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Texas Attorney General’s Opinions

November 30, 2012 by admin

Tax Freeze

Re: Implementing a
tax freeze by a county, city or town, or junior college district for persons
with disabilities or persons 65 years of age or older (RQ-0171-GA).

Submitted by Frank Madla

Chair, Intergovernmental
Relations Committee

Texas State Senate

Summary, Opinion No.
GA-222: Article VIII, section 1-b(h) of the Texas Constitution authorizes a
governing body of a home-rule municipality to call an election to adopt a tax
freeze for persons who are disabled or who are 65 years of age or older by
official action on its own motion and without a petition from the city’s
voters. A tax freeze adopted by a home-rule municipality under article VIII,
section 1-b(h) may not be repealed by an election
called pursuant to a petition of the city’s voters. Article VIII, section 1-b(h) does not permit a county, city or town, or junior
college district implementing that provision to use a year prior to
implementation as the base tax year.

Regulating Condominium
Development

Re: Whether a
condominium development is a subdivision subject to county regulation
under Local Government Code chapter 232 (RQ-0177-GA).

Submitted by Michael S.
Wenk

Hays County Criminal
District Attorney

Summary, Opinion No. GA-223: Local Government
Code chapter 232, subchapter A authorizes a county to determine that a
condominium development is a subdivision of land for which the landowner must
prepare and file a plat. Subchapter E of chapter 232 authorizes an urban county
to regulate a condominium development that constitutes a subdivision under
subchapter A.

Early Payment Discount

Re: 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 (RQ-0179-GA).

Submitted by Jeff
Wentworth

Chairman, Senate
Jurisprudence Committee

Texas State Senate

Summary, Opinion No.
GA-225: 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.

Paper Copy of Electronic
Record

Re: Whether a county
clerk must accept for recording a paper copy, containing printed images of
signatures or a printed image of a notary seal, of an electronic record of a
real estate transaction (RQ-0186-GA).

Submitted by Eugene D.
Taylor

Williamson County Attorney

Summary, Opinion No. GA-228: Nothing in the
E-Sign Act, 15 United States Code chapter 96, or the Uniform Electronic
Transactions Act (the “UETA”), chapter 43 of the Texas Business and
Commerce Code, requires a county clerk to accept real estate filings that
contain copies of electronic signatures. Similarly, nothing in the UETA, nor in section 406.013 of the Government Code, requires a
county clerk to accept real estate filings containing a copy of an
electronically transmitted notary public seal. Neither the UETA nor section
406.013 requires a county clerk to accept faxed real estate filings.
Furthermore, current statutory requirements in the Property Code appear to
prohibit a county clerk’s recording of an electronically generated record or a
copy of such a record, including an electronically generated signature or
notary public seal or a faxed document. Finally, a county clerk who refuses to
accept an electronically generated real estate filing is not liable for civil
penalties under section 11.004(b) of the Property Code.

Sheriff and County Contract

Re: Whether a county
sheriff is authorized to enter into a contract to house federal prisoners or to
accept and dispose of federal surplus property (RQ-0181-GA).

Submitted by Matt
Bingham

Smith County Criminal
District Attorney

Submitted by GA-229: In the absence of a statute
authorizing another county official to enter into a contract, the commissioners court has the sole authority to enter into
contracts binding the county. Section 351.043 of the Local Government Code does
not authorize a county sheriff to contract to house federal prisoners in the
county jail. Generally, a contract made by a county is valid and binding only
if made under the authority of a resolution or order duly passed at a meeting
of the commissioners court and entered in the minutes.
Under state law, a county sheriff is not authorized to contract for or to
accept federal surplus property as consideration for housing federal prisoners
in the county jail. In the absence of a controlling federal statute, title to
any personal property paid by the federal government as consideration for
housing federal prisoners in the county jail would vest in the county rather
than the sheriff, the jail, or the sheriff’s department. Section 81.032 of the
Local Government Code generally authorizes the commissioners
court of a county to accept donations on behalf of the county and would
authorize a commissioners court to accept a donation of property to be used by
the sheriff in performing that office’s statutory functions.

Generally, in the absence of a controlling federal
statute, federal surplus property paid to the county as consideration for
housing federal prisoners in the county jail would be included in county
inventory and disposed of like any other county property. Even if title has not
been transferred to the county or the county must obtain federal agency
approval before disposing of the property, federal surplus property received by
a county officer for county use would be included in county inventory. While
section 263.152 of the Local Government Code generally authorizes a commissioners
court to sell, trade in, donate, destroy or otherwise dispose of county salvage
or surplus personal property, the authority to donate, sell, trade, or destroy
particular county property would need to be resolved on a case-by-case basis.

Subdivision Regulation
Agreement

Re: Determining the
applicable deadline for a municipality and a county to complete their certified
subdivision regulation agreement as required in section 242.0015, Local
Government Code (RQ-0182-GA).

