Untitled Texas Attorney General Opinion ( 1993 )

Qmce of tip mtomep Qlkneral
&ate of Qexas
DAN MORALES
.ATTORVEY
GESERAL August 12,1993
Honorable Tom Craddick Opiion No. DM-244
Chair
Ways and Means Committee Re: whether there is a WI&t of interest
Texas House of Representatives where a person serves simultaneously as a
P.O. Box 2910 wunty commissioner and a manager of a
Austin, Texas 78768-2910 cotporation with which a wmmunity center
created by that county has entered into a
contract (RQ-536)
Dear Representative Craddi&
Your request for an opinion in8ormsus that the Gulf Coast Mental Health/Mental
Retadation Community Center (“Gulf Coast Center”) is seeking to purchwe a new
telephone system. The Gulf Coast Center is a wnnnunity center established by the
counties of Galveston and Bnzoria pmsuant to former article 5547-203, V.T.C.S. (now
sections 534.001 and 534.003 of the Health and Safety Code). All the trustees of the Gulf
Coast Center have been appointed by the wmmissioners courts of Galveston and Brazoria
from among qualifiedvoters residing in those wunties pursuant to section 534.003 of the
Health and Safety Code (“the code”). None of the trustees have been members of the
commissioners courts of those wunties, although section 534.083 expressly permits such
appointments.
After receiving seven bids for the telephone system in a competitive-bidding
process, the Gulf Coast Center’s board of trustees has awarded the wntract to the low
bidder, J & J Telecommunications,Inc. of Galveston. J & J Telecommunications,Inc. is a
corporation whose president happens to be a county wmmissioner of Galveston and
whose.vice president is the son of that wnnnissioner.
You ask us whether the wntract between the wnnnunity center and J&J
TeJewnnnunications, Inc. is permissible in spite of the wmmissionefs relationships with
one of the counties that created the Gulf Coast Center and the corporation that is in
wmmctual privity with the community center. We will consider this question in light of
section 81.002 and chapter 171 of the Local Government Code and the public policy
against did agency.
For the purposes of the following discussion it is important to note that the Gulf
Coast Center, as a wmmunity center, is administered by its board of trustees, Health 8c
Safety Code 8 534.008, and that there is no statutory provision for a wunty’s involvement
in my fiuraion of a wnnnunity center other than in the appointment Of WuSteeS under
p. 1256
HonorableTomCraddick - Page 2 (DM-244)
sections 534.002 and 534.003 and in the wntriiution of prom to the center under
section 534.019, “to administer the wmmunity cent& programs and services.” We
therefore presume that the county wmmissioner did not participate in the decision to
award the contract to J&J Tekcommunicatio~ Inc. Furthermore, the Gulf Coast
Center, as a wmmunity center, is a unit of government aepamte 6om the wunties of
Brazoria and Galveston:
(c) A wmmunity center is:
(1) a state agency, govemmemal unit, and unit of local
govemment, as de&red and apecitied by Chapters 101 and 102.
Civil Practice and Remedies Code; and
(2) a local ttovammnt, as de&d by Section 3. The
Interlocal Cooperation Act (Article 4413(32c). Vernon’s Texas
Civil Statutes).
Ikaith & Safety Code 5 534.001(c); see Attorney General Opiion M-1266 (1972) at 5
(WlMliSdOnas court has no authority “to change by resolution a wmmunity center into a
couasy deputment”).
ktion 81.002 of the Local Government Code requites a county wtnmissioner
uponenteaiqofficetoawearthatheorshe
(1) awntractorclaimexpresdyauthorizedbylaw,or
(2) a warrant issued to the. . . wnnnissioner as a fee of office.
BecausethewntractbaweentheGulfCoartCarsaandJ&JTdeconmurnications,Inc.
is not a “wntract with or claim against the war@ (emphasis added), we wnchtde that
section 81.002 is inapplicableto this tmnmction.
chapter171 oftheLocalGovamnatcodeilsogovansconBictsofintaestof
county wmmissioners. Section 171.001 de6nes “local public 05cial” in part as “a
member of the governing body . . . of any . . county.” The heart of chapter 171 is section
171.003, which prohibits, among other things, a local public official’s“participation] in a
vote or decision on a matter involving a business entity in which the 05cial has a
substMtidinterest”incutdnciraunstanccs. We wnchtde that chapter 171 does not
apply to the Gulf Coast Center’s decision to award the contract to J&J
Tekwntmunications because the county wnnnissi otter did not participate in that decision.
Fiiy, we are of the opinion that the doctrine of dual agency does not apply to
thewmmisaionerasamemberofawuntygoverningbodyandamanagerofa
corporation with which a w mmunity center created by that governing body has entered
into a wntract. The doctrine was stated as follows in Swft v. Kelso, 130 S.W. 610.611
p. 1257
Honorable Tom Craddick - Page 3 (DM-244)
(Tex. Civ. App.-1910, no writ): “In all cases the principalis entitled to the best effort and
unbiased judgment of his agent, and the law, for reasons founded in public policy, forbids
the agent’sassumption of a relation which affords temptations antagonistic to [t]his duty.”
We find here no antagonismbetween the wunty wmmissionet’sduty to the wunty and his
management of a corporation that is in contractual privity with the Gulf Coast Center.
Because we have concluded that there is no conflict of interest arising from the
wnnnissioner’s management of the corporation in question, ufirtioti there is no conflict
of interest arising from the less direct involvement of the wmmissioner with the
corporation by virtue of his paternal relationshipto the corporation’svice president.
SUMMARY
There is no wntlict of interest where a person serves
simultaneously as a wunty wmmissioner and a manager of a
corporation with which a wmmunity center created by that county
has entered into a wntract.
DAN MORALES
Attorney General ofTexas
WILL PRYOR
Fii Assistant AttomqGenerd
MARYKELLER
Deputy Attorney General for Ligation
RJZNEAHICKS
State Solicitor
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by James B. Pinson
Assistant Attorney Cienerd
p. 1258