-e.. . 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austin. TX. 78711 

512,475.2501 

Telex SlOB74-1367 

Telecopier 51214750286 

1SO7 Main St.. Suite 1400 

Dallas. TX. 75201 

214,742.9944 

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El Paso, TX. 79905 

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Houston, TX. 77002 

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San Antonio, TX. 79205 

512/225-4191 

An Equal OpPoftunltyl 

Affirmative Action EmPlOyW 

The Attorney General of Texas 

~~.-__.__. ‘~ “~.‘.“-‘., 

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February 2, 1982 , 

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Honorable Warren G. Tabor, Jr. opinion No.MW-437 

District Attorney 

Hockley County Courthouse Re: Interpretation of article 

Levelland, Texas 79336 2340. V.T.C.S. 

Dear Mr. Tabor: 

Your predecessor in office requested an Attorney General Opinion 

on questions arising out of the following fact situation: The wife of 

a county commissioner for Hockley County "as employed as deputy clerk 

in the county clerk's office. The county clerk appoints his deputies. 

and article 3902, V.T.C.S., prohibits the commissioners court from 

attempting to influence the clerk's choice. V.T.C.S. art. 1938; 

Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Austin 1978, 

writ ref'd n.r.e.). The salary of a deputy clerk is, however, set by 

the commissioners court. V.T.C.S. arts. 3902, 3912k, $1. 

The deputy clerk held this position for almost seven years prior 

to her husband's election as county commissioner. The county auditor 

informed her that he could no longer authorize payment of her salary 

as deputy clerk of Hockley County, citing Attorney General Opinion 

H-993 (1977) as authority for his decision. Your questions 

effectively ask for a re-examination of that opinion. 

Attorney General Opinion H-993 (1977) determined that the wife of 

a county commissioner could not serve as deputy tax collector. This 

conclusion was based on article 2340. V.T.C.S.. which stated as 

follo"s: 

Before entering upon the duties of their office, 

the countv .- iudae - and each commissioner shall take 

the official oath, and shall also take a written 

oath that he will not be directly or indirectly 

interested in any contract with, or claim against, 

the county in which he resides, except such 

warrants as mav issue to him as fees of office.... 

(Emphasis addeh). 

The county paid the wife's salary, and the opinion concluded that the 

community property laws gave her husband an interest in it. Family 

Code 55.01. 

p. 1501 
Honorable Warren G. Tabor, Jr. - Page 2 (MW-437) 

The predecessor of article 2340, V.T.C.S.. was enacted in 1876. 

Act of July 22, 1876. Acts 1876, 15th Leg., ch. LV, 016. at 53. It 

read as follows: 

Neither the County Judges nor any of the 

Commissioners shall enter upon the duties of their 

offices until they shall have first taken the oath 

of office prescribed by the Constitution, and 

shall also take an oath that they will not be 

directly or indirectly interested in any contract 

with a claim against the county in which they 

reside, except such warrants as may issue to them 

as fees of office.... 

The original enactment thus did not differ substantially from the 

version considered in Attorney General Opinion H-993 (1977). See also 

Acts 1981, 67th Leg., ch. 527, 53, at 2230 (amending article 2340, 

V.T.C.S.). We note that the 1876 Session Laws refer to "any contract 

with 5 claim against the county." (Emphasis added). The substitution 

of "au for "orw appears to be a typographical error, corrected in the 

first codification of the Texas statutes, which was published pursuant 

to legislative authorization. R.S. 1879, art. 1512; see Acts 1879, - 

16th Leg., ch. CLI, at 166. 

A statute should be construed to give it the effect and scope 

intended by the legislature. State V. Shoppers World, Inc., 380 

S.W.2d 107 (Tex. 1964). It should be construed as understood at the 

time of its passage. Railroad Commission V. Texas and N.O.R. Company, 

42 S.W.2d 1091 (Tex. Civ. App. - Austin 1931, writ ref'd). A statute 

will be construed in light of social and business customs at the time 

of its passage. Co"si"s v. Sovereign Camp, W.O.W., 35 S.W.2d 696 

(Tex. 1931). 

