ATTORNEY GENERAL

Opinions

Opinion No. KP-0313

Mr. Steven C. McCraw

Director

Texas Department of Public Safety

Post Office Box 4087

Austin, Texas 78773-0001

Re: Whether over-the-road buses traveling on interstate highways in Texas are subject to the tandem axle weight limitations established in Transportation Code subsection 621.101(a)(2) (RQ-0320-KP)

S U M M A R Y

Transportation Code subsection 621.101(a)(2) prohibits operation of a vehicle over or on a public highway if the vehicle has a tandem axle weight heavier than 34,000 pounds, consistent with the provision in 23 U.S.C. § 127(a)(2) also limiting the tandem axle weight of vehicles allowed to use interstate highways to 34,000 pounds. The exemption from the federal law for over-the-road buses does not preempt a state law imposing a 34,000-pound restriction otherwise applicable to those buses. Thus, over-the-road buses traveling on interstate highways in Texas are subject to the tandem axle weight limitations in Texas Transportation Code subsection 621.101(a)(2).

Opinion No. KP-0314

Mr. Mike Novak

Executive Director

Texas Facilities Commission

Post Office Box 13047

Austin, Texas 78711-3047

Re: Authority of the Texas Facilities Commission and the State Preservation Board in relation to a Bill of Rights monument authorized by House Concurrent Resolution No. 111, adopted by the Eightieth Legislature (RQ-0322-KP)

S U M M A R Y

House Concurrent Resolution 111, adopted in 2007 by the Eightieth Legislature, authorized the State Preservation Board and the Facilities Commission to approve and permit the construction of a monument on the Capitol grounds commemorating the Bill of Rights of the United States Constitution. The Legislature gave the Board and the Commission discretion about whether to approve and permit the construction of such a monument and where to locate the monument.

The Legislature requires the State Preservation Board to review and approve the site selection and construction of monuments within the Capitol Complex.

Opinion No. KP-0315

The Honorable Roberto Serna

District Attorney

293rd Judicial District

458 Madison Street

Eagle Pass, Texas 78852

Re: Application of article III, section 53 of the Texas Constitution to invoices submitted to a county under an amended service contract for services performed prior to the amendment (RQ-0323-KP)

S U M M A R Y

Article III, section 53 of the Texas Constitution prohibits a county or municipal authority from granting extra compensation "after service has been rendered, or a contract has been entered into, and performed in whole or in part."

A county's payment of an amount owed under a contract for services required by that contract is not prohibited extra compensation. Though some services may have already been provided under an original contract, if an amended contract is supported by new consideration, payment of an invoice submitted thereunder would comply with article III, section 53 provided the new consideration is sufficient. A change in the scope of work to require additional services in exchange for an additional payment likely constitutes adequate consideration in support of the amendment, but that is a question for the commissioners court in the first instance.

Opinion No. KP-0316

Mr. Darrell T. Brownlow

Chairman

San Antonio River Authority

100 East Guenther Street

San Antonio, Texas 78204-1401

Re: Whether the San Antonio River Authority may release an inundation easement that has been declared surplus without receiving fair market value (RQ-0325-KP)

S U M M A R Y

Water Code section 49.226 provides for the sale or exchange of surplus real or personal property of certain water districts. The San Antonio River Authority may dispose of, sell, or release a surplus inundation easement without receiving fair market value pursuant to section 49.226.

A transfer of a real property interest in exchange for adequate consideration is not an unconstitutional gratuity under article III, section 52(a) of the Texas Constitution, which prohibits the gratuitous donation of public funds or a thing of value.

It is for the governing body of the San Antonio River Authority in the first instance to determine whether any particular transaction is supported by adequate consideration; and, if the transaction includes any element of donation, whether the transaction satisfies article III, section 52(a).

Opinion No. KP-0317

The Honorable Senfronia Thompson

Chair, House Committee on Public Health

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Authority of Fort Bend Independent School District to maintain a historic cemetery discovered on a school construction site (RQ-0326-KP)

S U M M A R Y

The Legislature prohibits an owner of property on which an abandoned cemetery has been discovered from constructing improvements on the property in a manner that would disturb the cemetery. If a property owner complies with this requirement, the law generally does not prohibit the property owner from maintaining the cemetery on the land.

Pursuant to Health & Safety Code section 713.009, a municipality may, by resolution, take possession and control of a cemetery within its boundaries or extraterritorial jurisdiction if the cemetery threatens or endangers public health, safety, comfort, or welfare. Chapter 715 of the Health and Safety Code authorizes a district court to, upon making certain findings, issue an order authorizing a nonprofit corporation to restore, operate, and maintain a historic cemetery. In the absence of a municipal resolution taking possession of the cemetery or a court order authorizing a different entity to maintain the cemetery, the Fort Bend Independent School District may continue to maintain the cemetery discovered on its land in 2018.

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

TRD-202002402

Lesley French

General Counsel

Office of the Attorney General

Filed: June 16, 2020