee’s contract, i.e., “a condition of employment
The Honorable Jose R. Rodriguez - Page 2 (X-0115)
no different than the rate of compensation or amount of vacation an employee is to receive.” Tex.
Att’y Gen. Op. No. H-402 (1974) at 2. As this office noted in Attorney General Opinion H-1303,
“these constitutional provisions [article III, sections 44,5 1,52 and 531 do not prohibit the payment
of benefits to employees under the terms of a contract of employment.” Tex. Att’y Gen. Op. No.
H-1303 (1978) at 3; see also Byrd v. City of Dallas, 6 S.W.2d 738 (Tex. 1928); City of Corpus
Christi v. Hershbach, 536 S.W.2d 653 (Tex. Civ. App.-Corpus Christi 1976, writ refd n.r.e.); City
of Galveston Y. Landrum, 533 S.W.2d 394 (Tex. Civ. App.-Houston [lst Dist.] 1976, writ ref d
n.r.e.).
In the situation you present, there is a dispute between the employees and the Board of
Trustees (the “Board”) regarding whether such a policy existed in the El Paso Independent School
District. The employees cite the following provision of the District’s personnel policies: “If the
superintendent declines to reinstate the employee after the disposition of the criminal charge, or
reinstates the employee without back pay, the employee may tile a written grievance within the time
lines established in applicable legal and local policies.” Letter from Honorable Jose R. Rodriguez,
El Paso County Attorney, to Honorable John Comyn, Attorney General (Exhibit D) (Mar. 3,1999)
(on tile with Opinion Committee). We assume that this policy was in effect at the time of the
employees’ suspension. Although no portion of the personnel policies we have been provided
aftirmatively sanctions an employee’s right to back pay, the quoted provision appears to permit the
practice. Indeed, an aggrieved employee who is acquitted of a criminal charge, and is reinstated
without back pay, is specifically afforded the right to “file a written grievance” to recover this
amount. Assuming this is what the provision means, the quoted provision would be in our view
sufficient to constitute a prior written “condition of employment” within the terms of Attorney
General Opinion H-402. Thus, the Board may award back pay without contravening article III,
sections 52 or 53.
The Board is not, however, required to award back pay. The Board may find, for any valid
reason, that an employee is not entitled to back pay. Attorney General Opinion H-402 stands merely
for the proposition that the Board is not prohibited by the constitution from awarding back pay if
there was a prior district policy permitting the practice.
You also suggest that section 45.105 ofthe Education Code might preclude the District from
awarding back pay in the situation before us. This statute restricts a district’s use of “the state and
county available funds,” and “local school funds.” We find nothing in that statute that would
prohibit the District from awarding back pay where such payment may validly be viewed as a prior
“condition of employment.” In Attorney General Opinion DM-48, this office said that the
predecessor statute of section 45.105 “gives trustees of a school district broad discretion to expend
local school funds,” and that, consequently, a district has implied authority to pay its employees for
their accrued sick leave. Tex. Att’y Gen. Op. No. DM-48 (1991) at 3. In our view, section 45.105
likewise permits a school district to award back pay to a particular employee so long as the district
had a policy permitting back pay effective at the time the employee was suspended.
The Honorable Jose R. Rodriguez - Page 3 (X-0115)
SUMMARY
The El Paso Independent School District appears to have had
a policy permitting the award of back pay to an employee who is
suspended or terminated from employment and subsequently
reinstated. As a result, the District may grant such back pay without
contravening article III, sections 52 and 53 ofthe Texas Constitution.
The District is not, however, required to award back pay, and may
decline to do so for any valid reason. Section 45.105 of the Texas
Education Code permits the District to award back pay.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4413456/
|
Dismissed and Memorandum Opinion filed July 2, 2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00298-CV
ADTRAK 360 LLC, JOSEPH NATOLI AND WILLIAM HIGGINS,
Appellants
V.
DYNAMICS PARTNER PLUS, INC. AND MANAGEMENT ADVISORY
SYSTEMS, CORPORATION, Appellees
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2016-52731
MEMORANDUM OPINION
This appeal is from an order signed March 7, 2019. No clerk’s record has been
filed. The clerk responsible for preparing the record in this appeal informed the court
appellants did not make arrangements to pay for the record.
On May 23, 2019, notification was transmitted to all parties of the court’s
intention to dismiss the appeal for want of prosecution unless, within fifteen days,
appellants paid or made arrangements to pay for the record and provided this court
with proof of payment. See Tex. R. App. P. 37.3(b).
Appellants have not provided this court with proof of payment for the record.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices Christopher, Bourliot, and Zimmerer.
2
|
01-03-2023
|
07-02-2019
|
https://www.courtlistener.com/api/rest/v3/opinions/4143861/
|
Honorable A. M. Prlbble
County Attorney
Mills County ,
Goldthwalte, Texas
Dear Sir: Opinion No. O-2523
Ri: A board of-school trustees
may not employ a teacher
whose grandfather and one
of the trustees grandmother
were brother and sister.
Your request for an opinion on the above subject,
addressed to Gerald C. Mann, Attorney General of Texas, has
been referred to the writer for consideration and reply.
Your request contains the ,,followingquestion:
“Is it a violation of the nepotism laws of this
State for a board of school ~trustees to employ a
teacher whose grandfather and one of the trustees’
grandmother were brother and sister?”
Attention is directed to Article 432 of the Penal
Code of Texas, which is as follows:
“NO officer of this State OF any officer of any
district, county, city, precinct, school district, or
other municipal subdivision of this State, or any off.i-
cer or member of any State, district, county, city,
school district or other municipal board, or judge of
any court, created by or under authority of any general
or special law of this State, or any member of the Leg-
islature, shall appoint, or vote for, or conflrm the
appointment to any office, position, clerkship, employ-
ment or duty, of any person related within the second
degree by affinity or within the third degree by con-
sanguinity to the person so appointing or so voting,
or to any other member of any such board, the Legis-
lature, or court of which such person so appointing
or voting may be a member, when the salary, fees, or
compensation of such appointee Is to be paid for,
Honorable A. M, Pribble, Page 2 (O-2523)
directly or indirectly, out of or from public funds
or fees of office 6f any kind.or character whatsoever."
The earliest Texas case setting forth the prohibi-
bited degrees of relationship by affinity and consanguinity
under the nepotism laws is found in the Tyler Tap R. R. Co.
& Douglas v. Overton, 1 Tex. Ct. App., civil cases, p. 268,
1 535, and therein is the following quotatlon: s
"The mode of computing degrees of collateral
consanguinity at the common, and by the canon law is
to discover the common ancestor, to begin with him,
to reckon downwards and the degree the two persons,
or the more remote of them, is distant from the ances-
tor, is the degree of kindred subsisting between them."
This rule has been followed In numerous Texas deci-
sions. Stringfellow v. State, 61 S.W. 719; Falrless v.
Cameron County Water Improvement District No. 1, 25 S. W.
($) 651; Lewis, Assessor, et al v. O'Halr, 130 S. W. (2)
.
It is apparent.that the great-grandfaqher and great-
grandmother were common ancestors of a member of the board
of school trustees and the prospective teacher. Thereby,
their relationship is within the prohibited third degree
by consanguinity. Also, a contract made with the teacher
by the board under those circumstances is void. First
National Bank v. Neal, 10 S. W. (2d) 408; Landever v. Doyle,
44 S. W. (2d) 1050; Hennessey v. Association, 282 S.W. 791.
Believing thLs to answer your inquiry, we are
Yours very truly
APPROVED AUG 13. 1940
/s/ Grover Sellers ATTORNEY GENERAL OF TEXAS
FIRST ASSISTANT
ATTORNEY GENERAL
BY
EC:go:jl
APPROVED
OPINION
COMMITTEE
BY /d REX
Chairman
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129821/
|
@ffice~of tfy SZlttornrp 63enrraI
&date of Pr;exas
DAN MORALES
ATTORNEY
GENERAL August 3,199s
Mr. Barry Williion Opinion No. DM-360
Chair
Railroad Commission of Texas Re: Whether the Texas Railroad Commission
P.O. Box 12967 is required to pay certain fees requested by
Austin, Texas 7871 l-2967 county clerks (RQ-701)
Dear Mr. Wtiamson:
You ask whether the Texas Railroad Commission (the “commission”) is required
to pay certain fee-s when fXng notices required by section 89.043(e) of the Natural
Resources Code. Section 89.043 provides for the plugging of wells by the commission.
Subsection (e) requires the commission to
file for record a copy of the notice in the office of the county clerk of
the county in which the well is located The copy of the notice &xl
in the office of the county clerk must contain [certain information
about] the land on which the well is located. ?%e clerk shall rewed
the notice in ,the real property recorak of the county. The cod
sion shall fiunish a copy of the notice to a holder of a lien on the well
or a nonoperator on that person’s reque5t.l
Nat. Res. Code 3 89.043(e) (emphasis added) (footnote added). You state that county
clerks have rejected filings under this provision for lack of fees. You suggest that county
clerks have asked the commission to submit to fees provided by sections 118.011(a)(2)
and (b)(2), 118.013,118.0216, and 291.007(d)2 ofthem Government Code.
Local Government Code sections 118.01 I(a)(2) and 118.013(a) provide for a real
propaty rrcords filing fee “for filing and recording, including indexing, in the real
property records in the office of the county clerk a docutnent that is authorized or required
to be 6led in those records.” Local Gov’t Code 5 118.013(a). Local Govemment Code
sections 118.011(b)(2) and 118.0216 provide for a records management and preservation
‘Tk8eventy-fuultllLegislatursameadatrubsclMn(e)byaddingtlu~~
dfdvo Angut 28.1995~ “The amIdssionshaulwtkclwgalrfceforthefiljngolorrdingofthe
nodoe.- See H.B. 9039, Act of May 21. 1995. 74th Lq.. RS. ch 928, 0 1. mailoblr in Wtsdaw,
TX-L&S 928 (1995) (copies available at HOUSC Dommmt Diilon OtXa) (to be cd&d as Nat Res.
code p 89.043(e)). This opinion does not consida the &U of that amendment
=As of Sqxemtu 1.1995, section 291.007 will be rmunbmd as seUion 291.008. See S.B. 959.
AU of April 25.1995.74th Lq., RS.. oh 76.0 17.01, ovoilable in Westlaw, Tx-Lqis 76 (1995) (copies
available at senate Bid1Diiiution office).
Mr. Bany Williamson - Page 2
fee “for the records management and preservation services performed by the county clerk
after the filing and recording of a document in the records of the oflice of the clerk.”
Local Gov’t Code $ 118.0216. Local Government Code section 291.007, which was
added in 1993, see Act of May 22, 1993, 73d Leg., RS., ch. 818, 3 2, 1993 Tex. Sess.
Law Serv. 3261, 3262, authorizes a commissioners court to impose a security fee to be
charged at the time of filing civil cases and other documents,
Section 154.004(b) of the Local Government Code provides as follows: “If a
county officer is paid an annual salary. the state or any county may not pay a fee or
commission to the officer for the performance of a service by the officer.” You suggest
that section 154.004(b) precludes the State from paying the foregoing fqs.f For the
following reasons, we disagree.
Fii section 154.004(b) is inapplicable with respect to the real property records
filmg fee and the records management and preservation fee set forth under section
118.011 of the Local Government Code. Section 118.011 of the Local Government
Code, the county clerk fee schedule, was recodified in 1987. See Act of April 30, 1987.
70th Leg., RS., ch. 149, 8 1, 1987 Tar Gen. Laws 707. 862. It now provides that “[a]
county clerk shulZ collect the following fees for services rendered to mry person.”
(Emphasis added.) ‘The statutory predecessor to section 118.011, now-repealed article
3930, V.T.C.S., provided that “[c]ounty &rks and county recorders are hereby
authorized and required to collect the following fees for services rendered by them to all
persons, 5nns, corporations, legal entities, govemmen~l agencies an&or govemmenlol
represenfatives.” (Emphasis added.) The revisor’s note following section 118.011 states
as follows:
The revised law substitutes “any person” for the list of legal
entities in V.AC.S. Article 3930 because the Code Construction Act
(Chapter 311, Government Code) detines “person” to include any
legal entity.
In recodiig article 3930 in the Local Government Code, the legislature did not intend to
nuke any substantive change in the law. See Act of April 30,1987,7Oth Leg., RS.. ch.
149, 5 51, 1987 Tex. Gen. Laws 707, 1308. Thus, section 118.011, considered alone,
clearly requires county clerks to collect fees from the State.
Gn their face, section 118.011, which requires county clerks to collect certain fees
from the State, and section 154.004(b), which precludes the State from paying fees to a
cowlty clerk who receives a salary, conflict. We note, however, that in 1967. the Siieth
Legislature passed House Bii 80, amendii the statutory predecessor to section 118.011,
‘You rely upon Attorney Gelled opinion IM-779 (1987) widcb wnsid~ whubor a dlsnicl
raonryis~topg,a~(othcountyc~forrsMdingrbdradsofjudgmentunda~on
51.318 of the Govemmemt Cd. Section 51.318 of the t3amumtcodc,howeva,pertainstofces
ebargcd by distria clerks.
Mr. Barry Williamson - Page 3
now-repeahsd article 3930, V.T.C.S., and clarifying that that provision repealed certain
other statutory provisions relating to certain fees for county clerks. See Act of
May25,1967, 60th Leg., RS., ch. 681, 1967 Tex. Gen. Laws 1790. One of the pro-
visions a&ted by House Bill 80 was now-repealed article 3912e, V.T.C.S., the statutory
predecessor to section 154.004(b). See id. 5 2, at 1790-91.
House Bill 80 provided in pertinent part that “‘the fees provided for County Clerks
in all other laws, or parts of laws, in contlict with the provisions of this Act are hereby
repealed as to County Clerks only, including but not limited to . . Article 3912e,
Vernon’s Texas Cii Statutes.” Id. As this office recognized shortly after House Bill 80
was enacted, “Prior to the enactment of House Bill 80, no fees were required to be paid by
the State of Texas. [V.T.C.S. art. 3912e. $5 1,3]. House Bii 80 now rqu-hes fees to be
paid by the State.” Attorney General Opinion M-134 (1967) at 2; see also Attorney
General Opinion M-168 (1967) (noting that House Bii 80 did not repeal sections 1 and 3
of article 3912e insofx as it applied to fees under Probate Code or Code of Crhninal
Procedure). Thus, the State must pay all fees set forth in section 118.011, including the
real property records filing fae and the records management and preservation fee.
The section 291.007 security fee is not mentioned in the section 118.011 fee
schedule and must be analyzed separately. As noted above, subsection (a) of Local
Government Code section 291.007 authorizes a conunissioners court to impose a security
fee to be charged at the time of filing in civil cases. Subsection (d) provides that if the
commissioners court of a county sets a security fee in civil cases, the county and district
clerks shah collect a fee of one dollar for filing any document not subject to the security
fee. The fees and costs collected under these provisions must be deposited in the
courthouse security fund by the county treasurer. Local Gov’t Code 5 291.007(e). “The
fund may be used only to finance the following items when used for the purpose of
providing security services for buildings housing a district or county wurt,” includmg, for
example, metal detectors, surveillance equipment, and security personnel. Code Ctim.
Proc. art. 102.017(c), a&edby Act of May 22,1993,73d Leg., RS., ch. 818,s I,1993
Tar Sess. ,Law Serv. 3261, 3262.4 See generally Attorney General Opinion DM-283
(1994) (wnstruing Local Gov’t Code 3 291.007).
We believe that the State is not precluded by section 154.004(b) from paying the
section 291.007 security fee for the following reasons. Subsection (a) provides that the
secUityfee”shaubetaxedasotherwsts. The county is not liable for the costs.”
Subsection (b) provides that in a civil case brought by the State or political subdivifion in
which the State or political subdivision is the prevailing party, the security fee under
subsection (a) “shah be taxed and collected as a cost of wurt against each nonprevailing
party.” Section 291.007 exempts the local county, but not the State or other political
‘Aticle 102.017 will be ~umbcrcd as artide 102.018 as of Sqtembu 1, 1995. =e S.B. 959,
Au ef April 25, 1995.74th Lq.. ch 76, 8 17.01. and.amdcd to apply to municipal courts cffcdive
Angust 28,1995,9cc S.B. 349, Ad ofMay 27,1995,74th Le& RS.. cb. 164.0 2, avaiiablr In We&w,
TX-Le.&database (copia wailable at Senate BiU Diswiition Of6ce).
Mr. Barry Williamson - Page 4
subdivisions, from paying the subsection (d) security fee. This omission contrasts with the
special provision made for fees paid by the State and politkal subdivisions in subsection
(b). and leads us to conclude that the legislature intended for the State and political
subdivisions, other than the local wunty, to pay the subsection (d) fee.5 To the extent that
section 291.007(d) and section 154.004@) conflict, section 291.007(d), which is both
more recent and more specific than section 154.004(b), must prevail. See Gov’t Code
$5 311.025(a), .026@). Therefore, section 154.004@) of the Local Government Code
does not preclude the commission from paying the subsection (d) fee.6
SUMMARY
Local Government Code section 154.004(b) does not preclude
the Texas Railroad Commission from paying a real property records
filiig fee pursuant to Local Government Code sections 118.01 l(a)(2)
and 118.013(a), a records management and preservation fee pursuant
to Local Government Code sections 118.011(b)(2) and 118.0216, or
a wurthouse security fee under Local Gove-rnment Code section
291.007(d) when filing notices rquired by section 89.043(e) of the
Natural Resources Code.
DAN MORALES
Attorney General of Texas
he might su~esf that no rcfmmeeis madeto the Stateand politicalsubdivtsionswith Rspcd
to the subs&ion (d) fee buzauscthe legislahuc8ssumcdthat theywouldbe precludedfrom paying the fee
under seuion lU.oo4@). This algument is not convincing,howcVu,bxausc section 154.004(b)only
pnzcludcsthe Stateand count@ from Payingfees. It doesnot pm&de the IKJSI of other typesof political
mtdivision5frompaying fees.
Mr. Barry Williamson - Page 5
JORGE VEGA
Fist Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4150279/
|
Case: 15-20771 Document: 00513896584 Page: 1 Date Filed: 03/03/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20771 FILED
Summary Calendar March 3, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DELIA DIAZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CR-628-2
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Delia Diaz has moved for leave to
withdraw and has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Diaz
has filed a response, which asserts that her counsel failed to file “necessary
papers” so that her forfeited property would go to satisfy her restitution
obligations. The record is not sufficiently developed to allow us to make a fair
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-20771 Document: 00513896584 Page: 2 Date Filed: 03/03/2017
No. 15-20771
evaluation of Diaz’s claim of ineffective assistance of counsel; we therefore
decline to consider the claim without prejudice to collateral review. See United
States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
We have reviewed counsel’s brief and the relevant portions of the record
reflected therein, as well as Diaz’s response. We concur with counsel’s
assessment that the appeal presents no nonfrivolous issue for appellate review.
Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5TH CIR. R. 42.2.
2
|
01-03-2023
|
03-04-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4413460/
|
Order filed July 2, 2019
In The
Fourteenth Court of Appeals
____________
NO. 14-19-00246-CV
____________
IN THE MATTER OF R.C.
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2017-04332J
ORDER
Appellant’s brief was due June 24, 2019. No brief or motion for extension of
time has been filed.
Unless appellant files a brief with this court on or before August 1, 2019,
the court will dismiss the appeal for want of prosecution. See Tex. R. App. P.
42.3(b).
PER CURIAM
|
01-03-2023
|
07-02-2019
|
https://www.courtlistener.com/api/rest/v3/opinions/4413462/
|
Case: 17-41204 Document: 00515020221 Page: 1 Date Filed: 07/02/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-41204 FILED
July 2, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
RAFAEL CORTEZ-GONZALEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
Rafael Cortez-Gonzalez pled guilty to one count of transporting illegal
aliens. He contends the district court erred by applying a four-level
enhancement under Sentencing Guideline Section 2L1.1(b)(3)(B) when one of
the enhancement’s predicate offenses could not be counted for criminal history
points under Section 4A1.2(e). The district court did not err. We AFFIRM.
FACTUAL AND PROCEDURAL HISTORY
On June 17, 2017, a Remote Video Surveillance System operator with
the United States Bureau of Customs and Border Protection (CBP) using
infrared technology observed ten individuals exit a white Ford F-250 pickup
Case: 17-41204 Document: 00515020221 Page: 2 Date Filed: 07/02/2019
No. 17-41204
truck near a ranch less than a mile south of the Sarita checkpoint around
midnight. The truck then proceeded south on Highway 77 with CBP officers
following. Shortly after midnight, the CBP officers attempted to stop the truck
using their vehicle’s lights and sirens.
Instead of pulling over, the driver of the truck, Raymond Teran-Alfaro,
sped away. This led to a pursuit for about 25 miles, reaching speeds of close to
100 miles per hour. Eventually the truck left the paved road, drove over some
railroad tracks, and became immobilized. The driver tried to escape on foot
but was arrested a few minutes later about 150 yards from the truck.
Meanwhile, other CBP officers searched for the ten individuals who had
earlier exited the truck at the ranch. This search led to another foot pursuit,
where CBP officers were able to arrest eight of the ten. Cortez-Gonzalez was
one of the eight arrested. CBP later discovered Cortez-Gonzalez was
transporting undocumented aliens in the bed of the truck to a predesignated
location, then operating as a brush guide in an effort to bring them into the
United States.
In July 2017, a grand jury indicted Cortez-Gonzalez on one count of
conspiracy to transport illegal aliens in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I), and three counts of transporting illegal aliens in violation
of 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(II). Cortez-Gonzalez pled guilty to one of the
counts of transporting illegal aliens. The court granted the Government’s
motion to dismiss the other three counts.
The presentence investigation report (PSR) applied a base offense level
of 12. Among other enhancements, the PSR recommended the court apply a
four-level enhancement under Section 2L1.1(b)(3)(B). Section 2L1.1(b)(3)
provides for a four-level enhancement “[i]f the defendant committed any part
of the instant offense after sustaining . . . two (or more) convictions for felony
immigration and naturalization offenses, each such conviction arising out of a
2
Case: 17-41204 Document: 00515020221 Page: 3 Date Filed: 07/02/2019
No. 17-41204
separate prosecution.” One of Cortez-Gonzalez’s felony convictions providing
the basis for the enhancement was from 2003, the other from 2017.
Section 4A1.2(e), though, provides that certain older convictions are not used
to compute criminal history points. The 2003 conviction was such a conviction
not assigned criminal history points.
At his sentencing hearing, Cortez-Gonzalez objected to the four-level
enhancement under Section 2L1.1(b)(3)(B), describing the 2003 offense as
“really stale.” He did not object to the other underlying conviction that, if it
had been the only one, would have led to a two-level enhancement. U.S.S.G.
§ 2L1.1(b)(3)(A). The court overruled his objection without explanation,
applied the four-level enhancement, and sentenced Cortez-Gonzalez at the
high end of the Guidelines range to 37 months in prison.
Cortez-Gonzalez appealed. Originally, his counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), to support a motion to withdraw
as counsel, having concluded there was no nonfrivolous issue for an appeal. In
a footnote, counsel conceded that the court correctly overruled the contention
that the 2003 offense was too old to count under the Section 2L1.1(b)(3)
enhancement. Nevertheless, an order from our court found the Anders brief
unpersuasive on the Section 2L1.1(b)(3) contention and ordered either a
supplemental brief or for counsel to retract the motion to withdraw and file a
brief on the merits. Cortez-Gonzalez’s counsel chose to withdraw the motion
and proceed in the appeal.
DISCUSSION
The sole issue is whether the district court procedurally erred in using
the 2003 conviction for the Section 2L1.1(b)(3)(B) enhancement when the
conviction was ineligible for criminal history points under Section 4A1.2(e).
3
Case: 17-41204 Document: 00515020221 Page: 4 Date Filed: 07/02/2019
No. 17-41204
“We review a district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error.” United States v.
Nash, 729 F.3d 400, 403 (5th Cir. 2013). Our review of whether a past offense
can serve as a predicate offense under the Section 2L1.1(b)(3)(B) enhancement
is de novo. Cf. id.
When “interpreting the Sentencing Guidelines, we apply the ordinary
rules of statutory construction.” United States v. Serfass, 684 F.3d 548, 551
(5th Cir. 2012). “When the language of the guideline is unambiguous, the plain
meaning of that language is controlling unless it creates an absurd result.” Id.
We apply the rule of lenity “if that language is ambiguous.” Id.
Cortez-Gonzalez asserts the district court miscalculated his Guidelines
range because of the Section 2L1.1(b)(3)(B) enhancement. In other words, he
contends the court committed procedural error. Gall v. United States, 552 U.S.
38, 51 (2007) (noting “significant procedural error” includes “failing to calculate
(or improperly calculating) the Guidelines range”).
Cortez-Gonzalez contends that because “the 10-month sentence that he
received for the 2003 alien-transporting offense was too stale to receive
criminal-history points and therefore was ‘not counted,’ . . . it was erroneous
for the district court to use that prior conviction as a basis for [the]
enhancement” at issue. As support, Cortez-Gonzalez relies on the commentary
for Section 2L1.1. Note number two is his focus: “Prior felony conviction(s)
resulting in an adjustment under subsection (b)(3) are also counted for
purposes of determining criminal history points pursuant to Chapter Four,
Part A (Criminal History).” U.S.S.G. § 2L1.1 cmt. n.2. Under this argument,
if the prior conviction did not result in criminal history points, it cannot be a
predicate offense for the enhancement. Cortez-Gonzalez also argues that we
should apply the rule of lenity because the Guidelines are ambiguous.
4
Case: 17-41204 Document: 00515020221 Page: 5 Date Filed: 07/02/2019
No. 17-41204
These arguments are unpersuasive. First, the plain text of the
Sentencing Guideline does not limit the predicate offense for the enhancement
in Section 2L1.1(b)(3) to offenses that could count for criminal history points.
That Guideline states:
If the defendant committed any part of the instant offense after
sustaining (A) a conviction for a felony immigration and
naturalization offense, increase by 2 levels; or (B) two (or more)
convictions for felony immigration and naturalization offenses,
each such conviction arising out of a separate prosecution, increase
by 4 levels.
U.S.S.G. § 2L1.1(b)(3). There is no stated temporal limitation on predicate
offenses that invoke the enhancement. We find no absurdity in the lack of such
a limitation. That obligates us “to enforce [the language] according to its
terms.” Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (citations
omitted).
Second, note two in the commentary to Section 2L1.1 does not compel a
different result. As a rule, Sentencing Guideline “[c]ommentary contained
in . . . application notes is ‘authoritative unless it violates the Constitution or
a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.’” United States v. Miller, 607 F.3d 144, 148 n.2 (5th Cir. 2010)
(quoting United States v. Johnston, 559 F.3d 292, 295 n.4 (5th Cir. 2009)).
Here, the note states: “Prior felony conviction(s) resulting in an
adjustment under subsection (b)(3) are also counted for purposes of
determining criminal history points pursuant to Chapter Four, Part A
(Criminal History).” U.S.S.G. § 2L1.1 cmt. n.2. Cortez-Gonzalez argues this
note “presumably” supports the inverse idea that “when a sentence for a prior
felony conviction was too stale to receive criminal-history points” under
Sentencing Guideline Section 4A1.2(e)(3), “that prior felony conviction could
5
Case: 17-41204 Document: 00515020221 Page: 6 Date Filed: 07/02/2019
No. 17-41204
not be [a] basis for enhancement under U.S.S.G. § 2L1.1(b)(3).” That, though,
is not what the note says, and we will not re-write it.
Notably, the comment does not mandate that if the prior felony
conviction is ineligible for criminal history points, it cannot serve as the
predicate offense for the enhancement. The United States Sentencing
Commission could have included such a limitation if it so intended. See United
States v. Camacho-Ibarquen, 410 F.3d 1307, 1313 (11th Cir. 2005) (noting the
Sentencing Commission was capable of “explicitly limit[ing] the application of
certain convictions”). For example, Section 2L1.2 cmt. n.3 (which is not at
issue in this appeal) states the following:
Criminal History Points.—For purposes of applying
subsections (b)(1), (b)(2), and (b)(3), use only those convictions that
receive criminal history points under §4A1.1(a), (b), or (c). In
addition, for purposes of subsections (b)(1)(B), (b)(2)(E), and
(b)(3)(E), use only those convictions that are counted separately
under §4A1.2(a)(2).
A conviction taken into account under subsection (b)(1),
(b)(2), or (b)(3) is not excluded from consideration of whether that
conviction receives criminal history points pursuant to Chapter
Four, Part A (Criminal History).
U.S.S.G. § 2L1.2 cmt. n.3 (italicized emphasis added). This is the type of
limitation Cortez-Gonzalez urges our court to read into Section 2L1.1(b)(3).
The Sentencing Commission did not make such a specific limitation, and we
are not free to impose that limitation judicially.
We also examine the original statutory text instructing the Sentencing
Commission to include the Section 2L1.1(b)(3) language. The Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)
instructed the Sentencing Commission to
impose an appropriate sentencing enhancement upon an offender
with 1 prior felony conviction arising out of a separate and prior
6
Case: 17-41204 Document: 00515020221 Page: 7 Date Filed: 07/02/2019
No. 17-41204
prosecution for an offense that involved the same or similar
underlying conduct as the current offense, to be applied in addition
to any sentencing enhancement that would otherwise apply
pursuant to the calculation of the defendant’s criminal history
category.
Pub. L. No. 104-208, § 203(e)(2)(C), 110 Stat. 3009-565 to 567 (codified at 28
U.S.C. § 994 note); id. at § 203(e)(2)(D) (providing for a further enhancement
if there are “2 or more” such “prior felony convictions”); see also U.S.S.G.
APPENDIX B at 65–66 (citing text from IIRITA in conjunction with the 2016
Sentencing Guidelines). The statute provides that the enhancement will apply
“in addition to any sentencing enhancement that would otherwise apply
pursuant to the calculation of the defendant’s criminal history category.” Id.
at § 203(e)(2)(C), (D) (emphasis added). The Sentencing Guidelines reflected
these new instructions in the 1997 manual and maintained them in the 2016
manual. Compare U.S.S.G. § 2L1.1(b)(3) & cmt. n.5 (1997) with U.S.S.G.
§ 2L1.1(b)(3) & cmt. n.2 (2016). Having determined “the language of the
Guidelines is unambiguous” and not absurd, our inquiry is concluded. United
States v. Rabanal, 508 F.3d 741, 743 (5th Cir. 2007).
That lack of ambiguity also defeats Cortez-Gonzalez’s argument that the
rule of lenity should apply. See United States v. Bustillos-Pena, 612 F.3d 863,
868–69 (5th Cir. 2010) (noting “we apply the rule of lenity to [the Sentencing
Guidelines] when we find that they are ambiguous” and have already
unsuccessfully attempted to resolve that ambiguity through the canons of
construction).
AFFIRMED.
7
|
01-03-2023
|
07-03-2019
|
https://www.courtlistener.com/api/rest/v3/opinions/4129464/
|
OFFICE OF THE hTTOP.NE” GENERAL. STATE OF TEXAS
JOHN CORNYN
May 4,200O
The Honorable John T. Smithee Opinion No. JC-0217
Chair, House Committee on Insurance
Texas House of Representatives Re: Whether Randall County may be divided
P.O. Box 2910 into fewer than four justice of the peace and
Austin, Texas 78768-2910 constable precincts (RQ-0156-K)
Dear Representative Smithee:
You ask this office to interpret article V, section 1S(a) ofthe Texas Constitution as amended
by vote of the people on November 2, 1999. In particular, you wish to know whether Randall
County, Texas may divide itself into fewer than four justice of the peace and constable precincts
under this article. We conclude that, although as ofNovember 2, 1999, Randall County was divided
into four such precincts, it may nevertheless do so.
