August 1, 1962 

Honorable W. C. Lindsey Opinion No. ~~-1406 

CYlmlnal District Attorney 

Courthouse Re: Matters relating to the 

Beaumont, Texas sale to the county of 

highway rights-of-way by 

certain County CornmlsDear Mr. Lindsey: sloners. 

Your letter with enclosures recites the fact that 

on April 19, 1962, two of the County Commissioners of your 

County submitted to the County Commissioners' Court their 

personal checks In repayment of the amounts they received 

for the sale of certain highway rights-of-way to.the County, 

after having been advised by you that such sales were Illegal. 

We are requested to answer the following questions: 

1. 'Must the County condemn the lands afore- 

.said In order to obtain for the State clear 

title to the rights-of-way? 

2. Would the fact that In a similar sltuatlon involving another Commissioner the land 

was the separate property of the Commisslonerls' 

wife, alter the answer to question No. 1, where 

the husband joined in the deed to the County? 

3. If the land In question was originally 

deeded jointly to the Commfssloner and his 

wife by her parents, In consideration of 

"love and affection," would the property be 

the separate property of the wife, or commu- 

;nlty property? 

4. What dlspO8itlOn should be made of the 

two checks above mentioned? 

5. When the checks are cashed by the County, 

what recourse do the Commissioners have? 
Honorable W. C. Lindsey, page 2 (~~-1406) 

Article 373, Vernon's Penal Code, makes it a misdemeanor: 

"If any officer of any County . . . 

shall become Interested . . . In the 

purchase or sale of anything made for 

or on account of such County . . . or' 

who shall contract for or receive any 

money or property . . . In conslderatlon $f such . . . purchase or sale 

. . . 

Article 2340, Vernon's Civil Statutes, requires 

each member of the County Commissioners' Court to 

take a written oath that he 

will n&'be directly or indirectly lnterested In any contract with, or claim 

against, the County In which he resides, 

except such warrants as may Issue to him 

as fees of office. Each Commissioner 

shall execute a bond, to be approved by 

the County Judges in the sum of $3,000.0?, 

payable to the County Treasurer, condltloned for the faithful performance of 

the duties of his office, that he will 

pay over to his County all monies lllegal;y paid to him out of County funds 

. . . 

In construing Article 373, .&pra, Judge Sharp, 

speaking for the Commission of Appeals In City of Edlnburg v. 

Ellis, 59 S.W.2d 99 (1933), said: 

"The rule prohibiting public officers 

from being Interested In public contracts 

should be scrupulously enforced." 

In OPlnlon No. O-3567, this office held that the 

sale by a County Commissioner of an easement to the County 

was void by virtue of the statutes aforesaid, and that the 

Commissioner therefore had the duty to restore the purchase 

money to the County. 
Honorable W. C. Lindsey, page 3 (WW-1408) 

That contracts of this type are illegal is well- ^^ . 

settled. Rlgby v. State, 10 S.W. 760 Ct. of App. Ioog); 

Cornutt v. Clay County, 75 S.W.2d 299 I Clv.App. 1934); Bland 

v. State, 38 S.W. 252 (Clv.App. 1896, error ref.); Attorney 

General '8 Opinion No. o-3307. In the opinion last mentioned, 

this office held that condemnation was the proper remedy for 

acquiring right-of-way owned by a County Commissioner. We 

re-affirm this holding and answer the first question In the 

affirmative. 

Question No. 2 involves the validity of the sale of 

separate property of a Commissioner's wife to the County. 

Under the said statutes, the Commissioner must not be 

"interested" In the contract. What then is the relationship 

of the Commissioner to the transaction Involving his wife's 

separate property? 

‘, You did not state whether or not the right-of-way 

involved was a part of the homestead of the Commissioner and 

his wife. If homestead, the husband has certain rights enabling hlm to block the disposition of same. Article 4618, 

V.C.S. Unless he joins In the conveyance, the wife is powerless to dispose of any part of her separately owned homestead. 

The.~only ,.-. -,. exceptions to this rule are in the event of permanent,abandonment by the husband or hls.becomlng insane. In 

eitherof those events, the wife may make the sale under order 

of the District Court. Article 4617, V.C.S. Under the 1957 

amendment to Articles 4614 and 4617, It 1s true that a married 

woman at least 21 years of age may take the necessary steps 

to dispose of her separate property without the joinder of 

her husband, but this Is true only as to the non-homestead 

property. With the two exceptions noted, neither the husband 

nor the wife can dispose of the homestead, regardless of which 

spouse Is the owner, wlthout both joining In the conveyance. 

