THE ATBXB&EY GE~EBAL 

UD)F TEXAS 

AUSTIN, T-R 18711 

Hon. Ned 0. Wallace 

Assistant District Attorney 

Conroe, Texas 

Dear Sir: Opinion No. o-1014 

Re: Can Independent School Dir&riot 

Board award a contract fop the 

purchases of material to be 

bought from a member? 

Your request’ for an opinion bn the question as ia herein stated 

has been received by this offdce. 

Your letter reads in part a8 follows: 

“Question : Under our laws governing Independent 

School Mstrlcts, can the School Board award a 

contract for the purchase of material to ,be bought from 

one of the members of the Board who Is regularly engaged 

in the selling of eaid material?” : 

We quote from Texas Jurisprudence, ‘Vol. 37, page 864, as follows1 

“School districts are quasi public corporation. It is said 

by the courts, particularly with inference to Independent 

districts, that they are of the same general character as 

municipal corporations; in other words, ‘quasi municipal 

corporations, f~ which~ derive their powers by delegation from 

the State., They are state agencies, erected and employed 

for the purpose of administering the state’s system of 

public schools.” Love vs. City of Dallas, 40 SW 2nd 20; 

Thompson vs. Elmo Ind. School Dist., 269 SW 868. 

As is the rule generally, Xhe trustees of independent districts 

possess only the powers expressly conferred by law or, necessarily 

Implied from the powers conferred. Originally, the statute 

Article 2758, R.C.S. granted to trustees of Independent districts 

the same authority, as regards to the 6stabllshment and malnten- 

,and.e of schools, that is conferred upon the governing bodi& of 

incorporated cities and towns ; and in determining the authority i 

of such board the courts have applied the same rule as applied to 

municiljal corporations. As amendad,’ the statutes merely give the 

authority conferred by law upon inaepen’dent school districte. 
Hon. Ned G. Wallace, Page 2 O-1014 

We quote from Texas Jurisprudence, Vol. 37, page 943, a8 follows: 

“A quasi pub110 corporation, such as a school district, 

which owes special duties to the public, may not enter 

into any contract that is not expresaly.authorlzed by 

law.... An independent district is a municipality within 

the meaning of the constitutional provision (Art. 3, Sec. 53) 

providing that "The Legislature shall have no power to grant, 

or to authorize any county or municipal authority to grant, 

. . ..nor pay, nor authorize the payment of, any claim created 

against any county or municipality of the State, under’any 

agreement or contract, made without authority of law."' 

The members of a board of an independent school district are elected 

public officers and the constitution and statutes prohibit various 

officers deainnated therein from being intersted in certain DUbliC 

contracts. &tracts in which the 

a personal interest, and contracts 

interest in any official act to be 

trary to public policy and void. 

officer who made them may-have 

giving an officer a personal 

done by him are clearly conIn Vol. 44, Corpus Jurls, page,%, we find the following rule: 

"It la the general rule that municipal contracts In which 

officers or employees of the city have a personal pecuniary 

Interest are void." 

We quote from Corpus Jurls, Vol. 56, page 485.as follows: r: 

% some jurlsdlotlona atatutes'provlde that a member of 

a school board or a school officer cannot/on behalf of the 

school district or other local school organization enter 

Into a contract In which.he has an individual interest, and 

.~ that In such case the contract is void. Aside from express 

/statutory enactment, such a contract is against public policy, 

and In some jurisdictions it is held that a contract so 

entered into is void, but in other jurladictlona such 

contracts are merely ,voldable, and~are binding when properly 

ratified." 

In the,caae of Royce Ind. School'Diat. vs. Reinhardt, 159 SW 

1010, the Court of Civil Appeals for the Dallas, District held that 

since the board of trustees is a creature of the statutes that It 

has only such powers as are conferred upon it and such implied 

powera a8 are necessary, to execute such 'express powers. 

yh; department held in a conference opinion In Rook 50, page 411, 

: 

*\ 
* . . 

, 

Hon. Ned G. Wallace, Page 3, O-1014 ‘I 

“A contraat for -the sale of supplies .to ~a State Normal 

School made by a corpoI$tlon, the President and General 

Manager of which ie President of the State Normal School 

Board of Regents Is contrary to p’ubllc policy and void. 

“Statutes’ prohibiting officials from cont&atLng on behalf 

of the State~with themeslves are but declaratory of the 

common law; 

“That a member .oP an official ‘board did’ not casts his vote 

In, :favor of’ letting the contr&t to a corporation In which 

he was a 8tdckholder would not relieve the transaction from 

the operation of the rule.” 

