State AG Opinions
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If a South Dakota county has spent public money grading and plowing a private driveway for 20+ years, does that turn the driveway into a public road? Can a county post a road as 'minimum maintenance' to skip plowing or graveling? And what duty does a county owe section-line roads it never officially adopted?
No to the first question. The AG concluded that even decades of public spending could not convert a private driveway into a public highway under SDCL 31-3-1, because the statutory definition of 'highw…
Can a Texas school district use local tax money to hire a lobbyist?
The Attorney General concluded in 1995 that no, the source of the money makes no difference. Education Code section 21.939 barred a school district from employing anyone required to register as a lobb…
Can a Texas justice of the peace make employees pay for cash shortages?
The Attorney General concluded in 1995 that a justice of the peace is strictly liable to the county for the funds he actually collects and cannot offload that liability onto employees by contract or d…
Can Texas revoke the peace officer license of an elected sheriff or constable?
The Attorney General concluded in 1995 that yes. Two Government Code sections seemed to clash: section 415.060(a) let the state licensing commission set revocation procedures for any license it grants…
Can a Texas constable who never got a peace officer license run for re-election?
The Attorney General concluded in 1995 that yes. The law requires an elected constable to obtain a peace officer license within two years of taking office, but that deadline is a condition for remaini…
Does the South Dakota Family Farm Act's ban on corporate hog confinement facilities (SDCL 47-9A-13.1) prohibit a cooperative corporation, whether foreign or domestic, from owning or operating a hog confinement facility or a swine farrowing facility?
No. The Family Farm Act's definition of 'corporation' in SDCL 47-9A-2(2) is limited to entities under the South Dakota Business Corporation Act (SDCL chapters 47-2 to 47-9) and limited liability compa…
Could a Delaware licensing board member keep serving after her three-year term expired if the Governor hadn't yet appointed a replacement?
Yes, under the law as it stood in 1995. The AG concluded that a Delaware Board of Nursing member whose three-year term had expired could continue serving and exercising full Board powers until a succe…
Can a North Carolina county board hold a closed session to talk about which piece of land to buy for an industrial park?
Generally no. After a 1994 amendment to the Open Meetings Law, public bodies can close a session only to negotiate the price or material terms of a specific real-property contract, or to discuss the s…
Could Delaware withhold apprentices' names and wages from a public records request because the paperwork was stamped confidential?
Yes, under the law as it stood in 1995. The AG advised Delaware's Division of Employment and Training not to release apprenticeship agreements bearing a confidentiality stamp, reasoning that the stamp…
If a North Carolina tenant is sued for eviction in small claims court, do they have to post a defense bond before they can fight the case?
No. The G.S. § 1-111 defense bond ('not less than $200') applies only to common-law actions where the defendant is required to plead. Summary-ejectment defendants are not required to plead at all, so …
Do the NC Department of Transportation's regulations that let billboard owners (and business owners) pay to have state-owned trees cut down on highway rights-of-way for visibility violate the NC Constitution's special privileges clause or its environmental common-heritage provision?
No. The 1995 NC AG opinion concluded the DOT regulations (19A NCAC 02E .0600) permitting selective removal of vegetation blocking views of billboards and businesses do not violate Article I § 32 (no s…
Can the legislatively-stacked Advisory Budget Commission require the Governor to consult with it before approving state-agency lease-purchase deals over $100,000?
No. Because the Advisory Budget Commission includes ten legislators, requiring the Governor to consult with it before exercising an executive function would commingle legislative and executive power i…
Do you need a license to practice psychotherapy, hypnosis, or biofeedback in Texas?
The Attorney General concluded that yes, in 1995, practicing psychotherapy, hypnosis for health care purposes, hypnotherapy, or biofeedback for compensation without a Texas psychology license violated…
Can a NY city require its city council to confirm the mayor's appointments to the planning commission?
Yes. The AG concluded that mayoral appointment subject to city council confirmation does not conflict with General Municipal Law § 234 or General City Law § 27. When an executive appoints and the legi…
Can someone serve on the city council if they also work as a city firefighter?
