-e.. .

MARK WHITE Attorney

General

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An Equal OpPoftunltyl Affirmative Action EmPlOyW 

# The Attorney General of Texas ~~.-‘~ __.__. “~.‘

.“
-‘., - February 2, 1982 , 1 3 L2-;~;emeT ,_ .. , j ,* ~'..----&J&g
Honorable Warren G. Tabor, Jr. opinion No.MW-437 District Attorney Hockley County Courthouse Re: Interpretationof article Levelland, Texas 79336 2340.V.T.C.S.
Dear Mr. Tabor:
Your predecessor in office requested an Attorney GeneralOpinion on questions arising out of the following fact situation: Thewife of a county commissioner for Hockley County "as employed as deputy clerk in the county clerk's office. The county clerk appointshis 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, setby the commissionerscourt. V.T.C.S. arts. 3902, 3912k, $1. The deputy clerk held this position for almost sevenyears 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 effectivelyask for a re-examinationof thatopinion. Attorney GeneralOpinionH-993 (1977)determined thatthewife 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 inany contractwith, or claim against, the county in which he resides, except such warrants as mav issue to him as fees of office.... (Emphasisaddeh). The county paid thewife's salary, and the opinion concludedthat the community property laws gave her husband an interest in it. Family Code 55.01.

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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 readas follows:

Neither the County Judges nor any of the Commissioners shall enter upon the dutiesof their officesuntil they shallhave 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 feesof office.... The original enactment thus did not differ substantially from the version considered inAttorneyGeneral OpinionH-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 SessionLaws refer to "any contract with 5 claim against the county." (Emphasisadded). The substitution of "au for "orw appears to be a typographicalerror, corrected in the first codificationof the Texas statutes,which was publishedpursuant to legislative authorization. R.S. 1879, art. 1512; see Acts 1879, - 16thLeg., 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 itspassage. Railroad CommissionV. 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, marriedwomen remained under numerous disabilitiesof coverture. The husband'sdomicilebecame thatof thewife. HareV. Hare, 10Tex. 355 (1853); Flowers V. State, 3 S.W.2d 1111 (Tex. Grim. App. 1928). He had the solepower tomanage and controlhis wife's separateproperty, 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 purposeof this provision was apparently- protect the wife from unwillingly expressing agreement to the conveyance out of fear of her husband. submissiveness,or lack of educationandbusiness 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).

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A marriedwoman could not contract except for necessariesor 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 intoa business partnershipin the absence of a statuteauthorizingher 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 contractmade with her husband's consent. Lillyv. Yeary. 152 S.W. 823 (Tex.Civ. App. 1913,nowrit). 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 1924did the supreme court considerwhet= 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 participationinpublic life. Despite the protectionsprovidedher 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 thisassumption regardinga marriedwoman'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 GeneralOpinionH-993 (1977)construed article 2340 overlybroadlyand in isolationfrom social conditionsprevailingwhen itwas enacted.
In our opinion, a county commissioner whose wife receives a salary for countyemployment is not therebyplaced inviolationof his article 2340 oath. To the extent that Attorney GeneralOpinionH-993 (1977)is inconsistentwith this opinion, it isherebyoverruled.
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.,

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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. FirstAssistantAttorneyGeneral
RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Prepared by Susan L. Garrison Assistant AttorneyGeneral
APPROVED: OPINION COMMITTEE
Susan L. Garrison, Chairman James Allison Jon Bible

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