Submitted by Bryan
Goertz

Bastrop County Criminal
District Attorney

Summary, Opinion No.
GA-230: Deadlines for completing a certified subdivision regulation
agreement between a county and a municipality under section 242.0015 of the
Local Government Code are based on whether the municipality’s extraterritorial
jurisdiction extends 3.5 miles or more from its corporate boundaries, including
the extraterritorial jurisdiction established at the request of contiguous
property owners.

Family Protection Fee

Re: Whether the family protection fee, which
section 51.961 of the Government Code authorizes a commissioners
court to adopt, violates the open courts provision, article I, section 13 of
the Texas Constitution (RQ-0166-GA).

Submitted by Mike
Stafford

Harris County Attorney

Summary, Opinion No. GA-231: To avoid
contravening the open courts provision, article I, section 13 of the Texas
Constitution, revenues from the family protection fee, which a county may adopt
under section 51.961 of the Government Code, may be used only for court-related
purposes. Many uses that are consistent with those listed in section 51.961,
“family violence prevention, intervention, mental health, counseling,
legal, and marriage preservation services,” may be found to be court
related. The county commissioners court must determine
whether any particular use of family protection fee revenues is court related,
however.

Interment of Paupers

Re: Whether a county
may acquire and operate property for the exclusive interment of deceased
paupers (RQ-0185-GA).

Submitted by Yolanda de
Le?n

Cameron County District
Attorney

Summary, Opinion No.
GA-235: Pursuant to its duty under Health and Safety Code section 694.002
to provide for the disposition of the body of a deceased pauper, a commissioners court has implied authority to purchase and
maintain land for the exclusive interment of deceased paupers. The commissioners court may adopt a rule under this provision
authorizing the county to acquire and operate property for this purpose.

Roads & Bridges

March 1, 2012 by admin

Parker County Celebrates Road Project

Parker County officially opened the first segment of the Ric Williamson Memorial Highway (RWMH), the largest of the 35 projects comprising the Parker County Transportation Bond Program approved by voters in 2008. The county celebrated with a ribbon-cutting ceremony on Jan. 27.

The RWMH will be completed in five sections comprised of three road segments and two intersections. The recently completed section will extend south from FM 51 through the FM 920 intersection. In subsequent project segments, the RWMH will extend to an intersection with U.S. 180 and further south to an interchange with IH-20. The five segments will form the northwest quadrant of a loop around the city of Weatherford.

The $26.44 million project broke ground in April 2011. With phase one of the project now open to the public, construction continues on phases two and three. The entire 5.6-mile project is expected to be finished in early 2014.

The highway was named in honor of Ric Williamson, a Parker County resident who served as the chairman of the Texas Department of Transportation’s Highway Commission. He also represented Parker County in the Texas House of Representatives from 1985 to 1999. Williamson passed away in December 2007.

From the General Counsel

March 1, 2012 by admin

Mentally Ill Jail Inmate Issues

Travis County District Judge Orlinda Naranjo recently ordered the Texas Department of State Health Services to admit mentally incompetent county jail inmates within 21 days of receipt of the commitment order. While the order is not final and may be appealed by the attorney general, it has revealed the increasing problem of underfunded state hospital beds at the Texas Department of State Health Services.

The Texas Legislature has provided funding for only 800 hospital beds for statewide treatment of incompetent jail inmates. These inmates are awaiting trial, but have been found to be unable to participate in their defense because of mental illness. Since 2005, these inmates have been subjected to an average wait of six months in the county jail before transfer to a state hospital. During this delay the county is solely responsible for the costs of their confinement. These inmates often require separation and additional supervision at increased cost to the county.

Of course, confinement in the county jail without treatment is also detrimental to the mental health of the inmate.

“Keeping incompetent pretrial criminal defendants confined in county jail for unreasonable periods of time prior to being admitted to a state mental health facility or residential health facility violates the incompetent detainees’ due process rights as guaranteed by the Texas Constitution” stated Naranjo.

The effect of this unfunded mandate comes as no surprise to sheriffs and commissioners courts who have urged adequate state mental health funding for many years. Since Texas ranks last in the nation in per capita spending on mental health, conditions are unlikely to improve without additional appropriations from the state. Whether this court ruling will stimulate action or more delay remains to be seen.

For more information, please call me at 1-800-733-0699.

From the President

February 1, 2012 by admin

Greetings! I hope we are all settling into the new year well and winding down from all the excitement the holidays bring. If you are like most, and I am, the holidays have been good to us, and we see and feel that a little in our wasteline. Oh well, we now have this new year to work it all off, hopefully get into better shape, and become more healthy doing it.

Well…seems for those who are up for re-election and for elections in general, this redistricting situation has sprung disappointment, frustration and confusion. Not sure I fully understand it all myself. Thank goodness for our general counsel, Jim Allison, along with the Conference of Urban Counties and the Texas Association of Counties who have been keeping up with the issue and have been sending out updates informing us of what has transpired. A Joint Advisory has also been filed with the federal court. A few weeks back, a conference call was conducted regarding the issues and concerns the redistricting process and plans have caused, and some 20 counties participated to share their concerns. Below is a list of some timing concerns expressed by our elections administrators, which is included in the Joint Advisory:

· After issuance of redistricting plans, one to three weeks are required to prepare election precinct boundaries for adoption by commissioners courts. This time includes ensuring that there is an available polling place for each precinct.

