# The Attorney General of Texas October 24, 1983 JIM MATTOX Attorney General

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An Equal Opportunity/ Affirmative Action Employel HonorableH. Ownby CriminalDistrictAttorney Collin CountyCourthouse MeKinney,Texas 75069 OpinionNo. JM-82 Re: Whether commissioner of Collin Countymay donateuse of forms copyrighted in his own name to Collin County and sell use of forms to other counties DearMr. Ownby: You have askedwhether a county commissionermay donate "simplex forms" foruse in justice of thepeace offices. You stated that these forms have been copyrighted and that the commissioner intends to market these forms to other counties in Texas. We assume that such distribution and sale of these forms is being pursued by the commissioner in his private capacityand for personal gain or profit. Collin County, however, will not expend any county funds for the use of the forms. For purposes of this opinion we assume hut do not decide that Collin County has authority to accept donated forms of the type in question. In BridewellV. Clay, 185 S.W.2.d 170. 172 (Tex.Civ.ADD. - Dallas 1944,writ ref'd) (quoting 38 C.J.S., Gifts Q3, at 781), the court stated:

It is also said that a gift is 'a contractwhich takes place by the mutual consent of the giver, who divestshimself of the thinggiven in order to transmit the title of it to the donee gratuitously, and the donee. who accepts and acquires the legal title to it; it operates, if at all, in the donor's lifetime, immediately and irrevocably, and is a gift executed, no further act of parties, no contingency of death or otherwise,being needed to give it effect.' This decision indicates that the offer of a gift by a donor, together with itsacceptanceby a donee, constitutesa "contract." Article 2364,V.T.C.S.,provides:

No member of the commissioners court or any county officer shall be, either directly or

p. 347HonorableH. Ownby - Page 2 (JM-82)

indirectly, interested in any such contract [for formsand 'stationery supplies]. In our opinion, article 2364 means that a county official may not profit, either directly or indirectly,from the supplyingof goods or services to his county. In the present instance,we presume that all parties to the transaction are acting in the public interest. Nevertheless,we can imagine instances in which a county official's donation of goods or services to his countymight have a substantial impact on future elections. Moreover, the facts submitted to us indicate that this commissioner intends to use Collin County as a showcase for the sale ofhis forms to other counties. Althoughwe may not agree with the strictness of the prohibition of article 2364,we believe it is clear that it embraces the circumstances related here. It is therefore our opinion that, under the facts presented, a commissionermay not donate theuse of "simplex forms"to his county. SUMMARY Under the circumstances described, a county commissioner is prohibited by article 2364, V.T.C.S., fromdonating "simplex forms" foruse by his county.

JIM MATTOX AttorneyGeneral of Texas DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby David Brooks AssistantAttorneyGeneral APPROVED: OPINIONCOMMITTEE Rick Gilpin,Chairman Jon Bible David Brooks Colin Carl Nancy Sutton

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