State AG Opinions
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Currituck County is considering setting up a water and sewer district or authority under Chapter 162A so that its water lines on US 168 right-of-way will qualify for the G.S. 136-27.1 exemption that requires the NC Department of Transportation to pay relocation costs (instead of the county paying $1.2 to $2 million). When must the new district or authority actually be in existence to qualify? And does the 1987 encroachment agreement (which said the County pays relocation costs) override the statutory exemption?
The district or authority must exist on the date the Department of Transportation lets the contract for the highway improvement project. The phrase 'let to contract' is the trigger the General Assembl…
Does the NC Wildlife Resources Commission have authority to adopt a rule designating 'critical habitat' for endangered, threatened, and special concern species, even though the statute does not specifically use that term?
Yes. The AG concluded that Article 25 of Chapter 113, read as a whole, gives the WRC both express and implied authority to designate critical habitat as part of developing conservation programs. The e…
Can a Texas school district pull out of a junior college district?
The Attorney General explained that a junior college district can disannex (drop) territory only when the Legislature has passed a statute authorizing it, and only by the method the statute provides. …
Can a child support recipient change the payment address without going back to court?
The Attorney General concluded that a district clerk could honor a child support recipient's change-of-address request, including a request to send the payments in care of a child support collection a…
Could a Texas district clerk charge civil filing fees for a preindictment habeas application or withhold the writ until fees were paid?
The civil fee schedule in Government Code section 51.317 did not apply to a preindictment habeas application. A clerk could charge a reasonable fee under section 51.319(5), capped by the comparable ci…
When a SD local government wants to piggyback on another local government's competitive bid under SDCL 5-18-18, can it change the specifications, buy a newer model, ignore a trade-in that was part of the original bid, or convert a trade-in bid into a cash-only purchase?
Limited. Any variance from the original bid must be non-material (substantial compliance with the original specs). A newer model is fine if its specs do not materially vary from the original. A trade-…
Can my city pass an ordinance making it illegal to have an open beer or wine in a car on a street or highway in town, or does state law block that?
Partly. A city can prohibit consumption of malt beverages and unfortified wine on property the city owns or occupies, including the right of way of its own municipal streets. The city cannot, however,…
If the General Assembly abolishes the NC Ports Railway Commission (PRC) and transfers its assets to the State Ports Authority (SPA), will that hurt the ongoing federal labor litigation between SPA, PRC, and the longshoremen's union over whether SPA is a Railway Labor Act 'carrier'?
Probably yes, enough that the AG recommended against abolishing PRC at this time. The 1970 ILA certification of SPA as a Railway Labor Act bargaining representative for terminal railroad employees was…
After the General Assembly failed to pass HB 207 (which would have appropriated Highway Fund money to raise Highway Patrol telecommunicator salaries), is the Office of State Personnel barred from reclassifying telecommunicator positions statewide?
No. The AG concluded the failed bill did not strip OSP of its statutory market-survey authority under G.S. 126-1 and 126-4. HB 207's purpose was to appropriate new money from the Highway Fund for High…
If a North Carolina county wants to buy office space for its public hospital and the seller is a corporation in which one of the hospital's trustees (not a county commissioner) holds a one-third interest, does G.S. § 14-234 make that purchase illegal?
No. G.S. § 14-234 is a criminal statute that targets commissioners and directors who personally benefit from contracts they help approve in their capacity as the public-trust decisionmaker. The county…
Can a Minnesota Housing and Redevelopment Authority commissioner bid on cabinet work for development projects that the same HRA has approved?
Yes, with notice and nonparticipation. The AG concluded that Minn. Stat. § 469.009's specific HRA conflict-of-interest rule (written notice plus nonparticipation in HRA decisions affecting the commiss…
Are jailers and 911 communicators (telecommunicators / dispatchers) employed by a North Carolina sheriff's office automatically considered 'law enforcement officers' under the state retirement statutes just because they are sworn officers with the power of arrest?
No. Being a sworn officer with arrest powers is necessary but not sufficient. To qualify as a 'law enforcement officer' under the Local Governmental Employees' Retirement System and the State 401(k) s…
What can police tell a school when they arrest a student in Texas?
The Attorney General concluded that article 15.27 of the Code of Criminal Procedure let a law enforcement agency tell the right school official much more than the bare fact that a student had been arr…
Can a sitting Maine legislator serve on the Maine Health Care Reform Commission, which the same Legislature created with $75-per-day compensation?
No. The AG read Me. Const. art. IV, pt. 3, § 10 to bar any member of the 116th Legislature from being appointed during that term to the Maine Health Care Reform Commission, which the 116th Legislature…
When can a North Carolina substance abuse treatment facility release information about a patient to police, a court, or to anyone else, and how do federal rules and state rules interact?
