Re: Whether the Open Meetings Act, Government Code chapter 551, permits a governmental body to admit selected members of the public into a closed meeting (RQ-0496-GA)

SUMMARY

Notice of a meeting subject to the Open Meetings Act must be sufficiently specific to inform the general public of the subjects to be considered during the meeting, with more specificity for a subject that is of special interest to the public. The Act does not require the notice of a closed meeting to cite the section or subsection numbers of provisions authorizing the closed meeting.

The Open Meetings Act, Government Code chapter 551, does not permit a governmental body to admit members of the public to a closed meeting to give input regarding a public officer or employee. Based on the facts provided, the portions of a "closed" meeting attended by members of the public were "not permitted" within section 551.144(a).

Re: Whether the Open Meetings Act, Government Code chapter 551, permits a governmental body to admit selected members of the public into a closed meeting (RQ-0496-GA)ode section 11.168 and its effect on an independent school district's authority to build or pay for infrastructure for new schools within the district (RQ-0503-GA)

SUMMARY

Education Code section 11.168 does not prohibit an independent school district from paying impact fees imposed by a municipal corporation on the district for the district's new school development.

Education Code section 11.168 does not prohibit an independent school district from leasing land and improving it.
 

Re: Conflict of interest disclosure requirements for local government officers and persons who contract with local governmental entities (RQ-0451-GA)

SUMMARY

Summary: As used in chapter 176 of the Local Government Code, the threshold phrase “contracts or seeks to contract for the sale or purchase of property, goods, or services with a local governmental entity” encompasses one who agrees to, makes, or arranges for, or inquires for, asks for or requests from a local governmental entity a promise creating legal obligations concerning the sale or purchase of property, real or personal, and any goods and services.
A “business relationship” is a connection between two or more parties based on a commercial activity of one of the parties. An “affiliation” is an association between persons or between a person and an organization outside of a “business relationship.” Whether an affiliation exists is a fact question. Pursuant to the term “business relationship” and “affiliation,” a personal or business interest bearing savings account or loan which generated taxable income to either the person subject to chapter 176 or the local government officer would fall within the scope of chapter 176.

Chapter 176 includes professional services contracts.

Documents filed with the local governmental entity should be retained in accordance with the local governmental entity’s records retention schedule. A local governmental entity should create a retention policy for documents maintained on the entity’s website.

Partnerships, corporations and other corporate bodies are “persons” subject to chapter 176. As applied to a corporate or legal entity, chapter 176.002’s disclosure requirements apply to only the legal entity that is the “person” contracting or seeking to contract with the local governmental entity. Third-party individuals who act as agents under agency law for a legal entity contracting or seeking to contract with the local governmental entity are independently subject to chapter 176 under section 176.002(a)(2).

To the extent a vendor merely adopts the list of the various entities and relationships provided by the local governmental entity, the vendor does not “describe” the required relationships and affiliations and therefore does not comply with chapter 176. Similarly, to the extent a vendor adopts an incomplete list of the various entities and relationships provided by the local governmental entity, the vendor does not “identify” and “describe” all relevant relationships and affiliations and therefore does not comply with chapter 176.

A local governmental entity does not have an affirmative duty to require vendors to comply with chapter 176. Nor does a local governmental entity have an affirmative responsibility to enforce chapter 176, or even to notify vendors of its requirements. A contract between a local governmental entity and a vendor who fails to comply with chapter 176 is not void. However, local governmental entities may choose to impose such a requirement on all its vendors and to provide for the voidability of a contract entered into in violation of chapter 176.

A vendor must file a conflict of interest questionnaire even if the vendor has no business relationships or affiliations to disclose. Local governmental entities must post such a questionnaire on its website.

Vendors with existing contracts with local governmental entities are not required to file a conflict of interest questionnaire.

Chapter 176 does not apply to open-enrollment charter schools or regional education service centers.

Chapter 176’s disclosure requirements apply even when the vendor is a family member of a local government officer.

The reporting requirements of chapter 176 are triggered upon receipt of more than $250 in gifts by the local government officer and the officer’s family as individuals rather than as a family unit.