As you point out, article V, section 18(a) of the Texas Constitution governs the division of
the counties of Texas into justice of the peace and constable precincts. Generally, such division is
a function of population. In the 76th Texas Legislature, article V, section 1S(a) was amended so as
to increase such population brackets. Before its amendment, the section read in part,
“Notwithstanding the population requirements of this subsection, Chambers County, from time to
time, for the convenience of the people, shall be divided into not less than two and not more than six
precincts.” TEX. CONST.art. V, 5 18(a) (amended Nov. 2, 1999). During the floor debate on the
amendment, the words “and Randall County” were added to this provision. H.J. OFTEX.,76th Leg.,
R.S. 1548 (Apr. 29,1999). This addition formed part of the amendment approved by the people on
November 2,1999. Accordingly, had there been no other relevant amendments to section 1S(a), then
upon the adoption of the amendment by the people, Randall County would unquestionably have had
the right to reduce the number of its precincts from four to two if it wished to do so.
However the issue is complicated by the addition of yet another amendment to the section.
As approved by the voters, the last sentence of section 18(a) now reads, “Notwithstanding the
population requirements of this subsection, any county that is divided into four or more precincts
on November 2, 1999, shall continue to be divided into not less than four precincts.” TEX.CONST.
art. V, 5 18(a). Pursuant to this sentence, any and all counties which were divided into four or more
precincts as of the date the amendment passed must remain divided into at least four precincts.
Randall County, as you inform us, is such a county.
The Honorable John T. Smithee - Page 2 (X-0217)
You point out that the engrossed version of House Joint Resolution 71, sent from the House
to the Senate, read in pertinent part. “any county may continue to be divided into not less than
four precincts.” See Tex. H.J. Res. 71,76th Leg., R.S. (1999) (engrossed version). However, you
further note that an amendment changing the term from “may” to “shall” was made and passed on
the Floor ofthe Senate and that the House concurred. See S.J. OFTEX., 76th Leg., R.S. 1881 (May
18,1999). Thus, it was the “shall” language which was submitted to and approved by the electorate.
Accordingly, the “shall” language is the law of Texas.
“Shall” in this sentence is clearly mandatory rather than permissive. See Albertson’s Inc. v.
Sinclair, 984 S.W.2d 958,961 (Tex. 1999) (“shall” generally construed as mandatory unless legis-
lative intent suggests otherwise). Therefore a county may not be divided into fewer than four
precincts if it were not so divided before November 2, 1999.
We are therefore presented with the question of how to resolve this seeming contradiction.
As a general matter, when interpreting the Texas Constitution, we must attempt to avoid a
construction that renders any provision inoperative. See Spradlin v. Jim Walter Homes, Inc., 9
S.W.3d 473,475 (Tex. App.-Dallas 2000, pet. tiled). Here we may avoid treating the addition of
Randall County to the Chambers County provision as inoperative by treating it as a specific
exception to the general rule of the last sentence, see Oakley v. State, 830 S.W.2d 107, 110 (Tex.
Crim. App. 1992) (enbanc); Clapp Y. State, 639 S.W.2d 949,952 (Tex. Crim. App. 1982) (enbanc).
Accordingly, we conclude that Randall County, pursuant to the specific authority provided it by
article V, section 18(a) of the Texas Constitution, may divide itself into fewer than four justice of
the peace and constable precincts.
You further ask whether, should it so divide itself, Randall County may still retain four
precincts for the purpose of electing county commissioners. We conclude that it not only may, but
must do so. Article V, section 18(b) of the Constitution provides that, “Each county shall be
divided into four commissioners precincts.” There are no population brackets in section 18(b).
Every county in Texas, from Harris County to Loving County, is so divided. Accordingly, Randall
County must remain so divided.
The Honorable John T. Smithee Page 3 (JC-0217)
SUMMARY
Randall County, pursuant to the specific authority provided
it by article V, section 18(a) of the Texas Constitution, may divide
itself into fewer than four justice of the peace and constable precincts.
However, pursuant to article V, section 18(b), it must remain divided
into four commissioners precincts.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/1742155/
|
933 F. Supp. 246 (1996)
HERTZOG, CALAMARI & GLEASON, Plaintiff,
v.
The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant.
No. 93 Civ. 6395 (CSH).
United States District Court, S.D. New York.
March 21, 1996.
*247 Hertzog, Calamari & Gleason, New York City (Anthony L. Paccione, Loretta Shaw-Lorello, of counsel), for Plaintiff.
Bachner, Tally, Polevoy & Misher, New York City (H. Richard Penn, Todd Marcus, of counsel), for Defendant.
*248 MEMORANDUM OPINION AND ORDER
HAIGHT, Senior District Judge:
This diversity action arises out of a dispute as to the proper interpretation of a real estate lease between plaintiff law firm Hertzog, Calamari & Gleason ("HC & G") the tenant and defendant Prudential Insurance Company ("Prudential") the owner and landlord of the property.
Plaintiff moves the Court for summary judgment on its first cause of action for a declaratory judgment (1) establishing the maximum liability of HC & G and of its individual partners, and (2) ruling that HC & G may cancel or terminate the lease by vacating the property and paying the stipulated damages set forth in the lease modification. For the reasons stated below, the motion is granted in part and denied in part.
FACTS
HC & G is a New York City law firm with offices at 100 Park Avenue, a building owned by Prudential. On May 16, 1989, HC & G and Prudential entered into a ten-year lease for portions of three floors of 100 Park Avenue. Included among the lease's provisions was a section articulating the liability of individual HC & G partners:
the liability of each of the partners of Partnership Tenant shall be several and limited to, and in no event exceed, their individual per capita share of One Million Dollars ($1,000,000), as determined by the number of partners listed on the latest schedule of partners in Partnership Tenant, which schedule shall be provided to Landlord by Tenant annually (by way of example), if the latest schedule of partners lists ten (10) partners of Partnership Tenant, then each partner's liability under the lease shall be limited to One Hundred Thousand Dollars ($100,000)....
Paccione Aff., Exh. A at § 55.
In the spring of 1990, HC & G lost two partners from its law firm and sought to modify the lease to alter the proportionally greater personal liability resting upon the shoulders of the remaining individual partners of HC & G. In a letter dated May 2, 1990, HC & G wrote to Prudential's agent requesting a lease modification to stabilize and cap the potential individual liability faced by its partners. Paccione Aff., Exh. C. Prudential refused to modify the lease at that time.
A third, quite senior, partner left HC & G in the summer of 1990, again raising concerns among the firm's remaining partners as to their potential individual liability. HC & G again approached Prudential about modifying the lease, spelling out its proposal to alter Section 55 to allow "a reduction in the liability of Partnership Tenant" in a letter dated July 31, 1990. Paccione Aff., Exh. L at 1.
Lease modification negotiations began between the parties, and a Modification was formally executed on May 6, 1991. Neither party disputes the validity or binding nature of this Modification. The Modification provided that:
1. Notwithstanding any provision of the Lease to the contrary, in the event of any cancellation or termination of the Lease, the liability of Partnership Tenant and the partners of Partnership Tenant under the lease shall be as set forth below:
(i) the liability of Partnership Tenant shall not exceed One Million Dollars ($1,000,000) (the "Aggregate Liability"). The liability of each of the partners of Partnership Tenant for the Aggregate Liability shall be several and shall be limited to, and in no event exceed, their individual per capita share of the Aggregate Liability, as determined by the number of partners listed on the latest schedule of partners in the Partnership Tenant, which schedule shall be provide to Landlord by Tenant annually (by way of example, if the latest schedule of partners lists ten (10) partners of Partnership Tenant, then each partner's liability under the Lease shall be limited to One Hundred Thousand Dollars ($100,000) during the first Lease Year (as defined herein);
(ii) the Aggregate Liability of Partnership Tenant and the partners of Partnership Tenant shall be reduced by $100,000 for each of the first five consecutive Lease Years of the Lease such that the Aggregate *249 Liability shall be $500,000 at the end of the fifth Lease Year under said Lease....
(iii) in the event the schedule of partners submitted by Partnership Tenant reflects a number of partners such that the several liability of any one partner for his or her share of the Aggregate Liability equals or exceeds $125,000 (said amount being calculated by dividing the Aggregate Liability relevant at the time by the number of partners on the latest schedule of partners submitted by Partnership Tenant), then Landlord may look to the schedule of partners submitted immediately prior to the list in question and to prior schedules of partners in reverse chronological order until that schedule of partners is reached for whom the several liability of any one partner for his or her share of the Aggregate Liability is less than $125,000 per partner, and the partners listed on all such schedules shall be liable for their per capita share of the Aggregate Liability in the event of subsequent termination or cancellation of the Lease.
2. Except as otherwise amended hereby, all terms of the Lease shall remain in full force and effect.
Paccione Aff., Exh. D at 1-2.
In the summer of 1992, HC & G approached Prudential requesting a renegotiation of its rent. Prudential responded, by a September 8, 1992 letter from its agent Cushman and Wakefield, that although Prudential valued HC & G's tenancy, it was "unwilling at this time to change these lease provisions in return for a longer lease commitment." Penn.Aff., Exh. 12 at 1. HC & G then reached an agreement with the owners of another building, and wrote to Prudential on October 21, 1992 requesting a meeting "to discuss a mutually agreeable termination date" for the 100 Park Avenue lease. Paccione Aff., Exh. F at 1. HC & G alleges that "Prudential refused to recognize HC & G's exercise of its rights under the Modification, and instead of arranging for a turn over of possession as requested by HC & G, Prudential threatened to sue the firm for rent each month through the end of the maximum term of the Lease." Plaintiff's Memorandum of Law ("PM") at 10. HC & G thus seeks a declaratory judgment to resolve the interpretive dispute over Section 55.
Prudential opposes this summary judgment motion on the ground that disputed material facts underlie plaintiff's claims. Additionally, Prudential asserts that since plaintiff
never actually attempted termination by serving defendant with a notice thereof or by vacating the premises ... defendant has never faced the decision, as a fact, of whether or not to reject an "attempted termination" of where or not to "recognize the limitation of liability set forth in the Modification."
Defendant's 3(g) Statement at ¶ 8. Accordingly, Prudential argues that no "plaintiff presents no statutorily sanctioned `actual controversy' within this Court's jurisdiction" as required by 28 U.S.C. § 2201. Id. at ¶ 9.
DISCUSSION
1. Propriety of Declaratory Judgment
As a first step, this Court will ascertain whether the parties are embroiled in an "actual controversy." I examine this question because I have an independent, constitutional obligation to protect the jurisdictional limits of the federal courts. I must note before beginning, however, that I pursue this inquiry in spite of defendant's efforts, not because of them. Defendant does not cross-move for summary judgment, nor does it move to dismiss the complaint, on the ground that plaintiff's allegations are jurisdictionally insufficient under 28 U.S.C. § 2201. Nor does defendant make more than a passing reference to such argument in its memorandum of law in response to plaintiff's motion for summary judgment. Rather, defendant articulates the claim, unsupported by any case citations, in its Local Civil Rule 3(g) statement.
Local Civil Rule 3(g) requires the party opposing a summary judgment motion to provide the Court with a "short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." It is entirely inappropriate for a party to make lengthy, conclusory legal *250 arguments in a 3(g) statement, and entirely unhelpful to the Court. Were I not bound by an independent duty to consider this jurisdictional question, I would refuse to consider the legal argument articulated primarily in Prudential's 3(g) statement.
Nonetheless, I now turn to the analysis of whether plaintiff's complaint alleges a justiciable controversy. Judge Kram's recent decision in a case presenting a nearly identical factual situation simplifies the task significantly. Gilbert, Segall and Young v. Bank of Montreal, 785 F. Supp. 453 (S.D.N.Y. 1992). In Gilbert, the parties disputed the meaning of a modified lease term which provided for the annual reduction of the tenant's liability under the lease. Gilbert, 785 F.Supp. at 455. The plaintiff tenant, GSY, wished to default under the lease, vacate the premises, and pay what it alleged were the stipulated damages. Id. at 457. The defendant owner rejected GSY's interpretation of the lease and threatened to sue GSY if it vacated the leased premises. Id.
Judge Kram held that this situation presented a justiciable "actual controversy." Id. at 461. According to Judge Kram,
It is of course beyond dispute that an "actual controversy" would exist if GSY abandoned the premises or made concrete plans to leave by entering into a lease agreement for space elsewhere. But, to require GSY to take such irrevocable actions as vacating the premises or entering a lease for space elsewhere which would bind GSY simultaneously to two leases and create the possibility of dual liability in order to adequately allege a justiciable controversy would defeat the purpose of a declaratory judgment procedure which is intended to prevent the accrual of avoidable damages.
Id., citing American Machine & Metals, Inc. v. De Bothezat Impeller Co., 166 F.2d 535 (2d Cir.1948).
Because the facts of the case at bar so closely resemble those in Gilbert, and because I agree with Judge Kram's reasoning in that case, I hold that HC & G has alleged an actual, justiciable controversy in this case. The Court therefore has subject matter jurisdiction over the case under 28 U.S.C. § 2201 and 28 U.S.C. 1332(a)(2).
2. Cancellation Rights Under The Lease
Plaintiff asks the Court to declare its rights under the lease as modified. One essential question is whether the lease allows the plaintiff to cancel the lease and pay stipulated damages; the other essential question is what those damages should be.
According to the plaintiff's Memorandum of Law, the Modification was intended to allow HC & G to cancel the lease, walk away from the property, and pay the stipulated damages. PM at 13. HC & G asserts that
to that end, the Modification clearly provides that it applies "in the event of any termination or cancellation of the Lease", not just unilateral termination by Prudential. To construe it otherwise would simply render the Modification meaningless because, in the event of a default, the firm and its partners would be exposed to enormous liability for rent for the entire term of the Lease, unless Prudential chose to terminate the lease. Leaving the effectiveness of the liability limitation in Prudential's hands would be cold comfort indeed to HC & G and its partners.
PM at 13-14 (emphasis in original). HC & G emphasizes that the "termination and cancellation" language was included in the Modification to "address the issue of HC & G's desire to be able to cancel the Lease by paying a sum certain to Prudential." Id. at 15.
Prudential reads the Modification's cancellation language differently. Despite the Modification's reference to "any cancellation or termination," defendant argues that "section 55's limitation on individual partners' liability did not affect defendant's remedies of `cancellation' or `termination' under the main lease." Defendant's Memorandum of Law ("DM") at 23. According to Prudential, Sections 16, 17, and 54 of the main lease provide the owner with the option of canceling or terminating the lease, not the tenant. Paccione Aff., Exh. A, §§ 16, 17, 54. Prudential further asserts that since the discussions *251 and negotiations prior to the Modification concerned only changes in HC & G's liability, and not changes in the cancellation rights scheme of the lease, it would have been beyond Prudential's "reasonable expectations" to alter the cancellation scheme in the Modification. DM at 38. Fundamentally, Prudential's argument is that there is a genuine dispute as to the meaning of, and the parties' intent in drafting, the phrase "any cancellation or termination of the lease."
Depositions of those involved in the Modification negotiations illuminate the differences of interpretation. William Simon, the HC & G partner who negotiated and drafted the Modification, testified as to his understanding of the cancellation rights:
Penn[1]: Was the subject matter of cancellation or termination of the lease ever discussed during any conversation you had with Mr. Vittorio?
Simon: Yes. As I related, the discussion that we had at the end of the summer of 1990 were to the effect that if the firm couldn't be viable in our existing space, we wanted to be able to walk away from the lease by paying a sum certain. I don't know that we used the specific term "cancellation" or "termination." But we had the discussion I've just related.
Penn.Aff., Exh. 4 (Simon Deposition) at 45-46. This assertion is bolstered by a memorandum for files Simon wrote on September 5, 1990, which states that "I told him that, in my view, the provision was crystal clear in that it allowed the firm and all of its partners to merely walk away from the lease by paying the penalty with no further liability. He agreed with my interpretation...." Paccione Aff., Exh. J at 1.
Later in his deposition, however, Simon muddied his description of the purpose of the Modification:
Penn: But, in fact, if the firm walked out, it could then be sued for whatever damages the landlord could demonstrate it sustained as a result of that breach.
Simon: Under the original lease I believe that's a correct statement.
* * * * * *
Penn: Is it your contention that that language ... removed the default provisions as operative as written in the printed portion of the lease?
Simon: You are referring now to Paragraph 17 of the original lease?
Penn: And 54.
Simon: Well, I think the language means what it says, that unless the amendment addresses it, the lease stands.
Penn: Well, I'm asking whether or not it was your understanding as the draftsman, the principal draftsman of the lease as finally executed, that the language in Paragraph 2 effectively rendered inoperative Paragraphs 17 and 54 of the lease.
Simon: I don't know that I had any such understanding one way or the other.
Penn.Aff., Exh. 4 at 63-64. Simon's intent as to the effect of the modification of the underlying lease was further probed with these questions:
Penn: My question is directed to the prefatory Paragraph 1 and the phrase therein which did not appear until the blank day of September 1990 draft that you had prepared, quote, in the event of any cancellation or termination of the lease.
Did the inclusion of that phrase in the Modification modify cancellation or termination rights of the landlord contained in the lease dated May 16, 1989, before the amendment?
* * * * * *
Simon: I don't believe so.
Penn: I take it as the draftsman it was not your intention to modify the landlord's rights with respect to cancellation or termination; is that right?
Simon: Yes.
Penn.Aff., Exh. 4 at 103-04 (objection omitted).
Prudential's witness remembered no discussion of cancellation rights during the Modification negotiations. According to Steven Vittorio, then Prudential's manager of 100 Park Avenue, the Modification applied *252 only to changes in HC & G's liability, not to the lease's cancellation scheme. Vittorio denied that he ever discussed the matter with Simon:
Mollon[2]: Do you recall Mr. Simon in the course of conversations with you telling you that it was his understanding of the proposal that it would allow the firm and its partners to walk away from the lease by paying a penalty with no further liability?
Vittorio: Absolutely not.
Penn.Aff., Exh. 6 at 43. Not only did Vittorio testify that cancellation scheme changes were never discussed, he added that he would have been unable to agree to such changes had he known they were on the table:
Mollon: If you could look now at Plaintiff's 17, the modification to the lease, in paragraph 1, in the second line, where it starts off by saying "notwithstanding any provision of the lease to the contrary, in the event of any cancellation or termination of the lease," and then it goes on.
According to what you said, my understanding was that that language does not add or detract from your understanding of what the original lease provided.
Vittorio: Correct. We were never negotiating rights to cancel or terminate. This purely pertains to the original lease where landlord had certain rights to cancel or terminate.
Mollon: In negotiating the language your understanding was that that didn't change anything?
Vittorio: Correct. In fact, let me add, neither myself nor, I believe, Sharon Barnes would have had any authority to grant any kind of cancellation right changes to the lease. This purely was referring to the existing cancellation and termination rights, and no discussion with Mr. Simon or anyone else from Hertzog Calamari ever revolved around termination and cancellation.
Penn.Aff., Exh. 6 at 85-86.
It is clear from these submissions that this dispute cannot be resolved by summary judgement. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. In assessing contract disputes in this Circuit, "[q]uestions of intent ... are usually inappropriate for disposition on summary judgment." National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 205 (2d Cir.1989). Even where contract or lease language is facially unambiguous, "[i]t is only where the language and the inferences to be drawn from it are unambiguous that a district court may construe the contract as a matter of law and grant summary judgment accordingly." Cable Science Corp. v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir.1990).
The case at bar involves two fundamental disputes concerning the parties' cancellation rights. First, the parties dispute whether, in the course of the lease negotiations, Vittorio and Simon discussed the lease's cancellation scheme or HC & G's desire to modify the lease so that it could "walk away" from the lease for a stipulated damages payment. Second, the parties disagree as to the meaning of the phrase "any cancellation and termination" in Paragraph One of Section 55 of the Modification. HC & G insists the phrase should be read literally to apply to any cancellations or terminations by any party, under any circumstance. Prudential argues that the phrase must be read in the context of the overall lease, in which all cancellation rights belong to the landlord.
Although it is facially unambiguous, I agree with Prudential that the meaning of the phrase "in the event of any cancellation or termination" is uncertain in the context of the overall lease. The Modification nowhere defines cancellation or termination, nor does it explicitly delineate which parties have the ability to end the lease. If the original lease had not included the terms, HC & G might be correct in urging the Court to adopt a sweeping interpretation of the phrase. But *253 the original lease describes narrow lease cancellation and termination rights, held only by Prudential. Prudential's argument that the Modification language merely refers to existing cancellation and termination rights, and creates no new rights for HC & G, is sufficiently plausible to preclude summary judgment. Given the genuine disputes over significant, material facts underlying the meaning of the cancellation and termination language, I deny plaintiff's motion for summary judgment for declaratory judgment as to the meaning of the cancellation provisions of the Modification.
3. Partnership Liability Under the Lease
HC & G also seeks a declaratory judgment from the Court as to the meaning of the liability provisions of the lease as modified. Summary judgment is appropriate here, as there is no genuine issue of material fact between the parties.
Plaintiff asserts that the liability scheme provided in the Modification caps both HC & G's liability as a partnership and the aggregate individual liability of HC & G's partners at $1,000,000, with annual reductions thereafter. PM at 8. Prudential maintains that the liability cap applies only to HC & G's individual partners, not to the partnership itself.
The Modification, on its own and in conjunction with the original lease, supports HC & G's interpretation. The Modification clearly distinguishes between the various parties to the agreement, repeatedly referring to "the liability of Partnership Tenant and the partners of Partnership Tenant." Paccione Aff., Exh. D at 1, 2. The substantive provisions of the Modification repeat this distinction, stating, for example, that "the liability of Partnership Tenant shall not exceed One Million Dollars ($1,000,000) (the "Aggregate Liability"). The liability of each of the partners of Partnership Tenant for Aggregate Liability shall be several and limited to" established dollar amounts. Id. at 1-2. Additionally, section (iii) of the Modification provides a remedy for Prudential if the individual partners reach their liability caps of $125,000. Id. at 3-4. The absence of any reference to the Partnership Tenant in this specific discussion indicates that the Modification distinguishes between the two categories and that the term "Partnership Tenant" is not interchangeable with references to the individual partners.
Prudential argues that since the modification negotiations occurred in the context of reducing the existing liability scheme provided in the original lease's Section 55, which it claims governs individual liability and not partnership liability, the Modification cannot be read to cap the liability of HC & G as a partnership. DM at 14-15. Prudential's manager Vittorio testified that
The focus of the conversations [with Simon] was purely on section 55 and the relief of individual partners' liability as it related to the million dollars in that section. I don't recall any other conversations. There were no other conversations.
Penn Aff., Exh. 6 at 32. When pressed on the matter, he responded as follows:
Mollon: If you look at the paragraph numbered one ... does that paragraph discuss limitation of liability for the partnership as well as for the individual partners?
Vittorio: As it pertains to section 55, it was my understanding that our discussions were related to the individual partnership liability and the individual partners' liability. I don't know if "partnership tenant" was a misused term or a misunderstanding, but we only conversed regarding section 55, individual partners' liability.
Mollon: Did you at any time before or after this letter discuss limitation of partnership liability as opposed to individual partnership liability?
Vittorio: No.
Penn Aff., Exh. 6 at 32.
With this argument, Prudential attempts to exploit a potential ambiguity in the meaning of "Partnership Tenant" in Section 55 of the original lease, which reads: "If Tenant is a partnership (or is comprised of two (2) or more partners, individually and as co-partners of a partnership), ... any such partnership and such persons are referred to in this Section as `Partnership Tenant'...." Paccione Aff., Exh. A, § 55. Yet the original lease avoids any potential confusion by consistently referring to "partners of the Partnership *254 Tenant" when describing individual HC & G partners. And not only does the Modification supplant that section, but it clarifies the relevant parties by defining "Partnership Tenant" as "Hertzog, Calamari & Gleason" in its first sentence. Paccione Aff., Exh. D at 1. Vittorio seemed to recognize this distinction in a January 7, 1991 memorandum in which he referred to both "the partnership's liability" and the maximum liability of each "single partner." Paccione Aff., Exh. I at 1.
Fundamentally, Prudential's argument is that the liability provision does not mean what it clearly says, and that the terms in the Modification were misused. But unlike the cancellation and termination language, the term "Partnership Tenant" is clearly defined in both the original lease and the Modification. Both documents consistently distinguish between the partnership of HC & G and the individual HC & G partners. There is nothing unusual, unspoken, or misleading in the references to these parties, nor does the Modification's language contradict the language of the original lease.
Under New York law, interpretation of a lease is governed by the same rules as are applicable to contract interpretation generally. George Backer Management Corp. v. Acme Quilting Co., Inc., 46 N.Y.2d 211, 413 N.Y.S.2d 135, 138, 385 N.E.2d 1062, 1065-66 (1978); Fox Paper Ltd. v. Schwarzman, 168 A.D.2d 604, 563 N.Y.S.2d 439, 441 (1990). Contract language is unambiguous if it has a definite and precise meaning as to which there is no reasonable basis for differing interpretations. Metropolitan Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir.1990). Language whose meaning is otherwise plain is not rendered ambiguous simply because parties dispute its meaning, id., nor should a court interpret language as ambiguous if such an interpretation would "strain the contract language beyond its reasonable and ordinary meaning." Id.
Because Prudential's interpretation of the meaning of the terms "Partnership Tenant" and "Partners" strains the lease's language unreasonably, I reject both its explanation of the terms and its assertion that a genuine dispute exists concerning their meaning in the Modification.
I grant summary judgment on this question. I therefore declare that the modified lease between Prudential and HC & G limits the liability of the partnership of Hertzog, Calamari and Gleason to $500,000.00. The lease limits the liability of each of the individual partners of Hertzog, Calamari and Gleason to his or her individual per capita share of $500,000.00, not to exceed $125,000.00 per partner.
CONCLUSION
Plaintiff's motion for summary judgment is denied as to the cancellation clause of the lease, and granted as to the lease's liability provisions.
There appears to be no demand for a jury. The Court will in the near future arrange a telephone conference call with counsel to schedule an expedited bench trial.
It is SO ORDERED.
NOTES
[1] H. Richard Penn, Esq., counsel for Prudential.
[2] David E. Mollon, Esq., counsel for HC & G.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/4129455/
|
OFFICE OF THE ATTORNEY GENEFW.. STATE OF TEXAS
JOHN CORNYN
May 26,200O
The Honorable Jane Nelson Opinion No. JC-0226
Chair, Committee on Health Services
Texas State Senate Re: Whether “compelling state interest” analysis
P.O. Box 12068 applies to a state agency’s interference with a
Austin, Texas 78711 parent’s right to direct the upbringing ofhis or her
children (RQ-0205.JC)
Dear Senator Nelson:
You have requested our opinion regarding the constitutional standard to be applied when a
state agency attempts to interfere with a parent’s right to direct the upbringing ofhis or her children.
For the reasons set forth below, we conclude that the standard is “compelling state interest.”
In the past three years the legislature has enacted two statutes that prohibit a state agency
from interfering with parental rights vis-a-vis their children. Section 15 1.005 of the Family Code,
adopted in 1999, provides: “A state agency may not adopt rules or policies or take any other action
that violates the fundamental right and duty of a parent to direct the upbringing of the parent’s
child.” Virtually identical language was added in 1997 to House Bill 425 amending chapter 81 of
the Labor Code, but was repealed when section 15 1.005 was enacted.’
“Fundamental Rights” is a term of art for purposes ofboth equal protection and due process
analysis. See TEX. GOV’T CODE ANN. 5 311.01 l(b) (Vemon1998) (“Words and phrases that have
acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be
construed accordingly.“). The term comprises those express and implied protections of personal
liberty recognized in the federal and state constitutions. See Spring Branch Indep. Sch. Dist. v.
Stamos, 695 S.W.2d 556,560 (Tex. 1985), appealdim ‘d, 475 U.S. 1001 (1986); Jacks. Jack, 796
S.W.2d 543 (Tex. App.-Dallas 1990, no writ). Thus, section 151.005 ofthe Family Code simply
codifies well-established principles announced by the United States Supreme Court as long ago as
1923 inh4eyerv. Nebraska, 262 U.S. 390,399 (1923). InPierce Y. Society ofSisters, 268 U.S. 510,
534 (1925) the Court declared that the Oregon Compulsory Education Act, which required every
person having custody of a child between eight and sixteen years to send him or her to a public
school, “unreasonably interferes with the liberty of parents and guardians to direct the upbringing
and education of children under their control,” in contravention of the Fourteenth Amendment to the
‘See Act of May 26, 1997, 75th Leg., RX, ch. 1225, 5 3(b), 1997 Tex. Gen. Laws 4691,4692, repealed by
Act of Apr. 23, 1999, 76th Leg., R.S., ch. 62, 5 6.18(h), 1999 Tex. Gen. Laws 127, 143.
The Honorable Jane Nelson - Page 2 (X-0226)
United States Constitution. Id. at 534-35. The Court reached the same conclusion almost a half-
century later in State of Wisconsin Y. Yoder, 406 U.S. 205 (1972), when it held that the First and
Fourteenth Amendments prohibited the state from compelling Amish parents “to cause their children
to attend formal high school to age 16.” Id. at 234.
The Supreme Court has also made clear that personal rights that can be deemed fundamental
or that are implied in the concept of ordered liberty are included in the Constitution’s guarantee of
personal privacy. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965). Those privacy rights
include matters relating to the home, marriage, procreation, motherhood, child rearing, and
education. See Carey v. Population Sews. Int’l, 431 U.S. 678,684-85 (1977). In these categories,
where fundamental rights are at issue, regulation limiting these rights can be justified only by
“compelling state interests.” See id., at 686. Legislation that attempts to infringe on these rights
must be narrowly drawn to express only valid state interests. See id.; see also Griswold, 381 U.S.
at 485.
We conclude that, when a state agency attempts to interfere with the fundamental right of a
parent to direct the upbringing of his or her children, it must, in order to do so, satisfy the
constitutional standard of “compelling state interest.”
The Honorable Jane Nelson - Page 3 (X-0226)
SUMMARY
When a state agency attempts to interfere with the
fundamental right of a parent to direct the upbringing of his or her
child, it must, in order to do so, satisfy the constitutional standard of
“compelling state interest.”
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143733/
|
Hon. James E. Kilday, Director Opinion NO. O-2644
Motor Transportation Division Re: Whether Railroad Commis-
Railroad Commission of Texas sion is required to approve
Austin, Texas sale and transfer of the capi-
tal stock in a corporation
Dear Sir: holding a motor carrier permit.
In your letter of August 29, 1940, you advise us of
the following:
"Dunn Brothers Inc., a Corporation, duly in-
corporated and exis t ing under and by virtue of
the laws of the State of Texas, owns a contract
carrier permit and a special commodity carrier per-
mit heretofore issued by the Railroad Commission.
under the Motor Carrier Law of Texas.
"Carl H. Dunn, President of the Corporation,
has filed an application for the Commission's ap-
proval of the sale and transfer of the capital
stock in said corporation to Harry Gowins, Jr.,
setting out in the application that the Corpora-
tion owns Contract Carrier Permit No. 11160 and
Special Commodity Permit No. 31981."
You request our opinion in response to the following
questions:
"1. Is the Railroad Commission required to
approve applications for the sale and transfer of
the capital stock in corporations holding certifi-
cates or permits issued under the Motor Carrier Law
of Texas, before such stock can be transferred?
“2. If your answer to Question 1 is in the
affirmative, are we required to collect a filing
fee with such applications?
“3. If we are required to collect a filing
fee, should we collect only one filing fee of ten
dollars, where more than one permit is owned by the
Corporation transferring the stock, or should we
collect a ten dollar filing fee for each permit
owned by said Corporation?"
hon. James d,. Kilday, Page 2
Section 6 (f) of Article.'3llb, Vernon’s Civil :jt.:t-
utes, reads:
“Any contract carrier permit held, owned, or
obtained by any motor carrier operating under the
provisions of Section 6 may be sold, assigned,
leased, transferred, or inherited; provided, how-
ever, th:lt any proposed sale, lease, assignment,
or transfer shall be fir’st presented in wri.ting to
the Commission for its aoprovnl or disapproval
and the Commission may disapprove such proposed
sale, assignment, lease or transfer if it be found
and determined by the Commission that su;h proposed
sale, assignment, lease, or transfer is not in good
faith or that the proposed purchaser, assignee,
lessee, or transferee is not capable of continuing
the operation of the equipment proposed to be sold,
assigned, leased, or transferred in such a manner
as to render the services demanded in the best in-
terest of the public; the Commission in approving
or dtsapproving any sale, assignment, lease, or
transfer of any permit may take into consioeration
,111 of the requirements and qualifications of a
regular applicant required in this Section, and
apply same as necessary qualifications of any pro-
posed purchaser, assl.gnee, lessee, or transferee;
provided, however, that in case a permit is trans-
ferred that the transferee shall pay to the Commis-
sion a sum of money equal to ten (10) per cent of
the amount paid as a consideration for the transfer
of the permit which sum of ten (10) per cent shall
be deposited in the Zt-;te ,i’reasury to the credit of
the i!ighlJay Fund of the jtaie; provi.ded, however,
th:lt ny permit obtUned bv any motor carrier or by
any assignee or trransferee shall be taken and held
subject to the right of the State at any time to
limit, restrict, or forbid the use of the streets
and highways of this State to any holder or owner of
such permit. Lvery application filed with the Cod]-
mission for an order approving the lease, sale) or
transfer of any permit shall be accompanied by a
filing fee in the sum of Ten Dollars ($10) which fee
shall be in addition to other fees and taxes and
shall be retained by the Commission whether the
lease, sale, or transfer of the permit is approved
or not. Added Acts 1939, 46th Leg., p. 89, 61 1.”