We quote from Storey on Agenc.y, Sec.- 211, a’s follows: 

“An agentto sell cannot become the purchaser, thie. 

principal is believed to pervade both the civil and common 

law jurisprudence; ”

In di.scuaslng agreements pending to official aorruptlon or injury 

to the public, Elliotls~Commentaries on the Law of Contracta, 

,,Vol. 2; Sec. 706, states the rule in this-language as follows: 

“Agreements which t.end to’ official corruption or Injury 

of the public service may not be entered Into either directly 

with the official or with a third person who is to bring 

improper lnfkaence to bear upon such official. The courts 

will unheaitatlqly pronounce illegal and void, and being 

contrary to public policy, those contract8 entered into by 

an officer or agent of the public which naturally tend to 

induce suah officer oragent to become remiss in-his duty 

+ to the public. Nor 3.8 it necessary for the officer or:agent 

to bind himself to violate his duties to the public in order 

to bring such an agreement within ti)e operation of the rule. 

Any agreement by which he’places hlmaelf or is placed in a 

position which 5.e inconeietent~with his duties to the public 

and ha8 a tendency to induce hlm to Violate such duties, is 

clearly illegal’ and void. w 

The following section deal&g,wkh intereat of a public official 

is in part as followa: 

‘tinder this principal, contracts ‘for services or mateHa 

In which public officers have an Individual Interest, are 

prohibited. Independently’of any statute or, precedent, 

upon the general,prlncipal OS law and morality, a member of 

an offlcial,board cannot contraot with the boo@ of which he 

la a member. ’ Davideon vs. Gllford Company, 152 N.C. ‘3436; 

State vs. EWindell, 156 Ind. 648. 
Hon. Net3 0. Wallace, Page 16, 04014 

We quote from the case of Cheney vs. Unroe, 166 Ind.; 550, a8 

follows : 

“It is a well ~established and salutary doctrine, that he 

who Is entrusted with the business of others cannot be allowed 

to make such buslness~an object of pecuniary profit to himself. 

This rule 40s~ n,o? depend .r?n reasoriing .technlcal In Its 

character, and la not local in Its application. It ia based on 

principals of reason, of morality and of public policy. It has 

its foundation 1n:the very ?nnstltution of our nature for It 

has authoritatlvely’~b‘een.~declared that & man cannot serv@ two 

masters, aMi& recognized and enforced wherever a regulated 

system of j.urieprudence prevails. ” 

‘In the case of the City of Fort Wayne vs.~Rosenthal, 74 Ind. 156, it 

was hel.4 that an employment by a board of health of one of its 

members to vaccinate pupils in a public school is void. The court 

said: 

“As agent, he cannot contract with himself personklly. He . 

cannot buy what he Is employed to sell. If employed to 

procure a aervlce to be done, he cannot ~hlre himself to do it. 

~~;t~prlne $8 generally ap@llcable to’prlvate agents and 

* but to public offioere it applies with greater 

force, &d sound policies require that there be no relaxation 

of its stringency in any case which comes within Its reason.,” 

me reports abound in cases’ based u&n i&atutes prohibiting 

officials becoming Interested in contracts with the state. Statutes 

of this character, however, are nothing more than the adoption of 

the common law rule to the effect that one &cannot in his official 

capacity deal with himself as an individual. In the case of Smith 

ve. Albany; 61 M &@, the$.New York Court of Appeals in discuaslng 

this. rule said: 

“It 18 unlawful for a member of any common counsel of,any 

city in this state to become a contractor,under my contract 

authorized by the common counsel, and authorizing such 

contracts to be dehlardd void at the instance of the city, has 

not wrought a change in th6 rule referred to; it is, so far as 

it goes, elmply dei?laratory of the law as it exl,ated PXWriOUS 

to the paaoage of the act of 1843.” 

The Supreme Court of Texas dlscuaslng the rule In Wills vs. Abbey, 

27 Tex. 203, saying: 

“Public policies required thBt the offiicers chosen to locate 

and survey the public lando kil’&?uld not be permitted to ... 

epeculs;te.them, or to acquire Interest in them, which would 

present to such officers the temptatlon~to take advantage’of 
Hon. Ned 0. Wallace, Page 5, O-1014 

the information which their offlclal*posltions enable them 

to acquire+ to the detriment 6f the holders of certificates 

generally. 

We quote from 9 Cyc. 485 as follows: 

‘A people can haire no higher public Interest, except the 

preservation of their liberties, than Integrity and the 

administration of their government and all of Its departmerits. It Is therefore a prlncfpal of the CommOn law that 

it will not lend its aid to enforcement of the contract to 

do an act which tends to corrupt or contaminate, by Improper 

and sinister influences, the Integrity of our social or 

political lnstltutlons. Public officers should act from 

high consideration of public duty, and hence every agreement 

whose tendency or object is to sully the purity or miaQad 

the judgment of those to whom the highest trust la confided 

is condemned by the courts. The officer may be an executive, 

a&ninistr&tive, legislative or judlcdal officer. The 

principal is the same in either case.” 

In view of the foregoing a:thoritiea, you are respectfully advised 

that It is the opinion of this department that the board OS an 

independent school district cannot award a contract for the 

purchase of material to be bought from a ~member of the board.. 

Trusting that the foregoing answers your inquiry, we remain 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By a/ Ardell wllliama 

Ardell Wllllams 

AW:AW Assistant 

APPROVED JULY 10, 1939 

a/ W. F. .Moore 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Osinion Committee 

By RWF, Chairman