Recent Texas Attorney General and Texas Ethics Commission Opinions of Interest to Cities

Note:  Included opinions are from February 11, 2017 through March 10, 2017.

Opinion No. KP-0133 (Delegation of Legislative Authority): The constitutionality of a proposed management plan (Plan) for the Upper San Saba River involving a potential delegation of legislative authority, and whether such a Plan would result in a regulatory taking, involves fact determinations that cannot be resolved in an attorney general opinion. If the Plan involves a delegation of legislative authority to a private entity, a court would first confirm the delegation, examining whether the Plan results in a private entity setting public policy, providing the details of the law, promulgating rules and regulations to apply the law, or ascertaining conditions upon which existing laws may operate. If so, the court would apply the eight-factor test established in Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen to determine whether the factors as a whole weigh in favor of or against constitutionality. If the Plan involves a delegation of legislative authority to a public entity, a court examines whether the Legislature established reasonable standards to guide the public entity in exercising such powers.

A court considering a regulatory takings challenge would use a federal framework examining: (1) “the economic impact of the regulation on the claimant”; (2) the “character of the governmental action”; and (3) the “extent to which the regulation has interfered with the economic expectations of the property owner.

Opinion No. KP-0134 (Criminal History Record Information): Pursuant to Section 411.076 of the Government Code, a court may disclose criminal history record information subject to an order of nondisclosure only to criminal justice agencies for criminal justice or regulatory licensing purposes, to the person who is the subject of the order, or to an agency or entity listed in Section 411.0765(b) of the Government Code. Such criminal history record information may not be disclosed to employees of a district or county clerk except as necessary for statutorily authorized purposes.The adequacy of measures necessary to seal criminal history record information involves questions of fact that cannot be determined in an attorney general opinion.

Tex. Ethics Comm’n Op. No. 541 (Gifts): A prepaid debit card or gift card is considered to be cash for purposes of Section 36.10(a)(6) of the Penal Code.

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