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2001 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 2.1-118 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 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
01-102 The Honorable Bill Bolling
Member, Senate of Virginia
Election laws referring to ‘incapacitated’ and constitutional provision referring to ‘mentally incompetent’ as standards for disqualifying person from voting are not in conflict. Court has option to determine whether ‘incapacitated’ adjudication rises to standard of mental incompetence necessary to deprive person of his voting franchise. General Assembly has power to eliminate court’s option.
     
00-107 Mr. Michael M. Collins
County Attorney for Alleghany County
Alleghany County may not offset funding provided to Alleghany-Highlands Economic Development Authority for failed industrial project against minimum amount county is required to remit annually as member of Authority.
     
01-047 The Honorable William C. Mims
Member, Senate of Virginia
Question regarding whether law-enforcement officers employed in off-duty capacity are considered to be performing ‘law enforcement activities’ for purposes of workers’ compensation and personal and property damage liability coverage under local government risk management insurance program requires factual determination rather than interpretation of federal or state law, rule or regulation. Authority of Attorney General to issue official advisory opinions is limited to questions of law.
     
01-046 The Honorable Joel C. Cunningham
Judge, General District Court of Halifax County
General district court clerk is not required, nor authorized, to determine whether deferred judgment order is statutorily authorized prior to assessing applicable costs.
     
01-058 The Honorable Robert J. McCabe
Sheriff for the City of Norfolk
Statutes relating to rights of victims involved in juvenile matters control over general statutes in Crime Victim and Witness Rights Act relating to rights of victims. Proposed computerized system of victim notification may not be implemented in cases involving juvenile offenders.
     
00-106 The Honorable W. Edward Meeks III
Commonwealth’s Attorney for Amherst County
Juvenile court has no authority to appoint guardian ad litem for juvenile defendant, in addition to appointment of legal counsel, to represent child in criminal or delinquency proceeding.
     
00-111 The Honorable Raymond C. Robertson
Commonwealth’s Attorney for the City of Staunton
Duty of teacher or other school administrator who suspects (1) that 18-year-old student is having sexual relationship with 13- or 14-year-old student, or (2) that two students, who are minors and whose age difference falls within purview of § 18.2-63, are engaging in sexual conduct, to report knowledge of such activity to local department of social services for investigation.
     
01-031 The Honorable Timothy S. Fisher
Judge, Seventh Judicial District of Virginia
District court is without jurisdiction to order issuance of restricted permit to individual whose conviction for second offense driving while intoxicated occurred in October 1998.
     
01-080 The Honorable Richard H. Black
Member, House of Delegates
Person with concealed weapons permit is prohibited from carrying concealed weapon onto property within territorial scope of Virginia State Parks Regulations.
     
00-097 The Honorable Dollie M. Compton
Clerk, Circuit Court of Russell County
Circuit court may order payment of restitution prior to payment of court costs. Judge may issue standing order that clerk credit payments made by defendant, as condition of probation, toward restitution before collecting court costs.
     
01-104 The Honorable H. Morgan Griffith
Member, House of Delegates
Commonwealth Transportation Commissioner must value outdoor advertising signs in eminent domain cases using fair market valuation.
     
01-103 The Honorable William C. Mims
Member, Senate of Virginia

The Honorable Joe T. May
Member, House of Delegates

Federal Women’s Health and Cancer Rights Act and state law require coverage for reconstructive breast surgery in course of treatment of cancer where all or part of breast is surgically removed and coverage for surgery to reestablish symmetry between breasts. Any benefit covered under Act that is not mandated by state law is required by Act. Issue of preemption does not arise where state law requires at least same coverage for reconstructive breast surgery as Act requires.
     
01-049 The Honorable Clifford R. Weckstein
Judge, Twenty-Third Judicial Circuit
Person under 18 who has been convicted of committing offense for which demerit points have been assessed or are assessable, or violates safety belt or child restraint laws must attend driver improvement clinic but is prohibited from earning safe driving points. Statute providing that safe driving points shall not be awarded for court-assigned clinic attendance repeals statute authorizing court to determine whether person shall receive safe driving points upon satisfactory completion of driver improvement clinic.
     
01-090 The Honorable R. Steven Landes
Member, House of Delegates
Individual who presses ‘pay inside’ button at self-service gasoline pump to activate pump to dispense fuel into his motor vehicle and drives away without paying is guilty of gasoline theft and is subject to criminal prosecution under petit larceny laws.
     
01-078 The Honorable Jay K. Katzen
Member, House of Delegates
Commonwealth’s attorney should use restraint in discretionary exercise of governmental power, such as in selection of cases to prosecute.
     
01-095 The Honorable William C. Mims
Member, Senate of Virginia
Town that is not separate school district and that imposed tax on town consumers of local cellular telecommunication service after January 1, 2000, has no authority to impose such tax.
     
00-020 The Honorable Mary Lou Ebinger
Commissioner of the Revenue for Middlesex County
Assessment of manufactured home that has become affixed to, and is taxed as, real estate is subject to review by local board of equalization. Assessment of manufactured home that has not become affixed to real estate and is classified as tangible personal property is not subject to review by local board.
     
00-088 The Honorable Sharron S. Mitchell
Clerk, Circuit Court of the City of Fredericksburg
Subject credit line leasehold deed of trust presented for recordation in accordance with bankruptcy court’s order confirming debtor’s plan of reorganization is not subject to state and local recordation taxes.
     
01-055 The Honorable Rossie D. Alston Jr.
Judge, Circuit Court of Prince William County
Circuit court may not waive order of reference to local director of social services for investigation and report to be undertaken in stepparent adoption proceeding when consent by noncustodial birth parent has not been obtained.