‘, 

### THEATTORNEY GENERAL

OF -rExAs GEFtALD c. MANN Aus~l~ll.T~xAe

HonorableR. A. Barton County Attorney Calhoun County Port Lavaca, Texas Dear Sir: OpinionNo. 

### ad2980
Re: Can a contract as county depositorybe 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 requestingour opinion on the above stated question. Your letter reads: "Can a contract as county depositorybe made to a bank in which the County Judge of the county Is a director or stockholderof the bank? "Regardlessof the fact'thatArt. 

### 373Penal Code of Texas is indefinitein regard to the above question and in fact seems to deal with entirely different contractualmatters, in the year 1913, in OpinionNo. 

### 36 your departmentsays 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 CommlsslonerstCourt awarded the funds to such a bank, It would be a violation of law and the parties subject to prosecutlontC.M. Cureton, 1st Asst. Atty. Gen.
"In the next opinion which Is also weitten by Judge Cureton, OpinionNo. 

### 37,among other things the opinion says: 'Under no circumstances,so long as you are County Judge and at the same time a stockholderin the bank, can the Commissioners' Court name the bank as County Depository.'
"I can find no court decisionson this matter and so far as I can determineyour departmenthas not passed on the question since the above said opinionswere handed down, Will you please give me your opinion at, this time on this question at your earliest convenience?HonorableR. A. Barton, Page.2,O-2980

In the case of First NationalRank v. Terry, et al, 

### 83 So. 170, the Supreme Court of Alabama stated:
"In common acceptanceof that term, a depositoryIs a oontracteewith ministerialduties,performanceof which may be oompelled In proper oases by the writ of mandamus." The commlssloners~ court is composedof the several commissioners of the county and the county judge, and the county judge when present, Is the presiding officerof 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 supervisethe county depositoryfor 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 pecuniarilyInterestedIn any contracts made by such county, city or town, through Its agents, or otherwise,for the constructionor repair of any bridge, road, street, alley u?house,or any other work undertakenby such county, city or town, or shall become InterestedSn any bid or proposal for such work or in the purchase or sale of anything made for or on accountof such county, city or town, or who shall contractfor or receive any money or property, or the representative of either, or any emolumentor advantagewhatsoever in considerationof 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 constructionor repair of any bridge, road, street,alley or house, or any other work * * l or any bid or #reposalfor such work or in the purchase or sale of anything * + *

. We are of the opinion that a contractwith 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 extendedbeyond their plain meanlpg. In the case of Ratcliff v. State, 

### 106 Tex. Cr. R. 

### 37, the following languageis 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, especiallyIn a penal act, In search of an Intention whloh the words themselvesdid not suggest.” It is a well establishedrule, 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 althoughhe may not .beInfluencedby the Interest, such a contr&t Is againstpublic policy. Meyers, et al v. Walker, 276 S.W. 305; City of Edlnburgv. Ellis, 59 S.W. (2d) 99.
Therefore, In view of the foregoingauthorities,It Is our opinion, and you are so advised, (1) that Article 372 of the Penal Code Is not applicableto a contractwith a bank to act as county depoeltory; (2) that a contract as county depositorymade with a bank In which the county judge of the county Is a director or stockholder,is void. For your Information, we are enclosingherewith a copy of OpinionNo. 

### o-2656, written upon a related question.
In further support of our oonoluslonnumber two, In the paragraph above, we call your attention to that portion of Article 2340, Vernon’s Cltil Statutes, wherein It Is provided: “Beforeenteringupon the duties of their offloe, the county &age and each oommlseionershall take the offlo oath, and shall also take a written oath that he will not be directly or IndirectlyInterestedin any oontraotwith, or claim against, the county In which he resides, except such warrants as may issue to him as fees of office. + l *.” Letter OpinionNos. 

### 36 and 

### 37, written by C. M. Cureton, AssistantAttorneyGeneral during the Looney Administration, referred to by you and which may be found on pages 170 and 172 of the AttorneyGenerals’Biennial Report for the year 1912-1914, likewisehold, In effect, that similar oontraots entered into between the oonunlsaloners~ oourt and a depositorybank are absolutelyvoid. The above opinions do not, In any way, refer to Article 373 of the Penal Code, thererorewe cannot take the position that these opinionspassed upon the appllaatlonof said Article 

### 373 to such a situation. Trusting that this answers your question,we remainHonorableR. 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

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## F&T km.s’EAN1: ATTORNEY GENERAL DBD:RS APPROVED OPINION BY BWB, Chairman COMMITTEE

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