Untitled Texas Attorney General Opinion ( 1966 )

Honorable R. L. Lattimore Opinion No. C-728
Criminal District Attorney
Hidalgo County Re: Authority of a county to
Edinburg, Texas employ a Justice of the
Peace for the purpose of
interviewing land owners
in connection with the
acquisition of road
Dear Mr. Lattimore: rights-of-way.
By letter to this office you have requested an
opinion in regard to the above referenced matter. We
quote from your letter as follows:
II
. . .
"This writer is of the definite opinion that
Article 16, Section 40 of the Constitution of the
State of Texas has no application in this case,
inasmuch as a Justice of the Peace is specifically
excepted from the effect thereof. However, this
writer is concerned over the fact of Article 373
of the Penal Code of the State of Texas on this
question, . . .
"A Justice of the Peace is a duly elected
officer of the county and would certainly appear
to be covered by Article 373, even though the
Article was apparently enacted particularly to
cover members of governing bodies of a city or
county of this State.
"It would appear to this writer that the
Justice of the Peace, if employed by Hidalgo
County to obtain easements from land owners in
this County, would be specifically pecuniarily
interested in the easements' contracts obtained
from the land owners, inasmuch as the continuation
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Hon. R. L. Lattimore, page 2 (C-728)
of his job would certainly depend upon him ac-
quiring such easements. To say the least, an
advantage would result to him from the acquisition
of such easements.
"Also, this writer feels that, as a matter
of good public policy, no county officer should
receive compensation for two separate types of
employment from the county, and such would be the
case now presented.
II II
. . .
Article XVI, Section 40 of the Texas Constitution
provides, in part:
"No person shall ,hold or exercise, at the
same time, more than one Civil Office of emolument
except that of Justice of Peace, . . . ((
Article 373 of Vernon's Penal Code provides:
"If any officer of any county, or of any city
or town shall become in any manner pecuniarily
interested in any contracts made by such county,
city or town, through its agents, or otherwise,
for 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
anything made for or on account of such county,
city or town, or who shall contract for or re-
ceive any money or property, or the representa-
tive of either, or any emolument or advantage
whatsoever in consideration of such bid, pro-
posal, contract, purchase or sale, he shall be
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Don. R. L. Lattimore, page 3 (c-728)
fined not less than fifty nor more then five
hundred dollars."
Section 40 of Article XVI of the Texas Constitution
has no application in this situation inasmuch as Justices
of the Peace are specifically exempt from the provisions thereof:
furthermore, such employment would not, as a matter of law,
constitute a civil office of emolument. Dunbar v. Brazoria
County, 224 S.W.2d 738 (Tex.Civ.App. 1949, error ref.); hldine
Independent School District v. Standley, 154 Tex. 547, 280
S.W.2d 578 (1955): City of Groves v. Ponder, 303 S.W.2d 485
(Tex.Civ.App. 1957, error ref. n.r.e.); Northwestern National
Life Insurance Co. v. Black, 383 S.W.2d 806 (Tex.Civ.App. 1964,
error ref. n.r.e.1.
Article 373 of the Penal Code does not prohibit such
employment for the reason that the employment of an individual
by a county does not constitute a pecuniary interest in any
of those types of contracts made by a county which are set out
in Article 373.
The principles of law to be applied to this question
are the same as those set forth in opinions of this office
which hold that county officers may be employed by the county
to perform duties which are not required of the officer by
law: for example, a county attorney being employed to represent
the county in civil actions. Attorney General's Opinions
O-864 (1939), G-4301 (1942) and O-6534 (1945).
In a similar fact situation this office held that a
county commissioner may also serve as a bus driver for a
common school district. Attorney General's Opinion G-4957
(1942).
SUMMARY
A county may employ a Justice of the Peace
for the purpose of interviewing land owners in
connection with the acquisition of road rights-
of-way.
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Hon. R. L. Lattimore, page 4 (C-728)
Yours very truly,
WAGGONER CARR
Attorney General
Lewis E. Berry, Jr. '
Assistant /
LEBjr:ra
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
James McCoy
Gordon Houser
Kerns Taylor
Roy Johnson
APPROVD FOR THE ATTORNEY GENERAL
BY: T. B. Wright
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