State AG Opinions
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If a doctor with an investment interest in a private nursing home prescribes nursing home care for Medicaid patients but does not pick a specific facility, is that a prohibited self-referral?
No. The 1993 self-referral statute defines a 'referral' as forwarding a patient to another provider or to an entity providing designated services. When the physician only prescribes the level of care …
Can the North Carolina State Board of Refrigeration Examiners enforce its licensing laws against commercial refrigeration work done on the Cherokee Indian Reservation?
Yes, as long as the contractor is not a Cherokee Indian residing on the Reservation. The AG concluded neither federal nor tribal law preempted North Carolina's right to require non-Cherokee refrigerat…
Can a city bill a state university (or other state agency) for stormwater utility fees, the way it bills any other property owner in town?
No. Sovereign immunity blocks the city from collecting under the ordinance alone. NC cities have express statutory authority to bill private property owners for stormwater service, but Chapter 160A do…
Does a commercial refrigeration contractor need a county building permit before installing a commercial refrigeration system?
Yes. The AG concluded that commercial refrigeration systems are within the county inspection department's enforcement jurisdiction under G.S. 153A-352, and the State Building Code (Volume III, Chapter…
When a district court seat opens, which county bar associations get to vote on the nomination list submitted to the Governor — the bars in the judicial district as it exists today, or the bars in the district as it existed on January 1, 1987?
January 1, 1987 controls. The NC AG concluded that N.C. Gen. Stat. § 7A-142 (read together with § 84-19) freezes the membership of each judicial district bar for nomination purposes to the judicial di…
If a retired Idaho teacher still receives district-paid health insurance under an early-retirement program and then gets elected to her old school district's board of trustees, can she actually serve?
No. Receiving district-paid retirement health-insurance benefits gives the trustee a direct or indirect pecuniary interest in the district's insurance contract, which the trustees themselves vote on. …
Can a North Carolina county pay to extend water and sewer service to the commercial parts of a private mixed-use development?
Yes. The AG concluded G.S. 158-7.1(b)(5) authorized a county to extend or assist in extending utility services to industrial facilities, whether publicly or privately owned. Read together with the pub…
If a disabled sportsman asks a North Carolina state agency to let him use a motorized vehicle in an area where the agency's own administrative rules ban motorized vehicles, can the agency just waive the rule for that one person under the ADA, or does it have to go through formal rulemaking?
Formal rulemaking. An agency cannot just waive its own administrative rules case-by-case to accommodate a person with a disability, because G.S. § 150B-19(6) prohibits any rule that lets an agency wai…
Where must a Texas DA's office or adult probation department deposit the funds it receives, and who audits them?
The Attorney General concluded that Local Government Code section 140.003 requires a 'specialized local entity,' such as an adult probation department, to deposit all the funds it receives, from any s…
Can a Texas school district give a private education foundation free office space, and can trustees sit on the foundation's board?
The Attorney General concluded that the Education Code lets an ISD's trustees accept gifts from a private foundation and supply it with office space and other school property, as long as a school purp…
Can the Texas Agricultural Finance Authority use bond proceeds to reimburse the Department of Agriculture for its administrative costs?
The Attorney General concluded yes. The Authority's enabling statute directs the board to reimburse the Department of Agriculture for expenses required by the Authority's business, and the Texas Agric…
When a Minnesota city manager resigns, does the cash payout for unused accrued vacation count as 'salary' under the political subdivision salary cap (95% of the governor's salary)?
No. The AG concluded that the cash equivalent of unused, accrued vacation paid to a city manager upon resignation is not 'salary' for purposes of Minn. Stat. § 43A.17, subd. 9, so the payment does not…
Can a Texas Lloyd's-plan insurance company act as a corporate surety on a public works construction bond?
The Attorney General concluded no. Even after the Legislature amended the public-works bond statute (V.T.C.S. article 5160.A) in 1991, the statute still required a 'corporate' surety. A Lloyd's-plan i…
When South Dakota launches motor voter registration in 1993, can the Social Security number that the DMV already has on file from the driver's license application automatically be reused on the voter registration card without asking the applicant separately, or does the applicant need to consent?
The applicant needs to consent. The 1993 SD AG concluded that nothing in the National Voter Registration Act or federal Privacy Act authorized the involuntary use of a SSN for voter registration; the …
Can a trade association get a list of which state nursing-home surveyors passed or failed the federal qualification test, or is that confidential personnel information?