No. The AG concluded the offices are incompatible. The city council controls the fire department's budget, including firefighters' salaries and benefits, so a council member who is also a firefighter …
Can a Texas justice of the peace court handle underage drinking cases?
The Attorney General concluded that no, justice courts (justice of the peace courts) did not have jurisdiction over prosecutions for a minor's purchase, consumption, or being furnished alcohol under s…
Could a Delaware school district charge for staff time spent gathering public records, on top of copying fees, under the old FOIA fee rules?
No, under the law and the district's own regulation as they stood in 1995. The AG ordered the Woodbridge School District to refund $89.94 to a resident after finding the district charged her for six h…
Can a New York non-charter county create a county administrator position without a public vote?
Yes. The AG concluded that a non-charter county board of supervisors may use Municipal Home Rule Law § 10 to create the position by local law. As long as the local law does not abolish, transfer, or c…
Can the same person sit on both a town's zoning board of appeals and its board of assessment review?
Yes. No statute prohibits the combination, and the offices are compatible under the common-law Ryan v Green test: neither is subordinate to the other, and their duties (hearing zoning-enforcement appe…
Does changing how the mayor is chosen in a small commission-run city require voter approval?
Yes. The AG concluded the Sherrill charter amendment, which would transfer the power to serve as commission chair and mayor from the top vote-getting commissioner to the commissioner with the most sen…
Can a town assessor privately represent a property owner who also owns property in his own town?
No, not without resolving the overlap. The AG concluded the situation creates at least an appearance of impropriety because the public would reasonably question whether the assessor can value the clie…
Can the NC House of Representatives adopt a rule that limits how many bills each individual member may introduce, or does that violate some constitutional right of legislators to introduce as many bills as they want?
The House can adopt such a rule. Members of the NC House do not have a constitutional or inherent right to introduce unlimited bills. Historically, in both the U.S. Congress and the NC House, introduc…
Does a NY town have to pay for a town board member's defense in a defamation suit by the police chief?
Generally yes. The AG concluded that under Public Officers Law § 18, a town must provide a defense whenever the complaint itself alleges acts within the scope of employment. If the complaint does not,…
Can a New York town let appointed officials live anywhere in the state instead of inside the town?
Yes, by local law. The AG concluded that the Public Officers Law residency rule no longer applies uniformly to all towns (a Greenburgh-only exception made it a 'special' law), so a town may use its ho…
Do members of a town conservation board have to live in the town?
No, when the board is strictly advisory. The AG concluded that because the Town of Mendon's conservation board had no decision-making power and only made recommendations to the planning board, its mem…
Can a town stop plowing a road for the winter if one family living on it depends on it for access?
No. Highway Law § 205-a forbids designating a town road as a 'seasonal limited use highway' (which lets the town drop snow removal from December through March) if even one occupied residence or commer…
Can a sitting county manager be appointed to the NC Property Tax Commission, and if so, when does the county manager's role create a conflict that requires recusal from particular Commission decisions?
Yes, the appointment is legally permissible. Dual-office holding statutes allow concurrent appointments and the county manager's duties are not 'inherently incompatible' with Property Tax Commission m…
Does the State Controller's statutory duty to 'exercise general coordinating authority for all telecommunications matters relating to the internal management and operations' of state agencies under G.S. 143B-426.35 cover the University of North Carolina system and its constituent campuses, or are the universities outside the State Controller's reach?
Yes, the AG concluded the State Controller's general coordinating authority covers the UNC system and its constituent universities. G.S. 143B-426.35(3) gives the Controller coordinating authority over…
When North Carolina county boards of elections charge the public for copies of voter registration lists, what counts as 'actual cost' under G.S. § 163-82.10(b), and who gets to decide the amount?
Only out-of-pocket reproduction costs. The AG concluded 'actual cost' covered paper, ink, and the price of blank disks or tapes, but not labor, depreciation, electricity, heat, or prorated rent, becau…
Could one Texas city charge impact fees and include capital improvements for service provided inside another city?
Under the law in 1995, a municipality could contract with another municipality to provide capital improvements inside the second city and could charge impact fees there if the contract authorized the …
Are prevailing-wage payroll records that contractors file with Delaware's Department of Labor public records?
