Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from April 11, 2016 through May 10, 2016. 

Opinion No. KP-0086 (LPG Regulations):  Section 113.054 of the Natural Resources Code preempts and supersedes existing local ordinances, orders, or rules without regard to their level of restriction or date of enactment, and without regard to whether the Texas Railroad Commission has adopted rules or standards governing a particular aspect or phase of the liquefied petroleum gas (LPG) industry, absent the Commission’s permission as otherwise provided by Section 113.054.

A political subdivision may petition the Commission under Section 113.054 for permission to promulgate local provisions relating to any aspect or phase of the LPG industry only when such local provisions would be more restrictive than the rules or standards adopted by the Commission.

Opinion No. KP-0084 (Sales and Use Tax):  No relevant statutory provision authorizes the Montgomery County Emergency Services District #7, the East Montgomery County Improvement District, or the Economic Development Zone #4 to retroactively exclude from the May 2015 election territory with a tax rate that, when combined with the increased tax rate from the election, exceeds the two percent statutory cap on sales and use tax rates. The Texas Comptroller for Public Accounts is without authority to selectively collect the sales tax in only the territory in which the combined sales tax rate does not exceed the cap.  Any of the districts are authorized to conduct a future election to, upon approval of its voters, abolish the sales and use tax or change the rate of a sales and use tax.

Opinion No. KP-0081 (Property Tax Deferral):  A court would likely conclude that Section 33.06 of the Tax Code impliedly authorizes a district to investigate facts recited in an affidavit for deferral, request additional information, and allow or deny a deferral as warranted by the law and facts. An appraisal district may grant deferral on mixed-use property provided that all uses are compatible with occupancy as a residence homestead. Whether an owner occupies an entire parcel as a residence homestead will depend on the particular facts.

Section 33.06 of the Tax Code does not authorize an appraisal district to require a property owner to provide a survey at the owner’s expense in order to claim entitlement to tax deferral under Subsection 33.06(a) of the Tax Code.

Opinion No. KP-0076 (Photographic Insurance Enforcement Systems):  A court is likely to conclude that counties are not authorized to utilize an automated photographic or similar system to enforce the financial responsibility laws in Chapter 601 of the Transportation Code.

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