The AG concluded the list is confidential personnel information that cannot be released under N.C.G.S. § 126-22. Because failure could lead to an employee being removed from the survey team, the pass/…
Can a NC county manager, acting on the fire marshal's request, issue a memo declaring certain county buildings smoke-free and have that be legally binding?
No. The AG concluded that a NC county manager has no statutory authority to set policy on the use of a county building. G.S. 153A-169 places the power to issue orders, ordinances, or resolutions conce…
Can the same person serve as the Mount Olive City Attorney and as a commissioner of the Mount Olive Housing Authority, given that G.S. § 157-5 says 'No commissioner may be a city official'?
Yes, on the facts presented. The AG concluded that 'official' in G.S. § 157-5 is synonymous with 'officer,' and that whether the city attorney is a 'public officer' turns on whether the position exerc…
If Idaho parents are using prayer or 'spiritual means' to treat a sick child instead of seeking medical care, can the state still step in, and what is the threshold?
Yes. Idaho's religious exemption lets parents substitute prayer for medical care without facing neglect liability for that choice alone, but it does not strip the state of its authority to intervene w…
Can a Texas home-rule city regulate outdoor signs, displays, and storage at pawnshops?
The Attorney General concluded no, at least not specifically. The Pawnshop Act gives the Consumer Credit Commissioner authority to regulate outdoor displays, signs, and premises maintenance at pawnsho…
Can the Texas Legislature merge two whole counties into one?
The Attorney General concluded no. Article IX, section 1 of the Texas Constitution lets the Legislature create counties and shift a part of one county to another (with voter approval), but it does not…
If a Texas teacher asks for a public termination hearing, can the school board close it to protect student witnesses?
The Attorney General concluded no. Under section 13.112 of the Education Code and section 2(g) of the Open Meetings Act, a teacher facing termination is entitled to a public hearing if the teacher req…
Who can serve process by certified mail or publication in a Texas justice court, and what can the clerk charge for it?
The Attorney General concluded that under Rule 536 of the Texas Rules of Civil Procedure, any sheriff, constable, or other person authorized by law (or authorized by court order, if at least 18 and no…
Can a nonresident student in Texas pay in-state tuition by winning a competitive academic scholarship, and what rules can the state attach?
The Attorney General concluded that the Texas Higher Education Coordinating Board's rule (19 Tex. Admin. Code § 21.31) is valid. Education Code section 54.064(a) lets a nonresident who wins a competit…
If a Texas police officer resigns and the city accepts it, can he take the resignation back and get his job and seniority returned?
The Attorney General concluded no. Under chapter 143 of the Local Government Code, once a police officer's resignation from a civil service position has been accepted and become effective, it cannot b…
Where must a Texas district attorney keep forfeited drug-case funds, and who audits them in a multicounty district?
The Attorney General concluded that forfeiture funds belonging to the prosecutor under article 59.06(c)(1) must be deposited with the county treasurer when that office is the county depository, althou…
Did a Texas county prosecutor have to use the County Purchasing Act when buying equipment with asset-forfeiture money?
Yes. DM-246 concluded that the County Purchasing Act applied to purchases from a prosecutor's forfeiture fund held in the county treasury. The commissioners court had to start the bidding process and …
If a NC state advisory council 'elects' its vice-chair and secretary at an annual meeting by simply closing nominations without taking any vote, is that election valid, and how can the body fix it?
No, it is not valid. The AG concluded that the June 2, 1993 election of vice-chair and secretary of the Governor's Advisory Council on Aging was null and void because no vote was taken, in violation o…
If a North Carolina driver gets a second DWI within seven years, do they have to spend 48 hours in jail in a row, or can the time be split up?
At least 48 of the mandated seven days have to be consecutive. A second DWI within seven years triggered Level Two punishment under N.C.G.S. § 20-179(c) and (h), which required a minimum of seven days…
If a South Dakota city council passes something labeled a 'resolution' to join a regional solid waste district, and the mayor vetoes it, can the council override the veto with a two-thirds vote, the way it can override the veto of an 'ordinance'?
Yes when the action is legislative in substance. The 1993 SD AG concluded that South Dakota's veto-override statutes (SDCL 9-19-10 and 9-19-11) apply only to ordinances, but the courts look to substan…
Can a North Carolina county charge homeowners and businesses two separate annual solid waste fees, one for using the system and one for the system being available?
Yes, within limits. G.S. § 153A-292(b) lets a county impose two distinct annual fees on dwellings and businesses: a 'user fee' on properties that actually use the county's recycling/convenience center…
Can a Texas criminal defendant be made to pay back the county for the court interpreter's fee?
