Attorney General Opinions

December 20, 2013

Legislative News

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TAC has highlighted recent Attorney General Opinions and Requests for Opinions of interest to counties.

GA-1024: Whether an employee with consistent but periodic delivery of employment services qualifies for the nepotism continuous-employment exception in Government Code section 573.062 (RQ-1125-GASummary: An at-will employee who consistently but periodically delivers employment services may qualify for the continuous employment nepotism exception under Government Code section 573.062, provided that his employment was continuous. Whether employment is continuous depends on the underlying circumstances of the employment relationship and is a determination to be made by the employer in the first instance. Once the continuous-employment exception is satisfied, it exempts an individual from the nepotism prohibition of section 573.041 only until the employment relationship is broken.

GA-1026: Whether a state employee may run for and assume an elected county office (RQ-1128-GASummary: Texas statutes do not prohibit a state employee from becoming a candidate for elected county office. The federal Hatch Act, however, prohibits a state employee from becoming a candidate for elective office if the salary of the employee is paid completely by federal funds. Article 16, subsection 40(b) of the Texas Constitution does not prohibit a state employee from assuming elected county office.

GA-1027: Whether landowners may be liable for the actions of law enforcement officers that occur on the landowners’ property or for livestock that escape due to actions over which the landowners have no control (RQ-1127-GASummary: Whether any particular set of circumstances will result in liability is a fact question beyond the purview of an attorney general opinion.

GA-1028: Whether the Metropolitan Transit Authority of Harris County is authorized to use the job order contracting method of procurement for construction projects, including civil works projects (RQ-1129-GASummary: Section 2269.402 of the Government Code authorizes the Metropolitan Transit Authority of Harris County ("METRO") to us job order contracting only for work involving a facility that is a building or work involving structures or land associated with a building.

GA-1030: Whether a justice of the peace may serve as a court-appointed investigator for an indigent defendant in a felony case (RQ-1131-GASummary: Chapter 27 of the Government Code does not directly prohibit a justice of the peace from simultaneously serving as a court-appointed investigator. Whether the Code of Judicial Conduct prohibits such dual service is a question for the State Commission on Judicial Conduct to determine in the first instance. Whether any particular instance of this dual service creates an impermissible conflict of interest or loyalty is not a question we address here.

GA-1032: Whether the Kleberg County commissioners court may create and fund an additional bailiff position for the 105th District Court (RQ-1133-GA) Summary: The Legislature has not authorized the creation of an additional bailiff position for the 1 05th District Court. However, if the Court determines that it needs additional staff to aid the Court in the exercise of its judicial functions, the Court may rely on Government Code section 74.103 and its inherent power to appoint necessary personnel other than a bailiff.

Requests for Attorney General Opinions

RQ-1166-GAThe Honorable John T. Hubert, Kleberg & Kenedy Counties District Attorney, Whether Code of Criminal Procedure article 59.06 authorizes a district attorney to use asset forfeiture funds in specific circumstances.

RQ-1168-GA: The Honorable Sherri K. Tibbe, Hays County Criminal District Attorney, Whether a county may contract with a private entity to purchase groundwater for residents in the county and whether it may use ad valorem tax revenues to do so

RQ-1170-GA: The Honorable Richard N. Countiss, San Jacinto County District Attorney, Salary increases for assistant auditors and administrative assistants after passage of the county budget.

RQ-1171-GA: Mr. David Slayton, Administrative Director, Office of Court Administration, Assessment and distribution of criminal court costs.