A vendor who provides goods or services at a reduced price to a local governmental entity is subject to chapter 176 by its plain terms and must comply with its disclosure requirements. A related local government officer must also comply with chapter 176’s disclosure requirements if disclosure is required by section 176.003.

Whether the identity of a vendor who is also a client of an attorney who is a local government officer may be withheld from disclosure under chapter 176 pursuant to an exception to the attorney-client privilege is a fact question and inappropriate for the opinion process.
 

Re: Whether a professional engineer may prepare all plans and specifications for a public building described in Occupations code Section 1051.703(a) without engaging the services of a licensed architect (RQ-0360-AG)
 

SUMMARY

Chapters 1001 and 1051 of the Occupations Code maintain the practice of engineering and the practice of architecture as distinct professions. These chapters recognize that the two professions overlap concerning building design, but they do not precisely define the overlap's boundaries. On one hand, the provisions in chapter 1051 are subject to an exception for engineers engaged in the practice of engineering as defined in chapter 1001. On the other hand, neither the statutes nor Attorney General Opinion DM-161 establish that engineering includes all aspects of building design.

Chapters 1001 and 1051 of the Occupations Code do not provide a basis to answer categorically whether an engineer may comprehensively design a building without the involvement of an architect, and to that extent the Board of Professional Engineers' policy advisory opinion regarding building design, dated June 1, 2005, is not correct. Rather, the answer to that question will depend on whether the adequate performance of the particular service or work requires a person with engineering education, training, and experience. Whether adequate performance of a particular service or work requires a person with engineering education, training, and experience is a question of fact that cannot be resolved in the opinion process.
 

Re: Applicability of section 145.002 of the Civil Practices and Remedies Code to installers and repairers of lawn sprinkler and landscape lighting systems (RQ-0302-GA)

SUMMARY

a "residence", for purposes of chapter 145 of the Civil Practice and Remedies Code, is an enclosed home or other dwelling.  If the job duties of an employee or an installer or repairer of lawn sprinkler and landscape lighting systems require entry into an enclosed home or dwelling, or an attached garage, chapter 145 contemplates a criminal history background check of that employee.   If the employee's job duties require entry into the yard or real estate surrounding the enclosed home or attached garage, but not entry into the residence, chapter 145 does not contemplate background check.  Chapter 1305 of the Occupations Code exempts from its coverage the kind of activity that nurserymen and landscape contractors engage in when installing lawn sprinkler and yard lighting systems.
 

Re: Whether a city may use a Tax Code chapter 311 tax increment fund to reimburse a private developer for certain costs if the expenditures have not been competitively bid (RQ-0262-GA)

SUMMARY

A city may use a Tax Code chapter 311 tax increment fund to pay a private developer for environmental remediation, renovation, or facade preservation costs if the costs constitute "project costs" within the scope of section 311.022 (1).  A tax increment fund is a municipal fund within the meaning of chapter 252 of the Local Government Code, and chapter 252's competitive bidding requirements may apply to expenditures from the tax increment fund.  Whether a particular expenditure is subject to competitive terms of section 252.021 and whether the expenditure is exempt is subject to chapter 252 under section 252.022.  If a municipal expenditure is subject to chapter 252, the city would be precluded from reimbursing a person for costs incurred for work not performed pursuant to a competitively bid contract.
 

Re: Whether the seal of a professional engineer licensed in Texas may be placed on engineering plans, specifications, and other documents relating to projects not to be constructed in Texas (RQ-0244-GA)

SUMMARY

A professional engineer licensed in Texas must place his seal on engineering plans, specifications, plats, and reports prepared under authority of his Texas license, even if the project will not be constructed in Texas. Whether documents prepared and sealed by an engineer under authority of his Texas license may legally be used for construction in another state or country depends upon the laws of that jurisdiction.
 

Re: Validity of engineering documents prepared and sealed by a licensed engineer who is employed by an unregistered firm (RQ-0235GA)

SUMMARY

An engineering document issued by an engineer and properly sealed is not invalid under the Texas Engineering Practice Act, Occupations Code chapter 1001, regardless of the registration status of the firm employing the engineer.
 