The Railroad Commission is given no authority regard-
ing the transfer of shares. of stock in private corporations,
even in those corporations holding motor carrier permits and
certificates of convenience and necessity. This question doubt-
less arises out of the thought on the part of the person
Hon. James d. Kilday, page 3
acquiring the stock that the view might be taken that a sale
of the capital stock is tantamount to a sale of all the assets,
including the permit, as suggested under a particular state of
facts in Vick v. Park, 171 S.W. 1039 (the identical opinion
being reported -ilso in 173 :5&!. 989). However, we do not be-
lieve such a doctrine would be applied !n such a way as to re-
auire the Railroad Commission to approve a sale and transfer
of the stock in a corporation owning a permit. The tangible
property of a corporation belongs to the corpor~~tionas such,
the stockholders merely owning intangible interests in the cor-
porate business. Turner v. Cattlemen's Trust Co. 215 S.:i.
831, Corn. App.; Automobile Mortg. Co. v. Ayub, 26& S.;:. 134,
Comm. App.
We do not believe there exist sufficient reasons for
the courts to disregard the corporate fiction and treat the
transfer of the stock as a transfer of the permit. The finan-
cial strength of the corporation itself is not impaired by the
sale of stock. If the service is not kept up or the permit
is otherwise abused remedies are provided in Article 911b. jee
Section 12 (b). Under the facts as stated, your first question
is given‘s negative answer.
Yours very truly
By /s/ Glenn R. Lewis
Glenn H. Lewis, ,Assistant
Aic'HC\VKD%iP 13, 1940
/s/ Gerald C. Mann
ATTi,R;d&YGZN:&AL OF TEXAS
Ot'INI.!N COMIMITTHE
H'B, CHAIRMAN
GRi:R,i:wb
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4150285/
|
Order Michigan Supreme Court
Lansing, Michigan
March 3, 2017 Stephen J. Markman,
Chief Justice
Robert P. Young, Jr.
Brian K. Zahra
153828(64) Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen,
Plaintiff-Appellee, Justices
SC: 153828
v COA: 324018
Wayne CC: 14-000152-FC
THEODORE PAUL WAFER,
Defendant-Appellant.
_________________________________________/
On order of the Chief Justice, the motion of plaintiff-appellee to extend the time
for filing its supplemental brief is GRANTED IN PART. The supplemental brief will be
accepted as timely filed if submitted on or before March 28, 2017. The due date of
defendant-appellant’s supplemental brief is also extended to March 28, 2017.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 3, 2017
Clerk
|
01-03-2023
|
03-04-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129840/
|
QBfficeof tfp !&tornep &xeral
$Mate of Eexas
DAN MORALES
Al-rORNEY
GENERAL March 30,1995
Honorable Rodney Ellis Qpiion No. DM-341
Chair
Committee on IntergovernmentalRelations Re: Whether title VI of the federal Civil
Texas State Senate Rights Act of 1964 was enacted to prohibit
P.O. Box 12068 racial discrimmation in federally fimded
Austin, Texas 78711 programs and related questions (RQ-778)
Dear Senator Ellis:
You ask a series of questions about title,Vl of the federal Civil Rights Act of 1964
(the “act”), 42 USC. $5 2000d - 2OOOd-7(“title VI”).* We note that title VI was
amended in 1988 by the Civil Rights Restoration Act of 1987. Except where noted
otherwise, all references are to title VI as amended.
Fii, you ask whether title VI of the act was enacted to prohibit racial
discrimmationin federally funded programs. Section 601 of the act, 42 U.S.C. 5 2OOOd,
provides as follows:
No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be denied
the benefits of, or be subjected to discriminationunder any program
or activity receiving Federal financialassistance.
42 U.S.C. 5 2000d. Title VI was enacted by Congress as part of the Civil Rights Act of
1964, the purpose of which was to eliite various forms of discrimination against
minority groups, particularly African Americans. See H.R Rep. 914, 88th Cong., 2d
Sea., reprinfedin 1964 U.S.C.C.A.N. 2391,2393. The House Committee Report states
thattitleVl
declares it to be the policy of the United States that discriminationon
the ground of race, color, or national origin shall not occur in
connection with programs and activities receiving Federal financial
assistance and authorizes and directs the appropriate Federal depart-
ments and agencies to take action to carry out this policy. .
1964 U.S.C.C.AN. at 2400.
HonorableRodney Ellis - Page 2 (DM-34Y)
Next you ask whether “state agencies, local government entities, educational
institutions, private for profit and non-profit corporations [are] recipients”under the act,
The act does not define the term “recipients.” In 1988, however, Congress amended the
act to clarity the meaning of the terms “program or activity” and “program” as they are
used in title VI. See, e.g.. 42 U.S.C. $5 2OOOd, 2OOOd-1.Newly-added section 606 of the
act, 42 U.S.C 5 2OOOd-4a, provides as follows:
For purposes of this subchapter, the term “program or activity’
and the term “program”mean all of the operations of-
(l)(A) a department, agency, special purpose district, or
other in.stnunentalityof a State or of a local government; or
(B) the entity of such State or local govemment that
distributes such assistance and each such department or agency (and
each other State or local government entity) to which the assistance
is extended, in the case of assistanceto a State or local government;
(2)(A) a college, university, or other postsecondary
institution, or a public system of higher education; or
(B) a local educational agency (as defined in section
198(a)(lO) of the Elementary and Secondary Education Act of
1965), system of vocational education, or other school system;
(3)(A) an entire corporation, partnership, or other private
organization, or an entire sole proprietorship-
(i) if assistance is extended to such corporation,
partnership, private organization, or sole proprietorship as a whole;
or
(ii) which is principally engaged in the business of
providing education, health care, housing, social services, or parks
and recreation; or
(33) the entire plant or other comparable, geographically
separate facility to which Federal financial assistance is extended, in
the case of any other corporation, partnership, private organization,
or sole proprietorship, or
(4) any other entity which is establishedby two or more of
the entities described in paragraph (1), (2) or (3);
any part of which is extended Federal financialassistance.
42 U.S.C 8 2OOOd-4a.The purpose of this amendmentto title VI was to overturn United
States Supreme Court cases that had interpreted the terms “program or activiw or
p. 1816
HonorableRodney Ellis - Page 3 (DM-341)
“program”narrowly. See S. Rep. No., 64, 100th Gong., reprinted in 1988 U.S.C.C.A.N.
3, S-18; see also Grove CQ College v. Bell, 465 U.S. 555 (1984); Comoliidoted Rail
Corp. v. Durrone, 465 U.S. 624 (1984). As a result ofthe amendment,it is now clear that
title VI applies to all entities, including state agencies, local government entities,
educational institutions, and private for-profit and nonprofit corporations, that receive
federal financialassistance..2
YOU also ask whether “federal limding [can] be terminated or withheld for
noncompliance”with title VI of the act and the Civil Rights Restoration Act of 1987.
Section 602 ofthe act, 42 U.S.C. 8 2OOOd-1,
provides in pertinent part:
Each federal department and agency which is empowered to
extend Federal financialassistanceto any program or activity, by way
of grant, loan, or contract other than a contract of insurance or
gumnty, is authorized and diiected to &ecmate the provisions of
section 2000d of this title with respect to such program or activity by
issuing rules, regulations, or orders of general applicability which
shall be consistent with achievement of the objectives of the statute
authorizing the financial assistance in connection with which the
action is taken. . . Compliance with any requirement adopted
pursuant to this section may be effected (1) by the termination of or
refusal to grant or to continue assistance under such program or
activity to any recipient as to whom there has been an express finding
on the record, a&r opportunity for hearing, of a failure to comply
with such requirement, but such termination or refbsal shall be
limitedto the particular political entity, or part thereof, in which such
noncompliance has been so found, or (2) by any other means
authorized by law: Provideci, however, That no such action shall be
taken until the department or agency concerned has advised the
appropriate person or persons of the failure to comply with the
requirement and has determined that compliance cannot be secured
by voluntary means. . .
42 U.S.C. 4 2OOOd-1.This provision clearly permits the termination or withholding of
federal tImding of a “program or activity” for failure to comply with agency rules
implementingtitle VI. Funding may not be terminated or withheld, however, unless “‘there
has been an express finding on the record, after opportunity for hearing, of a failure to
comply with” the applicable federal regulations. Id. Furthermore, a federal agency may
%tle VI dccs not applyto Vtimatc bcnuicisries”of fakral financialassistance,such as
fannersandaocialsworityrecipients,
whodo notadminister federallyassistedpregnuns.Seepub.L. No.
100-259, $7, 102 Sm. 31 (1988). Title Vl does not authorize qulation with rcspecl to empleymmt
praetiees“exceptwherea primarychjcetivcof the Federal financial assistance is to providecmpleymmt.”
42 U.S.C g 2OOOd-3;sea o/so id. g 2000d-4 (application of title VI to conlract ofitkwance or guaranty).
p. 1817
HonorableRodney Ellis - Page 4 (DM-341)
not terminate or withhold tImding unless it has first “advised the appropriate person or
persons of the failure to comply with the requirement and has determined that compliance
cannot be secured by voluntary means.” Id.
Jn a related question, you ask whether “federally fbnded recipients [am] required
to monitor the programs and activities of their sub-recipients.” Section 602, 42 U.S.C.
8 2OOOd-1,quoted above, requires federal agencies which provide federal thtancial
assistance to any program or activity to promulgate regulations implementing title VI.
Thus, such a federal agency is generally required to monitor the programs and activities of
the recipients of agency fimding to assure that they comply with title VI. Agency
regulations may in turn require federally funded recipients to monitor the programs and
activities of their sub-recipients. Certain agency regulations, for example, require sub-
recipients to submit compliance reports to the primary recipient. See, e.g., 24 C.F.R.
8 l&b) (Department of Housing and Urban Development); 28 C.F.R. Q42.106(b)
(Department of Justice ); 29 C.F.R !j 3 IS(b) (Department of Labor); 43 C.F.R. 4 17.5(b)
(Department of Interior); 45 C.F.R. $80.6(b) (Department of Health and Human
Services); 49 C.F.R. $21.9(b) (Department of Transportation). Thus, whether a
particular recipient is required to monitor the programs and activities of its sub-recipients
will depend upon the applicablefederal regulations.
You also ask whether title VJ of the act and the Civil Rights Restoration Act of
1987 “affect state and local government boards, commissions, and authorities that
formulate public policy concerning the expenditure of federal funds.” Finally, in a related
question, you ask whether “the minority community and/or its representatives [can] be
denied the right to participate in the planning and development of public policy relating to
federally funded programs.” Various agencies which administer federal tImding have
promulgated regulations pursuant to section 602 of the act which prohibit a recipient
under a federally funded program from denying a person the opportunity to participate as
a member of a planning or advisory body which is an integral part of the program on the
ground of race, color or national origin. See, e.g., 24 C.F.R. § 1.4(b)@) (Department of
Housing and Urban Development); 28 C.F.R. 5 42.104(b)(vii) (Department of Justice); 29
C.F.R. 5 31.3(b)($) (Department of Labor); 43 C.F.R. 8 17.3@)(vii) (Department of
Interior); 45 C.F.R. 8 80.3@)(l)(vii) (Department of Health and Human Services); 49
C.F.R § Zl.f+)(l)(vii) (Department of Transportation). Under these regulations,.it is
impermissibleto exclude anyone from participating in the planning and development of
public policy relating to federally funded programs for discriminatoryreasons.
p. 1818
Honorable Rodney Ellis - Page 5 (DM-341)
SUMMARY
Title VJ of the federal Civil Rights Act of 1964, 42 U.S.C..
$8 2000d - 20OOd-7,wss enacted to prohibit racial discrimination in
federally funded programs. Title YJ applies to any “program or
activity,” as defined by 42 U.S.C. $2OOOd-4a,that receives federal
fkncial assistance. Title VTpermits the termination or withholding
of federal funding of a “program or activity” for failure to comply
with agency rules implementingtitle VI under certain conditions. See
42 U.S.C. 4 2OOOd-1.
Whether a particular recipient of federal timding is required to
monitor the programs and activities of its sub-recipientswill depend
upon the applicable, federal regulations. Under various federal
regulations, it is impermissiblefor a “program or activity” to exclude
anyone from participating in the planning and development of public
policy relating to federally funded programs or activities for
discriminatory reasons.
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Mary R Crouter
Assistant Attorney General
p. 1819
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129845/
|
QMfice
oftfie
!ZlttIttornep
Qhmeral
&ate of PCexas
DAN MORALES
ATTORNEY
GENERAL March 21.1995
Bruce A. Levy, M.D., J.D. Opinion No. DM-336
Executive Director
Texas State Board of Medical Examiners Re: Whether the Texas State Board of
P.O. Box 149134 Acupuncture Examiners may promulgate a
Austin, Texas 78714-9134 rule authorizing acupuncturists to hold
themselves out as “doctor,” “Oriental
Medical Doctor.” or ‘O.M.D.” and related
questions (RQ-748)
DearDr.Levy:
You ask whether the Texas State Board of Acupuncture Examiners (the “board”)
may promulgate a rule authorizing acupuncturists to hold themselves out as “doctor,”
“Oriental Medical Doctor,” or “0.M.D.“’ Conversely, you ask whether the board may, by
rule, limit acupuncturists’ use of such designations. Fiiy, you ask if regardless of
whether the board promulgates rules approving or limiting the titles an acupuncturist may
use, an acupuncturist may denominate himself or herself as a “doctor,” “Oriental Medical
Doctor,” or “O.M.D.”
Your questions tirst require that we examine subchapter F of the Medical Practice
Act, V.T.C.S. art. 4495b. The legislature added subchapter F to the Medical Practice Act
in 1993, see Act of May 30, 1993, 73d Leg., ch. 862, 8 37, 1993 Tex. Sess. Law Serv.
3377,3403-06, to provide “an orderly system of regulating the practice of acupuncture.“2
V.T.C.S. art. 449Sb, 8 6.01(2). Subchapter F creates the board, see id. 5 6.04(a), and
provides it with certain powers and duties, see id. 5 6.05. Specifically, “[slubject to the
advice and approval of the” Texas State Board of Medical Examiners, the board is
required to, among other things, “establish qualiications for an acupuncturist to practice
‘We nndemand “O.M.D.”to be an abbreviationfor the tam “OrientalMedicalDoctor.”
aForth poqmss of sobchaptu F, “acupmchue”meats:
(A) the insertion of an acupraaun noodle and the application of
mo~~ontospecificareasoftbchumanbodyaraprimarymodcofthcm~to
tnat and mitigates humancondition;and
(B) the administmtion of thamd or elcctricsl tttatmcnts or the
rcconunendstionof dietaryguidelines, energyflow exercise,or dietaryor h&al
sopplcmcntsin conjunctionwith the treatmentdescribedby Paragraph(A) of this
auhdksion.
V.T.C.S. art.4495b. 5 6.02(l).
Bruce A. Levy, M.D., J.D. - Page 2 (DM-336)
in this state,” uestablish minimum educational and training requirements necessary for the
acupuncture board to recommend that the medical board issue a license to practice
acupuncture,” and “recommend additional rules as are necessary for the administration and
enforcement of this subchapter.” Id. 5 6.05(a)(l), (2), (9). The statute explicitly with-
holds from the board the power to make rules independently. See id. 4 6.05(b).
Subchapter F &rther prohibits any individual from practicing acupuncture in the
state unless the individual has obtained a license from the Texas State Board of Medical
Examiners.3 Id. 8 6.06. Under s&ion 6.1 l(a)(7), the Texas State Board of Medical
Examiners may deny an application for a license or, a&r notice and hearing, suspend,
probate, or mroke a lice&e if the applicant or licensee holds himself or herself out “as a
physician or surgeon or any combination or derivative of [these] terms” unless the Texas
State Board of Medical Examiners has licensed the individual as a physician’ or surgeon.
An administrative agency may promulgate rules when a statute expressly
authorizes it to do so or when implied authority is necessary to accomplish the purpose of
the statute. Attorney General Opiion JM-1279 (1990) at 1 (citing Gerti v. Oat C&f&v.
&Loan Ass’n, 432 S.W.2d 702 (Tex. 1968); GuljLund Co. v. Atlantic Refining Co., 13 1
S.W.Zd 73 (Tex. 1939)). An agency may not, however, adopt rules that are unreasonable
or that exceed the powers delegated to the agency. Id. (citing Gerti, 432 S.W.2d 702;
Raihad Comtn’n v. Sterling Oil & Refining Co., 218 S.W.Zd 415 (Tex. 1949)).
Moreover, an agency may not adopt rules that are contrary to law, even though the matter
is within the agency’s general regulatory field. See Stale v. Jackson, 376 S.W.2d 341,
344-45 (Tex. 1964). Although article 4495b, subchapter F expressly precludes the board
from promulgating rules, we believe its power to recommend rules is limited in accordance
with these principles.
Article 4495b, section 6.05(g) provides the board with broad authority to
recommend to the Texas State Board of Medical Examiners such rules “as are necessary
for the administration and enforcement of’ subchapter F. We believe this authority is
broad enough to permit the board to recommend to the Texas State Board of Medical
Examiners rules authorizing acupuncturists to use certain titles. Bur cfl Letter Opinion
94-14 (1994) at 2 (cautioning that Polygraph Examiners Act, V.T.C.S. article 4413(29cc),
“does not appear to permit licensed polygraph examiners to refer to themselves as
‘licensed psychophysiologists”‘). Conversely, we believe the board may recommend a rule
‘Under subchapter F, tbc board does not issw lianrcs. Rathcr,thohcantmkcs
mmwdationson completedapplicationsfor a licenselo practiceacuplnaurr tothcTcxasStateBard
ii%cdical Examha, which may isw such Ii-. Id. 65 6.05(a)(6), 6.10(a).
‘Seaion 6.020 ddinos ‘physician” as “a licensee of the Texas State Board of Medical
p. 1780
Bruce A. Levy, M.D., J.D. - Page 3 (DM-336)
limiting acupuncturists’ use of such titles.5 C$ Attorney General Opinion JM-1279 (1990)
at 3 (concludiig that V.T.C.S. article 4512b, section 4(d) authorizes Texas Board of
Chiropractic Examiners to use title “chiropractic physician”). Of course, the board may
not recommend a rule authorizing an acupuncturist to use the title “physician” or
“surgeon” or a combination or derivative of those terms. See V.T.C.S. art. 4495b,
5 6.1 l(a)(7). Furthermore, the board may not recommend a rule that is contrary to other
law. Liiewise, regardless of whether the board promulgates rules approving or limiting
the titles an acupuncturist may use, an acupuncturist may not select a designation that
contravenes article 4459b, section 6.1 l(a)(7) or any other law. You ask that we
particulsrJy consider the impact of V.T.C.S. article 4512~ section 4(b)(9) and the Healing
Art Identification Act, V.T.C.S. article 4590e.
Enacted in 1993, V.T.C.S. article 4512~ creates the Health Professions Council for
the purpose of coordiiing the administrative and regulatory efforts of various medical
boards in the state, inch&g the Texas Optometry Board, the State Board of Veterinary
Medical Examiners, and the Texas State Board of Medical Examiners.6 V.T.C.S. art.
4512~ 5 l(a), (b); see Act of May 26, 1993, 73d Leg., ch. 669, art. 1, 1993 Tex. Sess.
Law Serv. 2485, 2485-88. Article 4512p, section 4(a) declares unlawful and subject to
action by the appropriate health hcensing agency as a ground for revocation or denial of a
license “[a]dvertising that is false, misleading, or deceptive or that is not readily subject to
veriftcation.” Among the acts subsection (b) of that section lists as constituting false.,
misleading, or deceptive advertising or advertising that is not readily subject to verification
is Wvertising that . . advertises or represents in the use of a professional name a title or
professional identification that is expressly or commonly reserved to or used by another
profession or professional.” Id. 8 4(b)(9).
‘We understand,for example, that the boardrecentlyhas pronmlgateda mle adoptingthe title
“LicensedAcopunctmist”or “L.Ac.”
‘%u attorneyqnesenting UKTexas AcuponcbueAssociationcammenu in his brief that article
4S12p, V.T.C.S., fails to defii the term“healthprofessions”and suggestswhat,therefore,acupunchvists
are not within Ihe scope of article4512~. We disagree. The He& ProfessionsCoon& is composedof
rqmsenta~ of each of 14 differe-ntbodies the Texas Board of ChiropracticExamioea; the State
Board~DcntalExaminas;tbcTrrasOptomctryBoard;theStatcBoardofPharmacy;thcTexasState
BoardofPod&yE-; the StateBoardof Veknary MedicalE-; the Texas StateBoardof
IHedicalExamiws; theBoardofNor6eExsmino~; the Texas StateBoardof Examinersof Psychologists;
the Boardof VocationalNorse Examioers;the entity that tqulates the pmetiee of physical thempy;the
entitythat regulateathe pmcticeof occupationaltheraw, the health licensing division of the Depamnent
of Public Health, aad the governor‘I of&. V.T.C.S. an. 4512~; p l(b). la OUT opinion, article4512~
V.T.C.S., applis to all individualslicensedand regulatedby the first 13 of the above-lisledagencies. See
id. $5 3(a) (rapirhg Health Professions carncil to csWi.41 training programfor ?he membersof the
hcards and eommis.sions”listed), 4(a) (authoting “appropriateh&h licensing agency” to sanction
individoalswho engage in @se, misleading,or deceptiveadverdsing). The Boardof Medicine licenses
and K~UWS acupmcturists. See V.T.C.S. art.4495b. $0 6.0X9), .06. Con?eqoenIly,aarpuncturislsare
within the aeopeofarlicle 4512~.
p. 1781
Bruce A. Levy. M.D., J.D. - Page 4 (DM-336)
The Healing Art Identification Act, V.T.C.S. art. 4590e, provides certain titles that
an individual licensed to practice the healiig art7 must use. V.T.C.S. art. 4590e, 39 3-4.
Healing art identifications
Sec. 3. Every person licensed to practice the healing art
heretofore or hereat& by either the Texas State Board of Medical
Examiners, the State Board of Dental Examiners, the Texas Board of
Chiropractic Examiners, the Texas State Board of Examiners in
Optometry, the State Board of Chiropody Examiners and the State
Board of Naturopathic Examiners shah in the professional use of his
name on any sign, pamphlet, stationery, letterhead, signature, or on
any other such means of professional identification, written or
printed, designate in the manner set forth in this Act the system of the
healing art which he is by his license permitted to practice. The
following are the legally required identitications, one of which must
be used by practitioners of the healing art:
(1) If licensed by the Texas State Board of Medical Examiners
on the basis of the degree Doctor of Medicine: physician and/or
surgeon, M.D.; doctor, M.D.; doctor ofmedicine, M.D.
. . .
Other persons using title “doctor”
Sec. 4. Any person not otherwise covered by the provisions of
this Act, and not given herein a means of identification shag, in using
the title “doctor” as a trade or professional asset, or on any sign,
pamphlet, stationery, letterhead, signature, or any other manner of
professional identification, designate under what authority such title
is used, or what college or honorary degree gave rise to its use, in the
same manner as practitioners of the healing arts are required under
the Act to identify themselves.
An individual who fails to comply with the manner of identification specified in the
Healing Art Identification Act is guilty of a misdemeanor and subject to punishment. Id.
§ 6.
We understand you implicitly to ask whether, by calling oneself “doctor,”
“Chiental Medical Doctor,” or “O.M.D.,” an acupuncturist is subject to civil penalty under
article 4512~ section 6. In our opinion, we must analyze the use of the title “doctor’
7Anicle 459Oe, section2 de&es “the healing art” to include-any system,nvatment, eperatioa
diagncsis,prescriptionor practicefor the ascacainment,cure, relief, palliation, adjustmentor correction
of any human disease,ailment, deformity,injury or unhealth or abncrraalphysicalor mental condition.”
We assumeform of this opinionthat sn acupunaurin is a practitionerof the healing an.
p. 1782
Bruce A Levy, M.D., J.D. - Page 5 (DM-336)
separately gem the use of the titles “Oriental Medical Doctor” and “O.M.D.” because the
Healing Art Identitication Act explicitly discusses a healing art practitioner’s use of the
title “doctor,” while no statute similarly discusses the other two proposed titles. In regard
to the use of the title “doctor,” you suggest an inconsistency between article 4512~ and
the Healing Art Identitication Act. Pumuant to the. Healing Art Identification Act, an
individual licensed to practice the healing art whom the Healing Ait Identitication Act
does not give a specitic title may use the title “doctor” if the individual designates “under
what authority such title is used, or what college or honorary degree gave rise to its
use.. . .* On the other hand, you indicate that an acupuncturkt’s use of the title
“doctor” might be perceived as false, misleading, or deceptive advertising under article
4512p, section 4(b)(9) and thus subject to civil penalty under article 4512p, section 6.
Comcidentally, one of the witnems who testified before the Senate Committee on
Health and Human Services about the bii that, now enacted, is codified as article 4512~.
V.T.C.S., spoke about a similar inconsistency involving what is now article 4512~. se&on
4(b)(9). Hearings on S.B. 674 Before. the Senate Comm. on Health & Human Servs., 73d
Leg. (Apr. 30,1993) (tape available from !3enate Staff Saviccs) (testimony of Des Taylor,
camseI for Texas Chimpm&c Assodation). The witness rekred to Attorney General
Opinion JM-1279, in which this office consttued section 3 of the Dealing Art
IddfiCatiOllACttOp&lllitIiCUlSeCS of the Texas Board of Chiropractic Eraminers to use
thetitkuchiroprsdicp~~“solollgasthe~~alsoepgloyadoneof~etams
listed in the Healing Art Identification Act Id.; see .ako Attorney General Opiion
m-1279 (1990) at 6. The witness suggested that a &mpractor who uses the tetm
“cfriropracticphysician”~bearbjedtoproseartion~falsqmisleading,ord~
whdsing under the proposed section 4(b)(9) of article 4512p.s Hearings on S.B. 674
BeforetlteSenateComm.onHealth&HumanSavs.,supra. Thekgiskumdidnot
substaativeh, amend the proposed section 4(b)(9) subsequent to the witness’s testimony.
Wedonotbelim,howeva,thatapractitionaofthehealingartwhousesthetitlc
“dodorinaccordancewiththsHeelingArtIdentificationActmaybeguiltyoffalse,
m&ding, or deceptive adverbsing under article 4512~. section 4. Established rules of
statutory construction constrain us to construe statutes harmoniously ifit is possible. See
Postell v. Skzte, 693 S.W.2d 462,464 (Tex. Grim. App. 1985) (quoting Gzuser v. Scaie.
%Venutethatthed&ic&cemtofTravisCumtyrweatlydcdanditwahdamletheTexasBmnl
otchimpwctic~promulgatcd,~eTaasBoard~chiropraaic~19TarRcg.~33.
o&pted 19 Tex F&g.4951(1994) (lobe cdi6ed as 22 TALC.0 80.2(a)(s), (6)), on the gmd ibat, as a
msnu of lsw, the Bad of chiroprectic Exemhu~ m its authority in passing the rule.
Clliropocric Sbc ‘y Y. Texas Bd. of Chimpmdic Ewniturs, No. 94-08315 (D&t. Ct. of Travis County
2OOthh1dicialDistofTexas,Dec 13,1994). ThemleaulhobdalicmseofthcBoardofchiroprsctc
P u,usetbetitlcschimprado,dodordchimpractihD.C,doaor.D.C,chimpracticpbysidaa.
oranyrkMtiveofthefustfourtitlc.s. TexasBcdofchiroprpd~Examinm. 19Tex.Rcg.2603.
adoped 19 Tcx Reg. 4951(1994).
P. 1783
Bruce A Levy, M.D.. J.D. - Page 6 (DM-336)
624 S.W.2d 669 (Tex. App.-Beaumont 1981, no writ)); 2B NORMANJ. SINGER,
STAIUTESANDSTATUT~RY~ONSIRUCTTON~~~.~~, at229-30(5thed.1992).
We believe we can construe article 4512~ section 4(b)(9) harmoniously with
section 4 of the Healing Art Identitication Act. Article 4512p, section 4(b)(9) does not
proscribe the use of a tide that the Healing Art Identitication Act explicitly authorims a
pmctitioner to use. gather, we construe article 4512~ section 4(b)(9) as simihu to article
4561.10(19). V.T.C.S., which per&ins to applicants for and individuals who hold a
Iicense to tit and diqense hearing instruments. Article 4566-1.10(19) authorizes the State
Committee of Exsminers in the Fitting and Dispensing of Hearing Instruments to deny or
revoke such a license ifthe applicant or Iicensee has used the terms
“doctor,” “audiologist,” “clinic,” %iinical audiologist,” “state
hosed,” “state certitied,” “licensed hearing instrument dispenser,”
“board certified hearing instrument specialist,” “hearing instrument
sped&t,” “ostilied hearing aid audiologist” or any other term,
abbreviation, or symbol [so as to] falsely givefl the impression that:
(A) a service isbeing provided by a person who is licensed or
has been awarded a degree or tide; or
(B)thepersonptwidingasenkhasbeenrecommendedbya
H ww or kath providerI;
Accordingly, we interpret article 4512~. section 4(b)(9) to prohii an individual
from&ningtohim-orherseIfwithatitleindicathtgIicensure whentleilldiadbnot
in fact licensed. For example, under articIe 4512p, section 4(b)(9), an individusd may not
nfa to him- or herself as an “MD.,” see MoceZnch v. Wvsong, 680 F.2d 1062 (5th Cii.
1982);apasoa~tlicensedbytheStateBoardofDartalExaminasynotsdvatisc
him-orhaselfasadentist;MdaaathletictrainanotlicensedbytheStateBoardof
Podiatry Examiners may not advertise him- or hersdf as a podiatrist. Siiy, article
4512p,rtction4(bX9)~toaaimlividualwhoto~orhasdfwitha~e
thatsuggeststheindividualhasbeenawardedadegreeortitlethatheorshedoesnot,in
fhct$ have.‘0
Section 4(b)(9) also expressly forbids the use of a tide or professional
identification “that is expressly or commonly reserwd to or used by another profession.”
(Emphasis added.) Section 4 of the Healing Art Identi6cation Act expresdy resewes to
any practitioner ,of the healing art use of the tide “doctor,” so long as the practitioner
designatestheauthoritybywhichheorsheusesthetitleorthe~Uegeorhonorarydegree
thatgaverisetouseofthetitle. Weconcludethatanacupuncturistmayusethstitle
p. 1784
Bruce A. Levy, M.D., J.D. - Page 7 (ou-336)
“doctor,” so long as the acupuncturist uses the title in accordance with section 4 of the
Healing Art Identification Act. We do not believe, however, that the board may
recommend to the Texas State Board of Medical Examiners a rule regarding an
acupuncturist’s use of the tide “doctor” under the Healing Art Identitication Act; such a
rule would not be “necessary for the administration and enforcement of’ subchapter F of
the Medical Practice Act. See V.T.C.S. art. 4495b, 5 6,05(a)(9).
