Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
December 27, 1984
JIM MATTOX
Attorney General
Suprem Court Buildin Honorable Charles D, Houston Opinion No. JM-270
P. 0. BOX 12949 District Attorney
*uslln. TX. 79711. 2549 155th Judicial Distl:ict UC: Whether a constable may
51214752501 P. 0. Draver 10 sell computers to his county
Telex Qloia74.1397
Bellville. Texas :l:f41a
Telecopier 51214750299
Dear Mr. Houston:
714 Jackson, Suite 700
O~llas. TX. 75292.45ob You state that the constable-elect for a Ualler County precinct
2W74289u
ovus a computer store from which Wailer County and other counties have
purchased computerri. You ask vhether he may legally continue to
4S24 Albert. me.. sulle la0 service the account8 he has with the county governments and whether he
El Paso. TX. 799952793 may legally make nc# sales to the counties.
91%33-3494
We have previoclsly issued Attorney General Opinion JM-99 (19&3)
dl Texas. Suite 700
which provides’s partial answer to your question. It concluded that a
Hou``Q~. TX. 77002.3111 county treasurer who ovned a “right-of-way service company” could
713/2236999 contract with his county to assist it in acquiring right of way
property. The opinion pointed out the Penal Code provisions pro-
hibiting official misconduct and the misuse of official information.
808 Bro4dwy. Sulle 312
Penal Code 1139.01. 39.03. Whether an officer hes been guilty of
Lubbock. TX. 79401.3479
909/747-5239 conduct proscribed by these statutes Is a fact question. The opinion
discussed co-on 16 prohibitions against conflicts of interest and
concluded that
4309 N. Tenlh. Suite B
McAllen. TX. 79591-1995
51279924347 as long 8,s there is no conflict of Interest. self-
dealing, or potential for dereliction of duties,
we belie\se that as s general proposition, a county
209 Main Plaza, Suits 490 official or employee may contract with the county
Sm Antonio. TX. 792052797
through the comissioners court for services or
51212254191
materials; which are furnished by that county
employee in his private capacity and which are
An Eaucd Opportunityl separate and wholly unrelated to his official
Alllrmalive Action Employer county duties.
This general conclusion has been modified by the enactment of
.-
article 988b. V.T.C.S.. which became effective January 1. 1984. Acts
1983. 68th Leg., ch. 640 at 4079. Article 9ggb. V.T.C.S., relates to
conflicts of lnter’P:;t by local public officials:
Sectim 1. In this Act:
P. 1204
Honorable Charles D. Houston - Page 2 (JM-270)
(1) ‘Local publ,Lc: official’ means a member of
the governing body or another officer, whether
elected or appointed, paid or unpaid. of any
district (including a school district), county,
city, precinct, central appraisal district,
transit authority or district, or other locel
governmental entity who exercises responsibilities
beyond those that a’rs advisory in nature.
. . . .
Sec. 3. (a) Except as provided by Section 5
of this Act, a l,oc:al public official conrmlts an
offense if he knowln:gly:
(1) participates in a vote or decision on a
matter involving s business entity in which the
local public official has a substantial interest
if it Is reasonably, foreseeable that an action on
the matter would confer an economic benefit to the
business entity involved;
(2) acts as surety for a business entity that
has s contract, work. or business vlth the govetn-
mental entity; or
(3) act8 as rnmety on any official bond
required of an officer of the governmental entity.
(b) An offense under this section is a Class A
misdemeanor.
Sec. 4. If a local public official or a person
related to that of!ficial in the first or second
degree by either rif finity or consanguinity has a
substantial interest in a business entity that
would be peculia:::ly affected by any official
action taken by tbe governing body, the local
public official. before a vote or decision on the
matter, shall file sn affidavit stating the nature
and extent of the interest and shall abstain from
further particlp;8tion in the matter. The
aff idavlt must ‘242 filed with the official
recordkeeper of the governmental entity.
sec. 5. (a) Ihe governing body of a govcrn-
mental entity may contract for the purchase of
services or personal property with a busines!:
entity in which a member of the governing body has
p. 1205
Ronorablc Charles D. Houston - Page 3 (JIG270)
a substantial interest if the business entity is
the only business entity that provides the needed
service or product within the jurisdfctlon of the
governmental entity and is the only business
entity that bids on the contract.
(b) The governing body must take a separate
vote on any budget item specifically dedicated to
a contract with an entity in which a member of the
governing body has a substantial interest and the
affected member mwrt abstain from that separate
vote. The member uho has complied in abstaining
in such vote ucdet procedures set forth in
Sections 3 and 4 111: this Act may vote on a final
budget only afte:r the matter In which he is
concerned has been resolved.
Sec. 6. . . . The finding by a court of a
violation under this article does not render an
action of the governing body voidable unless the
measure that wai3 the subject of an action
involving conflict of interest vould not have
passed the goverxng body without the vote of ‘the
person who violated thds article.
A constable is a precinct officer vho exercines responslblllties
beyond those that are adviwry in nature. Tex. Const. art. V. $18;
V.T.C.S. arts. 6878, 6885. He is therefore a local public official
within the definition in section l(1) of article 988b. V.T.C.S.
Section 3 states the pwhlbited conduct. Under the circumstances
described in section 3(a:l(l), a local public official may not
participate in a vote or decl.sion affecting a business in which he has
a substantial interest. The prohibition expressly applies only to
officers who have authority to participate in such votes or decisions
for the governmental entity which they serve. Other provisions of
article 988b. V.T.C.S.. desonstrate that a local public official must
have legal authority to decide or vote on a matter in order to violate
section 3(a)(l). See sec. 5 (exception for sole bidder requires the
interested off icerto ahstain from vote) ; sec. 6 (violator’s
participation in vote does nt3t necessarily invalidate the contract).
The constable-elect it1 this case wishes to continue contracting
with his county. The coemlssioners court Is the contracting agency
for the county. Anderson \I. Wood, 152 S.W.Zd 1084 (Tex. 1941). A
constable thus does not tave legal authority to vote on a county
decision about Its existing computer service contracts or Its decision
tc buy a new computer. Section 3(a) therefore will not apply to the
constable elect’s contracts with his county.
p. 1206
Honorable Charles D. Houston -’ Page 4 (JM-270)
We have found no other provision of law which would bar the
constable from continuing to service the accounts he has with Wailer
County and other counties or from making new sales of computers to the
county governments.
~UHMARY
Article 988b. V.,T.C.g., does not prohibit a
constable from contracting with the government of
the county in which his precinct is located.
.I I M MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
RlCK GILPIN
Chairmen. Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney Genetsl
APPROVED:
OPINION CONMITTEE
Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Tony Gulllory
Jim noellinger
Jennifer Riggs
Nancy Sutton
p. 1207