Re: Whether an agency may return information submitted by a business entity in response to an agency request for offer, which was subsequently cancelled  (RQ-0226GA)

SUMMARY

A state agency must retain information submitted by a business entity in response to a request for offer, which the agency subsequently cancelled, for the period specified in the agency’s record retention schedule created under chapter 441 of the Government Code. The information may not be returned to the business entity that submitted it within the time period that the information is to be retained. The information also is subject to the Public Information Act, chapter 552 of the Government Code, and is available to the
public unless chapter 552 excepts the information from disclosure.
 

Re: Whether the Texas Residential Construction Commission Act excludes from its definition of "builder" businesses and individuals engaged in residential construction and licensed by a municipality, and whether the Texas Residential Construction Commission may seek to enjoin builders who have failed to obtain a certificate of registration from the Commission.

SUMMARY

Section 401.003(c) of the Texas Residential Construction Commission Act does not exclude any business entities or individuals falling within the general definition of "builder" that have a state or local license to engage in residential construction. Section 401.003(c) does except from the definition of "builder" residential construction-related trades and professions, such as plumbers and electricians. Furthermore, section 2001.202 of the Administrative Procedure Act allows the Texas Residential Construction Commission to refer names of builders that have failed to register with the commission, a violation of a commission rule, to the attorney general, who may seek injunctive relief for those violations. The agency is permitted to do this even though its enabling statute lacks specific language to that effect.
 

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

SUMMARY

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.

Attorney General's Opinion No. JC-0525

Re:Whether the Texas Engineering Practice Act permits in-house engineers to include their job titles on business cards, cover letters, and other correspondence (RQ-0495-JC)

SUMMARY

The Texas Engineering Practice Act, article 3271a of the Revised Civil Statutes, does not allow an in-house employee of a private corporation, though classified internally as an "engineer" or under another engineering title, to use the title of "engineer" on business cards, cover letter, or other forms of correspondence that are made available to the public.

Attorney General's Opinion No. JC-0521

Re: Whether a county may require prospective contractors to submit affidavits disclosing their business relationships with officers and employees of the county and county entities (RQ-0491-JC)

SUMMARY

Under the County Purchasing Act and the Professional Services Procurement Act, a county is authorized to require prospective contractors to submit disclosure statements regarding their business relationships with county officers and employees.

Attorney General's Opinion No. JC-0510

Re: Whether the Texas Department of Licensing and Regulation's executive director may adopt, as standards for installing, altering, operating, and inspecting elevators, escalators, and related equipment, the current version of safety codes A17.1 and A17.3, adopted by the American Society of Mechanical Engineers, and related questions (RQ-0479-JC)

SUMMARY

To construe section 754.014 of the Health and Safety Code constitutionally, it must be read to refer only to the editions of the ASME Codes A17.1 and A17.3 that were in effect when the legislature inserted these references into the section in 1995, except where the statute expressly names an earlier edition.   Accordingly, neither subsection (c) nor subsection (d) of section 754.014 authorizes the executive director of the Texas Department of Licensing and Regulation to require elevators, escalators, and related equipment to comply with the current edition of ASME Code A17.1 or A17.3.  Similarly, the executive director lacks authority to determine whether to adopt revisions to the ASME codes that have occurred since 1995.

Regardless of whether section 754.014(c) refers only to "installation requirements" for elevators, escalators, and related equipment, section 754.014(b) plainly prohibits the executive director of the Texas Department of Licensing and Regulation from adopting standards relating to the alteration, operation, or inspection of such equipment that add to the requirements in the 1995 versions of ASME Code A17.1 or ASME Code A17.3.

Attorney General's Opinion No. JC-0495

Re: Whether the Texas State Office of Administrative Hearings may order the Texas Department of Human Services to pay a licensee's attorney's fees after the SOAH dismissed an administrative action brought to revoke a license (RQ-0463-JC)

SUMMARY

The Texas State Office of Administrative Hearings has no authority to order the Texas Department of Human Services to pay a licensee's attorney's fees after an administrative action brought to revoke the license.  The state has not waived its sovereign immunity against attorney's fees imposed in an administrative proceeding administered by the State Office of Administrative Hearings.

