Staff Report
Texas Attorney General, Ken Paxton is the lawyer for the State of Texas and is charged by the Texas Constitution to:
To fulfill these responsibilities, the Office of the Attorney General serves as legal counsel to all boards and agencies of state government, issues legal opinions when requested by the Governor, heads of state agencies and other officials and agencies as provided by Texas statutes.
The Texas AG sits as an ex-officio member of state committees and commissions, and defends challenges to state laws and suits against both state agencies and individual employees of the State.
Many Texans look to the Office of the Attorney General for guidance with disputes and legal issues. The agency receives hundreds of letters, phone calls and visits each week about crime victims’ compensation, child support, abuse in nursing homes, possible consumer fraud and other topics. To find out more about the Texas Attorney General, visit the official website at https://texasattorneygeneral.gov/.
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THE TEXAS ATTORNEY GENERAL
Attorney General Paxton Leads 50 Attorneys General in Google Multistate Bipartisan Antitrust Investigation
AUSTIN – Attorney General Ken Paxton announced this week that Texas is leading 50 attorneys general in a multistate, bipartisan investigation of tech giant Google’s business practices in accordance with state and federal antitrust laws.
The bipartisan coalition announced plans to investigate Google’s overarching control of online advertising markets and search traffic that may have led to anti-competitive behavior that harms consumers.
Legal experts from each state will work in cooperation with Federal authorities to assess competitive conditions for online services and ensure that Americans have access to free digital markets.
“Now, more than ever, information is power, and the most important source of information in Americans’ day-to-day lives is the internet. When most Americans think of the internet, they no doubt think of Google,” said Attorney General Paxton. “There is nothing wrong with a business becoming the biggest game in town if it does so through free market competition, but we have seen evidence that Google’s business practices may have undermined consumer choice, stifled innovation, violated users’ privacy, and put Google in control of the flow and dissemination of online information. We intend to closely follow the facts we discover in this case and proceed as necessary.”
Past investigations of Google uncovered violations ranging from advertising illegal drugs in the United States to now three antitrust actions brought by the European Commission.
None of these previous investigations, however, fully address the source of Google’s sustained market power and the ability to engage in serial and repeated business practices with the intention to protect and maintain that power.
AG Paxton’s Office Defends Texas Law Requiring Humane Treatment of Fetal Remains
AUSTIN – Lawyers from Attorney General Ken Paxton’s office appeared this week before the U.S. Court of Appeals for the 5th Circuit to present oral arguments in defense of Texas’ law requiring humane treatment of fetal remains.
The case centers on a 2017 law that requires health care facilities to dispose of the remains of aborted and miscarried children through burial, cremation, or the scattering of ashes. Previous law allowed health care facilities to discharge fetal remains into a sewer system or incinerate them and send the ashes to a landfill.
“The requirement to treat the remains of unborn children with dignity and respect would do nothing to affect the availability of abortion in Texas,” Attorney General Paxton said. “So why does the abortion industry object so strenuously? The unpleasant answer is that it will go to any lengths to obscure this fundamental reality: the child in the womb is a human being. But given the Supreme Court’s guidance on this very issue and the persuasive case made in the courtroom today, I’m confident that we will prevail.”
In May, the Supreme Court ruled in favor of a similar fetal remains law from Indiana and held that States have a “legitimate interest in proper disposal of fetal remains.” The Supreme Court has also repeatedly held that States may enact laws to “express profound respect for the life of the unborn.”
AG Paxton Announces Medicaid Fraud Suit Against Opioid Manufacturer Johnson & Johnson
AUSTIN – Texas Attorney General Ken Paxton announced that his office filed a civil Medicaid fraud lawsuit against pharmaceutical manufacturer Johnson & Johnson, and its subsidiary Janssen Pharmaceuticals, Inc., for misrepresentations made to the Texas Medicaid program about their dangerous opioid drug, Duragesic.
The State alleges the companies directed their sales representatives to deliver false and misleading messages about their fentanyl opioid drug to doctors in Texas, including Medicaid doctors.
Sales representatives told doctors Duragesic had fewer side effects, worked better, and posed less risk of addiction than other opioids, despite multiple FDA reprimands that those claims were false and misleading. As a result of these misrepresentations, Johnson & Johnson obtained the benefit of taxpayer-funded Texas Medicaid reimbursement for Duragesic while fueling our nation’s opioid epidemic.
“Every day, Texans are coping with the unimaginable consequences of opioid addiction. Like other opioid manufacturers, Johnson & Johnson misled the State of Texas and the entire medical profession about the danger of these drugs in order to turn the greatest profit,” Attorney General Paxton said. “In this case, Johnson & Johnson not only defrauded Texas taxpayers and diverted precious healthcare dollars from Texans in need, they contributed to the opioid crisis that has destroyed the lives of an untold number of Texas families.”
Opioids are a family of drugs including prescription painkillers and illegal drugs like heroin. Nationwide and in Texas, prescription and illegal opioids are the main driver of drug overdose deaths.
According to the Centers for Disease Control and Prevention, opioids were involved in 33,091 deaths in 2015, including 1,174 in Texas. Opioid overdoses in the U.S. have quadrupled since 1999.
