Untitled Texas Attorney General Opinion ( 1994 )

QBfficeof the !ZlttornepQheral
&ate of. ZEexas
DAN MORALES September 6,1994
ATTORNEY
GENERAL
Honorable Charles D. Johnson Qpiion No. DM-303
County Attorney
Dimmit county courthouse Re: Whether the county auditor oath of offic
Charring Springs, Texas 78834 provision, Local Govermnent Code $84.007(b)
prevails over chapter 171 of the Low
Government Code (RQ-572)
Dear Mr. Johnson:
On behalf of the county auditor of Diit County, you ash whether the county
auditor may also be employed as the executive director of a private, non-profit housing
corporation. You explain that the non-profit housing corporation at issue was created in
1986. At that time, the person who is now the wunty auditor was hired as its executive
director, at a s&y which is set by its board of directors.
Although the non-profit housing corporation is a private venture, it has an eco-
nomic relationship with the wunty. The wunty has dedicated certain economic
development funds to the non-profit housing corporation, namely the interest the county
receives on an economic development loan that the county made to a private business.
The wunty also provides the non-profit housing corporation with office space and
telephone and photocopying services. In 1989, the district judges appointed the executive
director of the non-profit housing corporation as county auditor and he began receiving a
county salary. Since that time, he has continued to serve, and to receive a salary, as
executive director of the non-profit housing corporation.
On the basis of the foregoing facts, you ash whether the wunty auditor may also
be employed as the executive director of the non-profit housing corporation. Because the
non-profit housing corporation is a private venture, the wumy auditor’s position as its
executive director does not implicate the Texas Constitution’s dual office holding
provisions. Tex. Const. art. XVJ, $5 33, 40. For the same reason, this instance of dual
employment does not implicate the common-law doctrine of incompatibiity. See Thomas
v. Abernatb County Line Itip. Sch. Did., 290 SW. 152 (Tex. Comm’n App. 1927,
judgm’t adopted); Srure ex rel. Brennan v. Martin, 51 S.W.2d 815 (Tex. Civ. App.-San
Antonio 1932, no writ). This situation does implicate the county auditor oath of office
provision, Local Gov’t Code 3 84.007(b), and chapter 171 of the Local Government
Code, however.
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Honorable Charles D. Johnson - Page 2 (``-303)
The wunty auditor’s oath of office is set forth in section 84.007 of the Local
Government Code, which provides in pertinent part:
(b) The wunty auditor must take the 05&l oath and a written
oath that lists the positions of public, and private trust previously held
and the length of service in each of those positions and that states:
(1) that he has the qualifications requhed by this chapter;
and
hut he will not be persumdlly interested in a wnbvrct
(2)
with the mm@.
Id. (emphasis added). This provision prohibits the wunty auditor from having a personal
interest in any county contract. In Attorney General Opinion V-381 (1947), this 05ce
concluded that the now-repealed statutory predecessor to the county auditor oath of office
provision, article 1649, V.T.C.S., in conjunction with a Penal Code provision, prohibited a
county auditor from contracting with the county to provide it with telephone services,
offiwrs’bonds, or electrical equipment. Sii, in Attorney General Opiion WW-1241
(1%2), this 05ce concluded that now-repealed article 1649, in wnjunction with now-
repealed article 2364, prohibited a county auditor f?om owning stock in a wrporation
which had business dealings with the wunty. Although you do not mention any specific
wntmcts, it seems likely from the circumstances described in your letter that the county
has a wntract with the non-profit housing corporation and with the private business which
has an economic development grant, the interest on which the county has dedicated to the
non-profit housing corporation.
The crucial question is whether the wunty auditor has a “personal interest” in
either of these contracts. This 05ce has construed the term “interest” in similar statutes
to mean “a direct personal or pecuniary interest.” See Attorney General Opiion DM-109
(1992). We believe that section 84.007(b) prohibits a wunty auditor from having a direct
personal or pecuniary interest in any county contract, and requires that he or she must
divest himself or herself of such an interest in order to hold office. The determination
whether the county auditor of Dimmit County has such an interest in a particular county
wntract involves questions of fact which are beyond the scope of the opinion process.
The situation you describe also implicates the wnflicts of interest provisions
applicable to local public officials, including wunty auditors,’ in chapter 17 1 of the Local
‘M 171.001(l) of the Local Govanmnt cdeduieestheteIm”localpublicoaiciat”to
mcaa:
o. 1623
Honorable Charles D. Johnson - Page 3 (DM-303)
Oovemment Code.2 Section 171.004 of the Local Government Code requires a local
public official, who has a “substantial interest” in a business entity, to submit an affidavit
disclosing that interest “before a vote or decision on any matter involving the business
entity” and to abstain from finther participation in the matter if the action would “have a
special economic elfect on the business entity that is distinguishable from the e&t onthe
public.” Local Gov’t Code 8 171.004(a)(l). The violation of this provision is a class A
misdemeanor. Id. 8 171.003. The term “business entity” includes a non-profit wrpo-
ration. See id. 0 171.001(2) (de6ning “business entity”); Attorney GenersJ Opiion
JM-424 (1986). A person has a “substantial interest” in a business entity if %nds
received by the person from the business entity exceed 10 percent of the person’s gross
income for the previous year.” Id. $171.002(a)(z).
Amuming that the wunty auditor’s inwme as executive director exceeded 10
percent of his gross income for the previous year, that his official duties require a “vote or
decision”s on a matter involving the non-profit housing wrporation or the private business
which has an economic development grant, and that he is otherwise within the criteria set
out in Local Government Code, chapter 171, he would be able to wntinue his employ-
ment with the non-profit housing corporation by complying with the requirements of
section 171.004. Chapter 171 would thus permit the county auditor to have a personal
interest in a wntract with the county, while section 84.007(b) expressly bars the county
auditor from being “personally interested in a contract with the county.” The two
provisions would thus wntlict as applied to the wunty auditor.
