Untitled Texas Attorney General Opinion ( 1972 )

THE AIIY)WNEY GENERAL
OF TEXAS
Hon. W. T. (Tom) McDonald, Jr. Opinion No. M- 1140
County Attorney
Brazos County Courthouse Re: Construction of Article
Bryan, Texas 77801 2340, V.C.S., and Article
373, V.P.C., concerning
legality of purchases of
employees of a county
commissioner from the
Dear Mr. McDonald: latter's store.
We have received your recent request for an opinion
concerning the legality of purchases for the county by county
employees from a store owned by a county commissioner and paid
for out of county funds.
Article 2340, Vernon's Civil-Statutes, provides:
"Before entering upon the duties of their of-
fice, the county judge and each commissioner shall
take the official oath, an&shall also take a written
oath that he will not be directly or indirectly in-
terested in any contract with, or claim against, the
county in which he resides, except such warrants as
may issue to him as fees of office. Each commissioner
shall execute a bond to be approved by the county
judge ifithe sum of three thousand dollars, payable
to the county treasurer , conditioned for the faith-
ful performance of the duties of his office, that he
will pay over to his county all moneys illegally
paid to him out of county funds, as voluntary pay-
ments or otherwise, and that he will not vote or
give his consent to pay out county funds except for
lawful purposes." (Emphasis added.)
Article 373, Vernon's Penal Code, provides:
“If
LILYufficer of any county, or of any city
a-.- ^
or towiiT% la11 become in any manner pecuniarily
interested in any contracts made by such county,
city or town, through its agents, or otherwise, for
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.-
Hon. W. T. (Tom) McDonald, Jr., page 2 (M-1140)
the construction or repair of any bridge, road, street,
alley or house, or any other work undertaken by such
county, city or town, or shall become interested in
any bid or proposal for such work or in the purchase
or sale of anythinq made for or on account of such
county, city or town, or who shall contract for or
receive any money or property, or the representative
of either,-or any emolument or advantage whatsoever
in consideration of such bid, proposal, contract,
purchase or sale, he shall be fined not less than
fifty nor more than five hundred dollars." (Emphasis
added. )
The foregoing statutes are based upon "sound public
policy" and are designed to eliminate any conflicts of interest
between the county and those who manage its fiscal affairs. City
of Edinburg v. Ellis, 59 S.W.Zd 99, 100 (Tex.Comm.App. 1933);
Attorney General's Opinions M-751 (1970) and O-1589 (1939).
The authorities are practically unanimous to the effect
that the officer, to be liable, must have an interest (directly
or indirectly) in the claim against the county. A remote interest
will not bring an officer within the statute. Attorney General's
Opinions 344 (1939) and 6044 (1944).
In Rigby v. State, 10 S.W. 760 (Tex.Civ.App. 1889), the
court's construction of Article 373 stated that the statute "in-
hibits every officer of a county, city or town from selling to
or purchasing from such corporation [county] any property what-
ever." (Brackets added.) In accord, Bexar County v. Wentworth,
378 S.W.2d 126 (Tex.Civ.App. 1964, error ref. n.r.e.).
It is our opinion that the purchases made for the county
by county employees from a store owned by a county commissioner and
paid for out of county funds result in a direct personal pecuniary
interest of that commissioner in the purchases and violates his
oath under Article 2340, Vernon's Civil Statutes, and also violates
Article 373, Vernon's Penal code.
SUMMARY
It is a violation of Article 2340, V.C.S.,
and of Article 373, V.P.C., for county employees
to make purchases, paid for with county funds,
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Hon. W. T. (Tom) McDonald, Jr., page 3 (M-1140)
from a store owned by a county c
truly yours,
Prepared by Linda Neeley
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Ben Harrison
Bill Craig
wardlow Lane
Scott Garrison
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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