Note: Included opinions are from October 11, 2020 through November 10, 2020.
KP-0341 (Driver’s License Renewal Holds): Chapter 706 of the Transportation Code authorizes a contract between a municipality or county and the Department of Public Safety, whereby the municipality or county provides information to the Department about a person’s failure to appear for a complaint or citation or failure to pay or satisfy a judgment, and the Department denies the renewal of the person’s driver’s license until certain requirements are met.
Subsection 706.006(a) generally requires a political subdivision to collect a reimbursement fee from a person who fails to appear for a complaint or citation or fails to pay or satisfy a judgment that has been reported to the Department. The Department may deny renewal of the driver’s license of a person who does not pay a reimbursement fee due under section 706.006 until the fee is paid.
Nothing in the language of chapter 706 of the Transportation Code authorizes a political subdivision to require the Department to lift previously-requested holds for reasons other than those articulated in subsection 706.005(b).
KP-0340 (Utility): Chapter 13 of the Water Code governs certificates of convenience and necessity for the provision of water and sewer service. No provision in chapter 13 addresses whether a home-rule municipality may enter into a contract with a special utility district that prohibits the city from petitioning for decertification of all or part of the special utility district’s certificate of convenience and necessity in the future. However, the common-law reserved powers doctrine could limit a municipality’s contracting authority in some circumstances, despite the existence of home-rule power. Accordingly, we cannot conclude as a matter of law that in all circumstances a home-rule municipality may agree by contract not to petition to decertify a special utility district’s certificate of convenience and necessity in the future. Instead, such questions must be decided on a case-by-case basis.
KP-0337 (Public Funds Investment Act): To qualify as an authorized investment under subsection 2256.009(a)(4) of the Texas Public Funds Investment Act, an investment must be “unconditionally guaranteed or insured by, or backed by the full faith and credit of, this state or the United States or their respective agencies.”
The federal Paycheck Protection Program authorizes loans to small businesses to pay their employees during the COVID-19 disaster. The Small Business Administration currently guarantees 100 percent of those loans, and they are available for purchase on the secondary market. Thus, Paycheck Protection Program loans fully guaranteed by the Small Business Administration generally satisfy the statutory requirements of an authorized investment under subsection 2256.009(a)(4).
Section 2256.006 requires that public investments “be made with judgment and care, under prevailing circumstances, that a person of prudence, discretion, and intelligence would exercise in the management of the person’s own affairs, not for speculation, but for investment, considering the probable safety of capital and the probable income to be derived.” Whether any specific investment satisfies this standard of care required in the Public Funds Investment Act must be determined by the investing entity in the first instance, after reviewing the entity’s policies and the specific investment under consideration.
KP-0335 (Public Information): The Public Information Act does not apply to a district clerk holding a search warrant, warrant return, and property inventory on behalf of the judiciary. Instead, the Code of Criminal Procedure governs public access to such documents.
Based on language in Code of Criminal Procedure article 18.011(d)(1) that a court order temporarily sealing a search warrant affidavit “may not . . . prohibit the disclosure of information relating to the contents of a search warrant, the return of a search warrant, or the inventory of property taken pursuant to a search warrant,” a court would likely conclude that such documents are subject to public disclosure by a district clerk.