ATTORNEY GENERAL

Requests for Opinions

RQ-0222-KP

Requestor:

The Honorable Charles Perry

Chair, Committee on Agriculture, Water & Rural Affairs

Texas State Senate

Post Office Box 12068

Austin, Texas 78711-2068

Re: Whether recreational vehicle park guests are licensees or tenants (RQ-0222-KP)

Briefs requested by May 21, 2018

RQ-0223-KP

Requestor:

The Honorable Greg Abbott

Governor of Texas

Post Office Box 12428

Austin, Texas 78711-2428

Re: Whether the emergency powers under section 418.016 of the Government Code authorize the Governor to suspend relevant state election laws and order an emergency special election (RQ-0223-KP)

For further information, please access the website at www.texasattorneygeneral.gov or call the Opinion Committee at (512) 463-2110.

TRD-201801782

Amanda Crawford

General Counsel

Office of the Attorney General

Filed: April 23, 2018


Requests for Opinions

RQ-0224-KP

Requestor:

The Honorable Roberto Serna

Office of the District Attorney

293rd Judicial District

458 Madison Street

Eagle Pass, Texas 78852

Re: Whether an employee of Eagle Pass Water Works System is a municipal employee for purposes of section 392.031 of the Local Government Code, which prohibits a municipal officer or employee from being appointed a commissioner to a municipal housing authority (RQ-0224-KP)

Briefs requested by May 25, 2018

RQ-0225-KP

Requestor:

Mr. Boyd Carter

Starr County Auditor

100 North FM 3167 Room 217

Rio Grande City, Texas 78582

Re: Whether funds from a county’s forfeiture fund may be expended to pay for food served at a county attorney’s holiday party (RQ-0225-KP)

Briefs requested by May 25, 2018

For further information, please access the website at www.texasattorneygeneral.gov or call the Opinion Committee at (512) 463-2110.

TRD-201801879

Amanda Crawford

General Counsel

Office of the Attorney General

Filed: April 25, 2018


Opinions

Opinion No. KP-0190

The Honorable Joseph C. Pickett

Chair, Committee on Environmental Regulation

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: To what extent the Texas Commission on Environmental Quality may consider a recommendation from a local government to deny a permit for a facility because the facility is incompatible with the local government’s zoning or land use ordinances (RQ-0185-KP)

S U M M A R Y

Section 382.112 of the Health and Safety Code requires the Texas Commission on Environmental Quality to consider a local government’s recommendation on a standard permitting determination only to the extent that the recommendation concerns the statutory and administrative requirements of the Texas Clean Air Act. A court would likely conclude the Commission is precluded from considering local zoning, land use, and other ordinances in standard permitting decisions made under section 382.05198. The Commission could likewise be precluded from considering local zoning, land use, and other ordinances on standard permitting decisions made under section 382.05195 if a court construed such an action as invalid, arbitrary, or unreasonable.

Opinion No. KP-0191

The Honorable Greg Abbott

Governor of Texas

Post Office Box 12428

Austin, Texas 78711-2428

Re: Whether the emergency powers under section 418.016 of the Government Code authorize the Governor to suspend relevant state election laws and order an emergency special election (RQ-0223-KP)

S U M M A R Y

To the extent that the special election procedures established in the Election Code prevent, hinder, or delay necessary action in coping with the damage caused by Hurricane Harvey, section 418.016(a) of the Government Code authorizes the Governor to suspend those provisions.

If the Governor determines the situation in Congressional District 27 constitutes an emergency warranting a special election before November 6, 2018, a court would likely conclude that section 41.0011 of the Election Code authorizes calling an expedited special election to fill the vacancy in that district.

Opinion No. KP-0192

Mr. Randall Rice

Galveston County Auditor

Post Office Box 1418

Galveston, Texas 77553

Re: Procedures regarding reappraisal of property after a disaster (RQ-0188-KP)

S U M M A R Y

Pursuant to subsection 23.02(c) of the Tax Code, a taxing unit authorizing a disaster reappraisal must pay the appraisal district all the costs of making the reappraisal. Appraisal districts may not capitalize on a disaster by requesting additional funds from taxing units for expenses the appraisal district would incur regardless of the disaster. To the extent that an appraisal district incurs additional costs resulting from a disaster reappraisal, it may require participating taxing units to fund those extraordinary expenses.

Section 25.19 of the Tax Code requires a chief appraiser to deliver a written notice to the owner of each property that was reappraised in the current tax year. The Legislature made no exception to this requirement for disaster reappraisals conducted pursuant to section 23.02 of the Tax Code. Thus, a court would likely conclude that a chief appraiser must provide notice to a property owner of a reappraisal when the owner’s property value decreases as a result of the disaster reappraisal.

Opinion No. KP-0193

The Honorable Sid Miller

Commissioner

Texas Department of Agriculture

Post Office Box 12847

Austin, Texas 78711

Re: Whether the Department of Agriculture’s rules regarding devices weighing food sold for immediate consumption conflict with section 13.1002 of the Agriculture Code (RQ-0189-KP)

S U M M A R Y

A court would likely conclude that the Department of Agriculture’s rules implementing section 13.1002 of the Agriculture Code are invalid to the extent the rules impose the additional burden of requiring a purchaser to consume food on the premises in order for the seller to obtain an exemption from Department regulation over devices used to weigh food sold for immediate consumption.

Opinion No. KP-0194

The Honorable Joseph C. Pickett

Chair, Committee on Environmental Regulation

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Applicability of amendments to the Transportation Code made by Senate Bill 312, 85th Regular Session, to the Loop 1604 toll project in Bexar County (RQ-0190-KP)

S U M M A R Y

Transportation Code, subsection 372.002(d), as amended by Senate Bill 312, provides that an entity constructing a toll project is not required to repay funds provided by the Department of Transportation "if a toll project entity commenced the environmental review process for the project on or before January 1, 2014." A change in a project’s level of environmental review from an environmental impact statement to an environmental assessment is likely not the "commencement" of a new environmental review process for purposes of subsection 372.002(d). However, the question whether the environmental review process for the Loop 1604 toll project in Bexar County commenced prior to January 1, 2014, involves disputed issues of fact and thus is one that this office cannot determine as a matter of law.

Opinion No. KP-0195

The Honorable James White

Chair, House Corrections Committee

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Consequences of failing to comply with the requirements for continuation of existing private transfer fee obligations under section 5.203 of the Property Code (RQ-0205-KP)

S U M M A R Y

If the payee of a private transfer fee obligation fails to comply with the notice requirements under section 5.203 of the Property Code, the private transfer fee obligation is void, and the property is not subject to further obligation under the private transfer fee obligation. The Legislature did not authorize substantial compliance with the notice requirements of section 5.203. A court would therefore likely conclude that a payee must strictly comply with those requirements, and failure to meet even one payee requirement would void the private transfer fee obligation.

Chapter 5, subchapter G of the Property Code does not address the validity or enforceability of a private transfer fee obligation when a change in the use of the underlying land occurs.

Section 5.205 of the Property Code requires that a "seller of real property that may be subject to a private transfer fee obligation shall provide written notice to a potential purchaser stating that the obligation may be governed by this subchapter." The Legislature did not provide specific requirements regarding this notice, and a court is unlikely to read requirements into the statute that the Legislature did not enact. A seller’s failure to provide notice under section 5.205 will not void the private transfer fee obligation.

For further information, please access the website at www.texasattorneygeneral.gov or call the Opinion Committee at (512) 463-2110.

TRD-201801878

Amanda Crawford

General Counsel

Office of the Attorney General

Filed: April 25, 2018