When the predecessor of article 2340, V.T.C.S., was enacted, 

married women remained under numerous disabilities of coverture. The 

husband's domicile became that of the wife. Hare V. Hare, 10 Tex. 355 

(1853); Flowers V. State, 3 S.W.2d 1111 (Tex. Grim. App. 1928). He 

had the sole power to manage and control his wife's separate property, 

short of disposition. Act of March 13. 1848, General Laws 1848. 2d 

Leg., ch. 79, 52, at 78; see R.S. 1879. art. 2851. A wife could not 

legally acknowledge a conveyance of her separate property or the 

homestead executed by her unless it was explained to her apart from 

her husband. Acts 1846. 1st Leg., at 156; sse R.S. 1879, art. 4310.. 

The purpose of this provision was apparently- protect the wife from 

unwillingly expressing agreement to the conveyance out of fear of her 

husband. submissiveness, or lack of education and business experience. 

Texas Legislative Council, Legal Status of Married Women in Texas, A 

Report to the 55th Legislature 63-65 (1956); see generally Womack v. 

Womack. 8 Tex. 397 (1852). 

p. 1502 
Honorable Warren G. Tabor, Jr. - Page 3 (MW-437) 

A married woman could not contract except for necessaries or for 

the benefit of her separate property. Cruger v. McCracken, 30 S.W. 

537 (Tex. 1895); see Lee v. Hall Music Company, 35 S.W.2d 685 (Tex. 

1931). She could= enter into a business partnership in the absence 

of a statute authorizing her to do so. R. A. Brown v. Chancellor, 61 

Tex. 437 (1884); Bradford v. Johnson, 44 Tex. 381 (1876). A wife 

could not maintain an action in her own name to collect commissions 

due her under a brokerage contract made with her husband's consent. 

Lilly v. Yeary. 152 S.W. 823 (Tex. Civ. App. 1913, no writ). 

The Texas Constitution of 1876 excluded women from juries. Tex. 

Const. art. V, §§13, 17 (1876). It restricted the vote to men. 

article VI, section 2. Texas Constitution (1876). and provided that 

state senators and representatives had to be qualified voters. Id. 

art. III, 506, 7. Only in 1924 did the supreme court consider whet= 

a woman could hold public office, answering this question of first 

impression in the affirmative. Dickson v. Strickland, 265 S.W. 1012, 

1019-23 (Tex. 1924). 

At the time article 2340 was first enacted, and for some time 

thereafter, a married woman was subject to significant restrictions 

with respect to property management, business activity, and 

participation in public life. Despite the protections provided her by 

community property law, her legal existence was in many ways merged 

with her husband's. See Cartwright v. Hollis, 5 Tex. 152 (1849). 

Bobbit, Contractual Power of Married Women in Texas, 1 Tex. L. Rev. 

281 (1923). Texas statutes and judicial decisions of the late 

nineteenth century are infused with the assumption that a married 

woman's abilities and obligations relegated her to the home. See 

Cullers v. James, 1 S.W. 314 (Tex. 1886). In view of this assumption 

regarding a married woman's proper role in society, it is exceedingly 

unlikely that the legislature of 1876 contemplated that a 

commissioner's wife might hold county employment or intended that 

article 2340, V.T.C.S.. reach his community interest in her salary 

claim. Since the commissioner's fees of office are specifically 

exempted by the statute, it seams consistent to also apply such 

exemption to his community interest in his wife's salary. Attorney 

General Opinion H-993 (1977) construed article 2340 overly broadly and 

in isolation from social conditions prevailing when it was enacted. 

In our opinion, a county commissioner whose wife receives a 

salary for county employment is not thereby placed in violation of his 

article 2340 oath. To the extent that Attorney General Opinion H-993 

(1977) is inconsistent with this opinion, it is hereby overruled. 

SUMMARY 

A county commissioner whose spouse holds a 

salary claim against the county does not thereby 

violate his oath under article 2340, V.T.C.S., 

p. 1503 
Honorable Warren G. Tabor. Jr. - Page 4 (m-437) 

despite his community property interest In that 

claim. Attorney General Opinion H-993 (1977) is 

overruled to the extent it is inconsistent with 

this opinion. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Susan L. Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

James Allison 

Jon Bible 

p. 1504