The Attorney General concluded no. Article 38.30 of the Code of Criminal Procedure requires interpreters in criminal cases to be paid out of county funds. Because court costs must be expressly authori…
Did the 1993 NC smoking-in-public-places law wipe out NC community college smoking policies adopted earlier in 1993?
No. N.C. Gen. Stat. Chapter 143, Article 64 limits local government control of smoking going forward, but § 143-601(a) expressly grandfathers any otherwise valid local law, rule, or ordinance regulati…
Does the NC State Board of Refrigeration Examiners have the authority to make rules requiring NC commercial refrigeration contractors to comply with new EPA certification rules for handling refrigerants?
Yes. The AG concluded that the Board's general rulemaking authority under G.S. 87-54, combined with its mission to protect public health and safety by licensing refrigeration contractors (G.S. 87-52),…
Can the NC Association of County Commissioners (an unincorporated federation of the 100 NC counties) buy through the State purchase and contract system, the same way an individual county or state agency can?
Yes. The AG concluded that the NCACC qualifies as a 'governmental entity or subdivision of the State' for purposes of G.S. § 143-49(6) and is entitled to use the State purchase and contract system. Th…
If someone signs a preneed funeral contract or a cremation authorization before they die, do those written directions beat the surviving family's contrary wishes after death?
Yes to both, the AG concluded. A preneed funeral contract executed by the decedent for their own arrangements, and a cremation authorization signed by the decedent for their own cremation, generally c…
Is it a conflict of interest for a county commissioner to run a company that wins a contract from a community center the county helped create?
The Attorney General concluded there is no conflict of interest where a person serves at the same time as a county commissioner and as a manager of a corporation that contracts with a community center…
Is a Texas day-labor agency that supplies common workers the legal employer who owes them workers' comp and unemployment insurance?
The Attorney General concluded yes. Under article 5221a-10, a 'temporary common worker employer,' meaning a person who provides common worker employees to a third-party user, is the employer of those …
Can a Texas school district act as its own general contractor on a renovation instead of hiring one out for competitive bids?
The Attorney General concluded yes. The competitive-bidding statutes (Education Code section 21.901 and Local Government Code section 271.024) apply when a school district awards a contract to an outs…
Do truckers hauling materials to a Texas highway construction site have to carry workers' compensation insurance?
The Attorney General concluded yes. Under article 8308-3.23 of the Texas Workers' Compensation Act, all contract workers on a covered public works project, including truckers hauling materials on and …
When a South Dakota city is closing its old sanitary landfill and building a new solid waste transfer station, can it pay for the transfer station by issuing utility revenue bonds under SDCL 9-40-1, or are those bonds limited to traditional sewage systems?
Yes. The 1993 SD AG read SDCL 9-40-1's phrase 'sewage and other domestic, commercial and industrial wastes' broadly to cover solid waste, not just sewage that flows through sewer pipes. Limiting the l…
Can a state-chartered credit union in North Carolina guarantee its members' signatures on securities transfers, the way commercial banks and brokerages do?
Not under current Subchapter III of Chapter 54, but possibly through a parity rule. North Carolina credit unions are creatures of statute with no powers beyond those expressly granted or fairly incide…
Can the State of North Carolina accept donated consulting services from a vendor (Northern Telecom) on a major project like the NC Information Highway without compromising the future competitive bid process?
Yes, the AG concluded, subject to four conditions and a written Memorandum of Understanding: the vendor must not gain any usable competitive information, the State must take on no current or future ob…
Could the Avery County Board of Education refuse to enroll children living at Crossnore School and Grandfather Home (private residential child-care facilities in the county) unless the children's parents also lived in Avery County?
No. N.C.G.S. § 115C-366(a1), enacted in 1991, says children living in and cared for and supported by an institution established to rear and care for children who do not live with their parents 'shall …
If both houses of the NC legislature passed a bill on third reading and ordered it enrolled, but the presiding officers forgot to sign it before adjournment, did the bill still become law?
No. The AG concluded that the signatures of the President of the Senate and the Speaker of the House must be affixed during the session and before adjournment. Five 1993 bills that missed that step co…
If a buyer and seller record a 'notice of contract for deed' (not the full contract) with the South Dakota register of deeds to keep the purchase price private, does the register still have to certify the transfer to the secretary of revenue, and does the recording have to include a certificate of value form?