It depends on whether the facility is 'federally assisted.' Most are, because federal funding, Medicare participation, controlled-substance registration, or tax-exempt status all trigger federal cover…
When the North Carolina Commissioner of Banks decides a matter and the loser appeals to the State Banking Commission, may the Commissioner talk to Commission members off-the-record about the case, and if not, what happens to people who do that anyway?
No, ex parte communications are prohibited. G.S. § 150B-40(d) bars Commission members from discussing the facts or law of a pending contested case with anyone except on notice to all parties, starting…
Is the State of NC protected from large medical malpractice judgments, and if so, why does NC still buy liability insurance for some agencies?
Yes. NC's sovereign immunity is absolute except where waived, and the only relevant waiver for medical malpractice runs through the State Tort Claims Act, which caps state liability at $100,000 per cl…
Can a Texas bar or liquor store owner keep a gun for self-defense?
The Attorney General concluded that a holder of a retail license or permit to sell alcoholic beverages could possess a firearm for self-defense without risking the license. The 1993 amendments (Alcoho…
Can an agent for an out-of-state bail bondsman walk into a South Dakota county jail, demand custody of an inmate (held on a local DWI warrant) who jumped bond in the other state, and take that inmate back across state lines without ever going through a SD judge?
No. SD has priority of jurisdiction while the inmate faces local SD charges, so the bondsman cannot demand release. Even after SD releases the inmate, SDCL 23A-43-29 requires the bondsman to deliver t…
Could a Maryland resident get a driver's license without a photograph in the 1990s if being photographed violated their religious beliefs?
At the time, no. The opinion concluded Maryland could lawfully deny a driver's license to a person who objected on religious grounds to being photographed, because the state's compelling interest in p…
After a federal court called part of a 1991 NC AG opinion 'incomprehensible' and let consumer finance licensees collect insurance commissions on loan-related sales, do consumer finance companies still have to apply for 'other business' authority from the Commissioner of Banks before selling unrelated products on the same premises?
Yes. The AG concluded the federal decision in Herndon v. ITT Consumer Financial Corp. did not change the case-by-case 'other business' authorization requirement under G.S. 53-172. The federal court's …
Within the NC Department of Commerce, which Type II agencies have hire-and-fire authority over their own staff under their own organic statutes, rather than answering to the Secretary of Commerce?
The AG identified fourteen Type II commissions, divisions, and agencies inside the Department of Commerce whose own statutes specifically vest hire-and-fire authority over staff in the agency rather t…
Can the Texas Board of Health require radiologic technologists to get specialty certificates?
The Attorney General concluded that the Texas Board of Health was authorized, though not required, to adopt rules creating a specialty certification system for medical radiologic technologists (diagno…
Can a grand jury indict someone for a crime committed in a different county?
The Attorney General concluded that a Kleberg County grand jury could return an indictment for an offense committed in neighboring Kenedy County, as long as venue for that offense was proper in Kleber…
Does the Texas educator code of ethics survive if the commission that wrote it is abolished?
The Attorney General concluded that the Code of Ethics and Standard Practices for Texas Educators survived the 1993 abolition of the Teachers' Professional Practices Commission, because the legislatur…
Can a Minnesota county pay its commissioners a 'per meeting' fee in addition to salary, and can a commissioner collect multiple per diem payments for attending several meetings on the same day?
No on both. The AG concluded that 'per diem' under Minn. Stat. § 375.055 means by-the-day, not per-meeting. A commissioner gets one per diem for each day spent on county duties, regardless of how many…
Does someone who has a federal firearms dealer's license automatically owe the NC state firearms dealer's license tax?
Not automatically. The NC privilege tax under G.S. § 105-80 closely mirrors the federal license definitions in 18 U.S.C. § 921 et seq., but the NC legislature has not declared federal licensure conclu…
After a Minnesota county's voters rejected the State Building Code in a referendum, can the county board later adopt the code by ordinance without going back to the voters?
No to the first question, yes to the second. The AG concluded the county could not bypass the failed referendum result with an ordinance, but the matter of code application could be resubmitted to the…
What kinds of long-term commercial leases can the South Dakota Commissioner of School and Public Lands enter into for the Human Services Center campus at Yankton, including leases to governments, nonprofits, and private developers, and how long can the leases run?
Under SDCL 5-1-7.2, the Commissioner may grant 'subsidiary' commercial or forestry leases on school and public lands beyond traditional agricultural, grazing, and mineral leases, but only after promul…
Can a Texas city use zoning to control where liquor and package stores open?
The Attorney General concluded that the phrase "on-premise sale" in the Alcoholic Beverage Code's preemption exception (section 109.57(d)(2)) means the sale of alcohol for consumption on the premises,…
During North Carolina's emergency prison-cap releases, which inmates can the Parole Commission grant parole to under the 1994 amendments to G.S. 148-4.1?
