Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from July 11, 2017 through August 10, 2017. 

Opinion No. KP-0158 (Expunction): Article 1.14 of the Texas Code of Criminal Procedure allows a person to waive the right to seek expunction of arrest records and files as a condition in a pretrial diversion agreement, provided the waiver is voluntarily, knowingly, and intelligently made.

Opinion No. KP-0157 (Nepotism): Section 573.041 of the Texas Government Code prohibits a public official from appointing certain relatives to positions compensated with public funds. The reimbursement of expenses, however, is not compensation. Thus, a public official may appoint a close relative to a volunteer position that provides reimbursement for incurred expenses but no compensation.

Opinion No. KP-0155 (Takings/Tree Preservation Ordinances):  If a municipal tree preservation ordinance operates to deny a property owner all economically beneficial or productive use of land, the ordinance will result in a taking that requires just compensation under Article I, Section 17 of the Texas Constitution.

Furthermore, a court is likely to find a regulatory taking if a municipal tree preservation ordinance, as applied to a specific property, imposes restrictions that unreasonably interfere with landowners’ rights to use and enjoy their property. In analyzing whether the interference is unreasonable, the court will consider all relevant circumstances, including: (1) the economic impact of the ordinance; (2) the extent to which the ordinance interferes with distinct investment-backed expectations; and (3) the character of the governmental action.