Honorable J.. M. Fallcner Comnlssloner Departmentof Banklng Austln, Texas

Dear Hr. Falknert Opinion 

### th. c- 

### 438 Re: Whether a county depository may be validly selected If such bank has-on its board of directors,or among its stockholders,

one of the following officers of the county: county judge, county attorney, county treasureror county clerk. You have requested our..oplnlon on the followingquestions: "1. May a county‘depoeltory be validly selected if'such bank has on its Board of Directors,or : among Its stockholders, one of the followingofficers or the countyr
2 County Judge ' County Attorney 2: County Clerk County Treasurer.

**“ 2** 

**.** May one of the above named officers become a rtockholder or a director of a bank after such bank has been designated es county depository,NMwhile the depository contract Ls In effect, without affecting the validity of the contract or without creatinga violatlon of the offlcerle oath." Article 2340, Vernon’s Civil Statutes, provides as follows: "Before entering upon the duties of their offlee, the county judge and each comissioner shall taka the official oath, an4 shall also take a wrlttea mth that he will not be directly or Indirectly interwted lnan~coatracttith, 

### or claimagainst, th8.count.y

In which ha realdea, except such warrants aa m8y Irsue to haa aa ftrw or orficei Each commie8loner shall execute l baad to be approved by the county judge In the mm oi three thoxiaand dollars, payable to **the** county treawrer, conditioned 

### for the **-2083-**.

. I

Hon. J. M. Falkner;page 2 (C-438)

Ion of salect faithfulperformantie of the duties of.his office, that he will pay over to his county all moneys Illegallypaid to him out of county funds, as voluntarypayments or otherwise, and that he will not vote orglve his consent to'pay out. county funds axcept for lawful purposes." In vlew.of these provlslons,It has been ‘the.tionelrtent opln-. this ,offlce

since .19&3that.thecdmmissloners court cannot

_ as a~county aepositorya hank In Which -tne county juage or any member of the ccaunlseloners court Is a stockholder~or,dlrectpr of such bank; and that such contract la void as against public policy. See Attorney.Ceneralls'oplnlon to A. M. Turney, County Judge of Taylor County, dated February3, 1913, bye C. X. Cureton, First AssistantAttornay General, and Attorney Gon$ralts Opinion O-2980

**For** 

### ‘simlZ8rresults, see Attdmey.Geneialts Opinions ~~-161 W-359 (i58)

. ?ou are thereforeadvleed that a county depository may not be Validly selectedIf such bank'hason Its board of directorsor among lts~stockhol&er~ the county'judge.of the county. The oath pxsacxlbodby Artlcie'2340, Vernon's Civil Statutes; ~1snot.appUcable to ,the county 'attorney,

county clerk,

or county treasurer,

and ,tI$rs

officers,

do not **take** 'anoath that, they will not be directlyor bdfrect&y Interestedin,any contract with or claim against the.countyIn ~whlch they reside, except warrants as may b.e $ssued to.theni.as~

fees of office. 'Nevertheless, -It la fell settled In Texas that'lf. **a** public official,directly or Indirectly has a pecuniary 'Interest ln a contract,nozmatterbox honest he nilght be, and althoughha may not be influencedby the interest, such contract is agalnst'public:poUcy. ~Attorney 

### Gonoral’ts opinion 76 S.W. (x%2). -359 (1% ii 05 .(1925). ) and WV-1241 

### I In this connection, Article 2364, Vernon's Civil Statutes, providesas folbowe:.

"No member of the com.mzLssioners court or any county offlcer:shall- be, either directly or lndlrectlyi

interested In any such,contract." While this artlclo applies only to contractsauthorizedby the precedlngartlcles in the Revlded Civil Statutes of-Texas;1925, as amended,and thereforedoes not apply'tocounty depositorycontracts, such article, togetherwith Articles 2340 and 1649, Vernon's Civil Statutes,and Article 373; Vernon's Penal Code, estab- ,,&&ehes the public policy 

### of prohibitingany county officer from having any laterest In any contract,directlyor Indirectly. -20$4-I

Hon. J. M,.y

Falkner,page 3 (C-438)

Attorney ,General's Opinions O-6280 (1944),o-2980 (1941),

### O-878
i 1 ;;;z ~) v-381 (lg47),~~-1241 (lg62),~~-161 (1957)and WW-359 

### :

. This public policy as above noted is of long standing since 1913), and the Legislature has not seen fit to change this public policy. Burroughsv. Lyles, 142 Tex. 704, 181 S.W.2d 570 (1944) * You are thereforeadvised that a county depository play not be validly selected If such bank has on Its board of directorsor among Its stockholders

the county,Judge,

county attorney, county clerk or county Measurer of the county. This long continuedadministrative construct$onIs entitled to great weight. In answer to your second question, If one of the above named officers becomes a stockholderor director of a bank after -Cn bank has been selectedas a county depository,such action eonthe part of the county offlcsr will not affect the validity of the contract or violate the officer!6oath. The commissioners court would, however, be -prbcluded from renewing the depositorycontract so long as such offioer remains a stockholder or director of such bank. ',
SUMMARY 

### A county depositorymay not be validly selected If such bank has on Its board of directorsor among~its stockholders the county judge, county attorney, county clerk or county **treasurer** of the county.

._ ~*irre~.ve.ry

tuly, WAGGONER CARR Attorney General of Texas

**JR:ms** By jki5AeP--’ Assistant APPROVED: OPINION COMUITTEE W. V. Geppert, Chairman Bob Flowers Jack Goodman Bon Uarrison Roy Johnson APPROVED FOR THE 

### ATTORNEY GENERAL By! Stanton Stone -2085-