. 

The Attorney General of Texas 

May 5, 1980 

MARK WHITE 

Attorney General 

Honorable Robert Bernstein, M.D. 

Acting Commissioner of Health 

Texas Department of Health 

HO0 West 49th Street 

Austin, Texas 78756 

Opinion No. NW- 17 9 

Re: Whether the Department of 

Health may purchase supplies from 

a business owned by a member of 

the Texas Board of Health. 

Dear Dr. Bernstein: 

You have requested our opinion as to whether the Texas Department of 

Health may purchase supplies from e business owned by a member of the 

Board of Health. 

The Texas Board of Health employs the Commissioner of Health, who 

is designated the “executive head of the Department.” Articles 44l8a, 44184 

V.T.C.S. The Commissioner is required to “perform the duties assigned to 

him by the Board,” and he %erve[sI at the will of the Board.” Id Article 

4419c, V.T.C.S., prescribes to the Department certain duties withxgard to 

the treatment of crippled children: 

Sec. 3. The Crippled Children’s Division of the 

State Department of Health is empowered to take 

census, make surveys and establish permanent records 

of crippled children end children who have cancer; to 

procure medical and surgical service for eligible 

children, provided that only physicians legally 

qualified to practice medmme and surgery in Texas 

be employed for purposes of diagnosis and treatment, 

that not more than the customarv minimum fees be 

paid for such services, and that ph&!icians or surgeons 

so employed shall be approved by the State Board of 

Health as qualifuxl to render such servme; to select 

and designate hospitals for the care of children 

contemplited by this Act, and to take such other 

steps as may be necessary in order to accomplish the 

purposes of this Act. 

p. 568 
Honorable Robert Bernstein, M.D. - Page Two (MW-179) 

At the discretion of the State Department of Health, 

transportation, appliances, braces and material necessary in the 

proper handling of crippled children or children who have cancer 

may be in part or entirely provided. Such appliances, braces and 

materiel, beurz a Dart of the care and treatment orosram and 

necessary to be Physical restoration of the individuei crippled 

child as defined in this Act or a child who has cancer, shell not be 

considered to be state-owned personal property and shall be 

excluded from the personal property inventory required of stateowned property; and all such property including appliances, braces, 

end materials, being a part of the care and treatment program, and 

which are now being accounted for under the provisions of the 

present system of eccounting shall be deleted from end not 

required after the passage and effective date of this Act The 

State Department of Health, however, shall maintain at all times a 

complete record of such appliances, braces and materials provided 

and such records shall be verified by the State Auditor. 

The State Department of Health is directed to provide in Rules 

and Regulatrons, the necessary details for the conduct of this work. 

in accordance with the pure&es of this Act, which shall ermit & 

far as possible, the free choice of patients in their --=7- selections o 

physicians and hospitals, and shall arrange with hospitals, brace 

departments and other services providing for crippled children’s 

work and children who have cancer, compensation for such 

sees, provided that such fees or charges shell not exceed the 

average charges for the same services rendered to patients in the 

hospitals approved for purposes of this Act. 

(Emphasis added). 

The Board of Health approves a list of physicians qualified to treat crippled children, 

and designates hospitals for their care. Within the ambit of these statutory guidelines, a 

patient eligible for services under article 4419c, V.T.C.S., selects his own physician, and if 

a brace or appliance is prescribed for the patient, the physician selects a supplier to 

furnish the brace. The supplier then submits a state purchase voucher to the Department 

of Health for payment. You ask whether such payment is permissible when the supplier is 

en entity wholly or partially owned by a member of the Board of Health. 

In Attorney General Opinion MW-124 (1980), we held a similar arrangement to be 

void in which a county purchased crushed rock from a company which stored the material 

at one of five quarries, one of which was partially owned by a county commissioner, who 

received a royalty for each truckload of rock removed from his quarry. We described this 

arrangement as one involving 

a contract and claims against the county in which a public official 

has an indirect pecuniary interest, at least, and perhaps a direct 

one. 

P- 569 
Honorable Robert Bernstein, M.D. - Page Three (Mw-179) 

Although Opinion MW-124 (1980) was based largely upon the applicability of article 2340, 

V.T.C.S., which requires every county commissioner to take an oath that “he will not be 

directly or indirectly interested in any contract with, or claim against, the county in 

which he resides,” it also referred to the long established state policy that 

a contract between a public official and the public body of which 

he is a member is contrary to public policy and therefore void, if 

the official has any personal pecuniary interest in the contract. 

See also Attorney General Opinion MW-34 (1979). See Meyers v. Walker, 276 S.W. 305, 307 

(Tex.Civ. App. - Eestland 1925, no writ). See%0 m 378 

S.W.2d 126 (Tex. Civ. App. - San Antonio 1964, writ ref’d nr.e.1; Starr County v. Guerre, 

297 S.W.2d 379 (Tex. Civ. App. - San Antonio 1956, no writ). 

This office has frequently applied the public policy rationale of Meyers v. Walker, 

s ra even when no statute was present to render the contract void In Attorney General 

*- pu-uon H 916 (1976), it was held that a school district was without authority to contract 

with a company which employed a member of the district’s board of trustees in a 

managerial capacity. In Attorney General Opinion H-734 (1975), this office said that a 

school district should not contract with one of its trustees to furnish garbage pickup, even 

though the trustee operated the only garbage pickup service in the area. See also 

Attorney General Opinions M-1236 (1972); WW-1362 (1962); O-2306 (1940); O-1589(1939); 

O-878 (1939). See art. 6252-9b, V.T.C.S., §S 6, 8 (statement of general state policy). 

- 

In the present instance, a member of the Board of Health presents for payment by 

the Board of Health a purchase voucher for supplies furnished to a third person. In our 

opinion, payment of such a claim is prohibited by the doctrine of Meyers v. Walker, S 

It is therefore our view that the Department of Health should not purchase supplies .F ram a 

business owned by a member of the Board of Health. 

SUMMARY 

The Department of Health is prohibited by the doctrine of Me ers 

v. Walker, 276 S.W. 305 (Tex. Civ. App. - Eastland 1925, no -5 writ 

from purchasing supplies from a busines wholly or partially owned 

by a member of the Board of Health. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

P. 570 
Honorable Robert Bernstein, M.D. - Page Four (MW-179) 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

Susan Garrison 

Bob Gauss 

Rick Gilpin 

Bruce Y oungblood 

P. 571