We next consider whether the board may recommend to the Texas State Board of
Medical Fixminers a rule wncerning the use of the titles “Oriental Medical Doctor” and
“O.M.D.” In conjunction with this issue, we consider whether an acupuncturist may,
regardless of whether the board promulgates rules approving or limiting the titles an
acupunchuist may use, refer to him- or herself as an “Oriental Medical Doctor” or
“O.M.D.” You suggest that the use of these titles might mislead or tend to deceive the
public because of the terms’ similadty to the titles “medical doctor” and “M.D.,” which
licensees of the Texas Board of Medical Examiners use pursuant to section 3(l) of the
Healing Art Identitkation Act. You believe that the use of these terms might, therefore,
violate section 4(b)(9) of article 4512~ V.T.C.S.
As we have indicated, see supra page 4, article 4512~ section 4(b)(9) prohibits
only the use of a professional title that is “expressly or wmmonly reserved to or used by”
members of another profession. We are unaware of any other profession whose members
are expressly or. commonly entitled to use the tides ‘Qiental Medical Doctor” or
“O.M.D.” We think it more likely that an acupuncturist who uses the titles “Oriental
Medical Doctor” or “O.M.D.” violates subsection (b)(S) of article 45 12~. section 4, which
prohibits the use. of advertising that “causes wnfiuion or misunderstsndiig as to the
credentials, education, or licensure of a health care professional.” However, whether the
use of such titles is, in fact, a violation of article 4512~ section 4 is a question involving
the determination of fact issues and therefore is not amenable to the opinion process.
E.g., Attorney General Opinions DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at
3; O-2911 (1940) at 2. Of course, we tind nothing that prohibits the board from
recommending to the Texas Board of Medical Examiners a rule limiting acupuncturists’
use of the titles “Oriental Medical Doctor” and “O.M.D.”
SUMMARY
Subchapter F of the Medical Practice Act, V.T.C.S. art. 4495b,
authorizes the Texas State Board of Acupuncture Examiners to
recommend to the Texas State Board of Medical Examiners rules
authorizing acupuncturists to use certain titles. Conversely. the
board may recommend a rule limiting acupuncturists’ use of such
titles. Of course, pursuant to section 6.1 l(a)(7) of the Medical
Practice Act, the Texas State Board of Acupuncture Examiners may
not recommend to the Texas State Board of Medical Examiners a
rule authorizing an acupuncturist to use the title “physician” or
“surgeon” or a wmbiition or derivative of those terms, nor may the
p. 1785
Bruce A. Levy, M.D., J.D. - Page 8 (DM-336)
board recommend a rule that is contrary to other law. Likewise, if,
regardless of whether the board promulgates rules approving or
limiting the titles an acupuncturist may use, an acupuncturist may not
select a designation that contravenes article 4459b, section 6.1 l(a)(7)
or any other law.
A healing art practitioner’s proper use of the title “doctor” under
section 4 of the Healing Art Identitication Act, V.T.C.S. article
459Oe, does not constitute a violation of V.T.C.S. article 4512p,
section 4. An acupuncturist may use the title “doctor” in accordance
with section 4 of the Healing Art Identitication Act. However, the
board may not recommend to the Texas State Board of Medical
Examiners a rule regarding an acupuncturist’s use of the title
“doctor.”
Whether an acupuncturist’s use of the titles “‘Oriental
Medical Doctor” and “O.M.D.” would mislead or tend to deceive the
public so as to violate article 4512p, section 4, for example, section
4(b)(5), is a question involving the determination of fact issues. The
board may, of course., recommend to the Texas Board of Medical
Bxaminers a rule limiting acupuncturists’ use of the titles “Oriental
Medical Doctor” and “O.M.D.”
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fi Ass&ant Attorney General
SARAH J. SHIRLBY
Chair, Opiion Committee
Prepard by Kmberly K. Oltrogge
Assistant Attorney General
p. 1786
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/7295071/
|
Petition for certification denied. (See 120 N. J. Super. 26).
|
01-03-2023
|
07-25-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/4150286/
|
Order Michigan Supreme Court
Lansing, Michigan
March 3, 2017 Stephen J. Markman,
Chief Justice
Robert P. Young, Jr.
Brian K. Zahra
155092(58) Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
JENNIFER JO MUELLER, Joan L. Larsen,
Petitioner-Appellee, Justices
SC: 155092
v COA: 327945
Ingham CC: 12-000308-PH
SCOTT BOUIS,
Respondent-Appellant.
_________________________________________/
On order of the Chief Justice, the motion of respondent-appellant to “use
psydonames [sic: pseudo names] on this case file, seal and to compel correction of
previous disclosures violating MCR 3.705” is DENIED.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 3, 2017
Clerk
|
01-03-2023
|
03-04-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129461/
|
OPFKE OF THE ATTORNEY GENERAL. ST*TE OF TEXAS
JOHN CORNYN
May IO,2000
The Honorable David Counts Opinion No. JC-0220
Chair, Committee on Natural Resources
Texas House of Representatives Re: Whether a hospital district may continue to
P.O. Box 2910 levy a tax after closing its hospital and related
Austin, Texas 78768-2910 questions (RQ-0149-JC)
Dear Representative Counts:
You request an opinion regarding the powers and duties of the Garza Hospital District (the
“District”), a county-wide hospital district, that no longer operates a hospital, but continues to levy
and collect hospital district taxes. Specifically, we understand you to ask’ the following questions:
first, whether the District was authorized to close its hospital; second, whether the District was
authorized to lease its hospital facilities to a private hospital system for operation of a clinic to
provide medical care to county residents; third, whether the District may continue to levy a tax after
closing the hospital; fourth, if it may continue to tax, whether the tax proceeds may be used to make
payments under a contract with a private hospital system to provide medical care for county
residents; and fifth, whether the District may be dissolved at an election called and held for that
purpose.
We conclude that the District was authorized to close its hospital if the District’s Board of
Directors determined that cjosing the hospital was in the best interest of the District’s residents and
the Board otherwise complied with the statutory procedures. Similarly, we conclude that the District
was authorized to lease its hospital facilities to a private hospital system for the operation of a clinic
to provide hospital and medical care to the District’s needy inhabitants if the District Board of
Directors determined that the lease was in the best interest of the District residents. In answer to
your third and fourth questions, we conclude that because closure ofthe hospital does not relieve the
District of its responsibility to provide and pay for hospital and medical care to its needy residents,
‘You do not ask specific questions in your request, but rather refer us to unanswered questions asked of the
Disbict by a Garza County newspaper regarding the District’s closure of its hospital and contract with Methodist
Hospital for the operation of the clinic located in the District’s facilities. See Letter from Honorable David Counts,
Chaii, Committee on Natural Resources, Texas House of Representatives, to Honorable John Comyn, Texas Attorney
General (Jan. 3.2000) (on file with Opinion Committee) [hereinafter “Request Letter”]; Letter from Wesley W. Burnett,
Publisher, The Post Dispatch, to Jack Alexander, President, Garza Hospital District Board of Directors and Board
Members (June 5, 1998) (asking questions raised by District’s Enabling Act); Letter from W. Galloway Huff&x, Esq.,
to Ma&a Reed, Garza Hospital District Board (June 16,1998) (addressing questions asked by The Post Dispatch).
The Honorable David Counts - Page 2 (JC-0220)
the District may continue to levy a tax and use the proceeds to make payments under a contract to
provide that care. With respect to your second and fourth questions, we also conclude that the
District may through this contract offer medical care to nonindigent Garza County residents,
provided the District charges those persons the actual cost of the services. Finally, we conclude that
the District may not be dissolved pursuant to an election because there is no statutory authority to
call and hold a dissolution election with respect to the District.
A hospital district’s powers and duties are determined by looking at the authorizing
constitutional provision, its enabling act, and provisions of the Health and Safety Code applicable
to hospital districts generally. Tex. Att’y Gen. Op. No. DM-37 (1991) at l-2. As a special district,
the District may exercise only those powers that are expressly delegated to it by the legislature, or
which exist by clear and unquestioned implication. Tri-City Fresh Water Supply Dist. No. 2 v.
Mann, 142 S.W.2d 945,946 (Tex. 1940); Jackron County Hosp. Dist. v. Jackson County Citizens
for Continued Hosp. Care, 669 S.W.2d 147, 154 (Tex. App.-Corpus Christi 1984, no writ ).
The Garza Hospital District was created and established pursuant to article IX, section 9 of
the Texas Constitution and special enabling legislation. See Act of May 17, 1967,6Oth Leg., R.S.,
ch. 502, 5 1, 1967 Tex. Gen. Laws 1132. Article IX, section 9 of the Texas Constitution provides
in part:
The Legislature may by general or special law provide for the
creation, establishment, maintenance and operation of hospital
districts composed of one or more counties or all or any part of one
or more counties with power to issue bonds for the purchase,
construction, acquisition, repair or renovation of buildings and
improvements and equipping same&r hospitalpurposes; providing
for the transfer to the hospital district of the title to any land,
buildings, improvements and equipment located wholly within the
district which may be jointly or separately owned by any city, town
or county, providing that any district so created shall assume full
responsibility for providing medical and hospital care for its needy
inhabitants and assume the outstanding indebtedness incurred by
cities, towns and counties for hospital purposes prior to the creation
of the district, . . providing that after its creation no other
municipality or political subdivision shall have the power to levy
taxes or issue bonds or other obligationsfor hospitalpurposes orfor
providing medical care within the boundaries of the district;
providing for the levy of annual taxes at a rate not to exceed seventy-
five cents (75e) on the One Hundred Dollar valuation of all taxable
property within such district for the purpose of meeting the
requirements of the district’s bonds, the indebtedness assumed by it
and its maintenance and operating expenses
The Honorable David Counts - Page 3 (JC-0220)
TEX. CONST. art. IX, 5 9 (emphasis added).
Pursuant to article IX, section 9, the legislature enacted House Bill 1325, Act of
May 17, 1967, 60th Leg., R.S., ch. 502, 1967 Tex. Gen. Laws 1132 (the “Enabling Act”),
authorizing the creation and establishment of the District with boundaries coextensive with Garza
County, subject to voter approval. See id. Under the Enabling Act, the District has the “powers and
responsibilities provided by” article IX, section 9. Id. 5 1. The District is directed to assume “full
responsibility for providing medical and hospital care for the needy persons residing within the
district[.]” Id. 5 2. Garza County and any city in the county are prohibited Tom levying a tax for
hospital purposes after the District’s organization, because the District “shall be deemed to have
assumed full responsibility for the furnishing ofmedical and hospital care for the needy and indigent
persons residing in said hospital district from the date that taxes are collected for the hospital
district.” Id. 5 12.
Garza Hospital District apparently owned and operated a hospital and levied a tax on all
taxable property in the District pursuant to article IX, section 9 and the Enabling Act. The District
also apparently continues to levy the tax. You explain, however, that the District Board ofDirectors
closed the District hospital and contracted with Methodist Hospital, presumably a private hospital
or health system, for the operation of a clinic located in the District’s facilities. See Request Letter.
District residents, you tell us, now question the need for the District given that it no longer provides
“hospital care.” Id. In particular, residents question the District’s authority to levy a tax when it no
longer provides hospital services. Id.
We begin our analysis with your fifth question: whether the District may order an election
to dissolve the District upon receipt of a petition by the District residents. Neither the Enabling Act
nor any other provision applicable to the District that we have found authorizes an election to
dissolve the District. We conclude that in the absence of statutory authorization, the District has no
authority to call and hold a dissolution election.
While article IX, section 9 authorizes the legislature to provide for the dissolution of a
hospital district, the legislature has not done so with respect to the District. Article IX, section 9
provides that the “Legislature may also provide for the dissolution ofhospital districtsprovided that
aprocess is afforded by statute for: (1) determining the desire of a majority of the qualified voters
within the district to dissolve it; (2) disposing of or transferring the assets, if any, of the district; and
(3) satisfying the debts and bond obligations, if any, of the district . . .” TEX. CONST. art. IX, $9
(emphasis added). By its terms, this provision is not self-executing; it authorizes the legislature to
provide for dissolution of a hospital district subject to voter approval. Cf: Tex. Att’y Gen. Op. No.
JM-859 (1988) at 3 (“Article IX, section 9, ofthe Texas Constitution. confers authority, not on
the governing bodies of hospital districts, but rather on the legislature.“). The District’s Enabling
Act does not authorize a dissolution election.
Nor does a provision of the Health and Safety Code applicable to the District authorize a
dissolution election. Section 286.102 of the Health and Safety Code authorizing a hospital district
The Honorable David Counts - Page 4 (JC-0220)
board of directors to order a dissolution election on receipt of a petition by the district residents, see
TEX. HEALTH & SAFETY CODE ANN. 5 286.102 (Vernon 1992), applies only to a hospital district
created under that chapter. See id. $5 286.001(2) (“‘District’ means a hospital district created under
this chapter.“), 286.002 (authorizing creation ofgeneral law hospital district underchapter286). The
District, of course, is created under the Enabling Act, not under chapter 286 ofthe Health and Safety
Code. See Act of May 17, 1967,6Oth Leg., R.S., ch. 502, 5 1, 1967 Tex. Gen. Laws 1132.
The authority to hold an election is dependent on authority conferred by law. Tex. Att’y Gen.
Op. No. DM-172 (1992) at 2 (and cases cited therein). As Attorney General Opinion C-380 states,
“It is basic to our chosen form of government that the people of this State have no right to vote or
hold an election in the absence of some statutory or constitutional provision which provides
therefor.” Tex. Att’y Gen. Op. No. C-380 (1965) at 2 (citing Smith Y. Morton Indep. Sch. Dist., 85
S.W.2d 853 (Tex. Civ. App.-1935, writ dism’d) and Trustees of Indep. Sch. Dist. v. Elbon, 223
S.W.10 (Tex. Civ. App. 1920)). Accordingly, Attorney General Opinion C-380 concluded that a
county commissioners court did not have authority to call an election to abolish a special law
hospital district nor did precincts comprising the hospital district in the absence of statutory or
constitutional provision authorizing such an election. Id.
We next address your first question: whether the District was authorized to close its hospital.
Again, neither article IX, section 9 nor the District’s Enabling Act address closure of the District’s
hospital. But section 285.05 l(a) ofthe Health and Safety Code specifically authorizes the governing
body of a hospital district to order by resolution “the sale, lease, or closing of all or part of a hospital
owned and operated by the hospital district, including real property” upon a finding that it is in the
best interest of the residents of the hospital district. TEX. HEALTH & SAFETY CODE ANN.
5 285.051(a) (Vernon 1992). Section 285.051(b) and section 285.052 provide that the governing
body must conduct an election on the sale or closing of a hospital if petitioned to do so by ten
percent of the qualified voters of the hospital district before the 3 1st day after the date the governing
body orders the sale or closing. Id. $5 285.051(b), ,052. These provisions clearly authorize a
hospital district’s governing body to order the closing of its hospital if it finds that the closing is in
the best interest of the district’s residents. Tex. Att’y Gen. Op. Nos. DM-37 (1991) at 1; JM-864
(1988) at 5. Because sections 285.05 1 and 285.052 are not limited in their application to a particular
type of hospital district, they apply to the District, See TEX. HEALTH & SAFETY CODE ANN.
$5 285.051, ,052 (Vernon 1992). Accordingly, assuming the District’s governing body made the
requisite finding and otherwise complied with section 285.051, it had the authority to close the
District’s hospital.
Similarly, assuming the District’s Board ofDirectors made the requisite finding under section
285.05 1, the District was authorized to lease its hospital facilities to a private hospital system for the
operation of a clinic to provide hospital and medical care to the District’s needy inhabitants. TEX.
CONST. art. IX, 5 9; TEX. HEALTH&SAFETY CODE ANN. 5 285.051(a) (Vernon 1992); Tex. Att’y
Gen. Op. Nos. DM-131 (1992), DM-66 (1991). Again, section 285.051(a) ofthe Health and Safety
Code specifically authorizes the governing body of a hospital district to order by resolution “the sale,
lease, or closing of all or part of a hospital owned and operated by the hospital district, including real
The Honorable David Counts - Page 5 (JC-0220)
property” upon a finding that it is in the best interest of the residents of the hospital district. TEX.
HEALTH&SAFETY CODE ANN. § 285.051(a) (Vernon 1992) (emphasis added). To be permissible,
however, a hospital district facilities lease must also serve a hospital district purpose consistent with
article IX, section 9, requiring a hospital district to provide medical care, particularly hospital and
medical care to needy hospital district residents. See Tex. Att’y Gen. Op. No. DM-66 (199 1) at 3
(stating that statutory authority to lease hospital building does not end analysis, must also consider
whether hospital district’s lease plan would serve hospital purpose consistent with article IX, 5 9);
see also Tex. Att’y Gen. Op. No. DM-131 (1992) at 1; Tex. Att’y Gen. LO-97-068, at 2-3.
In our opinion, lease of hospital district facilities for the operation of a clinic to provide
medical care to county residents, including the needy, is entirely consistent with the requirements
of article IX, section 9 of the Texas Constitution. See TEX. CONST.art. IX, 5 9; Tex. Att’y Gen. Op.
No. DM-131 (1992) at l-2 (hospital district authorized to lease part of its facility for private
operation of adolescent drug treatment facility, provided facility treats needy as well as other
adolescents); Tex. Att’y Gen. Op. No. DM-66 (1991) at 3-4 (hospital district lease for operation of
private dialysis clinic permissible because clinic would provide cost-effective renal services,
primarily serve Medicare and Medicaid patients, and would be conveniently located adjacent to
hospital). Cf: Tex. Att’y Gen. Op. No. JM-258 (1984) at 3 (hospital district not permitted to lease
office space to private physicians because “offices for the private practice of medicine are not
‘hospital purposes’ or the provision of ‘medical or hospital care for the needy”‘).
Because the authority to continue to levy a tax depends on the purposes for which that tax
is authorized, we address your third and fourth questions together: whether the District may continue
to levy a tax after closing its hospital and, if it may do so, whether the tax proceeds may be used to
pay for a contract with a private health care system to provide medical care to county residents. We
first determine that the District’s maintenance and operating expense tax proceeds may be used for
providing indigent medical and hospital care. We then conclude that because closure of the hospital
does not relieve the District of its responsibility to provide and pay for indigent hospital and medical
care, the District may continue to levy the tax and use the proceeds to make payments under a
contract with a private hospital to provide that care. We also conclude that the District may through
this contract offer medical care to nonindigent Garza county residents.
Hospital district taxes may be levied and used only for the purposes authorized in article IX,
section 9 of the constitution and a hospital district’s enabling legislation. See Bexur County Hosp.
Dist. v. Crosby, 327 S.W.2d 445 (Tex. 1959) (article IX, section 9 tax levied for bond debt service
may only be used for that purpose); Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d
945, 948 (Tex. 1940) (taxing power may be exercised only for purposes distinctly included in
constitutional or legislative provision); Tex. Att’y Gen. LO-97-004, at 1 (use of hospital district
taxes limited to purposes set out in constitution); LO-95-088, at 1 (same).
Article M, section 9 authorizes a hospital district tax to be levied to meet the requirements
of (1) debt service on district bonds issued for construction and improvement of hospital facilities
and on obligations assumed by the hospital district that were incurred by cities, towns, or a county
The Honorable David Counts - Page 6 (JC-0220)
within the hospital district before its creation for hospital purposes; and (2) the district’s maintenance
and operating expenses. See TEX. CONST.art. IX, 5 9. The article IX, section 9 hospital district tax
is expressly authorized to pay debt service on bonds issued by a hospital district for hospital facilities
or on hospital purpose obligations assumed by the district. The debt service tax may be levied to
make those payments until the bonds and assumed obligations secured by the tax are retired. Thus,
the tax may be levied for such purpose as long as the bonds and obligations are outstanding.
Accordingly, if bonds and obligations secured by hospital district taxes are outstanding after the
closing of a hospital, a hospital district may continue to levy the tax to make the required debt
service payments. The contract payments for medical care at issue, however, are not debt service
payments on outstanding District bonds or assumed obligations, and we do not understand you to
ask about the District’s authority to continue levying taxes for debt service.
Besides debt service payments, the hospital district tax is only expressly authorized to pay
a district k maintenance and operating expenses. See El Paso County Hosp. Dist. v. Gilbert, 4
S.W.2d 66, 72 (Tex. App.-El Paso 1999, pet. tiled) (hospital district ad valorem tax revenues
generated for two enumerated purposes-payment of debt service and payment of maintenance and
operation expenses). Consequently, the District may continue to levy the tax and use the proceeds
to make the contract payments for medical care only if such purpose is encompassed within
“maintenance and operating expenses.” Article IX, section 9 does not define these expenses. Nor
have we found any Texas cases that do so for the purposes of article IX section 9. Based on the
language and purpose of article IX, section 9, however, we conclude that “maintenance and
operation expenses” necessarily encompass expenses related to providing medical care to a hospital
district’s needy residents. See Republican Party Y. Dietz, 940 S.W.2d 86, 89 (Tex. 1997) (in
construing state constitution, effect will be given to its plain language, considering purpose of
provision, its historical context, and the collective intent ofthe framers and people who adopted it).
The tax is authorized for the district’s maintenance and operating expenses, not those of a
hospital. Thus it is not limited to maintenance and operation expense of a physical hospital, but
instead relates more broadly to the lawful expenses of the hospital district. CJ TEX.TAX CODEANN.
5 26.012(16) (Vernon 1992) (“‘Maintenance and operation’ means any lawful purpose other than
debt service for which a taxing unit may spend property tax revenues.“‘); Gilbert, 4 S.W.2d at 72
(indiscussinghospitaldistrict’s adopted taxrate, referring to Tax Code section26.012(16) definition
of“maintenance and operation”); id. (referring to hospital district “main-tenance and operation fund”
as its “general fund”).
The most significant lawful hospital district expense is that for indigent medical care. (In
this regard we note, that “needy inhabitants” is equivalent to “indigent residents,” and we use those
terms interchangeably for the purposes of this opinion. See Tex. Att’y Gen. Op. No. H-703 (1975)
(equating “needy inhabitant” as used in article IX, section 9 to “indigent resident” in article IX,
section 4).) Article IX, section 9 was adopted to maintain or improve public health care and
facilities, especially for indigent persons and shift the financial burden of providing the care and
facilities from cities and counties to hospital districts. TEX.CONST.art.IX, 5 9; GEORGED. BRADEN,
THE CONSTITUTIONOF THESTATEOFTEXAS: AN ANNOTATEDAND COMPARATIVEANALYSIS, Art.
The Honorable David Counts - Page 7 (X-0220)
IX, 5 9 (History and Explanation); see also Tex. Att’y Gen. Op. No. C-382 (1965) at 2 (primary
function of hospital district is furnishing of medical and hospital care for indigent and needy of
county and such function takes precedence over all others). Thus under this constitutional provision,
a hospital district is directed to assume responsibility for providing hospital and medical care to its
needy inhabitants; and, moreover, other political subdivisions within the district are prohibited from
providing or raising revenues for hospital or medical care once a district is created. See TEX.CONST.
art. IX, 5 9. Because of its absolute duty to provide medical and hospital care for its needy
inhabitants, a hospital district is responsible for those medical expenses.* See, e.g., Tex. Att’y Gen.
Op. Nos. JM-864 (1988), JM-858 (1988), JM-540 (1986), JM-257 (1984), H-703 (1975), M-171
(1967).
The only constitutionally authorized stream of hospital district revenues available to
discharge a hospital district’s responsibility is the ad valorem property tax levied for maintenance
and operating expenses. It must necessarily be available to discharge that responsibility. Ifit is not,
a district cannot carry out its constitutional duty to provide hospital and medical care to its needy
inhabitants. And, moreover, no other political entity within the district can provide that care. See
TEX. CONST. art. IX, 5 9. The result would be that no medical care would be or could be provided
to the needy residents of all or part of a county. This result, in our opinion, is contrary to the
manifest purpose of article IX, section 9 to provide for indigent medical care. See Die&, 940 S.W.2d
at 89 (in construing state constitution, effect will be given to its plain language, considering purpose
of provision, its historical context, and the collective intent of the framers and people who adopted
it). Accordingly, we construe the article IX, section 9 “maintenance and operating expenses” to
encompass a hospital district’s expenses for providing indigent hospital and medical care. See id.
This does not, however, end our enquiry. Because the District’s powers and duties are also derived
from its Enabling Act, we must also examine that act’s provision,
The Enabling Act authorizes the District’s Board ofDirectors to levy a tax for the following
purposes: (1) paying debt service on “warrants, which may be issued by the hospital district for
hospital purposes as herein provided”; (2) providing for operation and maintenance of the hospital
or hospital system; and (3) for making finther improvements and additions to the hospital system
and acquiring sites. See Act ofMay 17,1967,6Oth Leg., R.S., ch. 502,s 5(a), 1967 Tex. Gen. Laws
1132,1134. First, unlike article IX, section 9, the Enabling Act authorizes taxes for debt service on
District “warrants” rather than on “bonds”; second, the Enabling Act does not expressly authorize
the tax to pay debt service on any obligations issued by the county or city within the district for
hospital purposes and assumed by the District; and third, and most important, the Enabling Act
authorizes the tax for operation and maintenance expenses of the hospital or hospital system rather
than of the District. Nonetheless, we construe these provisions consistently with article IX, section
9 and with reference to other provisions in the Enabling Act to authorize a tax for the same purposes
as the constitutional provision, for the following reasons.
‘We do not address in this opinion any rights or obligationsof nonprofit hospitals in providing indigent health
care.
The Honorable David Counts - Page 8 (JC-0220)
The legislature cannot enact an enabling statute inconsistent with article IX, section 9’s
provisions regarding the powers and duties ofa hospital district. By its own terms, the constitutional
provision limits the legislature’s authority to do so by providing the purposes for which the
legislature may authorize the creation of a hospital district and the purposes for which the legislature
may authorize a hospital district tax. See TEX. CONST. art. IX, 5 9; see also City of Fort Worth v.
Howerton, 236 S.W.2d 615, 618 (Tex. 1951) (legislature cannot enact any law contrary to
constitutional provision).
Additionally, we do not believe the legislature intended to provide powers and duties in the
Enabling Act inconsistent with article IX, section 9. Legislative intent is to be determined from the
entire act and not simply from isolated portions of the act. Jones Y. Fowler, 969 S.W.2d 429,432
(Tex. 1998); accord Sayre v. Mullins, 681 S.W.2d 25,27 (Tex. 1984) (in determining meaning of
statutory language, statute to be read as whole giving consideration to entire act, its nature and
object, and consequences that would follow from particular construction). Accordingly, we look at
other provisions of the Enabling Act keeping in mind the taxing provisions. First, notwithstanding
the authority to levy a tax to pay debt service on “warrants which may be issued by the hospital
district for hospital purposes as herein provided,” the Enabling Act authorizes the District only to
issue “bonds” for hospital purposes. See Act ofMay 17,1967,6Oth Leg., R.S., ch. 502,s 6(a), 1967
Tex. Gen. Laws 1132, 1135. Thus, authority to levy a tax for debt service may be exercised only
with respect to District bonds. It would be absurd to read the tax authority to be limited to
“warrants,” when no warrants can be authorized or issued by the District. Second, notwithstanding
the absence of authority to tax for assumed indebtedness, the Enabling Act specifically provides for
the District to assume “all outstanding bonds and indebtedness heretofore issued by Garza County
and by any city or town within said county for hospital purposes.” Id. 9 2. In fact, the Enabling Act
specifically requires the assumption language to be printed on the ballot presented to the District
voters for approving the creation of the District. Id. If the District is to assume all such obligations,
it must pay them; it can do that only if the tax is available for that purpose. Third, while the taxes
are authorized for paying maintenance and operation expenses of the hospital or hospitalsystem, the
Enabling Act expressly provides that the District “shall assume full responsibility for providing
medical and hospital care for the needy persons residing within the district[.]” Id. 5 2. Furthermore,
the Enabling Act states that:
After the hospital district has been organized pursuant to this
Act, neither Garza County nor any city therein shall levy any tax for
hospital purposes; and such hospital district shall be deemed to have
assumed full responsibility for the furnishing ofmedical and hospital
care for the needy and indigent persons residing in said hospital
districtfrom the date that taxes are collectedfor the hospital district.
Id. 5 11 (emphasis added). Again, if the District has the responsibility for indigent medical care, it
must pay for it; it can only reasonably do that if the tax is available for that purpose. And, the latter-
quoted provision by tying the prohibition against county or city levying a tax to the date the District
collects the tax clearly contemplates that the tax will be used to pay for the medical services.
The Honorable David Counts - Page 9 (JC-0220)
Finally, the Enabling Act provides that the District “shall have the powers and responsibilities
provided” by article IX, section 9. Id. 5 1. By its own terms, provisions ofthe Enabling Act dealing
with the powers and obligations of the District must comport with those in article IX, section 9.
Based on the foregoing construction of article IX, section 9 and the Enabling Act taxing
provisions, we conclude that the District’s maintenance and operating expense taxes may be levied
and used to provide and pay for the District’s needy residents’ hospital and medical care.
Authority to levy and use the proceeds for the District’s needy residents’ hospital and
medical care is neither limited to nor contingent on ownership or operation of a physical hospital.
Clearly, a hospital district may provide hospital and medical care to its indigent residents through
its own hospital facility. But it must provide that care even if it does not own or operate a hospital
facility. Tex. Att’y Gen. Op. Nos. JM-858 (1988) at 2, JM-864 (1988) at 5-6; see also Tex. Att’y
Gen. Op. No. DM-37 (1991) at 1. Specifically, a hospital district’s closure of its hospital does
not relieve the district of its responsibility for providing and paying for the district’s indigent
residents’ medical care. Tex. Att’y Gen. Op. No. JM-864 (1988) at S-6; see also Tex. Att’y Gen.
Op. No. DM-37 (1991) at 1. In Attorney General Opinion JM-864, this office advised that:
Regardless of the method chosen by the hospital district to provide
services to its eligible recipients, the district is liable for the health
care services as provided by the constitution and its statute. Thus,
the sale, closure, or lease of the Northwest Texas Hospital will have
no effect on the legal responsibility that the [City of Amarillo
Hospital District] has towards the persons it serves.
Tex. Att’y Gen. Op. No. JM-864 (1988) at 5-6; see also Tex. Att’y Gen. Op. No. DM-37 (1991) at
1 (closure ofhospital under section 285.05 1 ofthe Health and Safety Code does not relieve hospital
district of liability for paying for indigents residents’ health care services). Thus, a hospital district
must arrange and pay for medical care even when it does not own or operate a hospital.
As Attorney General Opinion JM-864 indicates, a hospital district may fulfill its obligation
to provide medical care by various methods. Tex. Att’y Gen. Op. No. JM-864 (1988) at 5. While
the District’s Enabling Act does not contain any provision expressly authorizing the District to
contract for medical care, the Indigent Health Care and Treatment Act, TEX. HEALTH & SAFETY
CODE ANN. ch. 61 (Vernon 1992 & Supp. 2000), applicable to the District, does contain such a
provision. Under that act, a hospital district may arrange to provide health care services through
other public health facilities, through a contract with a private provider, or through the purchase of
insurance for eligible residents. Id. 5 61.056(a) (Vernon 1992); Tex. Att’y Gen. Op. No. JM-864
(1988) (hospital district may use these various methods to provide indigent medical care). The
district may also affiliate with other public hospitals, other hospital districts, or a governmental
entity to provide regional administration and delivery of health care services. TEX. HEALTH &
SAFETY CODE ANN. @ 61.056(b) (Vernon 1992); Tex. Att’y Gen. Op. No. JM-858 (1988) at 2
(hospital district may affiliate with another hospital district to provide medical care to needy district
The Honorable David Counts - Page 10 (JC-0220)
inhabitants). Thus, the District is authorized to provide hospital and medical care to its needy
inhabitants through a contract with a private hospital system.
In sum, the District’s maintenance and operating expense taxes may be levied and used to
pay for needy inhabitants’ hospital and medical care expenses after closure ofthe District’s hospital.
Because that care may be provided through a contract with a private hospital system, proceeds of the
maintenance and operating tax may be used to make payments under that contract.
Finally, we address an issue implicit in your second and fourth questions, namely, whether
the District may through its contract with the private hospital system provide medical care to county
residents who are not indigent. In other words, may nonindigent Garza County residents be treated
in the clinic operated by the private hospital system? Based on the constitutional and statutory
scheme for providing hospital and medical care, we conclude that the District may offer medical care
to nonindigent Garza County residents provided it collects from these persons the cost ofthe medical
services.
