C 

THE ATTORNEY GENERAL 

OF TEXAS 

August 27. 1987 

Honorable Tommy W. Wallace 

Criminal District Attorney 

Van Zandt County Courthouse 

Canton, Texas 75103 

opinion No..3M-776 

Re: Whether an individual whose 

spouse is a bail bondsman may 

be employed as an investigator 

for the office of criminal district attorney 

Dear Mr. Wallace: 

You ask vhether an individual whose spouse is the owner of a bail 

bond business may serve as an investigator for the office of criminal 

district attorney. 

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, the marriage continues to exist, and the income therefrom is 

community property. 

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's wife writes in the course of her 

business. 

The authority of an investigator is delineated in Section 41.109, 

as follows: 

(a) An investigator appointed by a prosecuting 

attorney has the same authority as the sheriff of 

the county to make 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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Honorable Tommy W. Wallace - Page 2 (JM-776) 

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 investigator may not draw a fee of any 

character for performing a duty prescribed by 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 it was stated: 

The opinion discussed common law prohibitions 

against conflicts of interest and 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 to his official county duties. 

This general conclusion has been modified by 

the enactment of article 988b. V.T.C.S.. which 

became effective January 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 this Act: 

(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, 

city 9 precinct, central appraisal district, 

transit authority or district, or other local 

governmental entity who exercises responsibilities 

beyond those that are advisory in nature. 

-, 

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Bonorable Tommy W. Wallace - Page 3 (JM-776) 

. . . . 

sec. 3. (a) Except as provided by Section 5 of 

this Act, a local public official coxmnits an 

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 

the matter would confer an economic benefit to the 

business entity involved; 

(2) acts as surety for a business entity that 

has a contract, work, or business with the governmental entity; or 

(3) acts as surety on any official bond 

required of an officer of the governmental entity. 

(b) An offense under this section is a Class A 

misdemeanor. 

sec. 4. If a local public official or 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 peculiarly affected by an official action 

taken by the governing body, the local public 

official, before a vote or decision on the matter, 

shall file an affidavit stating the nature and 

extent of the interest and shall abstain from 

further participation in the matter. The 

affidavit must be filed with the official recordkeeper of the governmental entity. 

sec. 5. (a) The governing body of a governmental entity may contract for the purchase of 

services or personal property with a business 

entity in which a member of the governing body has 

a substantial interest if the business entity is 

the only business entity that provides the needed 

service or product within the jurisdiction of the 

governmental entity and is the only business 

entity that bids on the contract. 

(b) The governing body must take a separate 

vote on any budget item specifically dedicated to 

a contract with an entity in which a member of the 

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Bonorable Tommy W. Wallace - Page 4 (JM-776) 

governing body 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 

concerned has 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 governing body without the vote of the 

person who violated this article. 

An investigator is an appointed officer who exercises 

responsibilities beyond 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 applicant has a substantial interest in same. 

Attorney General Opinion JM-310 (1985) contrasted the common law 

conflict of interest prohibition with 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 existence of a conflict, does not 

void governmental action unless influence is 

actually exerted. 

In reviewing the conduct prohibited by article 988b, Attorney 

General Opinion JM-310 stated: 

Article 988b does not bar such an official's 

interest in a local government contract, however, 

but instead penalizes 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 

p. 3657 
Honorable Tommy W. Wallace - Page 5 (JM-776) 

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 office would 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-making of 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 the business entity before voting 

or making a decision on the matter and abstain from further participation. Clearly, it was not intended that an investigator file an 

affidavit before making a decision on whether probable cause existed 

to make a warrantless arrest. 

We note that under section 41.109(b) of the Government Code that 

an investigator appointed by you is under your exclusive authority and 

direction and you have the same remedies against him and his sureties 

as any person has against a prosecuting attorney and his sureties. 

SUMMARY 

An individual whose spouse operates a 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 

interest by a local public official. 

JIM MATTOX 

Attorney General of Texas 

MARY KFLLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STRAKLCl 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

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