County Gaming Districts
Re: Whether the Legislature, in the absence of a constitutional amendment, may authorize the creation of county gaming districts on a local option basis to administer a state video lottery (RQ-0332-GA).
Submitted by Jane Nelson, Chair
Committee on Health and Human Services
Texas State Senate
Summary, Opinion No. GA-358: The Legislature may not, absent a constitutional amendment, authorize the creation of county gaming districts on a local option basis that would then permit the Texas Lottery Commission to administer a video lottery in those counties.
Road Repair
Re: Whether a county may repair a subdivision or neighborhood road, both of which are open to the public, or a private road, and if so whether the roads thereby will become county roads (RQ-0328-GA).
Submitted by Mark E. Price
San Jacinto County Criminal District Attorney
Summary, Opinion No. GA-359: San Jacinto County, with a population of approximately 22,000, may repair a subdivision road and may accept donated road material for the repairs. The county must comply with Transportation Code chapter 253’s procedural requirements, however, and the repaired road will become part of the county road system. If a neighborhood road has been accepted into the county road system under chapter 232 of the Local Government Code, the county must maintain the road. If the county repaired the neighborhood road, which is also a subdivision road, consistently with chapter 253, Transportation Code, the road has become part of the county road system by virtue of the repairs. The county may not repair a private road.
Auditor’s Dual Service
Re: Whether the San Jacinto County auditor may serve as the accountant for the San Jacinto County Emergency Services District (RQ-0329-GA).
Submitted by Mark E. Price
San Jacinto County Criminal District Attorney
Summary, Opinion No. GA-360: Neither article XVI, section 40 of the Texas Constitution nor the common-law doctrine of incompatibility bars a county auditor from serving as the accountant for an emergency services district, assuming the accountant is an at-will district employee and not a district officer. An emergency services district, a political subdivision of the state created under and governed by chapter 775 of the Health and Safety Code, is not a business entity under chapter 171 of the Local Government Code, and chapter 171 does not affect a county auditor’s employment with such a district. The oath of office set forth in section 84.007 of the Local Government Code requires a county auditor to state in writing that he or she “will not be personally interested in a contract with the county.” Tex. Loc. Gov’t Code Ann. ? 84.007(b)(2) (Vernon 1999). This provision does not apply to a contract between the county and another local government such as an emergency services district.
A certified public accountant (“CPA”) is subject to rules of the Texas State Board of Public Accountancy concerning ethical conduct for accountants. The application of these rules to a CPA who serves as county auditor and as an accountant for an ESD is a matter for the Texas State Board of Public Accountancy in the first instance. The district judges who appointed the county auditor have statutory authority to remove the county auditor for official misconduct or incompetence. The county auditor’s work may be audited by an outside accountant in certain circumstances.
County Election Commission
Re: Whether a county election commission, created under chapter 31 of the Election Code, is a governmental body subject to the Open Meetings Act, Government Code chapter 551 (RQ-0331-GA).
Submitted by Tim R. Taylor
Titus County Attorney
Summary, Opinion No. GA-361: Because a county election commission is not a county commissioners court, a committee thereof, or a deliberative body with rulemaking or quasi-judicial power, it is not a governmental body for purposes of Government Code section 551.001(3) as a matter of law. Accordingly, a county election commission need not comply with the Open Meetings Act’s requirements.
Dual Office Holder
Re: Whether a provision of a home-rule city charter regulating dual office holding is inconsistent with article XVI, section 40 of the Texas Constitution to the extent the charter provision prohibits a municipal judge from serving as justice of the peace (RQ-0335-GA).
Submitted by Carlos I. Uresti
Chair, Committee on Government Reform
Texas House of Representatives
Summary, Opinion No. GA-362: A provision of a home-rule city charter regulating dual office holding that prohibits a municipal judge from serving as justice of the peace is not inconsistent with article XVI, section 40 of the Texas Constitution.
Constable Fees
Re: Whether constables may receive, in addition to their salaries, fees for delivering notices required by Property Code section 24.005 (RQ-0337-GA).
Submitted by Will Hartnett
Chair, Committee on the Judiciary
Texas House of Representatives
Summary, Opinion No. GA-364: Section 154.005(d) of the Local Government Code permits a constable to retain in addition to his or her salary a fee for delivering a notice to vacate required by section 24.005 of the Property Code. Article XVI, section 61 of the Texas Constitution precludes a constable from retaining any fee of office in addition to his or her salary. That prohibition does not apply to a fee for delivering a notice to vacate required by section 24.005 of the Property Code, which is not a fee of office.