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 certainhighway rights-of-way to.the County, after having been advised by you that such saleswere Illegal. We are requested to answer the following questions:

1. 'Mustthe County condemn the lands afore- .saidIn 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 separateproperty of the Commisslonerls' wife, alter the answer to questionNo. 1,where thehusband 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 "loveand affection," would theproperty be the separate property of the wife, or commu- ;nltyproperty? 4. What dlspO8itlOn should be made of the two checks abovementioned?
5. When the checks are cashed by the County, what recourse do the Commissionershave?Honorable W. C. Lindsey, page 2 (~~-1406)

Article 373, Vernon's Penal Code,makes it a misdemeanor: "Ifany officer of any County
. . .

shallbecome 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 orproperty
. . . In conslderatlon $f such

. . .purchase or sale

. . . Article 2340,Vernon's Civil Statutes, requires eachmember of the County Commissioners' Court to take a written oath thathe willn&'be directly or indirectly lnterested In any contract with, or claim against, the County In which he resides, except suchwarrants as may Issue tohim as fees of office. Each Commissioner shall execute a bond, to be approved by the County Judgesin the sum of $3,000.0?, payable to the County Treasurer, condltloned for the faithful performance of the duties of his office, thathe will pay over tohis County all monies lllegal;ypaid tohim out of County funds

. . . In construing Article 373, .&pra, Judge Sharp, speaking for the Commission of Appeals In City of Edlnburgv. Ellis, 59 S.W.2d 99 (1933), said:

"Therule prohibiting public officers from being Interested In public contracts shouldbe scrupulously enforced."
InOPlnlon No. O-3567, this officeheld 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 thereforehad the duty to restore thepurchase money to the County.HonorableW. C. Lindsey,page 3 (WW-1408)

That contracts of this type are illegal iswell- ^^

. 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'8Opinion No. o-3307. In the opinion lastmentioned, this officeheld that condemnation was theproper remedy for acquiring right-of-way owned by a County Commissioner. We re-affirm thisholding and answer the first question In the affirmative.

Question No. 2 involves the validity of the sale of separateproperty of a Commissioner's wife to the County. Under the said statutes, the Commissionermust not be "interested"In the contract. What then is the relationship of the Commissioner to the transaction Involvinghis wife's separateproperty? ‘, You did not state whether or not the right-of-way involvedwas a part of the homestead of the Commissionerand his wife. Ifhomestead, the husband has certain rights enablinghlm to block the disposition of same. Article 4618, V.C.S. Unless he joins In the conveyance, thewife ispowerless to dispose of anypart of her separately ownedhomestead. The.~only

exceptions to this rule are in the event of perma,.-. -,. nent,abandonmentby thehusband or hls.becomlng insane. In eitherof those events, the wife may make the saleunder 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 thenecessary steps to dispose of her separateproperty without the joinder of her husband, but this Is true only as to thenon-homestead property. With the two exceptions noted, neither thehusband nor thewife 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 thewife, thehusband Is entitled to use and occupy the homestead for the remainder ofhis life, even If title to same Iswilled by his wife to thirdparties. 28 Tex.Jur.2d 629, Homesteads, Sec. 203. Thesematters,,we think, clearly make thehusband "interested" In any disposition of thehomestead property, even though separatelyowned by the wife.

* If theproperty Is not homestead, thehusband cannot
trevent the wife from conveying her separate estate. Article 614, V.C.S. The proceeds of such salewould continue to beHonorable W. C. Lindsey,page 4 (~-1406)

her separateestate and thehusband would own no part thereof. We call attention,however, to the fact that in a very real sense, the separateproperty of either spouse Is a'capltal asset of themarriage, Inasmuch as the rents and revenues therefrom are In law the community property of both and this Is true even though the Statute (Article4614, V.C.6.) makes "theIncreaseof all lands"belonging to the wife her separate property. The Texas Constitution, Article XVI, Section 15, defines thewife's separate property, which definition doesnot Include rents and revenues from such property, thus limiting the legislativepower 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, "therents 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 thewife Is a capital asset of themarriage, the rents and revenues therefrom belonging equally to the spouses, In our oplnlon makes thehusband,"lnterested" in the disposition of suchproperty. We accordinglyanswer question No. 2 In the negative.
-- ~..C _. Weare unable to answer the third qtiestloninaKrnaeh' as the determinationof a question of fact Is Involved; :We point out that there Is a presumption that property conveyed -tohusband andwife. or for that matter to either spouse, duringmarriage, ls~communltyproperty. Brick and Tile 6. Parker, 143 Tex. 383, 186 S.W.2d 66 (1945). It appears, however, that thepresumptionmay 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 ascertainableby

"par01evidence of aurroundlng clrcumstances, contemporaneous declarations of theptrtles 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 shouldbe cashedby 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 saleswere 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 tohis County. However, the Countymay acquire such right-of-way by condemnationproceedings. The fact that property sold to the County was the separate property of thewife of a Commissionerwould 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 "loveand affection" is the separateproperty of the wife Is a question of fact. Checks received by the County from two (2)County Commlssioners repaying thepurchase money received by them for rights-of-way sold to the County shouldbe deposited by the County to the credit of the County fund from which thepurchase 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 GeneralHonorable W. C. Lindsey, page 6 (~~-1406)

APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman
Tom McFarllng Bob Shannon Joe Osborn
REVIEWEDFOR THEATTORNEYGENERAL BY: Leonard Passmore