About Attorney General Opinions
Opinions are listed in chronological order, with the year of issuance in parentheses. Opinion numbers are shown together with the initials of first letter of the name of the attorney general issuing the opinion. "LO" opinions are "letter opinions" and have the same force as a more formal Attorney general opinion. Opinions beginning with the letters "ORD" designate an "open records decisions. They are numbered sequentially without reference to a specific attorney general. "OR" denotes "open records letter rulings" and are designated with the year of issuance and a sequential number.
Authority of Opinions
The weight and authority of Attorney General Opinions in law is a concept which has not been clearly delineated. The following comments may enable the reader to better understand just what these opinions are and how they should be viewed.
The Texas Attorney General is authorized under the Texas Constitution and Texas Government Code to provide upon request legal advise to the Governor, state officials, heads of departments of state government, and local officials on unusual or difficult legal questions, including questions relating to open records. Although the authority of the Attorney General to render opinions is not questioned and those services are regularly requested, the opinions themselves are not binding on the courts. Some courts have given individual opinions great weight and some have rejected them.
The Attorney General acknowledged the limited authority of his own opinions in Attorney General Opinion No. 0-7234-A (1946), where he stated:
The opinions of the Attorney General have not the force of law and are legally binding on no one. They may be highly persuasive to the courts but apparently only in those cases where they coincide with the court's view of the law.
A leading case expressing the court's views on the authority of Attorney General Opinion states that opinions "while entitled to careful consideration by the courts, and quite generally regarded as highly persuasive, are not binding on the judiciary...." The courts also assessed the status of Attorney General Opinions in light of the Legislature's specific delegation of authority in the Open Records Act, when a Texas Court of Civil Appeals stated:
Normally, opinions of the Attorney General are persuasive but not controlling on the courts. We consider that great weight should be given such opinions when the legislature has specifically delegated to the Attorney General the duty of interpreting the Act and aiding in its enforcement.
Although the courts have generally ruled that opinions are "advisory in nature," persons who reasonably rely on Attorney General Opinions may be protected from civil and criminal liability, even if the Attorney General has erred in his interpretation. Conversely, the failure to follow the authoritative advice of the Attorney General may be evidence of a lack of good faith.
In summary, Attorney General Opinions are not binding on the courts; however, they are persuasive and the courts may give them great weight. Since the Attorney General is constitutionally and statutorily charged with interpretation of the law upon request by certain persons, reasonable reliance upon an Attorney General Opinion would constitute an affirmative defense to criminal prosecution.
One should always exercise caution in interpreting and applying opinions. The State Legislature may, for example, pass a law which would render a previously issued opinion inoperable; while more recent opinions may overrule part or all of previous opinions. In addition, opinions are responses to specific, factual situations in point of time, which may or may not be the same as those of the reader. An attorney should be contacted if you seek further advice.