Operation Linebacker Funds
Re: Whether a county participating in Operation Linebacker may use Justice Assistance Grant funds to pay its sheriff or a constable compensation, such as overtime, in addition to the salary appropriated in the existing county budget (RQ-0444-GA).
Submitted by Carlos A. Pereda, Jr.
Maverick County Auditor
Summary, Opinion No. GA-470: In accordance with title 1, section 3.75(a)(3) of the Texas Administrative Code, a county may not use Justice Assistance Grant funds to compensate its sheriff or constable for overtime. A constable may be paid an additional amount, including overtime, for serving as a deputy sheriff if the county budget provides overtime compensation for deputy sheriffs.
Abandoning Drainage Easement or Right of Way
Re: Whether a county that wishes to abandon a drainage easement or right of way should comply with Transportation Code section 251.058(b), Local Government Code section 263.002, or Local Government Code section 272.001 (RQ-0462-GA).
Submitted by Tim Curry
Tarrant County Criminal District Attorney
Summary, Opinion No. GA-471: For purposes of Transportation Code section 251.058(b), which automatically vests title to an abandoned public road in the abutting landowner, the phrase “public road” encompasses the roadway as well as (1) right of way that serves attendant public purposes of transportation of persons and property, communication and travel, and (2) a drainage easement created to carry off water, the natural flow of which the roadway changed or diverted. Whether in a particular case a property interest is part of a public road for purposes of section 251.058(b) is a question of fact that must be resolved by the commissioners court in the first instance. Abandoned public road that is subject to Transportation Code section 251.058(b) may not be disposed of in accordance with section 263.002 or 272.001 of the Local Government Code.
Easements or rights of way that are not part of a public road under section 251.058(b) are likewise not highway rights of way that are subject to disposition under Local Government Code section 263.002. Such property interests must be disposed of under section 272.001 unless the county determines that a statute not considered here applies. To the extent Letter Opinion 94-053 suggests that Local Government Code section 263.002 applies only to roads labeled as highways, not to county public roads generally, it is incorrect. See Tex. Att’y Gen. LO-94-053, at 4 n.4.
Hospital District Authority and Duties
Re: Sabine County Hospital District’s authority and duties (RQ-0466-GA).
Submitted by Robert G. Neal, Jr.
Sabine County Attorney
Summary, Opinion No. GA-472: The Sabine County Hospital District, which intends to maintain an ambulance only for transporting patients between hospitals, is not required by law to dispatch its ambulances for emergency calls, even if there are no other ambulances operating within the District. The District may provide financial incentives in a contract to induce a doctor to move to the District so long as the District finds that such an incentive is necessary for the direct accomplishment of a legitimate public purpose, that the District receives adequate consideration for its expenditure, and that appropriate controls are in place to assure that the public purpose will be carried out. Furthermore, the Professional Services Procurement Act, Government Code chapter 2254, which governs a hospital district’s contract for professional services, requires that payment for services rendered under the contract be fair and reasonable, that they be consistent with and not higher than the recommended practices and fees published by the applicable professional associations, and that they not exceed any maximum provided by law. The act does not permit the contract to be competitively bid. The District may meet under Government Code section 551.071 in a closed meeting to discuss legal issues raised in connection with the contract for the doctor’s professional services. The District may not meet under Government Code section 551.087 in a closed meeting to deliberate economic development negotiations.
Appointment of Road Administrator
Re: Authority of a county commissioners court to appoint a county road administrator who is not a road engineer (RQ-0472-GA).
Submitted by Mike Fetter
Upshur County Criminal District Attorney
Summary, Opinion No. GA-473: Under section 252.304 of the Transportation Code, a commissioners court may employ a road administrator when it is in fact unable to hire a licensed engineer as county road engineer. A commissioners court has discretion, subject to judicial review, to determine in the first instance whether it is unable to employ a licensed engineer. The determination of whether a county commissioners court violates section 252.304 involves a consideration of facts and, therefore, is a question we must leave to the courts.
Hot Check Fund
Re: Gillespie county attorney’s authority to use money in the hot check fund to sponsor a children’s book (RQ-0473-GA).
Submitted by Tamara Y.S. Keener
Gillespie County Attorney
Summary, Opinion No. GA-475: The Gillespie County Attorney may use money in the attorney’s hot check fund to sponsor a children’s book if the book is related to the attorney’s official business and no other law prohibits such an expenditure.
Substitute Care, Case Management Services
Re: Whether the Texas Department of Family and Protective Services may contract with a governmental entity to provide substitute care and case management services (RQ-0475-GA).
Submitted by Michael A. Stafford
Harris County Attorney
Summary, Opinion No. GA-476: Under the terms of Senate Bill 6, Seventy-ninth Legislature, the Department of Family and Protective Services may not contract with a governmental entity for the provision of substitute care and case management services except for emergency services or as a service provider of last resort. In a region that has an independent administrator to procure substitute care and case management service providers, the independent administrator may not contract with a governmental entity to provide such services. Notwithstanding the privatization of substitute care and case management services, a governmental entity may continue to provide community services to the extent authorized by other law.
Open Meetings Act
Re: Whether the Open Meetings Act requires specific notice of a non-binding vote on a “personal endorsement” motion (RQ-0477-GA).
Submitted by Allan Ritter
Chair, Committee on Economic Development
Texas House of Representatives
Summary, Opinion No. GA-477: To comply with the Open Meetings Act (the “Act”), a city must give advance notice that it will consider the topic of a “personal endorsement” motion. The city may specifically state in the notice that a personal endorsement motion will be considered for adoption but is not required by the Act to do so unless the city’s meeting notices routinely indicate when a motion or resolution will be adopted. If adoption of the personal endorsement motion was invalid because it violated the Act’s notice provisions, the invalid action may be cured by readopting the motion at a subsequent meeting after giving adequate notice. The motion would be effective only from the date of its readoption.