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## THE ATTORNEY GENERAL OF TEXAS August 27. 1987

HonorableTommyW. Wallace CriminalDistrictAttorney Van Zandt County Courthouse Canton,Texas 75103 opinionNo..3M-776
Re: Whether an individualwhose spouse is a bail bondsman may be employed as an investigator for the office of criminaldistrict attorney
Dear Mr. Wallace:
You askvhether an individualwhose spouse is the owner of a bail bond businessmay serve as an investigatorfor the office of criminal districtattorney. Factual information you furnished states that an applicant for the position of investigator in your office has an interest in his wife's bail bond business. The business was initiated during their marriage, themarriage continues to exist,and the income therefrom is communityproperty. Under section 41.109 of the Government Code an investigator appointed by a prosecuting attorney has the same authority as the sheriff to make arrests. Your concern stems from the correlation existing between the number of arrests made in the county and the number of bail bonds the applicant'swife writes in the course of her business. The authorityof an investigatoris delineated in Section 41.109, as follows: (a)An investigatorappointed by a prosecuting

attorney has the same authority as the sheriff of the county tomake arrests anywhere in the county and to serve anywhere in the state warrants, capiases, subpoenas in criminal cases, and all other processes in criminal cases issued by a district court, county court, or justice court of this state. (b)An investigator is under the exclusive authority and direction of the prosecuting

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attorney and is not under the authority and direction of the sheriff. The prosecuting attorney is responsible for the official acts of his investigators and has the same remedies against his investigators and their sureties as any person,has against a prosecuting attorney and his sureties. (c)An investigatormay not draw a fee of any character for performinga duty prescribedby this section.
You suggest that the scenario you have detailed may present a common law conflict of interest.
In Attorney General Opinion JM-270 (1984) it was noted that a prior Attorney General Opinion, JM-99 (1983)had discussed common law conflict of interest but the conclusion reached in JM-270 had been modified by the enactment of article 988b. V.T.C.S.. by the 68th Legislature. In JM-270 itwas stated:

The opinion discussed common law prohibitions against conflictsof interestand concluded that as long as there is no conflict of interest, self-dealing, or potential for dereliction of duties,we believe that as a general proposition, a county official or employee may contract with the county for services or materials which are furnished by that county employee in his private capacity and which are separate and wholly unrelated tohis official county duties. This general conclusion has been modified by the enactment of article 988b. V.T.C.S.. which became effectiveJanuary 1. 1984. Acts 1983, 68th Leg., ch. 640 at 4079. Article 988b. V.T.C.S., relates to conflicts of interest by local public officials: Section 1. In thisAct: (1) 'Local public official' means a member of the governing body or another officer, whether elected or appointed, paid or unpaid, of any district (including a school district), county, city9 precinct, central appraisal district, transit authority or district, or other local governmentalentitywho exercisesresponsibilities beyond those that are advisory innature. -,

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. . . .
sec. 3. (a)Except as providedby Section 5 of this Act, a local public official coxmnitsan offense if he knowingly: (1)participates in a vote or decision on a matter involving a business entity in which the local public official has a substantial interest if it is reasonably foreseeable that an action on thematterwould confer an economicbenefit to the business entity involved; (2)acts as surety for a business entity that has a contract,work, or businesswith the governmental entity; or (3)acts as surety on any official bond requiredof an officer of the governmentalentity. (b)An offense under this section is a Class A misdemeanor.

sec. 4. If a localpublic officialor a person related to that official in the first or second degree by either affinity or consanguinity has a substantial interest .in a business entity that wouldsbe peculiarlyaffectedby an officialaction taken by the governing body, the local public official,before a vote or decisionon thematter, shall file an affidavit stating the nature and extent of the interest and shall abstain from further participation in the matter. The affidavitmust be filedwith the official recordkeeper of the governmentalentity.

sec. 5. (a)The governing body of a governmental entity may contract for the purchase of services or personal property with a business entity inwhich amember of the governingbody has a substantial interest if the business entity is the only business entity that provides the needed service or product within the jurisdictionof the governmental entity and is the only business entity thatbids on the contract. (b)The governing body must take a separate vote on any budget item specificallydedicated to a contractwith an entity inwhich a member of the

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governingbody has a substantial interest and the affected member must abstain from that separate vote. The member who has complied in abstaining in such vote under procedures set forth in Sections 3 and 4 of this Act may vote on a final budget only after the matter in which he is concernedhas been resolved. Sec. 6.
. . .The finding by a court of a violation under this article does not render an action of the governing body voidable unless the measure that was the subject of an action involving conflict of interest would not have passed the governingbody without the vote of the personwho violated this article.
An investigator is an appointed officer who exercises responsibilitiesbeyond those that are advisory in nature. Gov't Code 641.109. We is therefore a local public official within the definition in section l(1) of article 988b,V.T.C.S. While you do not furnish us with information relative to the value of the bail bond business, we will assume in answering your question that the applicanthas a substantialinterest in same. Attorney General Opinion JM-310 (1985) contrasted the common law conflict of interestprohibitionwith article 988b. stating:

. Article 988b. the current local conflict of interest statute, which became effective January 1, 1984, applies a narrower conflict of interest prohibition to a broader group of public officials and,despite the existenceof a conflict,does not void governmental action unless influence is actually exerted.
In reviewing the conduct prohibited by article 988b, Attorney GeneralOpinion JM-310 stated:

Article 988b does not bar such an official's interest in a local government contract,however, but insteadpenalizes the official if he knowingly participates in a vote or decision on a matter involving a business entity in which the local public official has a substantial interest if it is reasonably foreseeable that an action on the matter would confer an economic benefit to the

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business entity involved.
. . . (Emphasis added).
A prime example of a decision an investigator would be called upon to make in the performance of the duties of his officewould be the determination of whether probable cause existed to make a varrantless arrest. We are of the opinion that this is not a vote or decision on a matter involving a business entity in which the applicant has a substantial interest. Further indication that it was not the intent of the legislature to include the decision-makingof a public official such as an investigator is the requirement set-forth in section 4 that the public official file an affidavit stating the nature and extent of the interest in thebusiness entitybeforevoting ormaking a decision on thematter and abstain from furtherparticipation. Clearly, it was not intended that an investigator file an affidavit before making a decision on whether probable cause existed tomake a warrantlessarrest.
We note that under section 41.109(b) of the GovernmentCode that an investigatorappointedby you is under your exclusiveauthorityand directionand you have the same remedies againsthim and his sureties as any personhas against a prosecutingattorneyand his sureties.
SUMMARY
An individualwhose spouse operatesa bail bond business may be appointed as an investigator for the office of criminal district attorney and perform the duties of such position without violating the prohibition against conflict of interestby a localpublic official.

JIM MATTOX Attorney General of Texas
MARY KFLLER ExecutiveAssistantAttorneyGeneral JUDGE ZOLLIE STRAKLCl SpecialAssistantAttorney General RICK GILPIN Chairman,Opinion Committee Preparedby Tom G. Davis AssistantAttorney General

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