October 31, 1963 

Honorable G. F. Steger 

county Attorney 

Colorado County 

Columbus, Texas 

Opinion No. C-168 

Re: Whether a contract for the 

sale of gravel and other 

road material by a County 

Clerk, in his individual 

capacity, to a contractor 

for use in, the construction 

of a public highway, financed 

solely with state and federal 

funds, is invalid and related 

Dear Mr. Steger: questions. 

This office is in receipt of your request for an 

opinion on the following questions: 

"1. Is a contract for the sale of gravel 

and other road material by a county clerk, in 

his individual capacity, to a contractor for 

use in the construction of a public highway, 

financed solely with state and federal funds, 

Invalid? 

"2. Would such sale amount to 'official 

misconduct' within the meaning of Article 5, 

Section 24 of the Constitution, and Articles 

5970, 5973 and related articles of the Revised 

Civil Statutes? 

"3. Would the sale of material by a landowner, who happens to be a County Clerk, under 

such a contract amount to a violation of Article 

373 of the Penal Code?" 

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Hon. G. F. Steger, page 2 (C-168) 

Article V, Section 24 of the Texas Constitution 

provides: 

"County Judges, county attorneys, clerks of 

the District and County Courts, . . ., may 

be removed by the Judges of the District Courts 

for incompetency, official misconduct, habitual 

drunkenness, or other causes defined by law, 

upou the cause therefor being set forth in 

writing and the finding of its truth by a jury." 

Article 5970 of Vernon's Civil Statutes reads, 

in part, as follows: 

"All district and county attorneys, county 

Judges, commissioners, clerks of the district 

and county courts and single clerks in counties 

where one clerk discharges the duties of district 

and county clerk, county treasurer, sheriff, 

county surveyor, assessor, collector, constable, 

cattle and hide inspector, justice of the peace 

and all county officers now or hereafter existing 

by authority either of the Constitution or laws, 

may be removed from office by the judge of the 

f3i;;;;;t court fIor incompetency, official mis- 

. . . . 

Article 5973 of Vernon's Civil Statutes reads 

as follows: 

"By 'official misconduct,' as used herein with 

reference to county officers, is meant any unlawful 

behavior in relation to the duties of his office, 

wilful in its character, of any officer intrusted 

In any manner with the administration of justice, 

or the execution of the law; and includes any 

wilful or corrupt failure, refusal or neglect of 

an officer to perform any duty enjoined on him 

by law." 

Article 373 of Vernon's Penal Code reads as 

follows: 

"If any officer of any county, or of any 

city or town shall become In any manner pecuniarily 

interested in any contracts made by such county, 

city or town, through its agents, or otherwise, 

for the construction or repair of any bridge, 

-816- 
Hon. G. F. Steger, page 3 (C-168) 

road, street, alley or house, or any other 

work undertaken by such county, city or 

town, or shall become interested in any 

bid or proposal for such work or In the 

purchase or sale of anything made for or on 

account of such county, city or town, or 

who shall contract for or receive any money 

or property, or the representative of either, 

or any emolument or advantage whatsoever in 

consideration of such bid, proposal, contract, 

purchase or sale, he shall be fined not less 

than fifty nor more than five hundred dollars." 

The sale of road material by a person does not 

in and of itself constitute a wrong. The above questions 

arise on,ly for the reason that the person making the sale 

is a county official. 

There is no constitutional or statutory prohibition 

which would render invalid a contract between a County 

Clerk, acting in his individual capacity, for the sale of 

material to either the State of Texas or the federal 

government. 

The contract for sale of material in question 1s 

not a "contract made by such county, city or town, through 

its agents, or otherwise, for the construction or repair 

of any bridge, road, street, alley or house, or any other 

work undertaken by such county -n, under the provisions 

of Article 373 of the Penal Code. Under the facts stated 

the contract under consideration Is not one in which the 

county is Involved or is not made by or on behalf of the 

county. 

Under the facts submitted the sale of road 

building material by a County Clerk is not such an act 

as would be construed as 'official misconduct" within 

the meaning of Article 5, Section 24 of the Constitution 

or Articles 5970 or 5973 of Vernon's Civil Statutes. 

SUMMARY 

A contract for the sale of gravel by a 

County Clerk, in his individual capacity, 

to a contractor for use in construction 

of a public highway, financed solely with 

state and federal funds is valid, and is 

not such a sale that would amount to 

-817- 
Hon. G. F. Steger, page 4 (C-168) 

'official misconduct" within the 

meaning of Article 5, Section 2& 

of the Constitution, or Articles 

5970 and 5973 of Vernon's Civil 

Statutes, and is not a violation 

of Article 373 of the Penal Code. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

Bill Morse, Jr. 

Assistant 

BMjr:aj 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Malcolm Quick 

James Stofer 

Edward R. Moffett 

APPROVED FOR THE ATTORNEX GENERAL 

By: Stanton Stone 

-818-