October 31, 1963

Honorable G. F. Steger county Attorney Colorado County Columbus, Texas OpinionNo. 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 solelywith state and federal funds, is invalidand related Dear Mr. Steger: questions.

This office is in receipt of your request for an opinion on the followingquestions:

"1. Is a contract for the sale of gravel and other road materialby a county clerk, in his individualcapacity, to a contractor for use in the constructionof a public highway, financed solelywith 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 tobe a County Clerk, under such a contract amount to a violation of Article 373 of the Penal Code?"

-815-Hon. G. F. Steger, page 2 (C-168)

ArticleV, Section 24 of the Texas Constitution provides: "CountyJudges, county attorneys, clerks of the District and County Courts,
. . .,may be removedby the Judges of the District Courts for incompetency,officialmisconduct,habitual drunkenness, or other causes definedby law, upou the cause thereforbeing set forth in writing and the finding of its truthby a jury." Article 5970 ofVernon's Civil Statutes reads, in part, as follows:

"Alldistrict and county attorneys, county Judges, commissioners,clerks of the district and county courts and single clerks in counties where one clerkdischarges 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 Constitutionor laws, may be removed from office by the judge of the f3i;;;;;tcourt fIorincompetency,official mis-

. . . . Article 5973 ofVernon's Civil Statutes reads as follows:

"By 'officialmisconduct,'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 mannerwith the administrationof justice, or the execution of the law; and includesany wilful or corrupt failure, refusal or neglect of an officer to perform any duty enjoined on him by law." Article 373 ofVernon's Penal Code reads as follows: "Ifany officer of any county, or of any city or town shallbecome In any mannerpecuniarily interested in any contractsmade by such county, city or town, through its agents, or otherwise, for the constructionor repair of any bridge,

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

road, street,alley or house, or any other work undertakenby such county, city or town, or shallbecome interested in any bid or proposal for such work or In the purchase or sale of anythingmade for or on account of such county, city or town, or who shall contract for or receive any money or property, or the representativeof either, or any emolument or advantagewhatsoever in considerationof 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 materialby a person does not in and of itself constitutea wrong. The above questions arise on,lyfor the reason that the person making the sale is a county official.

There is no constitutionalor statutoryprohibition which would render invalid a contractbetween 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 "contractmade by such county, city or town, through its agents, or otherwise, for the constructionor repair of any bridge, road, street,alley or house, or any other work undertakenby such county -n,under the provisions of Article 373 of the PenalCode. Under the facts stated the contract under considerationIs 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 'officialmisconduct"within the meaning of Article 5, Section 24 of the Constitution or Articles 5970 or 5973 ofVernon'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 publichighway, financed solelywith state and federal funds is valid, and is not such a sale thatwould amount to

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

'officialmisconduct"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 PenalCode.

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-