Neither article IX, section 9 nor the Enabling Act specifically authorizes the District to
provide medical care to District residents generally or prohibits the district from doing so. Both,
however, contain provisions that implicitly contemplate that the District will furnish hospital and
medical care to nonindigent District residents. See DAVIDB. BROOKS,~~TEXASPRACTICE: COUNTY
ANDSPECIALDISTRICTLAW 5 26.28 (1989) (Article IX, section 9 hospital district is authorized, but
not required, to provide medical services to nonindigent patients.). Article IX, section 9 requires a
hospital district to take over existing hospital facilities owned by a city or county within the hospital
district. See TEX. CONST. art. IX, $9. A county hospital established under chapter 263 ofthe Health
and Safety Code (formerly article 4478 ofthe Texas Revised Civil Statutes), for instance, is “for the
care and treatment ofpersons who are sick or injured,” see TEX. HEALTH & SAFETY CODE ANN.
5 263.021(a) (Vernon 1992) (emphasis added), not just indigent county residents. Thus, article IX,
section 9 contemplates that a hospital district may continue to provide the services rendered by those
facilities. See TEX. CONST. art. IX, 5 9; Tex. Att’y Gen. Op. No. C-382 (1965) (hospital district
taking over county hospital established under article 4478, TEX. REV. CIV. STAT. ANN., takes over
all duties and obligations county previously had for care of persons). Additionally, article IX,
section 9 prohibits any city or political subdivision in the district from providing any medical care,
not just indigent medical care. TEX. CONST. art. IX, 5 9; see also Tex. Att’y Gen. Op. No. JM-1052
(1989) at 6 n.1 (obligation placed on hospital district to assume responsibility for needy resident’s
medical care is narrower than prohibition on other political subdivision against spending money on
medical care generally, not just for indigents). This prohibition in the context of article IX, section
9 can only reasonably be construed as contemplating that the hospital district may offer the requisite
medical care because no other political entity may do so. Otherwise, the result of this prohibition
would have absurd results. For instance, nonindigent county residents in a rural county-wide
hospital district with no private medical care facility might have to travel to another county for
hospital care simply because they could pay for the care.
The Honorable David Counts - Page 11 (JC-0220)
Consistent with the article IX, section 9 provision, the Enabling Act also prohibits Garza
County or any city therein from levying taxes for hospitalpurposes. See Act of May 17, 1967,6&h
Leg., R.S., ch. 502, 5 12, 1967 Tex. Gen. Laws 1132, 1137. Moreover, section 13 ofthe Enabling
Act further provides that:
Whenever a patient claiming indigence has been admitted to
thefacilities ofthe hospital district, the directors shall cause inquiry
to be made as to his circumstances, and of the relatives of such
patients legally liable for his support. Ifit is found that such patient
or said relatives are liable topayfor his care and treatment in whole
or in part, an order shall be made directing such patient, or said
relatives, to pay for the support of such patient a specified sum
per week, in proportion to their financial ability, but such sum shall
not exceed the actual per capita cost of maintenance. If the agent
designated by thedistict to handle such affairsfinds thatsuchpatient
or said relatives are not able to pay, either in whole or inpart,for his
care and treatment in such hospital, the same shall become a charge
upon the hospital district.
Id. $ 13, 1967 Tex. Gen. Laws at 1137 (emphasis added). This provision clearly contemplates that
persons who are able to pay for their medical care may be admitted to the District’s hospital and
furnished medical care. See Tex. Att’y Gen. Op. No. C-382 (1965) at 2.
Looking at provisions similar to the Enabling Act’s section 13 and a statutory requirement
virtually identical to the article IX, section 9 requirement that a hospital district take over existing
county hospital system, Attorney General Opinion C-382 determined that these provisions clearly
contemplated that paying patients could be admitted to hospital district facilities. Tex. Att’y Gen.
Op. No. C-382 (1965) at 2. Attorney General Opinion C-382 then concluded that a hospital district
may admit patients to its facility that are neither needy nor indigents: “[A] patient should not be
refused admittance to the hospital facilities simply because he may be able to pay for his care, either
in whole or in part.” Id. The opinion emphasized that “when a patient has been admitted who is
fully able to pay, the Administrator may not permit him to pay less than the full and actual cost of
his care and maintenance.” Id.
We believe care provided through the clinic operated by the private hospital system pursuant
to a contract with the District here is analogous to the care provided through a hospital district
facility. Both the constitutional provision and the Enabling Act contemplate that the District’s
hospital facilities may serve nonindigents. The clinic serves the same function as did the District’s
hospital, which presumably admitted nonindigent patients. Accordingly, we conclude that the
District may offer medical care to nonindigent county residents through the clinic, provided the
District charges those persons the actual cost of the services.
The Honorable David Counts - Page 12 (JC-0220)
SUMMARY
Garza Hospital District was authorized to close its hospital if
the District’s Board of Directors determined that closing the hospital
was in the best interest of the District’s residents and the Board
otherwise complied with the statutory procedures. Similarly, the
District was authorized to lease its hospital facilities to a private
hospital system for the operation of a clinic to provide hospital and
medical care to the District’s needy inhabitants if the District Board
of Directors determined that the lease was in the best interest of the
District’s residents. Because closure of the hospital does not relieve
the District of its responsibility to provide and pay for needy
residents’ hospital andmedical care, the District may continue to levy
a tax and use the proceeds to make payments under a contract to
provide that care. The District may through this contract offer
medical care to nonindigent Garza County residents, provided the
District charges those persons the actual cost of the services. The
District may not be dissolved pursuant to an election because there is
no statutory authority to call and hold a dissolution election with
respect to the District.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129480/
|
March 21,200O
Mr. William H. Kuntz, Jr. Opinion No. JC-0201
Executive Director
Texas Department of Licensing and Regulation Re: Whether the Department of Licensing and
920 Colorado Regulation may require applicants for a boxing
Austin, Texas 78701 license to submit to HIV testing as a condition
of licensure (RQ-0137-JC)
Dear Mr. Kuntz:
You have requested our opinion as to whether the Department of Licensing and Regulation
may require applicants for a boxing license to submit to testing for the Human Immunodeficiency
Virus (HIV) as a condition of licensure. For the reasons indicated below, we conclude that it may
not.
The Commissioner of the Department of Licensing and Regulation is authorized to “adopt
rules establishing reasonable qualifications for an applicant seeking a license from the
department.” TEX. OCC. CODE ANN. 4 2052.052(b)(2) (Vernon 2000). A person may not act as a
professional boxer unless he or she holds a license under chapter 2052 of the Occupations Code. See
id. 5 2052.107(a). The Commissioner “may deny an application for a license if. the applicant
does not meet the qualifications for the license.” Id. 5 2052.111. The Commissioner is considering
the adoption of a rule that would require contestants in a boxing event to submit to HIV testing prior
to licensure and that would disqualify the participant if he or she tests positive for HIV or HIV
antibodies. See Letter from William H. Kuntz, Jr., Executive Director, Texas Department of
Licensing and Regulation, to Honorable John Comyn, Texas Attorney General (Nov. 1, 1999) (on
tile with Opinion Committee) [hereinafter “Request Letter”].
Section 81.102 of the Health and Safety Code provides, in relevant part:
(a) Apersonmaynot requireanotherperson to undergoamedical
procedure or test designed to determine or help determine if a person
has AIDS or HIV infection, antibodies to HIV, or infection with any
other probable causative agent of AIDS unless:
(1) the medical procedure or test is required under Subsection
(d), under Section 81.050, or under Article 21.31, Code of Criminal
Procedure;
Mr. William H. Kuntz, Jr. - Page 2 (JC-0201)
(2) the medical procedure or test is required under Section
81.090,and no objection has been made under Section 81.090(1);
(3) the medical procedure or test is authorized under Article
21.21-4, Insurance Code;
(4) a medical procedure is to be performed on the person that
could expose health care personnel to AIDS or HIV infection,
according to board guidelines defining the conditions that constitute
possible exposure to AIDS or HIV infection, and there is suflicient
time to receive the test result before the procedure is conducted; or
(5) the medicalprocedure or test is necessary:
(A) as a bonafide occupational qualification and there
is not a less discriminatory means of satisfying the occupational
qualzjkation;
(B) to screen blood, blood products, body fluids, organs,
or tissues to determine suitability for donation;
(C) in relation to a particular person under this chapter;
(D) to manage accidental exposure to blood or other body
fluids, but only if the test is conducted under written infectious
disease control protocols adopted by the health care agency or
facility;
(E) to test residents and clients ofresidential facilities of
the Texas Department of Mental Health and Mental Retardation, but
only if:
(i) the test result would change the medical or social
management of the person tested or others who associated with that
person; and
(ii) the test is conducted in accordance with guidelines
adopted by the residential facility or the Texas Department of Mental
Health and Mental Retardation and approved by the department; or
(F) to test residents and clients of residential facilities of
the Texas Youth Commission, but only if:
(i) the test result would change the medical or social
management of the person tested or others who associate with that
person; and
Mr. William H. Kuntz, Jr. - Page 3 (JC-0201)
(ii) the test is conducted in accordance with guidelines
adopted by the Texas Youth Commission.
(b) An employer who alleges that a test is necessary as a bona
fide occupational qualification has the burden of proving that
allegation.
TEX. HEALTH & SAFETY CODE ANN. 5 81.102(a), (b) (Vernon Supp. 2000) (emphasis added).
The Department ofLicensing and Regulation (the “Department”) is a “person” for purposes
ofsection 81.102. In Texas Dep’t ofHealth v. Doe, 994 S.W.2d 890 (Tex. App.-Austin 1999, pet.
withdrawn ), the court held that the use of “person” in the Health and Safety Code embraces the
definition of “person” in the Code Construction Act, which includes, inter alia, any “government or
governmental subdivision or agency.” Id. at 893 (quoting section 3 11.005(2) of the Government
Code). Likewise, the use of the word “require” in section 81.102 does not depend upon whether an
applicant has a constitutionally protected interest in participating in a boxing contest. Rather,
“require” here means “to demand of (one) to do something.” XIII OXFORDENGLISHDICTIONARY
681 (2d ed. 1989). If the Department compels an applicant to submit to HIV testing as a condition
of licensure, it is perforce “requiring” that he or she do so.
You specifically ask whether the requirement for HIV testing may bejustified as a “bona fide
occupational qualification.” You acknowledge that the Department is not an “employer” of boxers.
Request Letter, supra, at 3-4. In our opinion, since the Department is not an employer of boxers,
it may not avail itself ofthis exception. Section 8 1.102(b) indicates that “[a]n employer [who wishes
to invoke the exception] has the burden of proving that allegation.” TEX. HEALTH& SAFETYCODE
ANN. 5 8 1.102(b) (Vernon Supp. 2000) (emphasis added). We believe @is indicates the legislature’s
intent that an “employer” is the only party authorized to raise a “bona tide occupational
qualification” exception to the general prohibition of section 81.102. See id.
Furthermore, it is our view that, had the legislature intended to permit the Department to
impose the requirement of HIV testing, it would have done so explicitly. Another provision of
section 8 1.102, for example, permits the Department of Mental Health and Mental Retardation and
the Texas Youth Commission “to test residents and clients” of their respective facilities, but only in
accordance with strict statutory guidelines. Id. 5 81,102(a)(5)(E), (F). Still other exceptions to the
prohibition of HIV testing apply to persons indicted for certain criminal offenses as authorized by
article 2 1.3 1 of the Code of Criminal Procedure, see id. § 8 l.l02(a)( 1); as part of seriologic testing
during pregnancy, as authorized by section 81.090 of the Health and Safety Code, see id. 5
81.102(a)(2); and to certain individuals seeking health insurance, as authorized by article 21.21-4
of the Insurance Code, see id. 8 81.102(a)(3). In addition, HIV test results are made confidential by
section 81.103 of the Health and Safety Code, and their release is permitted only to specifically
named persons. Disclosure of test results in violation of this section is a Class A misdemeanor. See
id. § 81.103(j) (Vernon 1992). Finally, one who discloses that information is liable to the victim for
civil damages and is subject to a civil penalty of up to $10,000. See id. 5 81.104 (Vernon Supp.
2000). We believe it is clear, from the express language of section 8 1.102, from the confidentiality
accorded to HIV test results by section 8 1.103, and from the civil and criminal penalties attached to
unauthorized release of HIV test results by sections 81.103 and 81.104, that the legislature has
manifested expressly its intent that compelled HIV testing be permitted in limited circumstances and
Mr. William H. Kuntz, Jr. - Page 4 (JC-0201)
subject to numerous safeguards designed to protect both the public and the individual person, The
legislature has not authorized by express provision the Department to require HIV testing of
applicants for boxing licenses. In such a cautionary atmosphere as that created by chapter 8 1 of the
Health and Safety Code, we do not believe it proper to infer its authority to do so. In our opinion,
absent clear legislative authorization, an agency may not be permitted, by rule, to compel an
individual to submit to testing for HIV or HIV antibodies.
You also ask whether, in the event a boxer’s license is suspended in another state solely on
the basis of a positive HIV test, the Department may uphold that suspension. Section 6306 of the
Federal Professional Boxing Safety Act of 1996, requires “[elach boxing commission,” defined as
“an entity authorized under State law to regulate professional boxing matches,” 15 U.S.C. 5
6301(2)(A) (Supp. II 1996), to establish procedures, including “[plrocedures to ensure that, except
as provided in subsection (b) of this section, no boxer is permitted to box while under suspension
from any boxing commission due to, ” inter alia, “an injury, requirement for a medical procedure,
or physician denial of certification.” Id. 3 6306(a)(2)(B). It is well established that, under the
Supremacy Clause of the United States Constitution, “[sltates and their officers are bound by
obligations imposed by the Constitution and federal statutes that comport with the constitutional
design.” Alden v. Maine, 119 S. Ct. 2240,2266 (1999). If a positive HIV test results in denial of
physician certification, and that denial in turn forms the basis for a suspension in another state, the
Department is required to uphold that suspension.
Mr. William H. Kuntz, Jr. - Page 5 (JC-0201)
SUMMARY
The Department of Licensing and Regulation may not by rule
require that applicants for a professional boxing license submit to
HIV testing as a condition of licensure. If, however, a boxer’s license
is suspended in another state solely on the basis of a denial of
physician certification resulting from a positive HIV test, the
Department is required by federal law to uphold that suspension.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129483/
|
OFF,CE
OFTHEATTORNEY
GENERAL.
STATE
OFTEXAS
JOHN CORNYN
March 17,200O
Mr. Tom Harrison Opinion No. JC-0198
Executive Director
Texas Ethics Commission Re: Whether section 254.0401(e) ofthe Election
201 East 14th Code precludes the Texas Ethics Commission
Sam Houston Building, 10th Floor from making certain contributor address
Austin, Texas 78701 information available on computer diskettes
(RQ-0155-JC)
Dear Mr. Harrison:
On behalf of the Texas Ethics Commission (the “Commission”), you ask whether a recently
enacted provision, subsection (e) of section 254.0401 of the Election Code, precludes the
Commission from making certain contributor address information available on computer diskettes.
This provision prohibits the Commission from making certain contributor address information
available on the Internet and also states that, while the information must remain available on the
report maintained at the Commission’s office, it “may not be available electronically at that office.”
TEX. ELEC. CODE ANN. § 254.0401(e) (Vernon Supp. 2000) (emphasis added). Construing this
language by reference to section 254.0402(b), which was enacted in the same legislation and requires
the Commission to make report information available by “electronic means,” we conclude that the
language at issue precludes the Commission from making the address information available by any
electronic means, including computer diskette, as well as computer terminals at the Commission’s
office and computer modem.
We begin with a brief review of the statutory framework. Subchapter B of chapter 254 of
the Election Code requires candidates for office and officeholders, as well as certain other persons
and entities, to tile with the Commission reports containing information about political contributions
and expenditures, including “the amount of political contributions from each person , the full
name and address of the person making the contributions, and the dates of the contributions.” Id.
5 254.031(a)(l); see also id. $5 254.001 (establishing who must maintain record of all reportable
activity), 254.031 (listing information that reports must contain), 254.0311 (requiring legislative
caucus to tile report), 254.036 (establishing requirements for tiling reports with the Commission).
In the last legislative session, the Seventy-sixth Legislature extensively amended subchapter B in
Mr. Tom Harrison - Page 2 (JC-0198)
House Bill 2611 to provide for electronic filing of and access to these reports.’ As a bill analysis
explains:
Prior to the 76th Texas Legislature, paper reports could be
filed with the Ethics Commission. Interested parties could only
access the reports by traveling to the Ethics Commission office in
Austin. H.B. 2611 requires candidates and officeholders to tile
reports with the Ethics Commission electronically rather than on
paper. H.B. 2611 requires the Ethics Commission to post
electronically filed reports on the Internet, thereby making them
accessible to all interested parties without unusual expense.
HOUSE COMM. ON ELECTIONS,BILL ANALYSIS,Tex. H.B. 2611,76th Leg., R.S. (Aug. 2,1999); see
also SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. H.B. 2611, 76th Leg., R.S.
(May 13, 1999), HOUSE COMM. ON ELECTIONS,BILL ANALYSIS, Tex. H.B. 2611, 76th Leg., R.S.
(Apr. 23, 1999), HOUSE COMM. ON ELECTIONS,BILL ANALYSIS, Tex. H.B. 2611, 76th Leg., R.S.
(Mar. 29, 1999).
With certain exceptions, section 254.036 of the Election Code now requires candidates,
officeholders, and political committees to file political contribution and expenditure reports
“by computer diskette, modem, or other means of electronic transfer.” TEX. ELEC. CODE ANN.
5 254.036(b) (Vernon Supp. 2000). Sections 254.0401 and 254.0402, both ofwhich were added to
the Election Code by House Bill 261 l,* require the Commission to make these electronically tiled
reports available to the public. Section 254.0401 provides as follows:
Section 254.0401 Availability of Electronic Reports on Internet
(a) Except as provided by Subsection @), the commission
shall make each report filed with the commission under Section
254.036(b) available to the public on the Internet not later than the
second business day after the date the report is filed.
(b) Except as otherwise provided by this subsection, the
commission may not make a report tiled with the commission under
Section 254.036(b) for a reporting deadline by any candidate for a
particular office or by a specific-purpose committee for supporting or
opposing only one candidate for a particular office available to the
public on the Internet until each candidate for that office and each
specific-purpose committee for supporting or opposing only one
‘See Act ofMay 30, 1999, 76thLeg., R.S., ch. 1434, $5 1-4, 1999 Tex. Gen. Laws 4881,4881-84.
‘See id. $ 3 at 4884.
Mr. Tom Harrison - Page 3 (JC-0198)
candidate for that office, other than a candidate or committee to
which Section 254.036(c) or (d) applies, has tiled a report for that
reporting deadline. Regardless of whether each candidate for a
particular office and each specific-purpose committee for supporting
or opposing only one candidate for that office has filed a report for a
tiling deadline, the commission shall make each report in connection
with that office available on the Internet and by any other electronic
means on:
(1) the 21st day after the date ofthe tiling deadline, for a
report other than a report required to be filed under Section
254.064(c); or
(2) the fourth day after the date of the tiling deadline, for
a report required to be filed under Section 254.064(c).
(c) Subsection (b) does not apply to a report filed under
Section 254.038.
(d) The access allowed by this section to reports is in addition
to the public’s access to the information through other electronic or
print distribution of the information.
(e) Before making a report tiled under Section 254.036(b)
available on the Internet, the commission shall remove each portion,
other than city, state, and zip code, of the address of a person listed
as having made a political contribution to the person tiling the report.
The address information removed must remain available on the
report maintained in the commission ‘s office but may not be available
electronically at that office.
Id. 5 254.0401 (emphasis added).
Section 254.0402, which immediately follows section 254.0401 and charges the Commission
with making information from these reports available by electronic means, provides:
Section 254.0402 Public Inspection of Reports
(a) Notwithstanding Section 552.222(a), Government Code,
the authority with whom a report is tiled under this chapter may not
require a person examining the report to provide any information or
identification.
Mr. Tom Harrison - Page 4 (X-0198)
(b) The commission shall make information from reports filed
with the commission under Section 254.036(b) available by
electronic means, including:
(1) providing access to computer terminals at the
commission’s office;
(2) providing information on computer diskette for
purchase at a reasonable cost; and
(3) providing modem or other electronic access to the
information.
Id. § 254.0402(b) (emphasis added).
As you note, subsection (a) of section 254.0401 requires the Commission to make reports
tiled with the Commission by electronic means available to the public on the Internet. See id.
5 254.0401(a). Subsection (d) of section 254.0401 makes it clear that Internet access to the reports
is in addition to the public’s access “to the information through other electronic or print distribution
of the information.” Id. 5 254.0401(d). Furthermore, section 254.0402 requires the Commission
to make information from reports tiled with the Commission under section 254.036(b) available by
electronic means, including providing access to computer terminals at the Commission’s office,
providing information on computer diskette for purchase at a reasonable cost, and providing modem
or other electronic access to the information. See id. 5 254.0402(b).
While the provisions discussed above provide for extensive access to information in the
reports, subsection (e) of section 254.0401 restricts access to a limited subset ofinfomration in these
reports - namely certain contributor address information. It provides:
Before making a report tiled under Section 254.036(b)
available on the Internet, the commission shall remove each portion,
other than city, state, and zip code, of the address of a person listed
as having made apolitical contribution to the person tiling the report.
The address information removed must remain available on the report
maintained in the commission’s office but may not be available
electronically at that office.
Id. 5 254.0401(e). The first sentence of subsection (e) clearly charges the Commission with
removing a subset of contributor information, i.e., each contributor’s street or post office box
address, before making a report available on the Internet. The first part of the second sentence
clearly charges the Commission with making this address information available on the report
maintained in the Commission’s office. As you note, however, the meaning of second part of the
second sentence of subsection (e) is less evident: “What is not clear is whether the contributor
Mr. Tom Harrison - Page 5 (JC-0198)
addresses must be removed from those computer diskettes made available to the public.
Specifically, when the law provides that deleted address information ‘may not be available
electronically at [the commission’s] office,’ does this mean that the commission may not make
contributor addresses available on diskettes provided by our office?’ Letter from Mr. Tom Harrison,
Executive Director, Texas Ethics Commission, to Honorable John Comyn, Texas Attorney General,
at 1-2 (Nov. 30, 1999) (on tile with Opinion Committee). Thus, you ask whether subsection (e)
precludes the Commission from providing the address information on computer diskettes, which the
Commission is required to make available for purchase pursuant to section 254.0402(b)(2).
To answer your query regarding computer diskettes, this office must decipher the meaning
of the phrase “may not be available electronically at that office,” as the legislature has employed it
in the tinal portion of subsection (e). Because the first sentence of subsection (e) limits access to
address information on the Internet, this phrase must refer to electronic access other than Internet
access. To construe the phrase as merely prohibiting Internet access would make it redundant ofthe
first sentence and render it surplusage, contrary to the rule of statutory construction that every word
of a statute must have some meaning. See Chevron Corp. v. Redmon, 745 S.W.2d 314,316 (Tex.
1987) (Texas Supreme Court “will give effect to all the words of a statute and not treat any statutory
language as surplusage ifpossible”) (citing Perkins v. State, 367 S.W.2d 140 (Tex. 1963)); Railroad
Comm ‘n v. Olin Corp., 690 S.W.2d 628,631 (Tex. App.-Austin 1985, writ ref d n.r.e.) (“[Elvery
word of a statute is presumed to be intentionally used with meaning and purpose.“); see also
TEX. GOV’~CODEANN. 5 311.021(2) (Vernon 1998) (’ m enacting a statute, it is presumed that “the
entire statute is intended to be effective”).
Although the phrase “may not be available electronically at that office” is not defined nor
is its meaning readily apparent from the face ofsection 254.0401, its meaning is evident in the larger
context of chapter 254, subchapter B. A primary and principal rule of statutory construction is that
legislative enactments involving the same general subject matter and also possessing the same
general purpose or purposes are considered to be and are construed to be in pari materia. See
Garrett v. Mercantile Nat’1 Bank, 168 S.W.2d 636,637 (Tex. 1943); see also Culvert v. Fort Worth
Nat’1 Bank, 356 S.W.2d 918,921 (Tex. 1962). Sections 254.0401 and 254.0402 concern the same
subject matter and were enacted by the same legislature as part of the same statutory scheme.’ We
believe they must be read in pari materia.
“Statutes in pari materia are to be taken, read and construed together, and effort should be
made to harmonize, ifpossible so that they can stand together and have concurrent efficacy.” Davis
v. State, 968 S.W.2d 368, 372 (Tex. Crim. App. 1998) (en bane). As we have noted, section
254,0402(b) charges the Commission with making report information available by “electronic
means,” including:
(1) providing access to computer terminals at the
commission’s office;
Mr. Tom Harrison - Page 6 (JC-0198)
(2) providing information on computer diskette for
purchase at a reasonable cost; and
(3) providing modem or other electronic access to the
information.
TEX. ELEC. CODE ANN. 5 254.0402(b) (Vernon Supp. 2000). Construing subsection (e) of section
254.0401 together with section 254.0402, we believe that the language “available electronically at
that office” in section 254,0401(e) must be construed by reference to the language in section
254,0402(b) requiring the Commission to make information from reports “available by electronic
means.” Accordingly, we conclude that the phrase “may not be available electronically at that
office” in the last sentence of subsection (e) of section 254.0401 precludes the Commission from
making address information available by computer terminals at the Commission’s office, computer
diskette, modem or other electronic access - or, in other words, by any electronic means.
This construction is supported not only by the similar origin and subject matter of sections
254.0401 and 254.0402, but also by their close proximity and the similarity of the words they
employ. Furthermore, reading subsection (e) of section 254.0401 to refer to Internet access in the
first sentence and all other electronic means of access in the second sentence is consistent with and
supported by other subsections of section 254.0401 that refer separately to the Internet and other
electronic means of communicating or transferring information to the public. See id. (j 254.0401(b)
(providing that the commission must make electronically tiled reports “available on the Internet and
by any other electronic means” by a date certain), (d) (“Th e access allowed by this section to reports
[on the Internet] is in addition to the public’s access to the information through other electronic
or print distribution of the information.“) (emphasis added); see generally TEX. GOV'T CODE ANN.
9 311.011(b) (Vernon 1998) (“Words and phrases that have acquired a technical or particular
meaning, whether by legislative definition or otherwise, shall be construed accordingly.“).
We acknowledge that this construction of section 254.0401(e) restricts electronic access to
certain address information in political contribution and expenditure reports, information that is
otherwise available to the public. We believe, however, that construing the statute to preclude the
Commission from providing electronic access to this limited subset of contributor information is
consistent with the legislative history, see Tex. Att’y Gen. Op. No. JC-0164 (1999) at 5 (“Where the
language of a statute is ambiguous, we may consider the statute’s legislative history.“), which
indicates that the purpose of subsection (e) was to protect the privacy and safety of contributors by
preventing ready access to their street information on the Internet. See Hearings on Tex. H. B. 261 I
Before the House Comm. on Elections, 76th Leg., R.S. (Apr. 21, 1999) (tape available from House
Communications Video/Audio Dept.) (“[Ml em b ers, I think we discussed how we felt this was
necessary for a lot of women who are contributors who don’t want their street addresses on the
Internet and for grandmothers or for elderly citizens who don’t wish, for security reasons, to have
their specific street address on the Internet.“) (statement of Representative Sherri Greenberg).
Furthermore, as we have noted, the last part of subsection(e) indicates that the legislature’s concern
extended to electronic access to this information by means other than the Internet. See discussion
Mr. Tom Harrison - Page 7 (X-0198)
supra page 5. The legislative purpose of subsection (e) would be undermined by a construction that
permitted the Commission to disseminate contributors’ street addresses via the computer terminals
at its office, on computer diskette, and by computer modem. See TEX. GOV’T CODE ANN. §
311.023(l), (2), (3), (5) (Vernon 1998) (in construing a statute, court may take into account object
sought to be attained, circumstances under which statute was enacted, legislative history, and
consequences of a particular construction). Finally, we note that nothing in chapter 254 requires the
Commission to remove this address information from printed materials and that the information will
be available in printed form, as provided by section 254.0401(d). See TEX. ELEC. CODE ANN. §
254,0401(d) (Vernon Supp. 2000) (providing that Internet access to reports “is in addition to the
public’s access to the information through other electronic orprint distribution ofthe information”)
(emphasis added). Moreover, the remainder of the information in the reports, including the name,
city, state, and zip code of each contributor, will be broadly available on the Internet, by other
electronic means, and in written form. See id. $5 254.0401(a), (d), (e); 254.0402.
In sum, the phrase “may not be available electronically at that office” in the last sentence of
subsection (e) of section 254.0401 precludes the Commission from making contributor address
information, other than city, state, and zip code, available by any electronic means, including
computer terminals at the Commission’s office, computer diskette, and modem. See id.
5 254.0402(b). Thus, in answer to your question, the Commission may not make this address
information available on computer diskettes.
Mr. Tom Harrison - Page 8 (X-0198)
SUMMARY
Section 254.0401(e) of the Election Code precludes the
Texas Ethics Commission from making contributor address
information, other than city, state, and zip code, available by any
electronic means, including computer diskettes.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129487/
|
March 9,200O
Mr. Charles E. McMahen Opinion No. JC-0194
Chair, University of Houston System
Board of Regents Re: Whether the governing board of an
3 100 Cullen Boulevard, Suite 205 institution of higher education may conduct a
Houston, Texas 772046732 meeting by telephone or videoconference call:
Reconsideration of Attorney General Opinion
DM-478 (1998) (RQ-0129-JC)
Dear Mr. McMahen:
You ask whether the governing board of an institution ofhigher education may hold a regular
meeting of the board where a quorum of board members is present at the meeting location, and other
members attend via a telephone or videoconferencing connection. In connection with this question,
you ask us to reconsider Texas Attorney General Opinion DM-478 (1998). We conclude that the
governing board of an institution of higher education may not hold a regular meeting with board
members participating from remote locations except as expressly authorized by the Open Meetings
Act. A governmental body may hold a regular meeting where a quorum is present at one location
and other board members participate by videoconference call if it complies with section 55 1.127 of
the Government Code. The Open Meetings Act does not authorize the board to conduct its regular
meetings by telephone nor does it allow a board member to participate in a regular meeting by
telephone. Attorney General Opinion DM-478 correctly stated the law when issued and has not been
superceded by statute or court decision. Accordingly, we find no basis for altering its conclusions.
You state that the Board of Regents of the University of Houston System would like to hold
regular meetings at which a quorum is present but some members are unable to attend in person.
Letter from Mr. Charles E. McMahen, Chair, University of Houston System Board of Regents, to
Honorable John Comyn, Texas Attorney General (Oct. 8,1999). The absent members would be able
to participate via telephone from a remote location. Id. You ask whether a goveming board may
hold regular meetings with a quorum physically present, and have board members participate in the
meeting by means oftelephonic connections which are audible to the public. In connection with this
question, you ask us to reconsider Attorney General Opinion DM-478, which concluded that the
governing body of an institution ofhigher education was not authorized to conduct a regular meeting
by telephone conference call. Tex. Att’y Gen. Op. No. DM-478 (1998) at 4.
The Open Meetings Act (the “Act”), TEX. GOV’T CODE ANN. ch. 55 1 (Vernon 1994 & Supp.
2000), includes several provisions that authorize members of a governmental body to participate
in meetings using telephone or videoconference connections. See TEX. GOV’T CODE ANN.
Mr. Charles E. McMahen - Page 2 (X-0194)
$8 551.121-551.127 (Vernon 1994 & Supp. 2000). Before these provisions were adopted, the Act
did not permit governmental bodies to meet by telephone or videoconference call, nor did it
authorize any board member to participate from a remote location using telephonic or
videoconference connections. Tex. Att’y Gen. Op. No. JM-584 (1986); see also Tex. Att’y Gen. Op.
No. DM-207 (1993) (in absence of specific legislative authorization, a governmental body may not
permit a member to participate in a meeting via live video transmission). A member of a
governmental body subject to the Act may participate in a meeting from a remote location only as
expressly authorized by the Act.
