Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from July 11, 2020 through August 10, 2020.

KP-0326 (Cybersecurity Training): Government Code Subsection 2054.5191(a-1) requires certain employees and elected officials of a local government to complete a cybersecurity training program. Under Tax Code Section 6.03, board members of an appraisal district are “appointed.” A court would likely conclude that the members of the board of an appraisal district are not elected officials within the scope of Subsection 2054.5191(a-1), and thus they are not required to complete the certified cybersecurity training program it mandates.

KP-0324 (Evictions): Chapter 418 of the Government Code grants emergency powers to the Governor and local officials operating under a disaster declaration. Yet, it does not authorize local governmental entities operating under a declared disaster to independently rewrite state law such as Property Code Chapter 24 governing evictions.

KP-0323 (Face Covering):Subsection 451.107(a) of the Transportation Code authorizes the board of a metropolitan transit authority to adopt rules for the safe and efficient operation and maintenance of the transit authority system. If wearing a facial covering in a transit authority vehicle or facility is necessary for the safe and efficient operation of the Metropolitan Transit Authority of Harris County during the COVID-19 pandemic, the Authority may require any person medically capable of doing so to wear a facial covering when entering its vehicles or facilities. Furthermore, it may refuse service to or have removed individuals who refuse to comply with a rule that requires facial coverings.

KP-0322 (Face Covering): Local Government Code Subsection 291.001(3) provides that the commissioners court shall maintain and regulate a county courthouse and other county offices and buildings. Pursuant to this authority, a commissioners court may require any person entering a courthouse or other county-owned or controlled building to wear a facial covering.

Judges possess broad inherent authority to control orderly proceedings in their courtrooms, and pursuant to that authority they could require individuals in the courtroom to wear facial coverings if necessary to maintain order and safety. In addition, the Texas Supreme Court has issued an emergency order requiring all judges to comply with guidance promulgated by the Office of Court Administration, which requires facial coverings by all individuals while in the courthouse. Thus, courts may require any person entering the courthouse in which they preside to wear a facial covering while in the courthouse.

Government Code Section 418.108 authorizes a county judge to declare a local state of disaster and upon such declaration, vests the county judge with authority to control the occupancy of premises in the disaster area. Pursuant to this emergency authority, a county judge operating under a local disaster order could require a person to wear a facial covering when occupying a courthouse or other county-owned or controlled building.

Executive Order GA-29 allows local law enforcement and local officials to impose a fine not to exceed $250 for an individual’s second violation of a mask requirement. In addition, public officials may require facial coverings for those entering the courthouse or other county buildings and may deny entry to those individuals refusing to wear a facial covering inside those premises.

KP-0321 (Capias):A capias is a writ from a criminal court directed to any peace officer, commanding the officer to arrest a person accused of an offense and bring the arrested person before that court. Chapter 23, Code of Criminal Procedure, generally applies to post-bail and post-commitment settings. Construed within the context of Chapter 23, Articles 23.01 and 23.04 identify the court that may issue a capias, after commitment or the posting of bail. Thus, the judge of a court that obtains jurisdiction of a misdemeanor case upon the filing of an information or complaint may issue a capias after commitment or bail and before trial.