‘, 

THEATTORNEY GENERAL 

OF -rExAs 

GEFtALD c. MANN Aus~l~ll.T~xAe 

Honorable R. A. Barton 

County Attorney 

Calhoun County 

Port Lavaca, Texas 

Dear Sir: Opinion No. ad2980 

Re: Can a contract as county 

depository be made with a bank 

In which the county judge of the 

county is a director or stockholder? 

We have received your letter of recent date requesting our opinion 

on the above stated question. Your letter reads: 

"Can a contract as county depository be made to a bank 

in which the County Judge of the county Is a director or 

stockholder of the bank? 

"Regardless of the fact'that Art. 373 Penal Code of Texas 

is indefinite in regard to the above question and in fact 

seems to deal with entirely different contractual matters, 

in the year 1913, in Opinion No. 36 your department says 

among other things, 'A bank having as director one of the 

County Commissioners, la not eligible to bid for or become 

the.custodlati of the county funds, and If It were to do so 

and the Commlsslonerst Court awarded the funds to such a 

bank, It would be a violation of law and the parties subject 

to prosecutlont C.M. Cureton, 1st Asst. Atty. Gen. 

"In the next opinion which Is also weitten by Judge Cureton, 

Opinion No. 37, among other things the opinion says: 'Under 

no circumstances, so long as you are County Judge and at 

the same time a stockholder in the bank, can the Commissioners' Court name the bank as County Depository.' 

"I can find no court decisions on this matter and so far 

as I can determine your department has not passed on the 

question since the above said opinions were handed down, 

Will you please give me your opinion at, this time on this 

question at your earliest convenience? 
Honorable R. A. Barton, Page.2, O-2980 

In the case of First National Rank v. Terry, et al, 83 So. 170, 

the Supreme Court of Alabama stated: 

"In common acceptance of that term, a depository Is a 

oontractee with ministerial duties, performance of which 

may be oompelled In proper oases by the writ of mandamus." 

The commlssloners~ court is composed of the several commissioners 

of the county and the county judge, and the county judge when 

present, Is the presiding officer of said court. Article 2342, 

Vernon's Civil Statutes. * 

Article 2544 to Article 2558, lnclusfire Vernon's Civil Statutes, 

as amended by House Bill No. 572, ch. 464, Regular Session, 45th 

Legislature, page 1298-1316, provides thatthe county commissioners% 

court of each county shall select, approve and supervise the county 

depository for such county. 

Article 373 of the 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 u?house, or any other work undertaken by such 

county, city or town, or shall become Interested Sn 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 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." 

It Is to be noticed that Article 373, supra, does not refer to all 

types of contracts, in which the public officer may be Interested, 

but Is limited to "any contract * * * for the construction or 

repair of any bridge, road, street, alley or house, or any other 

work * * l or any bid or #reposal for such work or in the purchase 

or sale of anything * + * . We are of the opinion that a 

contract with a bank to act as county.depository Is not such a 

contract as described In this Article. 

Article 373, supra, is a penal statute, and our courts have 

conslstently'held that penal statutes cannot be extended beyond 

their plain meanlpg. In the case of Ratcliff v. State, 106 Tex. 

Cr. R. 37, the following language is quoted from Lewis Sutherland 

Statutory Construction, sec. 520: 
Honorable R. A. Barton, Page 3, O-2980 

“The oase must be a very strong one Indeed which would 

justify a court In departing from the plain meaning of the 

words, especially In a penal act, In search of an Intention 

whloh the words themselves did not suggest.” 

It is a well established rule, however, even In the absence of a 

statute, that one In his official capacity oannot deal with himself In his lndldrrfdual capacity; and it la well settled In Texas 

that If a public official, directly or lndlreotly, has a pecuniary 

Interest In a contract, no matter how honest he might be, and 

although he may not .be Influenced by the Interest, such a contr&t 

Is against public policy. Meyers, et al v. Walker, 276 S.W. 305; 

City of Edlnburg v. Ellis, 59 S.W. (2d) 99. 

Therefore, In view of the foregoing authorities, It Is our 

opinion, and you are so advised, (1) that Article 372 of the 

Penal Code Is not applicable to a contract with a bank to act as 

county depoeltory; (2) that a contract as county depository made 

with a bank In which the county judge of the county Is a 

director or stockholder, is void. For your Information, we are 

enclosing herewith a copy of Opinion No. o-2656, written upon a 

related question. 

In further support of our oonoluslon number two, In the paragraph above, we call your attention to that portion of Article 

2340, Vernon’s Cltil Statutes, wherein It Is provided: 

“Before entering upon the duties of their offloe, the 

county &age and each oommlseioner shall take the offlo 

oath, and shall also take a written oath that he will not be 

directly or Indirectly Interested in any oontraot with, or 

claim against, the county In which he resides, except such 

warrants as may issue to him as fees of office. + l *.” 

Letter Opinion Nos. 36 and 37, written by C. M. Cureton, 

Assistant Attorney General during the Looney Administration, 

referred to by you and which may be found on pages 170 and 172 

of the Attorney Generals’ Biennial Report for the year 1912-1914, 

likewise hold, In effect, that similar oontraots entered into 

between the oonunlsaloners~ oourt and a depository bank are absolutely void. The above opinions do not, In any way, refer to 

Article 373 of the Penal Code, thererore we cannot take the 

position that these opinions passed upon the appllaatlon of said 

Article 373 to such a situation. 

Trusting that this answers your question, we remain 
Honorable R. A. Barton, P&se 4, O-2980 

Yours very truly 

ATTORNEYGENERAL OFTJZXAS 

a/ B; Burle Davisa 

D.' Burle Davis8 

Assistant 

APPROVED JAN 22, 

s/ Gr6ver Sellers 

191 

F&T km.s’EAN1: 

ATTORNEY GENERAL 

DBD:RS 

APPROVED OPINION 

BY BWB, Chairman 

COMMITTEE 

.