You cite two provisions of the Open Meetings Act as relevant to your question. Section
55 1.121 of the Government Code allows the governing board of an institution of higher education
to hold a meeting by telephone conference call if
(1) the meeting is a special called meeting and immediate action
is required, and
(2) the convening at one location of a quorum of the governing
board is difficult or impossible.
TEX. GOV’T CODE ANN. 3 551.121 (Vernon 1994); see also id. 5 551.125 (Vernon Supp. 2000)
(similar authorization for all governmental bodies). This provision applies only when immediate
action is required and it is difficult or impossible to convene a quorum at one location. It does not
authorize the board to conduct a regular meeting by telephone, or allow a board member to
participate in a regular meeting by telephone.
Section 55 1.127 of the Government Code’ allows a governmental body to hold a meeting by
videoconference call “only if a quorum of the governmental body is physically present at one
location of the meeting.” Id. § 55 1.127(b) (V emon Supp. 2000). In addition to the usual notice
requirements set out in subchapter C of the Act, meetings held by videoconference call are subject
to the following notice requirements:
The notice of a meeting to be held by videoconference call
must specify as a location ofthe meeting the location where a quorum
of the governmental body will be physically present and specify the
intent to have a quorum present at that location. In addition, the
notice of the meeting must specify as a location of the meeting each
other location where a member of the governmental body who will
‘This provision was enacted in 1997 as section 55 1.126 of the Government Code and renumbered as section
551.127 of the Government Code in 1999. See Act ofMay 30, 1997,75tb Leg., RX, ch. 1038, 5 2,1999 Tex. Gem
Laws 3896-97, renumbered by Act of Apr. 23, 1999,76th Leg. R.S., ch. 62,s 19.01(50), 1999 Tex. Gen. Laws 127,
414. Thus, the Government Code section 551.126 addressed in Attorney General opinion DM-478 (1998) is now
section551.127.
Mr. Charles E. McMahen - Page 3 (X-0194)
participate in the meeting will be physically present during the
meeting. Each of the locations shall be open to the public during the
open portions of the meeting.
Id. 5 551.127(d).
Additional detailed requirements in section 551.127 are designed to ensure that board
members are audible and visible to one another and to members ofthe audience. Each open portion
of a meeting held by videoconference call must be visible and audible to the public at each location
specified in the notice, id. 9 55 1.127(e), and each location must have two-way communication with
each other location during the entire meeting. Id. 5 551.127(g). Each participant in the
videoconference call, while speaking, must be clearly visible and audible to each other participant,
and, during the open portion of the meeting, to the members of the public in attendance at the
location of the meeting. The Department of Information Resources is required to adopt rules
specifying minimum standards for audio and video signals at the meeting, id. 9 55 1.127(h), and if
technical difficulties cause the quality ofthe audio or video signal to fall below those standards, the
governmental body must recess or adjourn the meeting. See Tex. Att’y Gen. Op. No. DM-480
(1998) at 2-3.
Section 551.127 of the Government Code clearly requires that all participants in a
videoconference under its provisions be able to see as well as hear one another throughout the
meeting and, during open portions of the meeting, to be seen and heard by members of the public.
The Open Meetings Act does not authorize the board of an institution ofhigher education to conduct
its regular meetings by telephone nor does it allow a board member to participate in a regular
meeting by telephone. Accordingly, the governing board of an institution of higher education may
not hold a regular meetings where a quorum is physically present and board members participate in
the meeting from remote locations by means of telephonic connections which are audible to the
public. We decline to overrule or modify Attorney General Opinion DM-478.
Mr. Charles E. McMahen - Page 4 (X-0194)
SUMMARY
No governmental body subject to the Open Meetings Act may
hold a meeting by telephone or videoconference except as expressly
authorized by the Act. The governing board of an institution of
higher education may hold a regular meeting where a quorum is
present at one location and other members participate by
videoconference call if the board complies with the provision of
Government Code section 551.127. The governing board of an
institution of higher education may hold a meeting by telephone
conference call pursuant to section 55 1.12 1 of the Government Code
only when immediate action is required and it is difficult or
impossible to convene a quorum at one location. The Open Meetings
Act does not authorize the board of an institution of higher education
to conduct its regular meetings by telephone, nor does it allow a
board member to participate in a regular meeting by telephone.
Attorney General Opinion DM-478 (1998) is affirmed.
Yorsve trul,
4JYv
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129589/
|
August 11,1999
The Honorable Bill Hill Opinion No. JC-0092
Dallas County District Attorney
Civil Section Re: Whether chapter 312 of the Tax Code
Administration Building precludes a commissioners court from providing
411 Elm Street an economic development grant to a private
Dallas, Texas 75202 company under section 381.004 of the Local
Government Code pursuant to which the county
makes payments to the company that are the
economic equivalent of an abatement of real
property taxes (RQ-1068)
Dear Mr. Hill:
On behalf of the Dallas County Commissioners Court, your predecessor in office asked
whether chapter 312 of the Tax Code, the Property Redevelopment and Tax Abatement Act,
precludes a commissioners court from providing an economic development grant to a private
company pursuant to which the county would make payments to the company that are the economic
equivalent of an abatement of real property taxes. The agreement prompting the request states that
section 381.004 of the Local Government Code authorizes the commissioners court to provide the
grant. While we conclude that chapter 3 12 neither authorizes nor precludes the county from making
payments of this kind, we also conclude that section 381.004 of the Local Government Code does
not authorize a commissioners court to make grants.
We begin with a brief description of the relevant background. Your predecessor asked
whether chapter 312 of the Tax Code precludes the Dallas County Commissioners Court “from
providing an economic development grant to a business under Section 381.004 of the Local
Government Code, when the amount of the grant is to be determined by a specified percentage of
the additional real property tax revenues received by Dallas County from the business as a result of
the business’ development of its property.” Letter from John B. Dahill, Assistant District Attorney,
Dallas County, to Honorable Dan Morales, Attorney General 2 (Dec. 29,1997) (on tile with Opinion
Committee) [hereinafter Request Letter]. He explained that the county was not authorized to offer
the benefit as a tax abatement under the terms of chapter 3 12.
In response to a request from this office for additional briefing regarding the legal basis for
the agreement, your office submitted a copy of an economic development agreement between Dallas
County and a private company that owns real property in the county entitled “Economic
The Honorable Bill Hill - Page 2 (JC-0092)
Development Program Agreement” (“the Dallas County EDP Agreement” or “the agreement”).
Pursuant to the agreement, the county has promised to make yearly payments to the company for a
ten-year period. Each yearly payment is equal to fifty percent of the amount of property tax
collected in that year by the county from the private company on the value of the real property above
its 1996 value. The county’s obligation to make these yearly payments is subject to (i) the private
company’s economic performance, as measured by a set increase in the total property value and
either the company’s total number of employees or annual payroll in Dallas County, and (ii) an
Attorney General opinion stating that the county is not precluded from making the payments by
chapter 312 of the Tax Code. The agreement states that it is authorized by section 381.004 of the
Local Government Code, which permits counties to establish economic development programs. See
Letter from John B. Dahill, Assistant District Attorney, Dallas County, to Elizabeth Robinson, Chair,
Opinion Committee, Office of the Attorney General (Apr. 16, 1999) (on tile with Opinion
Committee) [hereinafter Supplemental Briefl.
This offlice does not generally review specific contracts or interpret contractual terms. See,
e.g., Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at 4 (contract interpretation beyond purview of this
office); DM-383 (1996) at 2 (interpretation ofcontract not appropriate function for opinion process);
DM-192 (1992) at 10 (“This office, in the exercise of its authority to issue legal opinions, does not
construe contracts.“); JM-697 (1987) at 6 (“review of contracts is not an appropriate function for the
opinion process”). For this reason, in responding to this opinion request, we discuss the Dallas
County EDP Agreement only by way of example.
I. Whether Chapter 312 of the Tax Code Precludes Pavments of this Kind
First, we address whether payments of this kind are precluded by chapter 312 of the Tax
Code. Your predecessor explained that the property subject to the Dallas County EDP Agreement
is also subject to a pre-existing municipal tax abatement agreement and that the county is therefore
limited to entering into a tax abatement agreement with the same terms. Because “[tlhe city
within which the property is located . has elected to provide tax abatement at a different
percentage. . . Dallas County is prohibited by Tax Code Section 3 12.206(a) from entering into an
abatement agreement at the same percentage as it wishes to use in the grant formula.” Request
Letter, at 2. Noting that the payments would have the “same economic impact” as a ten year tax
abatement under chapter 3 12 of the Tax Code, your predecessor asked whether the payments would
be precluded by chapter 312.
The legislature enacted the statutory predecessor to chapter 3 12, former article 1066f of the
Revised Civil Statutes,’ to implement article VIII, section l-g, a 1981 amendment to the Texas
Constitution. See Act ofAug. 10, 1981,67thLeg., 1st C.S., ch. 5, 5 9, 1981 Tex. Gen. Laws 53,57
(former article 1066f, Property Redevelopment and Tax Abatement Act, to take effect upon adoption
‘Former article 1066f was repealed and codified in chapter 312 of the Tax Code in 1987. See Act of May 1,
1987,70thLeg., ch. 191, g§ 1 (adopting title3 ofTaxCode), 12(repealingformerarticle 1066fj, 1987Tex. Gen.Laws
1410, 1421-25, 1466.
The Honorable Bill Hill - Page 3 (JC-0092)
of Tex. Const. art. VIII, 5 l-g); see also Tex. Att’y Gen. LO-89-31, at 3 (noting that Tax Increment
Financing Act of 198 1 and Property Redevelopment and Tax Abatement Act enacted in anticipation
of adoption of Tex. Const. art. VIII, 5 l-g). Article VIII, section l-g specifically permits “[tlhe
legislature by general law [to] authorize cities, towns, and other taxing units to grant exemptions or
other relief from ad valorem taxes on property located in a reinvestment zone for the purpose of
encouraging development or redevelopment and improvement of the property.” TEX. CONST. art.
VIII, 5 l-g. As originally enacted, former article 1066f authorized cities to abate taxes; counties
were, for all practical purposes, required to participate in municipal tax abatement agreements and
were not authorized to enter into separate agreements with respect to property not subject to a
municipal agreement.* Counties were not authorized to enter into their own tax abatement
agreements until 1985, when the legislature enacted amendments to former article 1066f now
codified as subchapter C of chapter 312.3
Subchapter C of chapter 312 authorizes a county commissioners court to designate an area
of the county “that does not include area in the taxing jurisdiction of a municipality” as a
reinvestment zone. See TEX. TAX CODE ANN. 5 312.401(a) (Vernon 1992). Before designating an
area as a reinvestment zone, the county must hold a public hearing on the designation and find that
the designation “would contribute to the retention or expansion of primary employment or would
attract major investment in the zone that would be a benefit to the property to be included in the zone
and would contribute to the economic development of the county.” Id. 5 312.401(b). The
commissioners court must provide public notice of the hearing. Id. Once it has designated a
reinvestment zone, the commissioners court may execute a tax abatement agreement with an owner
of taxable real property located in the zone. Id. 5 312.402(a) (Vernon Supp. 1999). Pursuant to a
tax abatement agreement, a county, like a city, may agree “to exempt from taxation a portion of the
value of the real property. . for a period not to exceed 10 years on the condition that the owner
of the property make specific improvements or repairs to the property.” Id. $ 312.204(a) (Vernon
1992). Significantly, however, the tax-abatement authority of a county with respect to property
located in the taxing jurisdiction of a city is more circumscribed. Under section 312.206(a) of the
Tax Code, if a municipality has entered into a tax abatement agreement with a property owner, a
county may abate taxes on the property only pursuant to an agreement containing terms identical to
the municipal tax abatement agreement. See id. 5 312.206(a) (Vernon Supp. 1999). Although the
legislature recently amended section 3 12.206(a) to remove this limitation, that amendment does not
apply to tax abatement agreements entered into prior to its effective date, September 1, 1999.4
Although Dallas County’s authority to enter into a tax abatement agreement regarding the
property at issue was limited by an existing municipal tax abatement, we conclude that the payments
of the kind provided in the Dallas County EDP Agreement were not precluded by chapter 3 12.
‘See Act of Aug. 10, 1981,67th Leg., 1st C.S., ch. 5,s 2, 1981 Tex. Gen. Laws 53.53-54,
‘See Act of May 10, 1985,69th Leg., RX, ch. 104,§ 3,1985 Tex. Gen. Laws 548,549.
%eeTex. H.B. 3034, 76th Leg., R.S. (1999).
The Honorable Bill Hill - Page 4 (JC-0092)
Chapter 312 prevented a county from entering into a tax abatement agreement with respect to
property subject to a municipal tax abatement agreement containing terms different from those in
the municipal agreement. But the payments at issue here are not tax abatements. The owner of
property subject to a chapter 3 12 tax abatement agreement is entitled to exemption from taxation by
a taxing unit “of all or part of the value of the property as provided by the agreement.” TEX. TAX
CODEANN. 5 11.28 (Vernon 1992). Thus, an owner who is party to a tax abatement agreement does
not pay the taxes that are abated pursuant to the agreement. Pursuant to an agreement like the Dallas
County EDP Agreement, however, the private company is not entitled to any tax exemption and will
pay county property taxes on the entire value of its property. Rather, the private company is entitled
to ten yearly grant payments “determined by a specified percentage of the additional real property
tax revenues received by Dallas County from the business as a result of the business’ development
of its property.” Request Letter, at 2. Chapter 312 simply does not speak to this kind of
arrangement. While chapter 312 does not authorize this kind of arrangement, neither does chapter
3 12 preclude it.
II. Whether a Countv is Authorized to Make Pavments of this Kind
The conclusion that chapter 3 12 neither precludes nor authorizes this kind of arrangement
does not end our analysis. Courts of this state have long held “that although a commissioners court
may exercise broad discretion in conducting county business, the legal basis for any action taken
must be grounded ultimately in the constitution or statutes.” Guynes v. Galveston County, 861
S.W.2d 861, 863 (Tex. 1993) (citing Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948)).
Specifically with respect to contracts, courts have held that the authority of a commissioners court
to make contracts on behalf of the county is limited to that conferred either expressly or by necessary
implication by the constitution and laws ofthe state. See, e.g., Childress County v. State, 92 S.W.2d
1011, 1016 (Tex. 1936); Jackv. State, 694 S.W.2d 391, 397 (Tex. App.-San Antonio 1985, writ
ref d n.r.e.). Thus, the conclusion that payments of this kind are not precluded by chapter 3 12 does
not establish that a commissioners court is authorized to make them. Such payments are authorized
only if the commissioners court has authority to enter into this type of agreement. That authority
must be express or necessarily implied by statute.
A. Section 381.004 of the Local Government Code
Both the request letter and the supplemental brief assert that section 38 1.004 of the Local
Government Code authorizes a commissioners court to make economic development grants and
therefore permits agreements of this kind. Section 381.004 provides in pertinent part as follows:
(b) To stimulate business and commercial activity in a county, the
commissioners court of the county may develop and administer a
program :
(1) for state or local economic development;
The Honorable Bill Hill - Page 5 (JC-0092)
(2) for small or disadvantaged business development;
(3) to stimulate, encourage, and develop business location
and commercial activity in the county; or
(4) to improve the extent to which women and minority
businesses are awarded county contracts.
(c) The commissioners court may:
(1) contract with another entityfor the administration of the
program;
(2) authorize the program to be administered on the basis of
county commissioner precincts;
(3) use county employees orfunds for the program; and
(4) accept contributions, gifts, or other resources to develop
and administer the program.
TEX. Lot. GOV’T CODE ANN. 5 381.004(b), (c) (V emon 1999) (emphasis added). In section
38 1.004, the term “another entity” is defined to include “the federal government, the State of Texas,
a municipality, school or other special district, finance corporation, institution of higher education,
charitable or nonprofit organization, foundation, board, council, commission, or any other person.”
Id. 5 381.004(a)(l).
Again, a commissioners court’s authority to make a contract must be express or necessarily
implied by statute. Childress County, 92 S.W.2d 1011; Jack, 694 S.W.2d 391. As we discuss at
some length below, the legislature generally provides express authority for economic development
grants. See statutes discussed infra pp. S-10. Section 381.004, by contrast, does not provide this
authority expressly. Subsection (b) of section 381.004 expressly authorizes a commissioners court
in general terms to develop a program for “state or local economic development” and “to stimulate,
encourage, and develop business location and commercial activity in the county.” TEX. Lot. GOV’T
CODE ANN. 8 381.004@)(l), (3) (V emon 1999). Subsection (c) specifically authorizes a
commissioners court to contract with another entity “for the administration of the program,” id.
5 38 1.004(c)(l), and to use “county employees or funds for the program,” id. 5 381.004(c)(3). This
office has concluded that the express language authorizing a commissioners court to contract for the
administration of a program indicates that the commissioners court lacks authority under section
381.004 to enter into other kinds ofcontracts. See Tex. Att’y Gen. LO-98-007 (construing section
38 1.004 to preclude commissioners court from providing funds to small business development center
because statute “does not authorize a commissioners court to appropriate funds to aprogram that was
not developed by the county and is not administered either by the county or by another entity under
The Honorable Bill Hill - Page 6 (X-0092)
contract with the county”). None of these provisions expressly authorizes a commissioners court
to enter into agreements such as the Dallas County EDP Agreement whereby the county agrees to
make payments of county funds to a private company on the condition that the companyincrea,se
the value of its property and employ a certain number of employees or maintain a certain annual
payroll in the county. And, again, no express provision in section 381.004 gives a commissioners
court the more general authority to make economic development grants.
Nor do we believe that the authority to enter into an agreement like the Dallas County EDP
Agreement, or the more general authority to make economic development grants, may be implied
from section 381.004. A commissioners court may carry out programs to foster economic
development in any number of ways. Because the authority to enter into agreements of this kind,
or to make economic development grants, is generally expressly provided by the legislature, see TEX.
TAX CODEANN. ch. 312 (Vernon 1992 & Supp. 1999) and statutes discussed infra pp. 8-10, and is
not necessary to foster economic development, we conclude that this authority cannot be implied
from the authority to adopt programs to foster economic development.
Furthermore, when the legislature has authorized an entity to make incentive payments based
on improvements to real property, it has included procedural requirements designed to protect the
tax-paying public. Although the payments contemplated by the agreement are not tax abatements,
they are, as your predecessor noted, identical in economic effect. See Request Letter, at 1 (“The
economic consequence of the grant to both the company and the county is the same as would occur
if the county granted [a] tax abatement to the company for the same duration as the grant and at the
same percentage as is used in the grant formula.“). Chapter 312 of the Tax Code authorizes a
commissioners court to offer tax abatements only after it has provided public notice, held a public
hearing, and formally designated a reinvestment zone according to statutory criteria, see TEX. TAX
CODEANN. 5 3 12.402 (Vernon 1992 & Supp. 1999), and only pursuant to an agreement containing
statutorily prescribed terms and conditions, see id. $5 312.204, .205. To construe section 381.004
to authorize a commissioners court to offer economic incentives akin to those that the legislature has
expressly authorized in chapter 3 12 would undermine these procedural protections. See TEX. GOV’T
CODE ANN. 6 311.023(4), (5) (Vernon 1998) (providing that in construing statutes court may
consider both laws on similar subjects and consequences of particular construction) (Code
Construction Act).
B. Section 381.004 and Article III, Section 52-a of the Texas Constitution
The request letter urges this office to broadly construe section 381.004 because it “appears
to be enabling legislation” for article III, section 52-aofthe Texas Constitution. See Request Letter,
at 3. That 1987 constitutional amendment provides that “[n]otwithstanding any other provision of
this constitution, the legislature may provide for the creation of programs and the making of loans
and grants of public money for the public purposes of development and diversification of the
The Honorable Bill Hill - Page 7 (JC-0092)
economy of this state. .” TEX. CONST. art. III, 5 52-a.5 ln support of the contention that section
381.004 implements article III, section 52-a, the brief notes that the statute was adopted by the same
legislature that adopted section 380.001 of the Local Government Code, enabling legislation for
article III, section 52-a that expressly authorizes cities to make economic development loans and
grants. See discussion of TEX. Lot. GOV’T CODE ANN. 9 380.001 (Vernon 1999) and Tex. Att’y
Gen. Op. No. DM-185 infra p. 13. Dallas County’s submissions to this office suggest that section
38 1.004 should be construed to authorize a county to undertake any economic development activity
contemplated by article III, section 52-a. The supplemental brief, for example, asserts that section
38 1.004 “parallels Article III, Section 52-a by using the word ‘program,’ which seems to give
broad discretion to the county to determine the types of measures it may establish.” Supplemental
Brief, at 2. That brief also suggests that because the term “program” derives from the constitution,
“the county’s decision that its proposal is a program to promote economic development is to be
given great weight.” Id. at 3.
In the past, this office has specifically reserved the question of whether section 38 1.004
implements article III, section 52-a. See Tex. Att’y Gen. LO-98-007, at 3 n.1; LO-96-035, at 3 n.2.
Because the legislature enacted section 381.004 in 1989, just two years after it proposed article III,
section 52-a6 and in the same session it enacted article III, section 52-a enabling legislation for
cities, it seemed likely that the legislature enacted section 381.004 as article III, section 52-a
enabling legislation for counties. Given Dallas County’s reliance on article III, section 52-a for its
construction of section 381.004, we now examine the relationship of section 381.004 to article III,
section 52-a in some detail. After reviewing the purpose of article III, section 52-a, statutes enacted
to implement it, and the legislative history of section 38 1.004, we conclude that section 38 1.004 is
not article III, section 52-a enabling legislation and, moreover, that the legislature did not intend
section 38 1.004 to authorize counties to make economic development grants.
1. Article III, Section 52-a
We begin with some background about article III, section 52-a which provides in pertinent
part:
Notwithstanding any other provision of this constitution, the
legislature may providefir the creation ofprograms and the making
of loans and grants of public money, other than money otherwise
dedicated by this constitution to use for a different purpose, for the
public purposes of development and diversification of the economy
of the state, the elimination of unemployment or underemployment
in the state, the stimulation of agricultural innovation, the fostering
‘ProposedbyActofMay20,1987,70thLeg.,R.S.,H.J.R. 5,§ 1,1987Tex. Gen. Laws4122,4123,adopted
at Nov. 3, 1987 election.
The Honorable Bill Hill - Page 8 (X-0092)
of the growth of enterprises based on agriculture, or the development
or expansion of transportation or commerce in the state.
TEX. CONST.art. III, 9 52-a (emphasis added). Prior to the adoption of this 1987 constitutional
provision,’ sections 5 1 and 52 of article III, which prohibit the legislature or a political subdivision
from granting public money or lending public credit to a private entity, had been interpreted by the
courts and this office to require that public money must be expended for the direct accomplishment
ofapublic purpose. Seegenerally Tex. Att’y Gen. Op. Nos. JM-1227 (1990) at 2; JM-1255 (1990)
at 2-3. Article III, section 52-a “was intended by the legislature, and by the voters who adopted it,
to create exceptions to the pre-existing constitutional prohibitions on the lending of public credit.”
Tex. Att’y Gen. Op. No. JM-1227 (1990) at 3. It did this by providing that programs fostering
economic growth or loans or grants of public funds to assist private businesses to foster economic
growth serve a public purpose. See Tex. Att’y Gen. Op. No. JM-1255 (1990) at 8-9 (article III,
section 52-a does not dispense of requirement that public funds must be used to achieve a public
purpose but rather “adds to the purposes for which the legislature may authorize the loan or grant
of public funds”).
Article III, section 52-a is not self-enacting; rather it permits the legislature to enact
legislation providing for economic development. See Tex. Att’y Gen. Op. No. JM-1227 (1990) at
3. It authorizes the legislature to provide for economic development in two different ways-by
providing for the creation ofprograms and the making of loans and grants ofpublic money. Section
381.004, which makes no mention of loans or grants, stands in stark contrast to a number of
provisions enacted pursuant to article III, section 52-a that expressly authorize the use of public
money for economic development grants and loans. Furthermore, in contrast to section 38 1.004, it
is clear from references in their statutory language or their legislative history that these provisions
were enacted to implement article III, section 52-a.
2. Statutes Enacted to ImDlement Article III, Section 52-a
Several statutes enacted to implement article III, section 52-arelate to economic development
undertaken by municipalities. For example, in section 380.001 of the Local Government Code,
which was enacted to implement section 52-a, see Tex. Att’y Gen. Op. No. DM-185 (1992) at
4 (noting that author of section 380.001 testified that bill was enabling legislation for article III,
5 52-a); HOUSECOMM.ONURBANAFFAIRS,BILLANALYSIS, Tex. H.B. 3192,71st Leg., R.S. (1989)
(hill analysis for legislation enacting section 380.001 indicating that bill was enabling legislation for
article III, 5 52-a), the legislature has expressly authorized the governing body of a municipality to
“establish and provide for the administration of one or more programs, including programs for
making loans and grants ofpublic money and providing personnel and services of the municipality,
to promote state or local economic development and to stimulate business and commercial activity
in the municipality.” TEX. Lot. GOV’T CODEANN. 4 380.001(a) (Vernon 1999) (emphasis added).
‘See id.
The Honorable Bill Hill - Page 9 (JC-0092)
Similarly, the legislature expressly created municipal management districts to accomplish
the purposes of article III, section 52-a. See TEX. Lot. GOV’T CODE ANN. fj§375.001 (Vernon
1999) (legislative statement that municipal management district is essential to accomplishment
of purposes of Tex. Const. art. III, 5 52-a); 376.001, ,002, ,006 (Houston Downtown Management
District created to accomplish purposes of Tex. Const. art. III, 5 52-a); 376.041, ,042,
,046 (Westchase Area Management District created to accomplish purposes of Tex. Const. art. III,
4 52-a); 376.081, ,086 (Greater Greenspoint Management District created to accomplish purposes
of Tex. Const. art. III, $ 52-a); 376.111, .116 (First Colony Management District created to
accomplish purposes ofTex. Const. art. III, 9 52-a); 376.121, ,122, .126 (Upper Kirby Management
District created to accomplish purposes ofTex. Const. art. III, 5 52-a); 376.211, .212, ,216 (Harris
County Improvement District No. 2 created to accomplish purposes of Tex. Const. art. III, § 52-a).
These districts have the express authority to make loans and grants to a public or private corporation
or any other person. See id. $8 376.026 (Houston Downtown Management District authority to
make grants and loans); 376.064 (Westchase Area Management District authority to make grants and
loans); 376.100 (Greater Greenspoint Management District authority to make grants and loans);
376.135 (First Colony Management District authority to make grants and loans); 376.235 (Harris
County Improvement District No. 2 authority to make grants and loans).
In implementing article III, section 52-a, the legislature has also authorized other entities to
make loans and grants for economic development. Certain river authorities, for example, may
sponsor economic development programs pursuant to section 3 of article 717~ of the Revised Civil
Statutes. See TEX. REV. Crv. STAT. ANN. art. 717p, 5 3 (Vernon Supp. 1999). The legislature has
expressly found that programs authorized by this provision are a specific public purpose of a river
authority in accordance with article III, section 52-a.* Article 717~ expressly provides that “[a]
program under this section may involve grants or loans of money, services, or property to a person
engaged in an economic development activity.” Id. § 3(d)?
Additionally, the legislature has authorized state entities to make loans and grants pursuant
to provisions implementing article III, section 52-a. Chapter 44 of the Agriculture Code, for
example, authorizes the Texas Agricultural Finance Authority board of directors to create an
agricultural diversification program. The legislature specifically provided that the statutory
predecessor to chapter 44 creating the agricultural diversification program would take effect only
upon the voters’ approval of article III, section 52-a. r” The board is expressly authorized to make
%ee Act of May 19,1995,74th Leg., RX, ch. 326, $2,1995 Tex. Gen. Law 2828,283O.
‘For other examples of statues pertaining to political subdivisions and districts, see TEX.Lot. GOV’TCODE
ANN.9 383.021 (Vernon 1999)(authorizing creation of county management districts in counties with population under
400,000); TEX.GOV’TCODEANN.$§ 2301.001(6), .007 (Vernon 1999) (authorizing a county, municipality, certain
districts and authorities “to make loans and grants ofpublic money or property [for projects relating to the development
of the super collider facility] that contribute to the public purposes of development and diversification of the economy
of the state, the elimination of underemployment and unemployment in the state, or the development or expansion of
transportation or commerce in the state”); 2301.068 (making express reference to article III, section 52-a).
‘?%e Act of July 20, 1987,7Oth Leg., 2d C.S., ch. 32, art. 1, $ 2, 1987 Tex. Gen. Laws 108, 112.
The Honorable Bill Hill - Page 10 (JC-0092)
loans and grants under the agricultural diversification program. See TEX. AGRIC. CODE ANN.
§ 44.012 (Vernon Supp. 1999). And subchapter D of the Transportation Code, another provision
enacted pursuant to article III, section 52-a, authorizes the Texas Department of Transportation to
loan money to a corporation that provides passenger rail service in the state. See TEX. TRANSP.CODE
ANN. $ 456.062(a) (Vernon 1999) (“Under the authority of Section 52-a, Article III, Texas
Constitution, and from funds appropriated from the general revenue fund for this purpose, the
commission may loan money to an eligible corporation that provides rail passenger service in the
state.“).
In light of these article III, section 52-a enabling statutes, all of which expressly authorize
entities to make economic development loans or grants with public funds, the omission of any
reference to loans or grants in section 38 1.004 of the Local Government Code is striking. We note
in particular that section 380.001 of the Local Government Code expressly authorizing municipal
economic development loans and grants was enacted in 1989 by the Seventy-first Legislature, the
same legislature that enacted section 38 1.004.” As the Texas Supreme Court has said: “‘It is a rule
of statutory construction that every word of a statute must be presumed to have been used for a
purpose. Likewise, we believe every word excluded from a statute must also be presumed to have
been excluded for a purpose.“’ Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656,659
(Tex. 1995) (citing Cameron v. Terre11 & Garrett, Inc., 618 S.W.2d 535,540 (Tex. 1981)); see also
Jones v. Houston Gen. Ins. Co., 736 S.W.2d 860, 863 (Tex. App.-Waco 1987, writ denied) (“The
existence or non-existence of legislative intent may be inferred from the fact that a certain provision
is missing horn a statute.“). Based on our review of these statutes, we believe that when the
legislature intends to authorize a public entity to make article III, section 52-a economic
development loans and grants, it provides that authority expressly. AccordTex. Att’y Gen. Op. No.
JM-1227 (1990) at 3 (“We think that if the legislature intended to expand the authority of cities to
lend credit pursuant to article III, section 52-a, it would, at the very least, specifically mention cities’
lending of credit, or section 52-a.“).
3. Le&.lative Historv of Section 381.004
Our conclusion that the lack of express language in section 381.004 referencing article III,
section 52-a or authorizing economic development loans and grants suggests that the statute is not
intended to implement the constitutional provision or to authorize economic development grants is
confirmed by the legislative history of section 381.004, which contains no mention of article III,
section 52-a, and, moreover, indicates that the legislature did not intend section 38 1.004 to authorize
a commissioners court to make economic development grants.
Section 381.004 was enacted as Senate Bill 24 in 1989. As first introduced, Senate Bill 24
amended former article 2351i of the Revised Civil Statutes to authorize the Harris County
Commissioners Court to engage in community and economic development projects, particularly
“Section 380.001 of the Local Government Code was enactedby Act of May 28, 1989,71st Leg., R.S., ch.
555,§ 1, 1989 Tex. Gen. Laws 1856.
The Honorable Bill Hill - Page 11 (JC-0092)
those under Title I of the Housing and Community Development Act of 1974. See Tex. S.B. 24,7 1st
Leg., R.S. (1989) (as introduced). The senate committee substitute would have achieved the same
purpose by adding section 381.004 to the Local Government Code. See Tex. C.S.S.B. 24,7lst Leg.,
R.S. (1989) (Senate Committee Substitute). The analysis by the Senate Committee on Inter-
governmental Relations ofthe committee substitute bill suggests that Harris County was particularly
concerned about its legal authority “to enter into projects. . with other local governments, political
subdivisions, and other public and private entities.” SENATECOMM.ON INTERGOVERNMENTAL
RELATIONS, BILLANALYSIS,Tex. C.S.S.B. 24,71st Leg., R.S. (1989). In the bill analysis and the
committee hearing on the committee substitute, no mention was made of article III, section 52-a or
the authority to make economic development grants. See id.; see also Hearings on Tex. C.S.S.B. 24
Before the Senate Comm. on Intergovernmental Relations, 71st Leg., R.S. (Feb. 14, 1989) (audio
tape available Tom Senate Staff Services Office).