Attorney General's Opinion No. JC-0493

Re: Applicability of new requirements for portable facilities and concrete crushers imposed by amendments to the Texas Clean Air Act (RQ-0460-JC)

SUMMARY

Section 382.056(r) (1) of the Health and Safety Code provides an exemption from giving notice of intent to apply for certain permits under the Texas Clean Air Act when a portable source of air contaminants is moved to the location of a facility permitted by the Commission, "if no portable facility has been located at the proposed site at any time during the previous two years."  Tex. Health & Safety Code Ann. 382.056(r) (1) (Vernon Supp. 2002).  This provision may not be construed to allow the exemption where a portable facility has been located at the proposed site during the previous two years.  Section 382.056(r) (1) applies to pending applications for permits.  A "permitted" facility in this provision is a source of air contaminants that is subject to a permit issued under the Texas Clean Air Act.

Section 382.065 of the Health and Safety Act exempts "an existing concrete crushing facility" from a prohibition on locating or operating a concrete crushing facility within 440 yards of a residence, school, or place of worship. Id. 382.065.  An "existing" concrete crushing facility is one that was physically present on the site as of the effective date of the provision, but the exemption does not apply to a concrete crushing facility that was located or operating illegally at the site on the effective date.

Attorney General's Opinion No. JC-0492

Re: Whether, with respect to a contract valued at $25,000 or more in the aggregate for a twelve-month period, a school district may participate in a registered political subdivision corporation created under section 304.001 of the Local Government Code, and related questions (RQ-0453-JC)

SUMMARY

With respect to a contract valued at $25,000 or more in the aggregate for a twelve-month period, a school district may not participate in a political subdivision corporation established under section 304.001 of the Local Government Code. See Tex. Educ. Code Ann. 0 44.031(a) (Vemon Supp. 2002); Tex. Lot. Gov't Code Ann. 5 304.001(b), (d) (Vernon Supp. 2002).

Attorney General's Opinion No. JC-0457

Re: Whether new construction in an area of the state that is outside municipal jurisdiction may delay complying with the Texas Building Energy Performance Standards, chapter 388 of the Health and Safety Code, until September 1, 2002 (RQ-0430-JC)

SUMMARY

Effective September 1, 2001, new construction in an area of the state that is outside a municipality's jurisdiction must have begun complying with the building energy efficiency performance standards adopted under section 388.003 of the Health and Safety Code.  See Tex. Health & Safety Code Ann. 388.003 (Vernon Supp. 2002).  Compliance may not be delayed until September 1, 2002.  Likewise, since September1, 2001, counties have had authority to monitor and may voluntarily enforce compliance in these areas under section 388.004. See id. 388.004.

Attorney General's Opinion No. JC-0429

Re: Whether the Texas Commission on Jail Standards may inspect construction documents relating to the installation of fire sprinklers at a jail facility (RQ-0390-JC)

SUMMARY

The Commission on Jail Standards, in fulfilling its duty to inspect a facility to determine whether there are areas where fire sprinkler heads should not be placed, has authority to examine blueprints for a structure not yet constructed as well as to examine structures already built.

Attorney General's Opinion No. JC-0374

Re: Whether a registered professional land surveyor may provide a competitive bid to the primary contractor of a contract with a governmental entity (RQ-0321-JC)

SUMMARY

If a governmental entity's contract with a prime contractor requires professional services, either expressly or in fact, then the governmental entity has entered into a contract that includes professional services as a component part and the contract is subject to the Professional Services Procurement Act, Tex. Gov't Code Ann. ch. 2254, subch. A (Vernon 2000).  Assuming that the intent of the Texas Board of Professional Land Surveying's competitive-bidding rules is to mirror the Act's prohibitions, then the rule prohibits a surveyor from submitting competitive bids to a prime contractor in connection with a governmental contract, at either the planning and design or construction phase of a project.  Although the Professional Services Procurement Act does not obligate a professional to determine whether a contract is subject to the Act's prohibition against competitive bidding, a contract or arrangement entered into in violation of the Act is expressly made "void as against public policy" by section 2254.005. See id. 2254.005.