Mostly yes, under the law as it stood in 1995. The AG concluded that sworn payroll records contractors file with the Department of Labor under the prevailing wage law are public records subject to ins…
When a Minnesota county-seat-removal petition needs signatures equal to 60% of those who voted in the last general election, does that mean only people who actually voted can sign? And do signers have to be registered voters?
No to both. The AG read the 60-percent requirement as a count, not a substantive limit on who can sign. Any legal voter of the county may sign, whether or not they voted in the previous election. And …
Does Delaware's open records law give the public access to Court on the Judiciary disciplinary proceedings?
No, under the law as it stood in 1995. The AG found that proceedings before Delaware's Court on the Judiciary are not subject to FOIA's open meeting requirements, because the Court's deliberations fal…
If a planning board member declares a conflict of interest, do they have to leave the room during deliberations?
Yes. The AG concluded that once a planning board member has declared a conflict of interest, recusal must mean physically absenting themselves from the board's proceedings on the matter, not just abst…
Can a New York county transfer jurisdiction of a bridge back to the town where it sits?
Yes. After amending the county road system map to include the bridge, the county may follow Highway Law §§ 115-b and 115-c to transfer it back to the town. The process requires a written agreement wit…
Can a Delaware school board avoid the state's open meeting law by calling a gathering an informal 'breakfast meeting'?
Yes. The opinion found that when a quorum of the Woodbridge School District's Board attended a monthly staff breakfast where invited employees discussed suggestions for the school system in their offi…
Can a North Carolina state senator (or representative) keep an existing appointment to the State Board of Education after being sworn into the legislature, or does the state constitution force the appointee to give one of the seats up?
The legislator must give up the Board seat by operation of law. North Carolina's separation-of-powers clause forbids a legislator from concurrently exercising executive power on a state board or commi…
Can any Texas peace officer enforce a city's ordinances?
The Attorney General concluded that articles 2.12 and 2.13 of the Code of Criminal Procedure, the statutes that list who counts as a peace officer and set out a peace officer's general duties, do not …
Can a Texas county pay to fly in a job candidate for an interview?
The Attorney General concluded that yes, in some circumstances. A county commissioners court may pay the travel expenses of someone applying for a county job, such as a county forensic pathologist (me…
Is the Delaware Board of Bar Examiners subject to the state's Freedom of Information Act?
No. The opinion found the Board of Bar Examiners was a de facto arm of the Delaware Supreme Court, created under the Court's exclusive constitutional authority over bar admissions, so it fell outside …
Can Texas pay a finder's fee for tips that help recover permanent school fund property?
The Attorney General concluded that no, the state could not use the comptroller's contingency-fee contracts under section 403.0195 of the Government Code to pay for tips that helped recover property b…
Does a Texas police department have to fingerprint you for free if you ask?
The Attorney General concluded that yes. Section 80.001 of the Human Resources Code required every state and local law enforcement agency in Texas to fingerprint a person on request, and to do it for …
Could the Texas Department of Insurance regulate viatical settlement companies under the 1993 law?
The Attorney General concluded that no, it could not. The 1993 statute that purported to give the Texas Department of Insurance jurisdiction over viatical settlements (the business of buying the life …
If city police arrest someone for a state crime, does the county jail have to take them?
The Attorney General concluded that yes, once a magistrate signed a commitment order for a person arrested on a state criminal charge, the county jail had to take custody and the sheriff could not ref…
If a North Carolina patient never signed a living will, is the procedure in the Right to Natural Death Act the only legal way a doctor can withhold life-sustaining treatment?
No. The procedure in N.C.G.S. § 90-322 is optional and nonexclusive. A physician who follows it gets an absolute statutory defense; a physician who acts outside it is not unlawful, but is judged by th…
Can a Minnesota county pay its top administrator a $600-per-month car allowance on top of the maximum salary capped at 95% of the governor's pay? And does the 1993 severance-pay cap apply retroactively to a contract signed before its effective date?