A subcommittee of the House Committee for County Affairs jettisoned the version of Senate
Bill 24 that pertained only to Harris County and substituted the following:
Chapter 38 1, Local Government Code, is amended by adding
Section 381.004 to read as follows:
Section 381.004. COMMUNITY AND ECONOMIC
DEVELOPMENT PROGRAMS.
(a) The commissioners court of a county may develop and ad-
minister a program for state or local economic development to
stimulate business and commercial activity in the county.
(b) A program established under this section is subject to
approval of the commissioners court.
(c) The commissioners court may:
(1) contract with the federal government, the state, a political
subdivision of the state, a nonprofit organization, or any other person
or entity for the administration of the program; and
(2) accept contributions, gifts, or other resources to develop
and administer the program.
Tex. C.S.S.B. 24,71st Leg., R.S. (1989) (House Committee Report).
Importantly, this language incorporated portions of another bill, House Bill 203, which
authorized a commissioners court “to develop and administer a program” among other things “for
state or local economic development” and “to stimulate, encourage, and develop business location
The Honorable Bill Hill - Page 12 (X-0092)
and commercial activity in the county.” See Tex. H. B. 203,7lst Leg., R.S. (1989) (as introduced).
Given the close proximity between the language of House Bill 203 and the final version of Senate
Bill 24, the House Committee on County Affair’s hearing on House Bill 203 is significant. During
that hearing, the author of House Bill 203 indicated that the primary purpose of the bill was to
authorize commissioners courts to expend funds to market their counties and to cooperate with cities
in these kinds ofmarketing efforts. Hearings on Tex. H.B. 203 Before the House Comm. on County
Affairs, 71st Leg., R.S. (Feb. 14, 1989) (testimony of Rep. Eckels, House Sponsor) (audio tape
available from House Video/Audio Services). While the author indicated that the bill would give
counties broad authority, he also said the bill would “stop short” of one thing: “there was some
concern that [counties would] be able to make loans, direct loans, and grants. I don’t think this bill
would authorize that, although we’re checking into it.” Id. He continued that under the bill counties
might be able to “do small business incubation . . but I don’t think it would allow them to give
money directly to private business.” Id. The general counsel to the County Judges and
Commissioners Association also stated that the bill would “not extend any authority to make loans
or grants of public money.” Id. (testimony of Jim Allison, General Counsel, County Judges &
Commissioners Assoc.). The hearing includes no mention of article III, section 52-a.
During the House Committee on County Affair’s hearing on the house committee substitute
version of Senate Bill 24, the committee chair explained that Senate Bill 24 had been revised to
incorporate House Bill 203 and described the bill in general terms but did not address whether the
bill authorized a commissioners court to make economic development grants. Hearings on Tex.
C.S.S.B. 24 Before House Comm. on County Affairs, 71st Leg., R.S. (March 21, 1989) (statement
of Rep. John Willy) (audio tape available from House Video/Audio Services). Senate Bill 24 was
later amended on the house floor. Those amendments are not directly relevant to the issues here.
The differences between the House and Senate versions of Senate Bill 24 were reconciled
in conference committee. For our purposes, the conference committee made two important changes
to the version of Senate Bill 24 reported by the house committee. First, it added the language in
section 38 1,004(b)(3) providing that a commissioners court may adopt and administer a program “to
stimulate, encourage, and develop business location and commercial activity in the county.” Second,
it added the language in section 381.004(c)(3) providing that a commissioners court may “use county
employees or funds for the program.”
Although we have been unable to locate any legislative history that would illuminate the
conferees’ intent in adding these provisions, we do not believe these additions may be read to
authorize a commissioners court to make economic development grants. First, House Bill 203 as
introduced contained identical language authorizing a commissioners court to develop and
administer a program “to stimulate, encourage, and develop business location and commercial
activity in the county.” Tex. H.B. 203,71st Leg., R.S. (1989) (as introduced). Again, testimony on
House Bill 203 before the House Committee on County Affairs includes no mention of article III,
section 52-a and indicates that that bill was not intended to authorize a commissioners court to make
economic development grants or loans. Second, Senate Bill 24 as introduced would have authorized
the Harris County Commissioners Court to use county “manpower” and “financial resources” in
The Honorable Bill Hill - Page 13 (JC-0092)
establishing and administeringprojects,seeTex. S.B. 24,71st Leg., R.S. (1989) (as introduced), and
the senate committee substitute would have authorized the Harris County Commissioners Court “to
use county employees or funds for the program.” Tex. C.S.S.B. 24,71stLeg.,R.S. (1989). Again,
no mention was made in the Senate Committee on Intergovernmental Relation’s bill analysis or the
public hearing on that bill regarding article III, section 52-a or authority to make economic
development grants. See SENATECOMM.ONINTERGOVERNMENTALRELATIONS,BILLANALYSIS,
Tex.C.S.S.B. 24,7lst Leg., R.S. (1989); see also Hearings on Ten. C.S.S.B. 24 Before the Senate
Comm. on IntergovernmentalRelations, 71st Leg., R.S. (Feb. 14,1989) (audio tape available from
Senate Staff Services Office).
In sum, in contrast to the article III, section 52-a enabling statutes discussed above, see supra
pp. S-10, neither the text nor the legislative history of section 381.004 contains any mention of
article III, section 52-a. Furthermore, the legislative history confirms that section 381.004 was not
enacted to implement that constitutional provision and, moreover, that the legislature did not intend
section 381.004 to authorize a commissioners court to make economic development grants,
Therefore, contrary to the County’s assertions, see Supplemental Brief, at 2-3, we conclude that the
term “program” in section 381.004 may not be construed to include economic development grants
or to authorize a county to undertake any economic development activity contemplated by article
III, section 52-a.
We note that both the request letter and the supplemental brief discuss section 381.004 in
reference to the legislative history of section 380.001 and Attorney General Opinion DM-185. In
that opinion, this office discussed the legislative history of section 380.001, which was also enacted
in 1989, in some detail, and noted, in particular, that the author of section 380.001 testified before
the House Committee on Urban Affairs that the bill was intended to “authorize a municipality to do
the same thing that the legislature had just authorized counties to do, i.e., to participate in economic
development matters.” Tex. Att’y Gen. Op. No. DM-185 (1992) at 4 n.2. Although the author may
have been referring to legislation enacting section 38 1.004 of the Local Government Code, see id.,
his general reference to that legislation with regard to section 380.001 does not seem relevant to the
legislature’s specific intent in enacting section 38 1.004, particularly when viewed in light of the
complete absence of any reference to article III, section 52-a in the legislative history of section
381.004 and the testimony indicating that the legislature did not intend section 38 1.004 to authorize
county economic development grants and loans. Furthermore, as noted above, see discussion supra
pp. 8, 10, the Seventy-first Legislature’s express language authorizing municipal “loans and grants
ofpublic money” in section 380.001 compels us to conclude that the legislature authorizes economic
development grants by express provision and its omission of any mention of grants or loans in
section 381.004 indicates that it did not intend section 381.004 to authorize county economic
development grants.
III. Conclusion
In conclusion, chapter 3 12 of the Tax Code neither precludes nor authorizes a commissioners
court agreement to make payments of county funds to a private company that are the economic
The Honorable Bill Hill - Page 14 (JC-0092)
equivalent of an abatement ofreal property taxes. We also conclude, however, that section 38 1.004
ofthe Local Government Code, which Dallas County cites as the basis for its authority to make such
payments, neither expressly or impliedly authorizes a commissioners court to enter into an
agreement of this kind. The legislative history indicates that the legislature did not intend section
38 1.004 to implement article III, section 52-aofthe Texas Constitution and, moreover, confirms that
the legislature did not intend section 381.004 to authorize county economic development loans and
grants.
SUMMARY
Chapter 3 12 of the Tax Code neither precludes nor authorizes
a commissioners court agreement to make payments of county funds
to a private company that are the economic equivalent of an
abatement of real property taxes. However, section 381.004 of the
Local Government Code, which Dallas County cites as the basis for
its authority to make such payments, neither expressly or impliedly
authorizes a commissioners court to enter into an agreement of this
kind. The legislative history indicates that the legislature did not
intend section 381.004 to implement article III, section 52-a of the
Texas Constitution and, moreover, confirms that the legislature did
not intend section 381.004 to authorize county economic
development loans and grants.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4147426/
|
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3754
_____________
UNITED STATES OF AMERICA
v.
RAYMOND BROWN,
Appellant
_______________
On Appeal from the District Court of the
Virgin Islands
(D.C. No. 3-13-cr-00022-005)
District Judge: Hon. Curtis V. Gomez
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 13, 2016
Before: CHAGARES, JORDAN and HARDIMAN,
Circuit Judges.
(Filed: February 22, 2017)
_______________
Ryan T. Truskoski
P.O. Box 568005
Orlando, FL 32856
Counsel for Appellant
Kim L. Chisholm
Ronald Sharpe
Office of United States Attorney
5500 Veterans Bldg. – Ste. 260
United States Courthouse
St. Thomas, VI 00802
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Raymond Brown appeals from his conviction and
sentence in the District Court of the Virgin Islands. He
argues that the use of dual juries (one for him, and one for a
co-defendant) violated his Fifth and Sixth Amendment rights.
He also asks us to reconsider our rule placing the burden on
defendants to object at sentencing, and he says we should
instead require the sentencing court to solicit objections. For
the reasons that follow, we will affirm.
I. Background
Brown and seven others were charged in a 69-count
Third Superseding Indictment with crimes related to multiple
conspiracies to purchase, transport, and distribute cocaine.
2
The central feature of the case was a cocaine enterprise
organized by Robert Tapia, a Virgin Islands law enforcement
officer.
Ultimately, only Brown and one other defendant,
Walter Hill, proceeded to trial. Although both Brown and
Hill were connected to the enterprise, there was no allegation
that the two conspired with one another. Brown
communicated with Tapia about potential cocaine purchases
and helped deliver the cocaine to Tapia, while Hill assisted in
the collection and subsequent transportation of the purchased
cocaine.
Before trial, the Court observed that, “[w]hile initially
there was an overarching conspiracy, there is none now. And
nothing that ties the two defendants together.” (Supp. App. at
1.) Therefore, “[o]ut of an abundance of caution, the Court
… select[ed] two juries to hear th[e] matter.” (Id.) It
explained the process of empaneling two separate juries and
had counsel agree on the record to that procedure. It then
designated Brown’s jury “Panel A” and Hill’s jury “Panel B.”
Panel A convicted Brown on Count Six, for using a
communication to facilitate a drug crime, in violation of 21
U.S.C. §§ 843(b) and (d)(1) and 18 U.S.C. § 2. He was
acquitted on nine other counts.1
1
Panel B convicted Hill of conspiracy with intent to
distribute cocaine, possession with intent to distribute
cocaine, and use of a communication facility to commit a
drug crime.
3
At sentencing, the Court determined that Brown had an
offense level of 28 and a criminal history category of I. It
then calculated the guideline range of imprisonment as 78 to
97 months. Because the minimum term of imprisonment
under the guidelines exceeded the statutory maximum
sentence, the Court turned to § 5G1.1(a) of the United States
Sentencing Guidelines.2 Pursuant to that section, and after
consideration of the sentencing factors enumerated in 18
U.S.C. § 3553, the Court sentenced Brown to the statutory
maximum term of 48 months. Brown did not object to the
sentence.
II. Discussion3
A. Dual Juries
Brown challenges the District Court’s decision to
empanel dual juries as violative of his Fifth Amendment right
to due process and Sixth Amendment right to trial before an
impartial jury.4 Because there was no contemporaneous
2
Section 5G1.1(a) of the Sentencing Guidelines states
that “[w]here the statutorily authorized maximum sentence is
less than the minimum of the applicable guideline range, the
statutorily authorized maximum sentence shall be the
guideline sentence.”
3
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231 and 48 U.S.C. § 1612. We have jurisdiction
under 28 U.S.C. § 1291.
4
The Fifth Amendment protects a defendant from
deprivation of “life, liberty, or property, without due process
4
objection, we review the Court’s decision for plain error
under Federal Rule of Criminal Procedure 52(b), unless the
issue was waived.5 Puckett v. United States, 556 U.S. 129,
135 (2009). We thus begin by asking whether there was
waiver, because “[t]he threshold question in deciding whether
there is appellate authority to grant relief under Rule 52(b), is
… whether the appellant who failed to object in the trial court
to an error that violated his rights was aware of the
relinquished or abandoned right.” Gov’t of Virgin Islands v.
Rosa, 399 F.3d 283, 291 (3d Cir. 2005). Since waiver is a
threshold question under Rule 52(b), id., we will address it
even though the government did not argue the point in its
Answering Brief.
On the procedural facts here, one could contend that
Brown did waive his right to complain about the empanelling
of dual juries. Not only did his counsel fail to object to
of law[.]” U.S. Const. amend. V. The Sixth Amendment
entitles a defendant to “a speedy and public trial, by an
impartial jury[.]” U.S. Const. amend. VI.
5
Brown argues that he should escape plain error
review because his trial counsel rendered ineffective
assistance by not objecting to the use of dual juries. But,
except in extraordinary circumstances, “claims of ineffective
assistance of counsel … are not cognizable on direct appeal.”
United States v. Givan, 320 F.3d 452, 464 (3d Cir. 2003). To
spare Brown “from having res judicata attach to the
ineffective assistance claim,” we decline to address it here.
Gov’t of Virgin Islands v. Vanterpool, 767 F.3d 157, 164 (3d
Cir. 2014).
5
proceeding in a single trial before two juries, but, after the
District Court solicited objections, counsel explicitly agreed
to it.6 And yet, “an explicit agreement or stipulation
constitutes a waiver of rights [only] if the defendant was
aware of the right.” Id. As with the waiver of rights, so too
with the arguments associated with those rights – because the
government did not demonstrate, nor does the record show,
that Brown himself was aware of the rights implicated by the
joinder of his and Hill’s cases and the use of dual juries, we
cannot say that Brown knowingly and intelligently waived
any arguments bearing on those rights.7 See Brewer v.
Williams, 430 U.S. 387, 404 (1977) (“[T]he proper standard
to be applied in determining the question of waiver as a
matter of federal constitutional law” requires the government
“to prove ‘an intentional relinquishment or abandonment of a
6
After explaining the dual jury process, the District
Court specifically stated that it did not “believe it ha[d] any
objection from counsel with the [dual jury] procedure as …
just outlined.” (Supp. App. 2.) Brown’s counsel was asked
to confirm that was the case, and he said, “Yes, Your Honor.”
(Id.)
7
We do not hold that a defendant must be personally
aware of and knowingly waive every issue that may arise in a
case, only those issues involving fundamental constitutional
rights. See McMahon v. Fulcomer, 821 F.2d 934, 944 (3d
Cir. 1987) (“[T]he Supreme Court has cautioned ‘that courts
indulge in every reasonable presumption against waiver of
fundamental constitutional rights and that we do not presume
acquiescence in the loss of fundamental rights.’” (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938))).
6
known right or privilege.’” (quoting Johnson v. Zerbst, 304
U.S. 458, 464 (1938))).
When addressing a waiver of the right to a jury trial in
the context of a guilty plea, we have required that the
defendant be individually informed of and understand that
right before he can knowingly waive it. Taylor v. Horn, 504
F.3d 416, 440 (3d Cir. 2007). To that end, the trial court
engages in a colloquy to ensure “the defendant fully
understands the nature of the right and how it would likely
apply in general in the circumstances[.]” Id. (quoting Iowa v.
Tovar, 541 U.S. 77, 92 (2004)). That practice is also used to
ensure that a criminal defendant’s waiver of other key
constitutional protections is knowing and intelligent. See
United States v. Stewart, 977 F.2d 81, 84 (3d Cir. 1992)
(recognizing that a colloquy is required before waiving “the
privilege against compulsory self-incrimination, the right to a
trial by jury, and the right to confront one’s accusers” after
the Supreme Court decision in Boykin v. Alabama, 395 U.S.
238 (1969)); see also United States v. Peppers, 302 F.3d 120,
135-36 (3d Cir. 2002) (requiring a colloquy when waiving
right to counsel by proceeding pro se).
We need not decide whether a colloquy with the
defendant is essential, even if it is advisable, when a court
proposes to proceed before dual juries rather than following
the standard practice of trying a case before a single jury. It
is enough to say that there must be some indication on the
record that the defendant was actually aware of his due
process and jury rights and that he himself – not just his
counsel – knowingly sanctioned a procedure that arguably
impinges on those rights. The government here did not assert
waiver, and thus did not sustain its burden necessary for
7
waiver. Brewer, 430 U.S. at 404. There simply is nothing to
suggest that Brown was personally aware of his right to an
impartial jury and then, “with an understanding of the
ramifications and consequences[,]” Peppers, 302 F.3d at 129,
went ahead and waived any objection to being tried together
with Hill before dual juries. Therefore, the statement of
Brown’s counsel agreeing that there was no objection to the
joint trial before dual juries does not constitute a waiver of
Brown’s ability to raise arguments now concerning joinder
and the right to an impartial jury. We thus review for plain
error.
On plain error review, we can only correct an error not
raised at trial where the appellant demonstrates that (1) there
is a legal error; (2) the legal error is clear or obvious; (3) the
error affected the appellant’s substantial rights such that it
affected the outcome of district court proceedings; and (4) the
error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Puckett, 556 U.S. at 135
(alteration in original) (quoting United States v. Olano, 507
U.S. 725, 736 (1993)).
The use of dual juries seems to have very little
precedent in this Circuit – we have found only one example
of it, which was not challenged on appeal. See United States
v. Cruz, No. 98-5170, 1998 WL 34096109 (stating in
Appellant’s Opening Brief, at *3-4, that the District Court had
decided “to resolve the issue regarding the admissibility of
the statements made by codefendants … by empaneling [sic]
two juries; one for [Appellant] and one for the three
remaining defendants”). The practice has, however, occurred
and been constitutionally challenged in several other courts of
appeals. Each circuit court that has addressed the use of dual
8
juries has upheld the practice unless a defendant can “show
some specific, undue prejudice.” Mack v. Peters, 80 F.3d
230, 235 (7th Cir. 1996); see also Lambright v. Stewart, 191
F.3d 1181, 1186 (9th Cir. 1999) (upholding use where there
was no due process violation and neither defendant
“convincingly pointed to some other specific trial right which
was compromised”); United States v. Lebron-Gonzalez, 816
F.2d 823, 831 (1st Cir. 1987) (requiring defendant to carry
“heavy burden of making a strong showing of prejudice”);
United States v. Lewis, 716 F.2d 16, 20 (D.C. Cir. 1983)
(analyzing whether there was any specific prejudice resulting
from dual juries); United States v. Hayes, 676 F.2d 1359,
1366 (11th Cir. 1982) (same); United States v. Rowan, 518
F.2d 685, 690 (6th Cir. 1975) (same). A review of Federal
Rule of Criminal Procedure 14 and our precedent governing
the use of joint trials supports the uniform holdings of our
sister circuits, and we agree that the use of dual juries is not
per se unconstitutional.
Rule 14 provides relief to defendants from “prejudicial
joinder.” Under that rule, “[i]f the joinder of offenses or
defendants in an indictment, an information, or a
consolidation for trial appears to prejudice a defendant or the
government, the court may order separate trials of counts,
sever the defendants’ trials, or provide any other relief that
justice requires.” Fed. R. Crim. P. 14. Permitting courts to
“provide any other relief that justice requires” affords great
latitude to trial courts to craft remedies that fit the
circumstances of each case. Id. “Moreover, Rule 14 does not
require severance even if prejudice is shown; rather, it leaves
the tailoring of the relief to be granted, if any, to the district
court’s sound discretion.” Zafiro v. United States, 506 U.S.
534, 538-39 (1993) (citation omitted). As a result, we require
9
“[d]efendants seeking a severance [to] bear a heavy burden
and … demonstrate not only that the court would abuse its
discretion if it denied severance, but also that the denial of
severance would lead to clear and substantial prejudice
resulting in a manifestly unfair trial.” United States v. Lore,
430 F.3d 190, 205 (3d Cir. 2005) (internal quotation marks
omitted).
We see no reason why the rule should be any different
when the joint trial is before two juries rather than one. In
fact, depending on the circumstances, a joint trial before
separate juries could be more protective of defendants’ rights
than the use of a single jury. See Lebron-Gonzalez, 816 F.2d
at 831 (concluding that the use of dual juries was “a way of
minimizing any prejudice from jointly trying the
defendants”). Therefore, as required for severance generally,
in order to successfully challenge the use of dual juries, a
defendant “must demonstrate clear and substantial prejudice
resulting in a manifestly unfair trial.” United States v. Balter,
91 F.3d 427, 433 (3d Cir. 1996), as amended (Aug. 16, 1996)
(quoting United States v. Voigt, 89 F.3d 1050, 1094 (3d Cir.
1996)).
Brown argues that empaneling two juries violated due
process and his right to an impartial jury because the jury was
“exposed to irrelevant evidence that by its very nature did not
apply to him.” (Opening Br. at 13.) He provides one
example of confusion, where, on cross-examination, a witness
mixed-up the two defendants and the government had to
correct the error on redirect. But there is no dispute that the
error was corrected. And we have often declined to find
prejudice “‘in a joint trial just because all evidence adduced is
not germane to all counts against each defendant’ or some
10
evidence adduced is ‘more damaging to one defendant than
others.’” Balter, 91 F.3d at 433 (quoting United States v.
Console, 13 F.3d 641, 655 (3d Cir. 1993)). Without any
indication that there was “clear and substantial prejudice
resulting in a manifestly unfair trial[,]” Brown cannot show
that the use of dual juries constituted error, let alone plain
error. Lore, 430 F.3d at 205 (quoting United States v. Urban,
404 F.3d 754, 775 (3d Cir. 2005)).
It is a “fundamental principle that the federal system
prefers ‘joint trials of defendants who are indicted together []’
because joint trials ‘promote efficiency and serve the interests
of justice by avoiding the scandal and inequity of inconsistent
verdicts.’”8 Urban, 404 F.3d at 775 (alteration in original)
(quoting Zafiro, 506 U.S. at 537). If dual juries can be
empanelled without “a serious risk that [such] a joint trial
would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable
judgment about guilt or innocence,” the practice is not in
itself unconstitutional. Id. That said, we do not mean by this
ruling to encourage the practice. The potential complications
are not insignificant. Nevertheless, Brown has not shown any
obvious error affecting substantial rights or the fairness of the
proceedings. We will therefore affirm his conviction.
8
Given the District Court’s comment that “nothing []
ties the two defendants together” (Supp. App. at 1), we are
conscious of the concern that joinder here may have lacked
the robust justification it ordinarily has. But the record
indicates that there actually was overlap in the factual
background of Brown’s and Hill’s cases, and we cannot say
that joinder was plainly erroneous.
11
B. Failure to Object at Sentencing
Brown also challenges the Court’s failure to solicit
objections before imposing sentence, arguing that we should
overturn our recent en banc decision in United States v.
Flores-Mejia, 759 F.3d 253 (3d Cir. 2014). In Flores-Mejia,
“we h[e]ld that, in a criminal prosecution, unless a relevant
objection has been made earlier, a party must object to a
procedural error after the sentence is pronounced in order to
preserve the error and avoid plain error review.” 759 F.3d at
258. Under Flores-Mejia, because Brown did not object to
his sentence, an appeal of that sentence would be subject to
plain error review. Brown does not, however, appeal any
aspect of his sentence. Reconsidering Flores-Mejia would
thus have no affect on his appeal – there is simply no alleged
error to which we could apply a more generous standard of
review. We have, then, no occasion to reconsider our well-
reasoned decision in Flores-Mejia at this time, even if we
were inclined or empowered to do so.
III. Conclusion
For the foregoing reasons, we will affirm Brown’s
conviction and sentence.
12
|
01-03-2023
|
02-22-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129500/
|
February 17,200O
Mr. Harold E. Feeney Opinion No. JC-018 1
Credit Union Commissioner
Credit Union Department Re: Whether credit unions may recover from
9 14 East Anderson Lane investigating authorities the cost of producing
Austin, Texas 78752-1699 records in response to grand jury subpoenas, and
related questions (RQ-0109-X)
Dear Commissioner Feeney:
You ask whether credit unions may recover from the investigating authority the costs of
retrieving and producing documents in response to a grand jury subpoena. We conclude that they
may not.
You state that credit unions in Texas are at times served with grand jury subpoenas
seeking the production of credit union records in connection with criminal investigations. See
Letter from Harold E. Feeney, Credit Union Commissioner, Credit Union Department, to
Honorable John Comyn, Attorney General 1 (Sept. 9, 1999). The subpoena typically requests a
substantial quantity of documents related to a member’s account, such as membership agreements,
signature cards, account statements, canceled checks, and the like. Id. While some records are easy
to retrieve and copy, others require a considerable amount of time and expense to produce. Id. You
state that credit unions generally do not retain copies ofcanceled checks, but use a third-party check
processor, who usually charges the credit union a fee for the reproduction of each check. Id.
A grand jury may issue a subpoena summoning a witness to appear before it. TEX. CODE
GRIM.PROC. ANN. art. 24.01(a) (Vernon 1989). Ifthe witness has “in his possession any instrument
of writing or other thing desired as evidence,” the subpoena may specify the evidence and direct the
witness to produce it in court. Id. art. 24.02. Witnesses who reside outside of the state or of the
county of the grand jury are entitled to reimbursement for reasonable transportation, meal, and
lodging expenses under article 35.27 of the Code of Criminal Procedure, but there is no provision
in the code for reimbursing witnesses for the costs of producing evidence. Supplying information
in connection with a criminal investigation is normally considered a public duty, no matter how
financially burdensome it may be. See Hurtado v. United States, 410 U.S. 578,589 (1973); see also
TEX. CODE GRIM. PROC. ANN. art. 20.15 (Vernon 1977) (prescribing tine for refusal to testify to
grand jury); id. art. 24.05 (prescribing fine for refusing to obey subpoena). Thus, the cost of
complying with a grand jury subpoena has traditionally been placed upon the subpoenaed party.
Pittsburgh Nat ‘I Bank Y. United States, 771 F.2d 73,76 (3rd Cir. 1985).
Mr. Harold E. Feeney - Page 2 (X-0181)
A federal grand jury is required by the federal Right to Financial Privacy Act to reimburse
a financial institution for the costs of producing records pertaining to a customer in response to a
grand jury subpoena. 12 U.S.C. $§ 3413(i), 3415 (1989). A “customer” within the reimbursement
provision is “an individual or a partnership of five or fewer individuals.” Id. 5 3401(4)(5). Thus,
the federal Act does not authorize reimbursement of a financial institution for the costs ofproducing
financial records pertaining to a corporation in compliance with a grand jury subpoena. Pittsburgh
Nat ‘1 Bank, 771 F.2d at 76; see also In re Grand Jury Proceeding, 636 F.2d 81, 84-85 (5th Cir.
1981) (per curiam) (bank which was itself a target of grand jury investigation not entitled to
reimbursement for costs of complying with grand jury subpoena). State governmental entities are
not subject to this Act. 12 U.S.C. 9 3401(3) (1989).
Section 59.006 of the Finance Code sets out a procedure for the compelled discovery of
customer records of a financial institution in civil cases. TEX. FIN.CODE ANN. 5 59.006 (Vernon
Supp. 2000). Among other requirements, the requesting party must pay the financial institution’s
reasonable costs of complying with the discovery request, including the costs of reproduction,
postage, research, and delivery of the records. Id. 5 59.006(b)(2). There are several specific
exceptions to section 59.006 of the Finance Code. Among other express exceptions, this provision
does not apply to a demand from a state or federal government agency authorized to conduct an
examination of the financial institution, an investigative demand by a legislative investigating
committee, or “a record request from or report to a government agency arising out of the
investigation or prosecution of a criminal offense.” Id. 5 59.006(a)(l), (3), (5). Thus, section 59.006
does not require an investigating authority to reimburse a credit union for its costs in complying with
a grand jury subpoena.
You suggest that sections 125.402 and 125.403 of the Finance Code would require the state
to reimburse credit unions for the costs of producing records in response to a grand jury subpoena.
Section 125.402 provides as follows:
(a) A credit union is not required to disclose or produce to a third
party or permit a third party to examine a record pertaining to the
affairs of a credit union member unless:
(1) the request is made in connection with an examination or
audit by a government agency authorized by law to examine credit
unions;
(2) the member consents to the disclosure or production of the
record, or
(3) the request is made by the [Credit Union Department] OI
is made in response to:
(A) a subpoena or other court order; or
Mr. Harold E. Feeney - Page 3 (JC-0181)
(B) an administrative subpoena or summons issued by a
state or federal agency as authorized by law.
TEX. FIN.CODE ANN. 5 125.402 (Vernon 1998) (emphasis added).
Section 125.403 ofthe Finance Code provides that a credit union “is entitled to recover from
a third party the reasonable cost actually incurred in disclosing or producing a record under this
subtitle or other applicable law unless the cost was incurred in connection with an examination or
audit by a government agency authorized by law to examine credit unions.” Id. 5 125.403. These
two provisions together state that a credit union must produce records pertaining to a credit union
member to a “third party” in response to a subpoena or court order, and that the credit union is
entitled to recover from the third party the costs of disclosing a record.
Section 125.403 of the Finance Code does not expressly refer to subpoenas in criminal
actions. Accordingly, we must determine whether “third party” as used in sections 125.402 and
125.403 includes a grand jury that is investigating a possible criminal offense. Section 125.403
expressly states that a governmental examining agency is not a “third party” for purposes of
reimbursing the credit union for the costs of producing records, thus suggesting that “third party”
would ordinarily include governmental entities such as a grand jury. See Ex park Kennedy, 33
S.W.2d 443 (Tex. Crim App. 1930). However, the legislative history of sections 125.402 and
125.403 indicates that the legislature may have intended only to make it clear that a governmental
examining agency was entitled to see credit union records and not to include all governmental
entities in the term “third party.”
When sections 125.402 and 125.403 were adoptedin 1989, Act ofMay 17,1989,71st Leg.,
RX, ch. 1098,§ lo,1989 Tex. Gen. Laws 4512,4515-16, theTexas Credit Union Act was codified
as article 2461-1.01-12.02 oftheTexasRevisedCivi1 Statutes. See Act ofMay 31, 1975,64thLeg.,
R.S., ch. 707, 1975 Tex. Gen. Laws 2219, repealed by Act of May 24, 1997, 75th Leg., R.S., ch.
1008,§ 6,1997 Tex. Gen. Laws 3091,3602.’ Sections 125.402 and 125.403 of the Finance Code
were adopted as subsections (b) and (c) of article 2461-6.08, which became article 2461-6.08(a).
Act of May 17, 1989, 71st Leg., R.S., ch. 1098, § 10, 1989 Tex. Gen. Laws 4512, 4515-16.
Subsection 6.08(a) of article 2461 provided as follows:
No credit union is required to recognize the claim of any
third party to any share or deposit account unless and until the
credit union is served with citation or other appropriate process
issuing out of a court of competent jurisdiction in connection with a
suit instituted by the third party for the purpose of recovering or
establishing an interest in the deposit or share account.
‘In 1997, the laws relating to credit unions were codified in the Finance Code, in a nonsubstantive revision of
the statutes relating to financial instih~tiom. Act ofMay 24, 1997,75th Leg., R.S., ch. 1008,§ 1,1997 Tex. Gen. Laws
3091, 3319-3360.
Mr. Harold E. Feeney - Page 4 (X-0181)
Id.; see TEX. FIN. CODE ANN. 5 125.401 (Vernon 1998).
A “third party” was initially a person other than the credit union or account holder who
claimed an interest in a credit union account. The 1989 amendment to former article 2461-6.08
protected a member’s credit union records from examination by a third party and broadened the
meaning of “third party” to include persons in addition to claimants who might want to examine
credit union records. The bill adopting the 1989 amendments to the Texas Credit Union Act was
“intended to provide statutory clarification ofcurrent interpretations ofthe Texas Credit Union Act.”