Attorney General's Opinion No. JC-0335

Re: Applicability of various state statutes to local government corporations created under chapter 431 of the Transportation Code (RQ-0269-JC)

SUMMARY

Local government corporations created under Transportation Code chapter 431, subchapter D, are subject to the Open Meetings Act and the Public Information Act.  They are not subject to the Professional Services Procurement Act or chapter 2251 of the Government Code, which requires prompt payment of vendors by governmental entities.

The authority of local governmental entities to transfer funds to a local government corporation is subject to constitutional limitations.   In creating a local government corporation to assist it or act on behalf of it, a city or county may not transfer control of its governmental functions to the corporation.   Any transfer of funds by local governmental entities to local government corporations must comply with the provisions of the Texas Constitution that require public funds to be used for public purposes and that prevent a city or county from making a gift of public funds to a public or private entity.

Attorney General's Opinion No. JC-0324

Re: Whether the Texas Structural Pest Control Board may regulate contract language, and related questions (RQ-0272-JC)

SUMMARY

Except for language describing its jurisdiction and instructing consumers how to file a complaint, the Texas Structural Pest Control Board may not regulate the language of contracts between structural pest control service providers and consumers.  See Tex. Rev. Civ. Stat. Ann. art. 135b-6, 4(f), 4F(b)(1) (Vernon Supp. 2000). The Board may not require a licensee to perform services he or she contracted with a consumer to perform, although the Board may oversee informal settlement negotiations in which the parties agree to perform the contract. See id. 9A(c).

Attorney General's Opinion No. JC-0319

Re: Whether a county commissioners court may condition acceptance of bids for county public works project on attendance at a mandatory prebid conference (RQ-266)

SUMMARY

A county commissioners court may not condition acceptance of bids for a county public works project solicited pursuant to the County Purchasing Act, TEX.LOC.GOV'T CODE ANN.ch.262, subch.C (Vernon 1999 & Supp.2000), on attendance at a mandatory prebid conference.

Attorney General's Opinion No. JC-0234

Re: Whether an excavator, who has given proper notice of a planned excavation under section 251.151 of the Utilities Code, must give a new notice to a notification center when excavation does not start within fourteen days of the date the excavator provides the notice (RQ-0173-JC)

SUMMARY

An excavator that properly notifies a notification center of a planned excavation under section 251.151 of the Utilities Code no more than fourteen days nor no less than forty-eight hours before the excavation is expected to commence must notify the notification center again if the commencement is delayed beyond fourteen days of the original notice.  See TEX.UTIL.CODE ANN. § 251.151 (a) (Vernon Supp. 2000).

Re: Whether the County Purchasing Act, TEX. LOC. GOV'T CODE ANN.§§ 262.021-.035 (Vernon 1999 & Supp. 2000), applies to the purchases of a local government corporation created by a county under subchapter D, chapter 431 of the Transportation Code (RQ-0139-JC)

SUMMARY

Because section 431.101 of the Transportation Code as amended by the Seventy-sixth Legislature exempts the contracts of a local government corporation from competitive bidding requirements applicable to the contracts of the local government that created it, the contracts of a local government corporation created by a county are not subject to the competitive bidding requirements of the County Purchasing Act. See TEX. TRANSP. CODE ANN. § 431.101(e) (Vernon Supp. 2000) (as added by Act of May 29, 1999, 76th Leg., R.S., ch. 983, § 12,1999 Tex. Gen. Laws 3763,3768).