The AG concluded the Parole Commission could parole all nonviolent inmates not sentenced under Structured Sentencing (Article 81B of Chapter 15A) during emergency release periods. The 'notwithstanding…
Can the Texas Public Utility Commission apply for and spend federal grant money?
The Attorney General concluded that the Public Utility Commission had authority under the Public Utility Regulatory Act (article 1446c, V.T.C.S.) to apply for federal grants that were necessary and co…
Can a North Carolina city prohibit consumption of malt beverages and unfortified wine on state highways that pass through its corporate limits?
No. The AG concluded N.C.G.S. § 18B-300(a) permits adults 21 and older to consume malt beverages and unfortified wine without restriction. A city may regulate consumption only on property 'owned or oc…
May a Crooks city alderman simultaneously serve on the city common council and on the municipal planning and zoning commission? The common council hears appeals from planning and zoning decisions, so the alderman would in effect be voting on appeals from his own commission decisions.
No. SDCL 9-14-16 prohibits an alderman from holding any other office under the municipality. Membership on the planning and zoning commission is a 'public office' under the *Griggs v. Harding County* …
Can a North Carolina county use eminent domain to take land that it plans to donate to the state for a prison site?
No. The AG concluded that a county has no power of eminent domain to acquire land it intends to convey to the state. Counties only get the condemnation powers that the legislature has expressly grante…
Does an off-duty Texas police officer need a private security license to work as a guard?
The Attorney General concluded that the peace-officer exemption in section 3(a)(3) of the Private Investigators and Private Security Agencies Act applied only when the off-duty officer was hired direc…
Can Maine's Governor nominate and have the Senate confirm a successor to a state office before the prior officeholder's resignation takes effect, then delay commissioning until the vacancy occurs?
Yes. The AG concluded that Governor McKernan could nominate David Lakari to succeed outgoing MSHA Director Dwight Sewall, have the Joint Standing Committee on Housing and Economic Development and Sena…
If a North Carolina county cuts its mental health funding contribution, does it still get full state expansion funds, and what does the rule against using fee income to replace local tax revenue actually mean?
Counties can cut their contributions, including retroactive cuts to the prior fiscal year's budget. But that decision can cost the area authority state expansion funds because the Secretary has discre…
Does Maine's Article IX, Section 21 require 90% state funding or a 2/3 vote before the Legislature can reduce the State's subsidy for required municipal landfill remediation and closure?
No. The AG concluded that reducing State subsidies for municipal solid waste landfill remediation and closure (currently set at 75% of closure cost and 90% of remediation cost under 38 M.R.S.A. § 1310…
Can a North Carolina town amend its charter by ordinance to limit when the mayor can vote, even if the original charter was created by the now-abolished Municipal Board of Control?
The AG concluded yes. Part 4 of Article 5 of Chapter 160A (sections 160A-101 to 160A-111) gives any city the power to modify charter provisions by ordinance to fit the options listed in § 160A-101. Ri…
Can the state designate an entire historic house that doubles as office space as a nonsmoking area if part of it functions as a museum and library?
Yes. The AG concluded that because the entire Humber House was used to exhibit artifacts and to house a library open to the public, the whole building qualified as both a 'museum' and a 'library' unde…
Can a private publisher claim copyright on NC's General Statutes text, and can the state limit who gets a copy of the digital statutes database?
No to both. The Michie Company cannot have a state-enforceable copyright on the text of the NC General Statutes, the section numbering and chapter/article titles, or the history notes (prepared by Gen…
When a South Dakota school district reorganizes and some of its property moves to a new district, does that property still owe its share of capital outlay certificates the old district issued before the reorganization?
Yes. Capital outlay certificates issued under SDCL 13-16-6.2 are 'bonded indebtedness' for purposes of SDCL 13-6-82, so the lands originally taxed for them stay liable after reorganization. The county…
Can a Minnesota charter school join a joint powers entity like MSDLAF+ to pool investments with public school districts?
No. The AG concluded that charter schools formed under Minn. Stat. § 120.064 as nonprofit corporations or cooperatives were not 'governmental units' under the Joint Powers Act (Minn. Stat. § 471.59, s…
If a Maryland home seller gives the buyer a property disclaimer statement late, after the contract is already signed, can the buyer back out?
Yes, according to the opinion. Even though the statute's text only explicitly addressed late disclosure statements, the opinion concluded the legislature meant to treat late disclaimer statements the …
In a joint school and city election in South Dakota, can a school board candidate withdraw from the ballot after the filing deadline has passed?
Generally no, with one narrow exception. When the school district and the municipality jointly hold an election under SDCL 13-7-10.1, the municipal election rules in SDCL Chapter 9-13 control, not the…
Does the Minnesota Governor have the power to sign or veto a proposed constitutional amendment that the legislature has passed and wants to send to the voters?