HOUSE COMM. ON FIN. INST., BILL ANALYSIS, Tex. S.B. 969,71st Leg., R.S. (1989). Most of the
changes were “considered to be of a housekeeping nature, rather than constituting substantive
changes of purposes or structures.” Id. The bill analysis attached to the companion bill states that
the bill “[clould enact into law the current practices of the commission by giving the commissioner
the clear authority needed to issue rules to regulate the industry.” HOUSERESEARCHORG., BILL
ANALYSIS, Tex. C.S.H.B. 1652, 71st Leg., R.S. (1989). Neither bill analysis mentions grand jury
subpoenas for credit union records relating to members accounts or to any other request for
production of records issued by an entity authorized to investigate criminal activity.
There is a strong public policy in favor of supplying information in connection with a
criminal investigation, even though this duty may be financially burdensome to the individual. See
Hurtado, 410 U.S. at 589; Pittsburgh Nat ‘I Bank, 771 F.2d at 76; see generally Andino v. State, 645
S.W.2d 615 (Tex. App.-Austin 1983, no writ) (duty ofwitness to give testimony). Sections 125.402
and 125.403 of the Finance Code do not expressly state that credit unions are to be reimbursed for
the costs ofcomplying with grand jury subpoenas, nor does the history ofthis provision suggest any
legislative intent to exempt credit unions from these costs. Absent clear evidence that the legislature
intended to free credit unions from such costs, we conclude that sections 125.402 and 125.403 do
not authorize credit unions to recover from the investigating authority the costs of retrieving and
producing documents in response to a grand jury subpoena.
You also ask whether canceled checks are in the “possession” of a credit union for purposes
of a grand jury subpoena where the canceled checks are retained by a third-party processor from
whom they must be retrieved by the credit union. See TEX. CODEGRIM. PROC.ANN 5 24.02 (Vernon
1989) (if a witness has in his possession any thing desired as evidence, subpoena may direct that the
witness produce it in court). The Code of Criminal Procedure does not define “possession” but
instructs us to construe the term in accordance with its ordinary meaning. See TEX. CODE GRIM.
PROC. ANN. art. 3.01 (Vernon 1977). In doing so, we must consider the context in which the term
appears. See Bingham Y. State, 913 S.W.2d 208, 209-10 (Tex. Crim. App. 1992). We are also
instructed to construe the code liberally, “so as to attain the objects intended by the Legislature: The
prevention, suppression and punishment of crime.” TEX. CODEGRIM.PROC. ANN. art. 1.26 (Vernon
1977).
“Possession” ordinarily means “the holding or having of something (material or immaterial)
as one’s own, or in one’s control; actual holding or occupancy, as distinct from ownership.” XII
OXFORD ENGLISHDICTIONARY 172 (2d ed. 1989). In the context of a subpoena for the production
Mr. Harold E. Feeney - Page 5 (JC-0181)
of documents, the term “possession” includes not only something that a person actually holds, but
something that the person has a right to obtain, even if the thing is actually held by another party.
A grand jury subpoena for documentary evidence generally reaches all documents under the control
of the person or corporation ordered to produce it, the test being one of control and not of location.
See Matter of Marc Rich & Co., A.G., 707 F.2d 663, 667 (2d Cir.), cert. denied, 463 U.S. 1215
(1983) (holding that grand jury witness could not resist production of documents on ground that
documents were located abroad); EX parte Gould, 132 SW. 364, 369 (Tex. Crim App. 1910)
(subpoena duces tecum defined as a process for commanding a person to produce document he has
in his possession or control).
Consequently, if a credit union has a right to obtain the canceled checks of its customers that
are held by a third-party check processor, it might be said that the checks are in the “possession” of
the credit union for purposes of complying with a grand jury subpoena, even though the canceled
checks are in the physical possession of the third-party processor. See generally Ex parte Gould,
at 132 S.W. at 365 (agent of telegraph company commanded to produce messages ordering
intoxicating liquors). Whether canceled checks are indeed in the possession of a credit union in any
particular case cannot be decided by this office, but must be determined on the facts ofthat particular
case.
Mr. Harold E. Feeney - Page 6 (JC-0181)
SUMMARY
A credit union is not entitled to recover the reasonabIe costs
of retrieving and producing documents in response to a grand jury
subpoena.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4143745/
|
.
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AU-IN
. . . . . ,‘\ .\ /
pi. ~~0~633~. re. ~2109dm tofpauparsana
8U& idiota. 8ud lulFuoE $8 08nuotbe 8dlaltt&,into
. . - -......... _ .-._.. ._.-- _- --.. - ..__ ._ . ___.__.._.-.. -- . . . . -....-- - -- .-......m.“w”. . . . . . ..“.“~.“.... “.V.“.T . ..*-..*.
HonorabloA B.Hlolcenon,Paga 2
We quot. from 32 Texas Jwfqmdeaaa, page. 6~ ud
612, u ~fonovrt
9aageKlwalua8s*par8onmybattclQto
b. a ~pmtpor'rho is ~.ry pcor, but tha tmrm 1.
ltttuall~
und.r8too6la our eata to Rman a pmr8ca
80 itagmat u to ba dependeat 0a the pub=0 rw
support. Th.tialmurtuu4oaauatb.8ppll~
toap.noavhohualvaytlb..nablatotlupport
himolr aad thoda dap.allaat upon him.,..
‘It I.8 mQ8 the dutr cf caawl.uloaan’ o&rta
topr0~dar0~th,~upgort0+f~~~a0~
r.sl&nta OS the v.rlousoount1.e;but thla duty
does not extendtc traaalantprama vho ax-uua-
able to .upport themael~e., T&a term 'sup-',
U~U8.d; a ma mm.
na th a lttp
a p lyr lng
o o d,
olothlngand livingquartaM; it m all that .I
is nwesary~to bodily heal&and ~swmrort,laalud-
Iw propar eara W trutmttt dur~.al&ne~.. *
Thlr, it h.. b..a uld, '1. l .upr.m. obllg.tlon
or hrnarnitJ* itapam 0r atky8tatt0~ mt0.t
~O~S~I~OXKWE~ COGS t8by008tm0t r0r lasdi~rl
4.rYlce.to b. -Md to p.up.r.,....
2r th8= 3.8a pubu0 h06piw in th8 00ttttt7,
It 1. the duty o? #a oomlu~Ioa.rs@ court to pro-
rids for rcndlagtharm tha hdlgeat rlakt but thm
oourt is not r.qtlrmdto rotnlswh parsons to prl-
y.t.ho.plt.l.ortopubllo hoaplW.out.ld.th.
aOuItty....w
%43 p0v.r~ md duti0s or 00tay owria-
lM Oourt., atml th. obllrptloxu 0r tm countlu
to palp.M, arm rix.4 by 8tatutc, md oanuot ba
mahrgmd upoa by ttaamo8s~ impliaatlon. Thata
p0Y.r. rad dutl..,In 80 ru u rppllo.bl.horn,
ar. d.ilaad %t rrd reatrlot.6bJ th. provl.lon.
YonorableA. E. Riakeraon,Qags 3
of htiolsr 2351 and 4338, 8s~. St. 1925. IXI
Artiole 2351 it iu prowled that each aomUsrlon-
em* aourt shall (subdi~l~ion11) 'provide for
the support OS pauper8....neldmntrrof their
county, vho are unable to support themsmlves,~
and (subdlrloion l2) 'for the burial of paupers.~
In Artiole 4438 it 18 providedthat 'If there is
a regularly establishedpubllo hospltal.ln the
aounty, the eomal~sioner8~ oourt shall provide
for mendIng the lndlgmnt alok....to auah hoapl-
-1. In the latter provlalan the duty md
authority of the comolsslon.~' oourt to rend
the indigent ttlak to hoapltala 18 llaltedto
'publlu'ho8pital. vlthln the county, vhioh pro-
vision, by maea- implication,exoludes any
duty or authority to rend suoh persona to prl-
vate hospitals, or to publio ho8pltals without
the oouaty."
The term "indigent"hu been deBned br the oourts
on many 00cas10n.. Ve quote the following definitions;
'A person Is Indigent vho is destitute of
pISpOrty or moana of oomfortable aubslstence;
cne vho Is needy or poor." junemu County VII,
wood couuty, 85 xu 387, 388, 109 HIS. 330.
bword ~lndlgent~,when used in oonneation
with atlmlatllonato county hospitala, lnaludes
inbabitaat of oounty who poseeases required
quallflcatlon8of residence, and hu lnaufft-
~cientmwans to pay far hia plaintenanoein prl-
vate hospital mftor provldlng for those vho
legally claim hir m~pport.~ Ooodall va. Brite,
54 Pao. 2nd 510, 515, 11 Cal. App. 2nd 540.
“To be lmltgent does not meau that 8 per-
8on muat be a pauper, and, vlthlttthe w
of the statute relating to the oommitnmat of
the lnune to the Government Hoapital for the
lnune, an lamme peracn vlth lnauffiolmnt
eatate to pay for hia alnteaance in the hoe-
pltal after providing for those Gho oould olain
Honorable A. E. Bloker8on, Page 4
Me support, is indigent." -~Depree~8. Distrlot
oi Ooluabir, 45 *pp. DA. 9, 59.
Thus It may be won thfitsll psupem sre AndAgent
pemotm . Aa to vhather o r not u t zndigetat peraott 1 s l pUpor
vi11 be determined by the degree of his indlgenoy. This ls
8 question oi Ssat for the oowift8lowPS~ 00Wt to brt8rminm
dia0ret1ott.If the ooamtisslonersf
in thmlr lloutld oourt deter-
mines that a ttlndlgent p er no n 1 s l pauper th e oourt vo u ld be
ruthorlzed to rid him u muah under Artiole 2351, Sub. ll,
supm; Ve~~kenunrb~toiirrdws~tu~~quir~ury
putifJUb?W rod, Or ~OOO&UPS VirsFOb~th0 OOd8#iOtWI%' OOUFt
detomlner the que8tlon0rpsuperisnnor~8tstute requiring
the inking up of a roll of djpdimted psupsrs of the aounty.
You are therefom respeotfullyadvised that it Is
the oplnton of this departmnt that if the ~ommf.mdonmm~court
determinea that an Indigent is a pauper it my Sumlah modi-
ail rid and mdlolae8 to him u such, regaxwllma8of vb.ether
or not he hss beea plsaed upon the pauper roll of the county,
iwmuahss there LsnoatstutoryreqPIIQUfrem8ntrorthe~
up or a oouut~ paper roll. It is the further opiaion of thzL8
department that th. oomml.~lo~ra 1 oowt haa ,th4 authority to
rid *indigentmlok9,.rho my or amy not be 'psupers',by
aendIng much tlndlgentsick' to *publlo' hosplt8l8 wlthln
the aounty. The qwatlon OS ~lndlgenoy~ia 8180 e question
of faot to be &ter0laed e the ooad8aionem~ oouct.
WJFtAU
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4129540/
|
OFFICE
OFTHEATTORNEY
GENERAL.STATE
OFTEXAS
JOHN CORNYN
November lo,1999
The Honorable Jose R. Rodriguez Opinion No. JC-0141
El Paso County Attorney
500 East San Antonio, Room 203 Re: Whether, following the termination of a tax
El Paso, Texas 79901 increment financing reinvestment zone, a city
may use unexpended monies in the tax increment
fund to construct a public work or improvement
outside boundaries of the former reinvestment
zone (RQ-0089-JC)
Dear Mr. Rodriguez:
You ask whether, following the termination of a tax increment financing reinvestment zone
created under chapter 3 11 of the Tax Code, a city may use unexpended monies in the tax increment
fund to construct a public work or improvement outside the boundaries of the former reinvestment
zone. We conclude that a city is not authorized under chapter 3 11 to undertake or complete a
reinvestment zone project in a manner that is not consistent with the reinvestment zone board of
directors’ project and financing plans, which must provide for projects within the zone. Therefore,
as a general matter, a city may not expend tax increment fund money after termination of a
reinvestment zone to build an improvement outside the zone. However, the city may do so if, prior
to the zone’s termination, the reinvestment zone board of directors agreed to dedicate revenue from
the tax increment fund to replace areas of public assembly, and if construction of the improvement
is acost ofreplacing an areaofpublic assembly under section 311.010(b). SeeT~x. TAxCODEANN.
§311.010(b),asaddedby, ActofMay24,1989,71stLeg.,R.S.,ch.1137,~22,sec.311.010,1989
Tex. Gen. Laws 4683,469O.
You provide the following background information. The City of El Paso created a tax
increment financing reinvestment zone under chapter 3 11 by ordinance in 1982. See Letter from
Honorable Jose R. Rodriguez, El Paso County Attorney, to Honorable John Comyn, Attorney
General, at 2 (July 20,1999) (on tile with Opinion Committee) [hereinafter “Request Letter”]. The
board of directors of the zone adopted its first project plan in 1987, which was subsequently
amended on several occasions. See id. The reinvestment zone’s board approved a project that
consisted of a series of monuments. See id. You state that in 1992, the city commissioned two
monuments from an artist to be erected within the boundaries of the reinvestment zone. See id.
Work has been completed on the first of the two monuments. See id. at 3. The city has not yet
selected a site for the second monument. See id. The city and the other taxing units terminated the
reinvestment zone in 1998. See id. at 5. The termination agreement charged the city with defeasing
The Honorable Jose R. Rodriguez - Page 2 (JC-0141)
the outstanding bonds and completing all or parts of identified projects, including the monument.
See id. The termination agreement included the following provision:
1. The City of El Paso upon termination of the District will have
sole responsibility for completing all or parts of the projects
above-identified and to do so shall have sole use of funds
remaining on hand for such purpose and shall have any and all
rights with respect to such funds that previously could have been
exercised by the City of El Paso and/or the parties acting
individually or through the Board of Directors of the Tax
Increment Finance District.
Id.
The city would now like to use unexpended monies in the tax increment fund to build the
second monument outside the boundaries of the former reinvestment zone. See id. You ask the
following questions about the city’s authority to undertake the second monument:
1. May a public improvement project approved for location within
a [reinvestment zone] during the existence ofthe [zone] be placed
at a location outside the [zone’s] geographic boundary following
termination of such [zone]?
2. May the costs of a project so situated outside a former
[reinvestment zone’s] boundary be considered “project costs” as
that term is defined in [section 3 11.002( 1) of the Tax Code]?
Id.
Chapter 3 11 establishes a tax increment financing scheme in which%e existing tax revenues
of each ‘taxing unit’ are frozen; the tax increment financing bonds are sold; the improvements are
constructed; the ‘blighted area’ is revitalized; property values soar and ad valorem tax revenues
increase. The increased tax revenues over and above the tax increment base are then used to retire
the tax increment financing obligations.” El Paso Community ColZege Dist. v. City of El Paso, 698
S.W.2d 248,250 (Tex. App.-Austin 1985), rev’d on other grounds, 729 S.W.2d 296 (Tex. 1986).
Chapter 311 is the codification of former article 1066e of the Revised Civil Statutes,’ which was
‘See Act of May 1, 1987, 70th Leg., RX, ch. 191, $5 1 (adding title 3 to Tax Code), 12 (repealing former
article 1066e), 13 (“no substantive change. is intended by this Act”), 1987 Tex. Gen. Laws 1410,1466.
The Honorable Jose R. Rodriguez - Page 3 (JC-0141)
enacted to implement article VIII, section l-g(b) of the Texas Constitution.* Section l-g(b) was
added to the Texas Constitution in 198 l3 to provide an exception to the article VIII, section 1 “equal
and uniform” taxation requirement, see Tex. Att’y Gen. Op. No. MW-337 (1981) at 5 (concluding
that 1979 tax increment financing statute violated article VIII, section 1 because it “caus[ed] an
unequal distribution of the ad valorem tax burden”), by expressly authorizing the legislature to
permit a city to undertake tax increment financing by general law.
After a municipality has adopted an ordinance creating a reinvestment zone, see TEX. TAX
CODE ANN. $5 3 11.003-.006 (Vernon 1992): and the participating taxing units have appointed the
zone’s board of directors, see id. $3 11.009, the board is charged with adopting a “project plan” and
a “financing plan,” both of which must be approved by the city’s governing board by ordinance, id.
9 3 11 .Ol l(a), (d). Section 311 ,011 states that the project plan must include, among other things, a
map showing proposed improvements to and proposed uses of the real property in the zone. See id.
5 3 11 ,011 (b)( 1). The financing plan must include, among other things, a detailed list describing
estimated project costs of the zone, see id. 5 311.01 l(c)(l), and “a statement listing the kind,
number, and location of all proposed public works or public improvements in the zone,” id.
5 3 11 .Ol l(c)(2). The term “project costs” is defined in chapter 3 11 to mean “expenditures made or
estimated to be made and monetary obligations incurred or estimated to be incurred by the
municipality establishing a reinvestment zone that are listed in the project plan as costs of public
works or public improvements in the zone, plus other costs incidental to those expenditures and
obligations.” Id. 5 3 11.002( 1); see also id. 5 3 11.002(l)(A)-(K) (listing project costs).
Both the city and the zone’s board of directors are authorized to enter into agreements to
implementprojectplans. See id. $5 311.008, .010(b) (V emon 1992 & Supp. 1999). In addition, the
city creating the reinvestment zone may issue tax increment bonds or notes to finance improvements.
See id. 5 311.015(a) (Vernon 1992). The proceeds ofthese bonds are to beused “to pay project costs
for the reinvestment zone on behalf of which the bonds or notes were issued or to satisfy claims of
the holders of the bonds or notes.” Id.; see also id. 5 3 11.015(k) (municipality may not issue bonds
in an amount that exceeds the total cost of implementing the project plan for the reinvestment zone).
*See Act ofAug. 10, 1981,67th Leg., 1st C.S., ch. 4,§ 4,198l Tex. Gen. Laws45,52 (enacting former article
1066e to take effect upon adoption of article VIII, section l-g of the Texas Constitution).
‘See Tex. S.J. Res. 8,67thLeg., 1stC.S.. 1981 Tex. Gen.Laws295 (p IOp o&g adoption of article VIII, section
l-g of the Texas Constitution).
“Provisions of chapter 311 of the Tax Code were amended by several bills enacted by the 76th Texas
Legislature. See Act ofMay 29,1999,76th Leg., R.S., ch. 983, $5 l-8,14,1999 Tex. Sess. Law Serv. 3763 (amending
sections311.004,.009,.010,.011,.012,.0125,.013,and.018oftheTaxCode);ActofMay29, 1999,76thLeg.,R.S.,
ch. 1521.5 1,1999Tex. Sess. Law Serv. 5249 ( amendiig section 3 11.008 of the Tax Code). Because the reinvestment
zone at issue was terminated in 1998, we refer to provisions of chapter 3 11 as they existed prior to their amendment in
1999, unless otherwise noted.
The Honorable Jose R. Rodriguez - Page 4 (X-0141)
Subsection (e) of section 3 11 ,011 provides that a project plan may be amended according to
the following procedures:
The board of directors of the zone at any time may adopt an
amendment to the project plan consistent with the requirements and
limitations of this chapter. The amendment takes effect on approval
by the governing body of the municipality. That approval must be by
ordinance. If an amendment reduces or increases the geographic area
of the zone, increases the amount of bonded indebtedness to be
incurred, increases or decreases the percentage of a tax increment to
be contributed by a taxing unit, increases the total estimated project
costs, or designates additional property in the zone to be acquired by
the municipality, the approval must be by ordinance adopted after a
public hearing that satisfies the procedural requirements of Sections
311.003(c) and (d).
Id. 5 3 11 .Ol l(e). Section 3 11 ,011 does not provide for the amendment of the financing plan.
As is apparent from section 311.011, chapter 311 generally contemplates that the
reinvestment zone tax increment fund will finance “projects” - public works and improvements
specified in the project and financing plans within the boundaries of the zone. However, section
3 11 ,010 authorizes limited expenditure of tax increment fund monies to finance activities outside
the zone. Prior to June 18, 1999, when House Bill 2684 became effective, section 311.010
authorized the board of directors of a reinvestment zone to enter into agreements to implement
the project plan. It provided that “[a]n agreement may dedicate revenue from the tax increment
fund to pay the costs of replacement housing or areas of public assembly in or out of the zone.” Id.
~311.010(b),asaddedby,ActofMay24,1989,71stLeg.,R.S.,ch.1137,~22,sec.311.010,1989
Tex. Gen. Laws 4683, 4690. As of June 18, 1999, section 311.010(b) authorizes the board of
directors or the city to enter into agreements to implement the project plan: “An agreement may
during the term of the agreement dedicate, pledge, or otherwise provide for the use of revenue in the
tax increment fund to pay any project costs that benefit the reinvestment zone. . An agreement
may dedicate revenue from the tax increment fund to pay the costs of providing affordable housing
or areas of public assembly in or out of the zone.” TEX. TAX CODE 5 3 11.010(b), as amended by,
H.B. 2684, Act of May 29, 1999,76th Leg., R.S., ch. 983, § 3, sec. 311.010, 1999 Tex. Sess. Law
Serv. 3763,3764. The 1999 amendments, which were not effective during the lifetime of the City
of El Paso reinvestment zone, do not apply.
Your questions involve use of a tax increment fund to complete projects after termination of
the reinvestment zone. Taxing units participating in a reinvestment zone deposit increased tax
revenues over and above the tax increment base into the tax increment fund. See TEX. TAX CODE
ANN. 9 311.013 (Vernon 1992). Expenditures from a tax increment fund are governed by section
The Honorable Jose R. Rodriguez - Page 5 (X-0141)
311.014(b), which provides that money may be disbursed from the fund only to satisfy claims of
holders of tax increment financing bonds issued for the zone, to pay project costs for the zone, “or
to make payments pursuant to an agreement made under Section 3 11 .Ol O(b) dedicating revenue from
the tax increment fund.” Id. 3 3 11.014(b). Subsection (d) of section 3 11.014 provides that “[alfter
all project costs and all tax increment bonds or notes issued for a reinvestment zone have been paid,
and subject to any agreement with the bondholders, any money remaining in the tax increment fund
shall be paid to the municipality and other taxing units levying taxes on the property in the zone”
on a pro rata basis. Id. 5 311.014(d). Neither subsection (b) nor (d) expressly provides for
expenditure of monies to complete projects after termination of a reinvestment zone.
Nor does the provision governing the termination of a reinvestment zone, section 3 11.017,
expressly provide for expenditures from the tax increment fund to complete projects. It provides that
a reinvestment zone terminates on the earlier of(i) the termination date designated in the ordinance
creating the zone; (ii) an earlier termination date designated by an ordinance adopted subsequent to
the ordinance creating the zone; or (iii) the date on which all project costs, tax increment bonds, and
interest on those bonds have been paid in full. See id. 5 311.017(a). In addition, it provides that a
city may terminate a reinvestment zone prior to payment of the tax increment bonds in full if it takes
certain actions. See id. 5 311.017@) (“The tax increment pledged to the payment of bonds and
interest on the bonds may be discharged and the reinvestment zone may be terminated if the
municipality . . deposits [in escrow] an amount that will be sufficient to pay the principal of,
premium, if any, and interest on all bonds issued on behalf of the reinvestment zone.“). It appears
that the reinvestment zone’s board of directors ceases to exist as of the zone’s termination. See id.
4 311.010(c) (“after termination of the zone [an agreement entered into by board regarding
restricting use of property in zone] is treated as if it had been adopted by the governing body of the
municipality”).
We turn to your specific questions. First, you ask whether “a public improvement project
approved for location within a [reinvestment zone may] during the existence of the [zone] be placed
at a location outside the [zone’s] geographic boundary following termination of such [zone]” and,
second, whether “the costs of a project so situated outside a former [reinvestment zone’s] boundary
[may] be considered ‘project costs’ as that term is defined in [section 3 11.002(l) ofthe Tax Code].”
Request Letter at 5.
Although chapter 3 11 is silent with respect to expenditure oftax increment timd monies after
a zone’s termination, we believe a city has authority to expend such monies for limited purposes.
Under section 311.014(b), money may be disbursed from the tax increment fund to satisfy
obligations authorized by chapter 3 11 -to pay the bondholders, project costs, and agreements under
section 311.010(b) dedicating revenue from the tax increment fund. See TEX. TAX CODE ANN.
5 3 11.014(b). We construe section 3 11.014(b) to authorize a city to use unexpended tax increment
fund monies to pay for reinvestment-zone obligations undertaken during the lifetime of the
reinvestment zone after its termination. We do not construe it, however, to authorize a city to
The Honorable Jose R. Rodriguez - Page 6 (JC-0141)
undertake new projects or agreements after termination of the zone because such actions are
expressly precluded by chapter 3 11
Under chapter 311, it is the reinvestment zone board of directors rather than the city that is
charged with establishing the scope of the work to be done in the zone. See id. 4 3 11 ,011 (board
of directors adopts project and financing plans); see also id. 5 311.010(b), as added by, Act of
May 24, 1989, 71st Leg., R.S., ch. 1137, 5 22, sec. 311.010, 1989 Tex. Gen. Laws 4683, 4690
(reinvestment zone board of directors enters into section 3 11.010(b) agreement). Section 3 11 .Ol 1
charges the board of directors of a reinvestment zone to prepare a project plan and a finance plan
listing, among other things, the kind, number, and location of all proposed public works or
improvements “in the zone.” TEX. TAX CODE ANN. 5 3 11 .Ol l(a), (c)(2) Vernon 1992). The plans
must be approved by the city. See id. § 3 11 .Ol l(d). The board of directors may amend the project
plan with the approval of the city. See id. $3 11 .Ol l(e). Section 311 .Oll clearly contemplates that
public works and improvements will be made in the zone. Additionally, the location ofpublic works
is clearly the province of the reinvestment zone’s board of directors and is established and governed
by the project and financing plans. The city has no authority to amend project or financing plans by
changing the location of projects on its own initiative either before or after the termination of a
reinvestment zone. Nor does chapter 3 11 authorize the taxing units participating in the zone to
confer on the city by contract the power to amend project or financing plans or to otherwise
undertake new projects or agreements on behalf of the zone after the zone’s termination.
Furthermore, use of unexpended monies in the tax increment fund for new projects or
agreements after the zone’s termination would be contrary to the express language of subsection(d)
of section 311.014 requiring that, after payment of authorized project costs and bonds and subject
to any agreement with the bondholders, any money remaining in the tax increment fund will be
returned to the taxing units participating in the zone on a pro rata basis. See id. 5 311.014(d).
Chapter 3 11 does not authorize the taxing units to agree to renounce the retimds to which they are
entitled under section 3 11.014(d).
Accordingly, in answer to your first question, after the termination of a reinvestment zone,
a city is not authorized to undertake or complete a public work or improvement in a manner
inconsistent with the project and financing plans created by the reinvestment zone board and
approved by the city prior to the termination of the zone. Because project and financing plans must
provide for projects located inside the zone, unexpended monies in the tax increment fund may not
be used to build projects located outside the zone after the zone’s termination. In answer to your
second question, project costs are costs of the public works and improvements in the zone listed in
the project plan, i.e., projects. See id. 5 311.002(l) (“project costs” are expenditures made or
obligations “incurred by the municipality establishing a reinvestment zone that are listed in the
project plan aa costs of public works or public improvements in the zone”). Costs of a project not
provided in or not consistent with the project plan, such as an improvement made outside the zone,
are not “project costs” within the meaning of section 3 11.002( 1).
The Honorable Jose R. Rodriguez - Page 7 (JC-0141)
We note that as of 1998 when the reinvestment zone was terminated, section 3 11.010(b)
authorized the board of directors of a reinvestment zone to agree to “dedicate revenue from the tax
increment fund to pay the costs of replacing housing or areas of public assembly in or out of the
zone.” Id. 3 3ll.OlO(b),asaddedby,ActofMay24, 1989,7lst Leg.,R.S.,ch. 1137, 422,sec.
3 11 ,010, 1989 Tex. Gen. Laws 4683,469O. This provision authorized the board of directors to pay
the cost of replacing housing or areas of public assembly displaced by improvements in the zone,
even if the replacement housing or areas of public assembly are constructed outside the zone. See
id. If the board of directors did in fact enter into such an agreement, and if construction of the
monument is a cost ofreplacing an area ofpublic assembly, then we believe that the city may expend
monies remaining in the tax increment fund for this purpose. The determination whether the board
of directors actually entered into a section 311.010(b) agreement and whether construction of the
monument is a cost ofreplacing an area of public assembly involves questions of fact and is beyond
the purview of an attorney general opinion.s
In sum, after the termination of a reinvestment zone, a city is not authorized, as a general
matter, to use unexpended money in the tax increment fund to build an improvement outside the
reinvestment zone. The city may do so only if, prior to the zone’s termination, the reinvestment zone
board of directors agreed to dedicate revenue from the tax increment fund to replace areas of public
assembly, and if construction of the improvement is a cost of replacing an area of public assembly
under section 311.010(b) of the Tax Code, as added by, Act of May 24, 1989, 71st Leg., R.S., ch.
1137, 5 22, sec. 311.010, 1989 Tex. Gen. Laws 4683, 4690. Any money remaining in the tax
increment fund after the termination of the zone not needed to defease the bonds and pay other
projects or agreements undertaken during the existence of the zone must be returned to the taxing
units on a pro rata basis. See TEX. TAX CODE ANN. 5 311.014(d) (Vernon 1992).
‘See, e.g., Tex. Att’y Gen. Op. Nos. K-0020 (1999) at 2 (investigation and resolution of fact questions cannot
be done in opinion process); DM-383 (1996) at 2 (questions of fact are inappropriate for opinion process); DM-98
(1992) at 3 (questions of fact cammt be resolved in opinion process); H-56 (1973) at 3 (improper for Attorney General
to pass judgment on matter that would be question for jury determination); M-l 87 (1968) at 3 (Attorney General cannot
make factual fmdings).
The Honorable Josh R. Rodriguez - Page 8 (JC-0141)
SUMMARY
Under chapter 3 11 of the Tax Code, a city is not authorized to
undertake or complete a reinvestment zone project in a manner that
is not consistent with the reinvestment zone board of directors’
project and financing plans, which must provide for projects within
the zone. Therefore, as a general matter, a city may not use
unexpended tax increment fund money after termination of a
reinvestment zone to build an improvement outside the zone. The
city may do so only if, prior to the zone’s termination, the
reinvestment zone board of directors agreed to dedicate revenue from
the tax increment fund to replace areas of public assembly, and if
construction of the improvement is a cost of replacing an area of
public assembly under section 3 11 .O1O(b) of the Tax Code, as added
by, Act of May 24, 1989, 71st Leg., R.S., ch. 1137, 5 22, sec.
311.010,1989 Tex. Gen. Laws 4683,469O.
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KBNT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4150296/
|
Order Michigan Supreme Court
Lansing, Michigan
March 3, 2017 Stephen J. Markman,
Chief Justice
Robert P. Young, Jr.
Brian K. Zahra
154898(57) Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen,
Plaintiff-Appellee, Justices
SC: 154898
v COA: 333917
Leelanau CC: 15-001879-FC;
15-001880-FC
WILLIAM MICHAEL KASBEN,
Defendant-Appellant.
_________________________________________/
On order of the Chief Justice, the motion of defendant-appellant to extend the time
for filing his reply is GRANTED. The reply submitted on January 30, 2017, is accepted
for filing.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 3, 2017
Clerk
|
01-03-2023
|
03-06-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/4150298/
|
Order Michigan Supreme Court
Lansing, Michigan
March 3, 2017 Stephen J. Markman,
Chief Justice
Robert P. Young, Jr.
Brian K. Zahra
155092(58) Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
JENNIFER JO MUELLER, Joan L. Larsen,
Petitioner-Appellee, Justices
SC: 155092
v COA: 327945
Ingham CC: 12-000308-PH
SCOTT BOUIS,
Respondent-Appellant.
_________________________________________/
On order of the Chief Justice, the motion of respondent-appellant to “use
psydonames [sic: pseudo names] on this case file, seal and to compel correction of
previous disclosures violating MCR 3.705” is DENIED.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 3, 2017
Clerk
|
01-03-2023
|
03-06-2017
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.