Re: Whether a home-rule municipality may limit the number of building permits it will issue in the absence of an emergency, and related question (RQ-0061-JC)

SUMMARY

A home-rule municipality may implement a growth-management plan that apportions, or "caps," the number of building permits the municipality will issue in a specified time period even in the absence of an emergency.  The municipality must provide appropriate substantive and procedural due process, and the municipality may not attempt to apply its growth-management plan to building permit applications filed prior to the adoption of the plan.  See TEX.GOV'T CODE ANN. § 245.002(a), adopted by Act of Apr.29, 1999, 76th Leg., R.S., ch.73, § 2, sec. 245.002, 1999 Tex. Sess. Law Serv. 431, 432-33. The denial of a building permit application may constitute an unconstitutional taking for which the municipality must compensate the land owner.

A home-rule municipality may adopt a growth-management plan that limits the number of residential building permits, and not the number of nonresidential permits, the municipality will issue in a given time period.   Depending on the facts of a particular situation, such a growth-management plan may implicate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Re: Whether state officers and employees may enter into oral contracts on behalf of the state (RQ-0075-JC)

SUMMARY

A state officer or employee may not enter into a contract that is binding upon the State of Texas unless authorized to do so by the Texas Constitution or by statute.  Provided the officer or employee is authorized to make the contract on behalf of the state, and provided any constitutional, statutory, and regulatory requirements are met, an oral contract is as valid as a written contract absent a requirement that the contract be in writing.  Such a contract may not be enforced against the state, however, unless the state waives sovereign immunity and consents to be sued.

Re: Whether proceeds of bonds approved by voters to construct a public improvement project may be used for legal fees for arbitration of a contract related to the construction (RQ-0051-JC)

SUMMARY

Proceeds of bonds approved by voters to construct a public improvement project may be used to pay legal fees for arbitration of a contract relating to construction of that project if the arbitration is a reasonably necessary step to effectuate construction of the project.  Whether arbitration is a reasonably necessary step toward construction of an approved project in a particular instance is a determination to be made by the  governing body of the bond issuer, subject to judicial review.

Re: Authority of county to expend public funds to retain registered lobbyist (RQ-0024)

SUMMARY

Section 305.026 of the Government Code authorizes a county to expend public funds to retain the services of a registered lobbyist.

Attorney General’s Opinion No. JC-0037

Re: How a school district should determine that a design/build contract will provide the school district with the best value for purposes of Education Code section 44.031(a), and related questions (RQ-870)

Under section 44.031 of the Education Code, a school district may establish by rule a procedure to select the one purchasing method, of the eight listed in that subsection, that will provide the best value to the school district. The district should use the procedure it adopts to determine when a design/build contract will provide it with the best value. When a district determines that a design/build contract will provide the best value to a school district, the district must award the contract in accordance with both section 44.036 of the Education Code and section 2254.004(a) of the Government Code.

Attorney General Opinion DM-387 (1996) has been superseded to the extent it is inconsistent with section 44.040 of the Education Code. With respect to a contract to construct, rehabilitate, alter, or repair a facility, a school district may, but is not required to, competitively bid the contract. If it competitively bids the contract, the school district must comply with all provisions of the competitive bidding statutes in chapter 271, subchapter B of the Local Government Code except sections 271.024, 271.025, and 271.027(b).

An interlocal contract executed on behalf of a school district need not be awarded on the basis of competitive procurement methods unless the school district requires it.

A school district may use the cooperative purchasing method, provided in chapter 271, subchapter D of the Local Government Code, to purchase items. Contracts made through a cooperative purchasing program are deemed to comply with state laws requiring competitive bidding so that a school district need not undertake separate competitive purchasing procedures.

Re: Whether a school district may require minimum "poverty level wage" in contracts with district (RQ-1196)

A school district may not require outside contractors with the district to pay their workers a minimum poverty level wage for work performed pursuant to a contract with the district governed by the requirements of chapter 2258 of the Government Code, which requires a minimum prevailing wage in contracts for public works.

Re: Whether a contractor on a building or construction project with a political subdivision of the state is required by article 8308-3.23(c) of the Workers' Compensation Act to obtain workers' compensation insurance coverage for its employees employed on the project (ID# 17233)

SUMMARY

A contractor on a building or construction project with a political subdivision of the state is required by article 8308-3.23(c) of the Workers' Compensation Act to obtain workers' compensation insurance coverage for its employees employed on the project.

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