You can find more information on opioids on the Texas Attorney General’s webpage here: https://www.texasattorneygeneral.gov/initiatives/opioid-crisis.
Attorney General Paxton Statement on the Odessa Shooting
AUSTIN – Attorney General Ken Paxton gave this statement after receiving news of the horrific shooting in Odessa, Texas:
“I am horrified to see such a senseless act terrorize the fine people of the Permian Basin. Thank you to the courageous local and state first responders who worked quickly today to stop this evil attack. I have asked my law enforcement division and my crime victims services team to assist in any way necessary. Please join Angela and me as we pray for comfort for those who have been impacted by this violent act.”
Notification of Opinion
Original Request RQ-0279-KP—
Payment for unused vacation leave after employee separation.
Attorney General’s Summary KP-0268—
Government Code subsection 661.063(b) provides that vacation leave pay for an employee who separates from state employment while holding a position that does not accrue vacation time is computed using the “employee’s final rate of compensation in the last position held that accrues vacation.” In the hypothetical scenario you describe, the administrative position is the last position held that accrues vacation, so the compensation used for the calculation for payment of vacation leave is only the compensation paid for the administrative position.
Subsection 661.062(b)(5) entitles an employee to payment for vacation leave upon the occurrence of the described change in employment circumstances and “if the agency agrees to pay the employee for the accrued balance of the employee’s vacation time.” Thus, the entitlement arises on the fulfillment of both prerequisites, which will depend on particular facts.
Notification of Opinion
Original Request RQ-0277-KP—
Protections against excessive fines under the U.S. and Texas Constitutions
Attorney General’s Summary KP-0267—
Courts following U.S. Supreme Court precedent would conclude that the Due Process Clause of the Fourteenth Amendment incorporates the Eighth Amendment protection against excessive fines.
Courts recognize article I, section 13 of the Texas Constitution as a constitutional protection against excessive fines. A court would not enforce an unconstitutionally excessive fine. Depending on the statute, a Texas court would be obligated to follow Texas law that requires it to separate the unconstitutional fine and uphold the portion of the statute that is constitutional, if possible.
A Texas court would likely conclude that the Excessive Fines Clause of the Eighth Amendment of the U.S. Constitution is binding on the State, and federal jurisprudence is instructive about, if not determinative of, excessive fines issues under article I, section 13 of the Texas Constitution.
Notification of Opinion
Original Request RQ-0275-KP—
Whether the same individual may serve as city manager and as police chief in a home-rule municipality
Attorney General’s Summary KP-0265 —
Article XVI, section 40 of the Texas Constitution, which prohibits dual office holding in certain circumstances, does not prevent the City of Ranger chief of police from simultaneously serving as city manager.
The common-law doctrine of self-employment incompatibility prohibits one person from holding an office and an employment that the office supervises. Language in the Ranger city charter suggests that the city manager may supervise the chief of police. To the extent that is the case, an individual may not serve in the two separate positions of city manager and chief of police.
If the city commission exercised its authority to combine the roles of city manager and chief of police, the city commission could employ a single individual to perform both roles without raising concerns about self-employment incompatibility.
Notification of Opinion
Original Request RQ-0272-KP—
Purchasing authority of a criminal district attorney’s office as a specialized local entity under Local Government Code section 140.003
Attorney General’s Summary KP-0264—
A criminal district attorney is not subject to rules adopted by the county purchasing agent pursuant to sub-chapter B of chapter 262 of the Local Government Code; however, the entity is subject to rules implemented by the agent pursuant to the County Purchasing Act.
Request for Opinion
Request RQ-0304-KP—
Whether a school district may purchase real property outside its boundaries for the purpose of constructing and operating a school
Received—
Monday, September 9, 2019
Requestor—
The Honorable Isidro R. Alaniz
District Attorney
49th Judicial District
Post Office Box 1343
Laredo, Texas 78042
The Honorable Marco A. Montemayor
Webb County Attorney
1110 Washington Street, Suite 301
Laredo, Texas 78040
Request for Opinion
Request RQ-0303-KP—
Whether a nonprofit organization leasing a publicly-owned property may qualify for and obtain the state tax credit for certified rehabilitation of certified historic structures on behalf of the public owner
Received—
Thursday, September 5, 2019
Requestor—
Mr. Mark Wolfe
Executive Director
Texas Historical Commission
Post Office Box 12276
Austin, Texas 78711-2276
General Opinions Update
Opinion File kp-0266.pdf—
Categories: Health Care , Health Professions , Nurses , Physicians , State Boards, Commissions, Departments , Medical Examiners, State Board of
Attorney General’s Summary—
The practice of medicine includes the provision of anesthesia by a licensed physician. However, pursuant to subsection 301.002(2)(G) of the Occupations Code, when a certified registered nurse anesthetist administers anesthesia pursuant to a physician’s delegation, such act falls within the scope of professional nursing.
The Legislature authorized the Texas Medical Board to take disciplinary action against a physician who delegates professional medical acts to a person whom the physician knows or should know is unqualified to perform the acts. Thus, the Board possesses regulatory authority over a physician’s decision to delegate the providing and administration of anesthesia to a certified registered nurse anesthetist.
A certified registered nurse anesthetist does not possess independent authority to administer anesthesia without delegation by a physician.
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