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RULE §402.101Advisory Opinions

(a) Time Period

  (1) The Commission shall respond to an advisory opinion request not later than the 60th day after the later date of when the Commission receives the written request containing sufficient facts or receives the additional information pursuant to a request for additional information to provide an answer on which the requestor may rely. However, if the Commission requests an attorney general opinion on a matter that is the subject of an advisory opinion request the deadlines are tolled until 30 days following the issuance of the attorney general opinion.

  (2) The Commission shall notify the person making the request of the date the advisory opinion request is received and of the advisory opinion number.

  (3) The authority granted by Occupations Code, §2001.059, is delegated to the Charitable Bingo Operations Director or his designee. The General Counsel must approve the advisory opinion prior to the issuance of the advisory opinion by the Charitable Bingo Operations Director. The Commission by separate order may delegate to an employee of the Commission the authority granted.

  (4) The Commission retains the authority to issue advisory opinions pursuant to Occupations Code, §2001.059. The delegation of authority merely augments the Commission's ability to perform the duties and functions of the Commission with respect to issuing advisory opinions.

(b) Request for an Advisory Opinion

  (1) An officer, bingo chairperson, or authorized representative of a license holder or an attorney, accountant, or bookkeeper employed or retained by a license holder may request from the Commission an advisory opinion regarding compliance with this chapter and the rules of the Commission.

  (2) A person requesting an advisory opinion shall do so by sending the request in writing addressed to Advisory Opinion, Charitable Bingo Operations Division, Texas Lottery Commission, and P.O. Box 16630, Austin, Texas 78761-6630 or by e-mail to Advisory.Opinion@lottery.state.tx.us.

  (3) A request for an advisory opinion shall describe a specified factual situation. The request shall make clear that it is a request for an advisory opinion under Occupations Code, §2001.059, and state in sufficient detail all facts upon which the request for opinion is based to permit the Commission to provide a response to the request and shall contain the name and address of the person requesting the opinion. The request may be accompanied by supporting legal arguments and citations of law or rules as the requesting person deems pertinent. Any other person may also submit legal arguments, citations of law or rules, or legal briefs within 30 days of the date of the request for opinion.

(c) Request for Additional Information

  (1) If the Commission determines that the request for an advisory opinion does not contain sufficient facts to provide an answer, the Commission shall request additional written information from the requestor not later than ten calendar days after the request for advisory opinion was received by the Commission.

  (2) If no additional information is supplied to the Commission within ten calendar days of the date of the Commission's request and the Commission determines that the request does not contain sufficient facts to provide an answer, then no opinion can be issued and the advisory opinion request file will be closed. In this instance, the requestor will be given a statement that no opinion can be expressed with regard to a given fact situation due to the failure to supply additional information.

  (3) The response to a Commission request for additional information shall be addressed to Advisory Opinion, The Charitable Bingo Operations Division, Texas Lottery Commission, and P.O. Box 16630, Austin, Texas 78761-6630 or by e-mail to Advisory.Opinion@lottery.state.tx.us in order to permit the Commission to provide a response to the request.

(d) Subject of an Advisory Opinion

  (1) The Commission may refuse to issue an advisory opinion on a matter that the Commission knows to be in active litigation including a contested administrative case.

  (2) An advisory opinion cannot resolve a disputed question of fact other than to provide a response which refers to the applicable statutes and rules.

(e) Response

  (1) A request for an advisory opinion that contains sufficient facts shall initially be referred to any appropriate personnel within the Charitable Bingo Operations Division for review and written comment.

  (2) If the Commission determines that a request for an advisory opinion has already been answered by the Commission, then the Commission may provide a written response to the requestor that cites the prior advisory opinion.

  (3) The Commission may publish the response on its website.

  (4) The response shall clearly state that the opinion is advisory in nature and is restricted to the fact situation identified in the opinion.

  (5) A requestor may rely upon an advisory opinion if the conduct is substantially consistent with the opinion and the facts stated in the request.

  (6) The Commission cannot grant nor confer legal authority beyond the statute or rule which is the subject of the request for advisory opinion.

  (7) A previously issued advisory opinion not in accord with the current Commission statutes and rules may be modified or revoked, but in such an instance the modification or revocation shall operate prospectively only.

Source Note: The provisions of this §402.101 adopted to be effective March 21, 2005, 30 TexReg 1630; amended to be effective March 9, 2010, 35 TexReg 1995; amended to be effective July 5, 2010, 35 TexReg 5818

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