ATTORNEY GENERAL

Requests for Opinions

RQ-0274-KP

Requestor:

The Honorable Bob Hall

Chair, Committee on Agriculture

Texas State Senate

Post Office Box 12068

Austin, Texas 78711-2068

Re: Whether a groundwater conservation district may define "agricultural crop" as "food or fiber commodities grown for resale of commercial purposes that provide food, clothing, or animal feed" and utilize that definition to determine the applicable fee rate for "irrigating agricultural crops" (RQ-0274-KP)

RQ-0275-KP

Requestor:

The Honorable Russell D. Thomason

Eastland County Criminal District Attorney

100 West Main, Suite 204

Eastland, Texas 76448

Re: Whether the same individual may serve as city manager and as police chief in a home-rule municipality (RQ‑0275‑KP)

Briefs requested by March 25, 2019

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

TRD-201900678

Ryan L. Bangert

Deputy Attorney General for Legal Counsel

Office of the Attorney General

Filed: February 26, 2019


Opinions

Opinion No. KP-0238

The Honorable Dana Norris Young

Cherokee County Attorney

Post Office Box 320

Rusk, Texas 75785

Re: Application of Government Code section 573.062, the nepotism continuous-employment exception, to a tax assessor-collector's sister-in-law (RQ-0243-KP)

S U M M A R Y

Section 573.041 of the Government Code prohibits a public official from employing a person who is related to the public official by the specified degree of consanguinity or affinity. Section 573.062 excepts persons employed in a position for a specified continuous period of time prior to a relative's election or appointment to public office.

To the extent the tax office employs the sister-in-law in her current position for one year prior to the appointment of her relative as county tax assessor-collector, the sister-in-law's service satisfies the requirements under section 573.062 and her continued employment does not violate chapter 573 of the Government Code.

Opinion No. KP-0239

The Honorable Matthew A. Mills

Hood County Attorney

1200 West Pearl Street

Granbury, Texas 76048

Re: Authority of a county to refund penalties and interest paid by taxpayers in certain circumstances (RQ-0244-KP)

S U M M A R Y

Subsections 33.011(a)(1), (a)(3), and (d) of the Tax Code permit a taxing unit under some circumstances to waive penalties and interest charged on delinquent taxes based on an act or omission of the taxing unit, or a formerly-correct address for payment, if certain requirements are met and the taxing unit receives a timely submitted written request for the waiver.

To the extent Hood County failed to mail a tax bill despite the County's possession of the taxpayer's mailing address, a court could conclude that the taxes are not yet delinquent, in which case the statutory deadline in subsection 33.011(d) for submitting the waiver request has not passed. To the extent Hood County mailed the tax bills in question such that a waiver of penalties and interest under section 33.011 is foreclosed, article III, subsection 52(a) of the Texas Constitution likely precludes the County from reimbursing taxpayers from its general fund for the amount of the penalties and interest.

Opinion No. KP-0240

The Honorable Natalie Cobb Koehler

Bosque County Attorney

Post Office Box 215

Meridian, Texas 76665

Re: Whether a commissioners court has a duty to maintain public roads (RQ-0245-KP)

S U M M A R Y

A court would likely conclude that a county has a duty to maintain a road, remove obstacles, and regulate gates only if the road has been laid out as a county road by law and has not been discontinued.

A court would also likely conclude that when a county is not a party to litigation between private landowners, fact findings recited in the judgment rendered in that litigation may affect private rights but do not establish a county duty to maintain a road or remove a gate from the litigated road.

Opinion No. KP-0241

The Honorable James White

Chair, Committee on Corrections

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Standards courts apply when balancing the rights of the State against the fundamental rights of parents to raise their children free from government intrusion (RQ-0258-KP)

S U M M A R Y

The Due Process Clause of the Fourteenth Amendment protects certain fundamental parental rights, including the right of parents to make decisions concerning the care, custody, and control of their children, to direct the upbringing and education of their children, the right to make medical decisions on behalf of their children, and, in conjunction with the First Amendment, to guide the religious future and education of their children.

Courts review governmental infringements on fundamental rights protected by the Due Process Clause under strict scrutiny, requiring that the statute serve a compelling state interest and be narrowly tailored to achieve that interest.

In addressing child custody disputes between parents or in instances of abuse and neglect of a child, the Legislature has established the standard by which courts must resolve those disputes. Pursuant to section 153.002 of the Family Code, the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

A court may not permanently and irrevocably terminate parental rights absent clear and convincing evidence of the allegations supporting the termination.

In evaluating parent-child relationships before making decisions about access to the child, courts presume that fit parents act in the best interests of their children and refrain from imposing their own judgments in lieu of a fit parent's decision regarding what is in the best interest of the child.

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

TRD-201900684

Ryan L. Bangert

Deputy Attorney General for Legal Counsel

Office of the Attorney General

Filed: February 26, 2019