Further, In the event of the death of the wife, the husband 

Is entitled to use and occupy the homestead for the remainder 

of his life, even If title to same Is willed by his wife to 

third parties. 28 Tex.Jur.2d 629, Homesteads, Sec. 203. 

These matters,,we think, clearly make the husband "interested" 

In any disposition of the homestead property, even though 

separately owned by the wife. 

* If the property Is not homestead, the husband cannot 

t 

revent the wife from conveying her separate estate. Article 

614, V.C.S. The proceeds of such sale would continue to be 
Honorable W. C. Lindsey, page 4 (~-1406) 

her separate estate and the husband would own no part thereof. 

We call attention, however, to the fact that in a very real 

sense, the separate property of either spouse Is a'capltal 

asset of the marriage, Inasmuch as the rents and revenues 

therefrom are In law the community property of both and this 

Is true even though the Statute (Article 4614, V.C.6.) makes 

"the Increase of all lands" belonging to the wife her separate property. The Texas Constitution, Article XVI, Section 

15, defines the wife's separate property, which definition 

does not Include rents and revenues from such property, thus 

limiting the legislative power to enlarge such definition. 

Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925). A8 

stated I Conrmissloner of Internal Revenue v. Wilson, 76 F.2d 

766 (C.C:A. 5th, 1935) 

separate estate, thereiore, 

"the rents and revenues of thenwife's 

still go to the community. And 

.see 30 Tex.Jur.2d 121, Husband and Wife, Section 67. 

The fact that the separate property of the wife Is 

a capital asset of the marriage, the rents and revenues therefrom belonging equally to the spouses, In our oplnlon makes 

the husband,"lnterested" in the disposition of such property. 

We accordingly answer question No. 2 In the negative. 

-- ~..C _. 

We are unable to answer the third qtiestlon inaKrnaeh' 

as the determination of a question of fact Is Involved; : We 

point out that there Is a presumption that property conveyed 

-to husband and wife. or for that matter to either spouse, 

during marriage, ls~communlty property. Brick and Tile 6. 

Parker, 143 Tex. 383, 186 S.W.2d 66 (1945). It appears, however, that the presumption may be overcome by proof that the 

Intentjon of the parties to the conveyance waithat the property was to be the separate estate of the wife, such Intention 

being ascertainable by 

"par01 evidence of aurroundlng clrcumstances, contemporaneous declarations of 

the ptrtles and other admissible evidence 

. . . 

Dunham v. Chatham, 21 Tex. 231 (1858); Panhandle Construction 

company v. Flesher, 87 S.W.28 273 (Clv.App. 1935, error dlsm.) 
honorable W. C. Lindsey, page 5 (~~-1406) 

With reference to question No. 4, since the sales 

In question are void, the checks should be cashed by the 

County and placed to the credit of the particular County fund 

from which the purchase money was originally drawn. The 

deeds to the County being void, title to the lands remains 

In the original owners and Is subject to their disposition 

just as before the attempted sales were made, except that 

they cannot, of course, make a voluntary sale to the County. 

This answers question No. 5. 

SUMMARY 

Article 377, Vernon's Penal Code, 

and Article 2340, Vernon's Civil Statutes, Invalidate a sale of highway rlghtof-way by a County Commissioner to his 

County. However, the County may acquire 

such right-of-way by condemnation proceedings. The fact that property sold 

to the County was the separate property 

of the wife of a Commissioner would not 

make the transaction a valid one. The 

question of whether land conveyed jointly 

to husband and wife by~the wife's parents 

In consideration of "love and affection" 

is the separate property of the wife Is 

a question of fact. Checks received by 

the County from two (2) County Commlssioners repaying the purchase money received by them for rights-of-way sold to 

the County should be deposited by the 

County to the credit of the County fund 

from which the purchase money was orlglnally paid. The sales being void, title 

to the rights-of-way remains In the 

original sellers. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

JAS:afg 

: Arthur Sandlln t 

Assistant Attorney General 
Honorable W. C. Lindsey, page 6 (~~-1406) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Tom McFarllng 

Bob Shannon 

Joe Osborn 

REVIEWEDFOR THEATTORNEYGENERAL 

BY: Leonard Passmore