Auto allowance: probably exceeds the cap as drafted. A monthly auto allowance that subsidizes personal use of the administrator's vehicle, with no apportionment between business and personal use, fall…
If a North Carolina school district accidentally overpays a teacher, can the district take the money back? Or does the district have to eat the loss?
The district can recover the money. N.C. Gen. Stat. §§ 115C-302(a)(4) and 115C-316(a)(6) tell the State and the local board which one absorbs the loss as between them (the local board does, when state…
If a NC Coastal Resources Commission member moves outside the coastal area (or even outside North Carolina), does that change of residence automatically vacate their seat, or can they finish their existing term? And could a non-NC resident be reappointed?
The member can finish the existing term even if the residency mix on the Commission becomes inconsistent with § 113A-104(e). The statute's residency caps restrict the Governor's appointment power at t…
Can a North Carolina bank pledge its own assets to secure a customer's deposits above the FDIC limit? When is a customer's money 'public' for that purpose?
Only with express statutory authority. State banks cannot pledge assets to secure private deposits. Public deposits can be secured under statutes like §§ 159-30(b) and 159-31(b), but only if the depos…
Does North Carolina's 1993 'safe and sane' pyrotechnics law override an older Forsyth County local act that defined pyrotechnics differently?
Yes, by implied repeal. When a later statewide statute and an older local act define the same thing in irreconcilable ways, the later statewide law controls if the legislature's intent to apply it eve…
Can Texas voters petition for an election to adopt a local homestead property tax exemption?
The Attorney General concluded that no, the optional homestead exemption under section 11.13(n) of the Tax Code could not be adopted by public election, whether triggered by a voter petition or otherw…
Can the same person serve as a county commissioner and a school board trustee in Texas?
The Attorney General concluded that one person could not hold both offices at the same time: county commissioner and public school district trustee were legally incompatible. Under the common-law inco…
Can a Texas alcohol commissioner own a managed investment fund that might hold alcohol-company stock?
The Attorney General concluded that section 5.05(a) of the Texas Alcoholic Beverage Code bars a member of the Texas Alcoholic Beverage Commission from holding stock or any pecuniary interest in a corp…
Can North Carolina collect state income tax from visiting NFL, NBA, NHL, MLB, NASCAR, and PGA athletes for the games and events they play here? And can the Department of Revenue let private tax-service companies file composite returns on behalf of the teams?
Yes to taxing visiting athletes. The 1994 NC AG opinion concluded NC's existing nonresident income-tax and withholding statutes already reached game wages and prize money earned in NC, though the Secr…
When a person who put up bail for a traffic ticket fails to appear and the court orders the bail forfeited, does the clerk of court have to report the forfeiture to DMV as a conviction, and does the answer depend on what kind of bond was posted?
It depends. The AG concluded that only a forfeiture of a defendant's cash bond, posted in the full amount of bail with the court, qualifies as a conviction under NCGS 20-4.01(4a) and must be reported …
Do Dallas planning and zoning commissioners have to follow conflict-of-interest rules?
The Attorney General concluded that members of the City of Dallas Planning and Zoning Commission are 'local public officials' under chapter 171 of the Local Government Code, because they exercise resp…
Can parties in a Texas case agree to have someone other than a certified court reporter take a deposition?
The Attorney General concluded that where Texas Rule of Civil Procedure 166c lets the parties agree to take an oral deposition before 'any person,' it conflicts with Government Code section 52.021(f),…
Does a small Texas water district have to keep customers' addresses and phone numbers private?
The Attorney General concluded that the Franklin County Water District is a 'government-operated utility' under House Bill 859 (codified at V.T.C.S. article 1446h), so it must keep a customer's addres…
Is there an annual gallon limit on a Texas winery's direct sales under section 16.01(d)?
The Attorney General concluded that a winery permit holder selling wine to consumers under subsection (d) of section 16.01 of the Alcoholic Beverage Code (a 1993 provision available to a winery in a c…
Can a NC county board of commissioners undo a school district merger plan after it has been approved by the State Board of Education?
No. Once the State Board of Education approves a school merger plan adopted by the county board of commissioners under G.S. § 115C-25.1 / § 115C-68.1, the merger 'shall be deemed to have been made by …
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