Yes to both. The 1993 SD AG read SDCL 7-9-10 as requiring the register of deeds to certify a notice-of-contract recording to the secretary of revenue, county auditor, and director of equalization just…
Did Maryland's public notice and hearing requirements for licensing group homes for people with mental illness or developmental disabilities violate the federal Fair Housing Amendments Act?
The opinion concluded that, in light of a 1993 federal court decision striking down similar Montgomery County rules, Maryland's public notice and hearing requirements for licensing group homes under t…
Under the new federal Family and Medical Leave Act, does a local school system have to pay for optional family-member health-insurance coverage while a teacher or staff member is out on FMLA leave?
The AG concluded that the FMLA requires a covered employer (including a local school system) to maintain the pre-existing health-plan coverage during authorized leave at the same level and on the same…
Can UNC Charlotte refinance a balloon payment due on a 1987 bank loan that financed a cafeteria addition, and can the chancellor's signature bind the university to a new promissory note?
Yes to both. The AG concluded that the 1987 Board of Governors authorization for UNC-C to take out a $1.398M bank loan for the cafeteria addition implicitly authorized later refinancing of the balloon…
Can the members of the North Carolina State Board of Education (including the elected Lieutenant Governor and State Treasurer, who sit ex officio) send proxies to cast their votes or take part in Board deliberations?
No. The AG concluded that G.S. 115C-11(d) flatly forbids voting by proxy on the State Board of Education, and that prohibition applies to all thirteen members, including the Lieutenant Governor and Tr…
Can a Minnesota city require successful bidders on a municipal construction project to sign a project labor agreement with construction trade unions?
Yes, with limits. The AG concluded that a city may include project labor agreement specifications when soliciting construction bids if motivated by legitimate economic reasons as a purchaser of servic…
What counts as a 'significant interest' that blocks a Texas school board from contracting with a trustee's business?
The Attorney General concluded that the Legislature did not define 'significant interest' in the 1993 statute (Education Code section 23.201) barring a school board from contracting with a business in…
Was 1993 N.C. House Bill 935 (deleting references to the Department of Public Education from the General Statutes) constitutional under Article IX of the North Carolina Constitution?
Yes. The AG concluded that HB 935 did not alter the constitutional responsibilities of either the State Board of Education or the Superintendent of Public Instruction, and so was constitutional. The A…
Does the Texas Hazard Communication Act cover college students as 'employees' for chemical-safety training?
The Attorney General concluded that students are not 'employees' under the Texas Hazard Communication Act, so the act's chemical education, training, and information requirements do not apply to stude…
If a care facility voluntarily runs a background check on a licensed nurse and finds a disqualifying conviction, does it have to fire them?
The Attorney General concluded yes. Under section 106.008(a) of the Human Resources Code, a facility that voluntarily obtains a criminal-conviction check of an employee who is 'licensed under other la…
Do CPAs who work for the federal government still have to pay the Texas $200 accountant licensing fee increase?
The Attorney General concluded that the $200 fee increase mandated by the Public Accountancy Act of 1991 is not facially unconstitutional as applied to certified public accountants employed by the fed…
Can Idaho county commissioners hire an outside private lawyer for the county's civil work on a long-term contract, instead of using the elected county prosecutor?
No, not as a routine matter. Idaho's Constitution (art. 18, § 6) and statutes assign civil legal work to the elected county prosecutor. Commissioners can hire outside counsel only when 'necessity' jus…
Could a North Carolina nonprofit run a raffle as a fundraiser, and could they sell or serve alcohol in the same building?
Yes, with strict rules. Under N.C.G.S. § 14-309.15 as amended in 1993, a qualifying nonprofit could run no more than two raffles per year, with a maximum cash prize of $5,000 (up from $1,000) or maxim…
Can the General Assembly pass a law that lets state employee insurance committees void existing payroll-deduction insurance contracts whenever they want, or would that violate the U.S. Constitution's contract clause?
Probably not in its current draft form. House DHR1162 proposed amending N.C.G.S. § 58-31-60 by adding: 'Any current agreement shall be null and void at the discretion of the Department Committee.' Art…
In NC, can rank-and-file volunteer firefighters install modulating (flashing) headlights on their personal cars to use when responding to a fire call?
No. The AG reaffirmed that G.S. 20-125(a) only authorizes the chief and assistant chiefs of a fire department to install and use special equipment, including modulating headlamps, on their personally …
Can a Texas city ban private employers from running random drug tests on their workers?
The Attorney General concluded that a home-rule city is not precluded as a matter of law from adopting an ordinance prohibiting random drug testing by private employers within the city. No state statu…
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