ATTORNEY GENERAL

Requests for Opinions

RQ-0398-KP

Requestor:

The Honorable Ryan Sinclair

Hood County District Attorney

1200 West Pearl Street

Granbury, Texas 76048

Re: Maximum allowable period of deferred adjudication community supervision for a third degree felony under either Title 7 of the Penal Code or Chapter 481 of the Health and Safety Code (RQ-0398-KP)

Briefs requested by April 1, 2021

RQ-0399-KP

Requestor:

The Honorable Wesley Hoyt

San Augustine County Attorney

108 South Broadway Street

San Augustine, Texas 75972

Re: Enforceability of ordinance transitioning to staggered elections for city officials

Briefs requested by April 5, 2021

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

TRD-202100921

Austin Kinghorn

General Counsel

Office of the Attorney General

Filed: March 9, 2021


Opinions

Opinion No. KP-0358

Ms. Becky Weston

Gonzales County Auditor

427 Saint George Street, Suite 302

Gonzales, Texas 78629

Re: Applicability of the County Purchasing Act in specific circumstances (RQ-0377-KP)

S U M M A R Y

Subsection 262.023(c) of the Local Government Code requires "separate, sequential, or component purchases of items ordered or purchased" to be treated as a single purchase only when the purchases or orders would in normal purchasing practices be purchased in one purchase from the same supplier by the same county officer, department, or institution, and the purchases were made with the intent of avoiding the requirements of the County Purchasing Act. Whether a purchase was made in violation of the Act presents questions of fact that cannot be determined in an attorney general opinion.

Opinion No. KP-0359

The Honorable James White

Chair, House Committee on Homeland Security & Public Safety

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether subsection 38.001(f) of the Education Code and title 25, section 97.62 of the Administrative Code allow school districts, during an epidemic, to exclude students who decline vaccinations for reasons of conscience even when such vaccinations are unrelated to the epidemic (RQ-0364-KP)

S U M M A R Y

Pursuant to subsection 38.001(f) of the Education Code, the Legislature provided that a student who has not received the immunizations required by law "for reasons of conscience, including because of the person's religious beliefs, may be excluded from school in times of emergency or epidemic declared by the commissioner of public health." Read in context, a court likely would conclude that this exception does not permit exclusion of students who lack vaccinations unrelated to an existing "epidemic" contemplated by subsection 38.001(f).

Depending on the particular facts at issue, a court could find exclusion from school for refusal to obtain a vaccine unrelated to the existing epidemic to be arbitrary and unreasonable and overturn the exclusion for this purpose.

Further, to the extent a school was to exclude a student who had declined required immunizations unrelated to an existing epidemic due to a sincere religious belief, a court could find this to be a substantial burden on the student's religious freedom and potentially a violation of the U.S. and Texas constitutions. Accordingly, subsection 110.003(a) of the Civil Practice and Remedies Code requires that only the least restrictive means of furthering a compelling government interest may be utilized in placing such a substantial burden. If less restrictive means exist to accomplish that objective, a court could find that a specific student's exclusion in such circumstances from school under Education Code subsection 38.001(f) violates the Texas Religious Freedom Restoration Act.

Opinion No. KP-0360

The Honorable Gary D. Trammel

Stephens County Attorney

100 East Walker

Breckenridge, Texas 76424

Re: Application of Government Code chapter 573, regarding nepotism, to the candidacy for sheriff of a person who is a brother of the current county judge, and associated questions regarding the county judge's role as a member of the county commissioners court with respect to budget and election matters involving the sheriff (RQ-0378-KP)

S U M M A R Y

Neither the nepotism statute in chapter 573 of the Government Code nor the conflict-of-interest statute in chapter 171 of the Local Government Code prohibit the county judge's brother from running for sheriff in the described circumstances.

Opinion No. KP-0361

Ms. Jennifer D. Robison, CPA

Brown County Auditor

200 South Broadway

Brownwood, Texas 76801

Re: Whether article III, section 53 of the Texas Constitution prohibits a one-time bonus for the administrative staff of the county's justices of the peace (RQ 0380 KP)

S U M M A R Y

To the extent one-time bonuses constitute extra compensation for certain work performed by justice court clerks, article III, section 53 of the Texas Constitution prohibits the payment of the bonuses retroactively. A prospective bonus approved prior to the rendering of services would not run afoul of article III, section 53.

Opinion No. KP-0362

The Honorable James White

Chair, House Committee on Homeland Security & Public Safety

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Government restrictions on an individual's right of access to clergy due to the COVID-19 pandemic (RQ-0383-KP)

S U M M A R Y

Both state and federal law provide broad constitutional protections for religious freedom. The First Amendment of the U.S. Constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." Article I, section 6 of the Texas Constitution provides: "No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion . . . ." Furthermore, under the Texas Religious Freedom Restoration Act, a government agency is prohibited from placing a substantial burden on a person's free exercise of religion unless the agency shows that the application of the burden is the least restrictive means of furthering a compelling governmental interest.

If an individual desires to see a member of the clergy as part of his or her religious exercise, prohibiting access to that member except when death is imminent places a substantial burden on the individual's religious exercise.

Stemming the spread of COVID-19 is unquestionably a compelling government interest. However, to the extent that other less restrictive safety protocols further the government's interest in stemming the spread of COVID-19, a court would likely conclude that prohibiting an individual's access to clergy only when facing death violates the state and federal constitutions and the Texas Religious Freedom Restoration Act because it is not the least restrictive means of achieving such compelling interest.

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

TRD-202100923

Austin Kinghorn

General Counsel

Office of the Attorney General

Filed: March 9, 2021