Honorable Charles D. Johnson - Page 4 (``-303)
The Code Construction Act, God Code ch. 3 11. provides as follows:
(a) If a general provision wntlicts with a special or local
provision, the provisions shag be wnstrued, if possible, so that effect
is given to both.
(b) If the wntlict between the general provision and the special
or local provision is irrewacilable, the special or local provision
prevails as an exception to the general provision. unless the general
provisionisthelaterenactmentandthemanifestintentisthat
general provision prevail.
Gov’t Code $311.026; see aLso GoAm v. Luke. 356 S.W.2d 138 (Tot. 1962);
T-ndv. Terre& 16 S.W.2d 1063 (Tex. 1929). Section 84.007(b) of the Local
Govemment Code expressly applies only to county auditors. while chapter 171 of the
code applies to local public officials in general. For the reasons stated above, it is not
possible to give e&ct to both chapter 171 and section 84.007(b) to the extent of conflict.
Therefore, we must apply the rule of statutory wnstruction set forth in Government Code
section 3 11.026(b) to the extent of wn5ict.
The statutory predecessor to section 84.007(b), the specific provision, was
adopted in 1905, while the statutory predecessor to chapter 171 was adopted in 1983.
See Acts 1983,68th Leg., ch. 640, at 4079; Acts 1905,29th Leg., ch. 161, at 381. Given
the breadth of the detinition of “local public official” in chapter 171.4 the scope of the
wnduct which it reguiates,~ and the detailed requirements6 and penalties7 it imposes, we
believe that the kgislature intended for chapter 171 to prevail over the wunty auditor oath
of office provision in section 84.007(b) to the extent of conflict. Because chapter 171 is
the later enacted statute and we believe that it is the intent of the legislature for chapter
171 to prevail over the specitic wunty auditor oath of 05ce provision in section
84.007(b), we conclude that chapter 171 prevails over section 84.007(b) to the extent of
wnilict. See ah Attorney General Opiion DM-279 (1993) (wnchtding that Local Gov’t
ch. 171 imphedly modified provisions setting forth county wmmissioners oath, Local
Goti Code 3 8 1.002).
You have not supplied this office with sufficient information to determine
deiinitively whether the county auditor has a “substantial interest” in the non-profit
‘Lacal Gob4Gde 4 171.001(l) (de6oing “localpublic otxcial”);s?e sup wte 1.
5~LocalGorhCode~171.004(govcminglocalplblic``pacticipptioninvotesor
dWi6lOllS).
6&e id.
‘See id. 0 171.003. We wte Uw the kgishue has net enacted a penally for violelbns of
seuion 84.007@)of the IAlcAlclowmwa code.
p. 1625
Honorable Charles D. Johnson - Page 3 (``-303)
housing corporation or whether the county auditor must make “decisions” on matters that
affect the non-profit housing corporation. See supro note 3. Amuming that the county
auditor’s income as executive director of the non-profit housing corporation exceeds 10
percent of his gross income for the previous year and that he must m&e “decisions” on
matters that a&ct it, he must adhere to the requirements set forth in chapter 171 of the
Local Oovemment Code, inch&g submitting an atWavit and abstahdng gem partici-
pating in any decision* which would “have a special economic effect” on the non-profit
homing wrporation.9
SUMMARY
Chapta 171 of the Local Governmen tCodeprevailsoverthe
county auditor oath of office provision, Local Goti Code
3 84.007(b), to the extent of wnflict. A county auditor who is
employed as the acecutive director of a private, non-profit housing
wrporation which receives timcling from the county is required to
adhere to the requirements set forth in chapter 171 of the Local
Government Code, if his inwme as executive director exceeds 10
percent of his gross income for the previous year. Attorney General
Opiions V-381 (1947) and WW-1241 (1%2) are overruled to the
extent they are inwnsistent with this opinion.
y~:2?L7L
DAN MORALES
Attorney General of Texas
weMtethatsctions4.o21oftheL+ GnwnmentCe&authori7.csaannayaedtrerreht~
asismns and provides that an s&tarn “during the abmnx or unavoidabledetention ef the sunny
auditor, my performthe dutiesrequiredby law of the counly auditor.” We do not &de here whether
thispmvisionauthorizaacountyauditorto&legatcdccisionsU,ansgistantinthccvcntoTam~i~of
imcrcat
%tter Opinion No. 88-126 (19%). which held that a county auditm is not prohibitedunder
chapter171 oftheLLlcel GananmentCMefromselliimadmate&lstothecountybutdidnotconsidu
tbc``oftbccarntyaudi~soathsctfoRhinaection&o.oO7~)ofthcLocalGwcmmentcode,is
wasiuas with this opinion. AttorneyGeoed OpinionsV-381 (1947) aml WW-1241(1%2), which WQT
isaedhgbcfoKthc erWunentefthestalutelyp- tochapter171oftheLccal~t
cc&,areow3mlkdtolheex6wtthcyareiawwistmtwitbdlisopiaioo.
Honorable Charles D. Johnson - Page 6 (DM-303)
JORGE VEGA
Fii Assistant Attorney Gene-ml
DREW T. DURHAh4
Deputy Attorney General for Crimind Justice
JAVJER AGULAR
special Assistant AnorneyGeneral
RENEAHIcK!3
St& solicitor
SARAH J.. SHIRLEY
chair, opinion conuni&
PrcparedbyMaryRCrouter
AssistantAnomeyGeneral
p. 1627