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2003 Official Opinions*

Official opinions will be posted as they are issued, generally within 24 to 48 hours. Please check this page at regular intervals to determine whether additional opinions have been issued.

IMPORTANT NOTE:  Official opinions represent the attorney general’s analysis of current law based on his thorough research of existing statutes, the Virginia and United States constitutions, and relevant court decisions.  They are not "rulings" and do not create new law, nor do they change existing law.  Creating and amending laws are the responsibility of the General Assembly, not the attorney general. 

Official opinions are legal advice, not personal opinions, and do not reflect the attorney general’s personal views about what the law should be.  Such advice is provided to ensure clients/the requester are in compliance with the law.  While the opinions may be given deference by the courts, they are not binding on the courts.

The official opinions issued by the attorney general are part of the duties of the office (see Code § 2.2-505). A person authorized by statute, such as the governor, a member of the General Assembly, a constitutional officer, or the head of a state agency, can ask the attorney general for an official opinion on the law. Members of the general public are not authorized to ask for opinions.

*Section 2.2-505 of the Code of Virginia authorizes the Attorney General of Virginia to render official opinions to the Governor,  members of the General Assembly, judges, the State Corporation Commission, state agency heads, and certain local officials. The Honorable Jerry W. Kilgore was elected Attorney General by the citizens of Virginia and sworn into office on January 12, 2002 for a term of 4 years.  The Honorable Randolph A. Beales was elected Attorney General by the General Assembly on July 10, 2001, and was sworn into office on July 11, 2001, to fill the unexpired term of the Honorable Mark L. Earley upon his resignation on June 4, 2001.  The Honorable Mark L. Earley was sworn in as Attorney General at noon, January 17, 1998. The Honorable Richard Cullen served as Attorney General of Virginia from June 11, 1997, to January 17, 1998.  The Honorable James S. Gilmore, III, served as Attorney General during 1996 until his resignation on June 11, 1997.

December

Opinion # Requestor Summary
03-078 The Honorable John W. Marshall
Secretary of Public Safety
Broad powers of Governor, in event of declared emergency, to require state agencies to work together with private sector to protect citizens of Commonwealth. Sharing of information and intelligence collected by Intelligence and Information ‘Fusion’ Center with public and private entities. Discretionary dissemination of matter that is not law-enforcement sensitive by custodian to necessary parties when no emergency has been declared. Certain law-enforcement data may be disseminated only to criminal justice agencies. Immunity available to participating private entities in event of formally declared emergency. Determination whether sovereign immunity applies to private entities in absence of formally declared emergency depends on capacity in which entities were acting and whether acts are performed under direction and control of Commonwealth, based on nature of, and state’s interest in, function to be performed.
     

03-089 

The Honorable Mark L. Cole
Member, House of Delegates
Entry on Child Abuse and Neglect Central Registry of name of individual acquitted of criminal charges related to child abuse and neglect does not constitute double jeopardy violation.
     

03-090

Ms. Sara Redding Wilson, Director
Department of Human Resource Management
Certain individuals entitled to health benefits under Line of Duty Act may receive those benefits through state health benefits program. 
     

03-097

The Honorable E. Carter Nettles, Jr.
Commonwealth’s Attorney for Sussex County
Jurisdiction of Waverly police department in criminal cases involving offenses against Commonwealth extends 1 mile beyond town corporate limits. Because corporate authorities have no jurisdiction to enforce town ordinances outside corporate limits of town, town of Waverly is not entitled to fines collected for violations of state law occurring outside its corporate limits. 
     

03-103

The Honorable S. Lee Morris
Chief Judge, Portsmouth General District Court
Judge has discretion to briefly delay civil commitment hearing to better provide due process for temporarily detained patient who cannot safely be brought for hearing within prescribed 48-hour time frame, to close hearing for good cause and conduct proceedings in patient’s holding room without public present, or to conduct hearing outside patient’s presence if patient’s interests are adequately represented by counsel; may conduct hearing via video conferencing. Retired general district court judge may conduct civil commitment hearings when recalled to duty by Chief Justice of Supreme Court of Virginia or designated to hear and dispose of action by chief district judge. 
     

03-105

 The Honorable Martin E. Williams
Member, Senate of Virginia
Chapter 816 creates affirmative defense to criminal acts, but not civil findings, of child abuse and neglect.
     

03-108

The Honorable John C. Watkins
Member, Senate of Virginia
Neither Virginia Constitution nor applicable state statutes allow local governing body to adopt adequate public facilities ordinance that binds, directly or indirectly, future governing body to fund capital improvements program at specific level and authorizes approval of proposed development project to be deferred for specified number of years.
     

03-109

The Honorable John C. Watkins
Member, Senate of Virginia
General Assembly must enact express statutory authorization for local governing body to deny rezoning request solely on basis of lack of adequate public facilities and services to meet needs generated by development of rezoned property.
     

03-122

The Honorable William J. Howell
Speaker of the House
National Bank Act preempts Virginia Banking Act to extent state statutes prohibit national bank from serving as executor, administrator, or testamentary trustee in Virginia.