· After approval of election precinct boundaries by commissioners courts, three to four weeks are required to update voter registration information to be able to print voter certificates and ballots. While part of this delay is caused by the required DOJ pre-clearance, a minimum of two weeks is required due to the required manual entry of voter data into the voter registration system to account for the new precinct boundaries.

· After updating voter registration information, two to three weeks are required to print voter certificates and ballots. Once the precincts and candidates are set, counties generally need 10 days to two weeks for the ballot generation, proofing, review by the political parties, and equipment testing before ballots can be printed and mailed. Counties that rely on a vendor to print their absentee ballots or program their voting equipment probably need three full weeks.

The maps finally issued by the court will determine the actual amount of time needed by

counties. If the final maps differ substantially from both the maps approved by the Texas Legislature and the maps previously ordered by the federal court, then counties impacted by those differences will require more time than set forth above. For that reason, counties are requesting that any election schedule ordered by the court at this time be contingent on final maps that are substantially similar to the maps approved by the Texas Legislature or the maps previously entered by the court.

Our county organizations are simply advocating for sufficient time in the adopted schedule for counties to physically be able to comply by conducting the elections. Counties should not have to spend significant staff time and expense making changes to voter registration records and mailing voter registration certificates for election precincts that are ultimately rejected by the Department of Justice.

There are other facts, requests, and concerns that I have not included in this column, but I hope you have received and read the e-mails that have been sent to commissioners court members from Jim Allison and the other organizations listed above. If you would like additional information, please contact us or speak to your elections administrator and/or county clerk. And now, a little humor I came across regarding this issue: “Texas always strives to be the biggest and best; AND now, we’ve got the biggest ‘election mess’ since Chad got hung in Florida. Dear Lord…just wake me up when it’s all over.”

Have a Blessed Day!

New State Officer Welcomes Leadership Role

December 1, 2011 by admin

By Lubbock County Commissioner Patti Jones, Newly Elected Second Vice President, County Judges and Commissioners Association of Texas

Let me begin by saying I am very humbled to have been chosen to serve as second vice president of the County Judges and Commissioners Association of Texas. I know quite a few of you from around the State, and I look forward to meeting many more of you in the coming year. I would be remiss if I didn’t commend our 2010-2011 officers, CJCAT staff, TAC, County Progress, and Ector County for a great 2011 state conference and wonderful hospitality. The attendance was good along with the educational tracks. Thanks to everyone who had a part in making this conference possible.
            I assure each and every one of you that I take my responsibility as an officer of the CJCAT very seriously. I pledge to give you my all and to do my very best to uphold the confidence you have placed in me. I am currently in my 11th year as Lubbock County commissioner. Prior to taking office my husband and I were in the commercial produce business where we raised and processed onions and watermelons and then shipped them all across the United States, Canada and Mexico.
            I am the immediate past president of the West Texas County Judges and Commissioners Association, immediate past president of the Texas Association of Regional Councils, past president of our local council of governments, past president of the Lubbock Metropolitan Planning Organization, and chair of the local Host Committee for the 80th Texas State FFA convention; I also serve on numerous other local boards.
            To the many areas devastated by the drought and wildfires this year, you are in our thoughts and prayers. Texas has experienced devastation that most of our elders can’t remember experiencing but only hearing about. Acres upon acres burned, and homes were lost along with a few lives. These acts of nature though are when most are at their best. We have seen volunteers, road maintenance workers, and elected and appointed officials perform monumental tasks without reservation. The volunteer fire departments across the state are a prime example of “doing what it takes.” Many of these volunteer firemen worked countless hours sacrificing time with their families and employment. All of these individuals are what make Texas a great place to live.
            We have just completed the 82nd Session of the Texas Legislature without too many scathing results thanks to the efforts of the CJCAT. One thing I observed throughout the session was the overwhelming response of county officials called upon to visit or correspond with their elected officials. Time after time I would run into county officials throughout the halls of the Texas Capitol making their rounds. Everyone was well informed on their particular issues and provided many specific examples as to the effects of a particular bill on their county. Many were able to provide fiscal impact information which proved to be invaluable. The state representatives and senators I know or heard speak were complimentary of their “elected folks from back home” regarding the information provided to them or their legislative staff. Jim Allison and his staff did a tremendous job in representing us in Austin, but nothing will ever replace county officials visiting with their legislators to make sure they know where they stand on pending legislation.
            Henry Ford once said, “Coming together is a beginning; keeping together is progress; working together is success.” Our Association lives by this saying. As long as we continue to come and keep together with our thoughts and ideas, we will have continued success in our Association. With education and resources we, as county officials, must always keep our constituents informed as to our responsibilities to them.
            Thank you again for the confidence placed in me as your second vice president. As diverse as the great State of Texas is, I will do my best for each and every commissioners court in all my endeavors.

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