No. The AG concluded that proposed amendments to the Minnesota Constitution under Art. IX, § 1 are not 'bills' subject to gubernatorial approval or veto. The governor may still veto ordinary legislati…
Once the General Assembly fixed the Carteret-Craven county boundary in a statute, can the NC Geodetic Survey Section adjust the line on the ground to accommodate landowners whose property would otherwise be split between counties?
No. Article VII, Section 1 of the NC Constitution gives the General Assembly the power to fix county boundaries, and the 1993 statute used coordinates with a defined plus-or-minus tolerance. The Geode…
Is it constitutional for the Passamaquoddy Water District's charter to make its property taxable by municipalities when other Maine water districts are exempt, and would repealing that taxability trigger Maine's state-mandate or municipal-reimbursement clauses?
Constitutional, but with limits. The AG concluded that municipalities served by the Passamaquoddy Water District may legally tax the district's property under its existing charter (the cost passes thr…
When the Maine Bureau of Accounts and Control reduced a July 1993 payment to the Maine State Retirement System by $4 million to capture a health insurance fund surplus, did that violate the constitutional ban on diverting retirement appropriations?
Yes, it violated the Constitution. The AG concluded that the Bureau of Accounts and Control's July 1993 reduction of a $4 million payment to the Maine State Retirement System (intended to capture a su…
Can the personal representative of a North Carolina decedent's estate apply for state Commercial Leaking Underground Storage Tank Fund reimbursement for cleanup of contamination from tanks the decedent removed before death?
Yes, but the estate inherits both the rights and the limitations the decedent had. The AG concluded a personal representative steps into the decedent's shoes under G.S. 28A-18-1(a), so the estate's el…
Can the NC Air Cargo Airport Authority make grants to the Global TransPark Development Commission, or does it have to use a different legal mechanism to send money over?
Not grants, but yes, payments under a contract. The Authority has no explicit grant-making power. It does have express statutory authority to contract with state and local governments and other author…
When a corporation buys equity in a qualified North Carolina small business and takes the 25% qualified business investments tax credit, why does the state make the corporation reduce its tax basis AND add the credit back into taxable income, partially canceling the benefit?
Both adjustments come from explicit statutes, not administrative discretion. N.C.G.S. § 105-163.012(d) requires reducing basis in the equity for the credit (which delays the tax benefit until sale). N…
Does the Idaho Department of Health and Welfare have to use formal rulemaking when it adopts a state nutrient management plan, and does the legislature and the Board of Health and Welfare get a chance to review the plan before it takes effect?
Yes. Even though Idaho Code § 39-105(3)(o) is ambiguous, the rules of statutory construction point to formal APA rulemaking, which means notice-and-comment, board approval, and legislative review unde…
Did the DOT Employee Insurance Committee's request for proposals for 'variable universal life insurance' violate the rule that only one insurance company can occupy each state-employee payroll deduction slot?
Maybe, depending on whether 'variable universal' meant the same thing as the 'universal' life product DOT already had in a slot. Because the industry uses the terms interchangeably and the Department …
Can a North Carolina town swap easements with a corporation when a town commissioner owns a major stake in that corporation?
No. The exchange would violate G.S. 14-234, which prohibits public officers from contracting with their own governmental unit when they have a financial stake in the deal. The major-stockholder commis…
Can a parent take their teenager's driver's license to the DMV and have it cancelled, or does the teenager have to agree?
The teenager has to agree. DMV's policy required both the minor licensee and a parent or guardian to sign the voluntary-surrender form. Without the minor's signature, DMV had no statutory authority to…
Do registered lobbyists and their principals have to file a separate set of expense reports after every special (extra) session of the North Carolina General Assembly, or only after each regular session?
Only after regular sessions. N.C. Gen. Stat. §§ 120-47.6(a) and -47.7(a) require expense reports within 60 days of the end of the regular session of the General Assembly. The statute is silent on extr…
If a customer presents a valid South Dakota concealed pistol permit to a federally licensed firearms dealer, does that exempt the sale from the federal Brady Bill's five-day handgun waiting period?
Yes. South Dakota's concealed pistol permit, issued only after a background check under SDCL 23-7-7.1, meets the Brady Bill's § 102(a)(1)(C) exemption criteria. A buyer presenting a SD permit issued w…
Can a North Carolina mountain county use the 1993 mountain ridge road service district statute to fund maintenance of subdivision roads that were platted after October 1975, or only the older platted ones?
Only the pre-October-1975 ones. Chapter 378 of the 1993 Session Laws collides with G.S. 136-98, the 1931 statute that took counties out of the road-building business. Because repeal by implication is …
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