DAN MORALES

ATTORNEY GENERAL 

# QBffice

ofthe !Zlttornep

Qheral &ate of.ZEexas September 6,1994

Honorable Charles D. Johnson County Attorney Dimmit county courthouse Charring Springs, Texas 78834 Qpiion No. DM-303
Re: Whether the county auditor oath of offic provision, Local Govermnent Code $84.007(b) prevails over chapter 171 of the Low Government Code (RQ-572)
Dear Mr. Johnson:
On behalf of the county auditor of Diit County, you ash whether the county auditor may also be employed as the executive director of a private, non-profit housing corporation. You explain that the non-profit housing corporation at issue was created in 1986. At that time, the person who is now the wunty auditor was hired as its executive director, at a s&y which is setbyitsboard ofdirectors. Although the non-profit housing corporation is a private venture, it has an economic relationship with the wunty. The wunty has dedicated certain economic development funds to the non-profit housing corporation, namely the interest the county receives on an economic development loan that the county made to a private business. The wunty also provides the non-profit housing corporation with office space and telephone and photocopying services. In 1989,the districtjudges appointed the executive director ofthe non-profit housing corporation as county auditor and he began receiving a county salary. Since that time, he has continued to serve, and to receive a salary, as executive director ofthe non-profit housing corporation.
On the basisofthe foregoing facts, you ash whether the wunty auditor may also be employed asthe executive director ofthe non-profit housing corporation. Because the non-profit housing corporation is a private venture, the wumy auditor’s position as its executive director does not implicate the Texas Constitution’s dual office holding provisions. Tex. Const. art. XVJ, $5 33, 40. For the same reason, this instance of dual employment does not implicate the common-law doctrine of incompatibiity. See Thomas v.Abernatb County Line Itip. Sch. Did., 290 SW. 152 (Tex. Comm’n App. 1927, judgm’t adopted); Srure exrel. Brennan v.Martin, 51 S.W.2d 815 (Tex. Civ. App.-San Antonio 1932, no writ). This situation does implicate the county auditor oath of office provision, Local Gov’t Code 3 84.007(b), and chapter 171 of the Local Government Code, however.

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The wunty auditor’s oath of office is set forth in section 84.007 of the Local Government Code, which provides in pertinent part:

(b) The wunty auditor must take the 05&l oath and a written oath that lists the positions ofpublic,and private trust previously held and the length of service in each ofthose positions and that states: (1) that he has the qualifications requhed by this chapter; and
(2) hut he will not bepersumdlly interested in a wnbvrct withthemm@. Id. (emphasis added). This provision prohibits the wunty auditor from having a personal interest in any county contract. In Attorney General Opinion V-381 (1947), this 05ce concluded that the now-repealed statutory predecessor to the county auditor oath of office provision, article 1649,V.T.C.S., inconjunction with a Penal Code provision, prohibited a county auditor from contracting with the county to provide it with telephone services, offiwrs’bonds, or electrical equipment. Sii, in Attorney General Opiion WW-1241 (1%2), this 05ce concluded that now-repealed article 1649, in wnjunction with nowrepealed article 2364, prohibited a county auditor f?om owning stock in a wrporation which had business dealings with the wunty. Although you do not mention any specific wntmcts, it seems likely from the circumstances described in your letter that the county has awntract with the non-profit housing corporation and with the private business which has an economic development grant, the interest on which the county has dedicated to the non-profit housing corporation.
The crucial question is whether the wunty auditor has a “personal interest” in either of these contracts. This 05ce has construed the term “interest” in similar statutes to mean “adirect personal or pecuniary interest.” See Attorney General Opiion DM-109 (1992). We believe that section 84.007(b) prohibits a wunty auditor from having a direct personal or pecuniary interest in any county contract, and requires that he or she must divest himself or herself of such an interest in order to hold office. The determination whether the county auditor of Dimmit County has such an interest in a particular county wntract involves questions offact which are beyond the scope ofthe opinion process. The situation you describe also implicates the wnflicts of interest provisions applicable to local public officials, including wunty auditors,’ in chapter 171of the Local

‘M 171.001(l) oftheLocalGovanmnt cdeduieestheteIm”localpublicoaiciat”to mcaa:

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Oovemment Code.2 Section 171.004 of the Local Government Code requires a local public official, who has a “substantial interest” in a business entity, to submit an affidavit disclosing that interest “before a vote or decision on any matter involving the business entity” and to abstain from finther participation in the matter ifthe action would “have a special economic elfect on the business entity that is distinguishable from the e&t onthe public.” Local Gov’t Code 8 171.004(a)(l). The violation of this provision is a class A misdemeanor. Id. 8 171.003. The term “business entity” includes a non-profit wrporation. See id. 0 171.001(2) (de6ning “business entity”); Attorney GenersJ Opiion JM-424 (1986). A person has a “substantial interest” in a business entity if %nds received by the person from the business entity exceed 10percent of the person’s gross income for the previous year.” Id. $171.002(a)(z). Amuming that the wunty auditor’s inwme as executive director exceeded 10 percent of his gross income for the previous year, that his official duties require a “vote or decision”s on amatter involving the non-profit housing wrporation or the private business which has an economic development grant, and that he is otherwise within the criteria set out in Local Government Code, chapter 171, he would be able to wntinue his employment with the non-profit housing corporation by complying with the requirements of section 171.004. Chapter 171 would thus permit the county auditor to have a personal interest in a wntract with the county, while section 84.007(b) expressly bars the county auditor from being “personally interested in a contract with the county.” The two provisions would thus wntlict as applied to the wunty auditor.Honorable Charles D. Johnson - Page 4 (~~-303)

The Code Construction Act, God Code ch. 311.provides asfollows: (a) If a general provision wntlicts with a special or local provision, the provisions shagbe wnstrued, ifpossible, so that effect is given to both. (b) Ifthe wntlict between the general provision and the special or local provision is irrewacilable, the special or local provision prevails as an exception to the general provision. unless the general provisionisthelaterenactmentandthemanifestintentisthat general provision prevail.
Gov’t Code $311.026; see aLso GoAm v. Luke. 356 S.W.2d 138 (Tot. 1962); T-ndv. Terre& 16 S.W.2d 1063 (Tex. 1929). Section 84.007(b) of the Local Govemment Code expressly applies only to county auditors. while chapter 171 of the code applies to local public officials in general. For the reasons stated above, it is not possible to give e&ct to both chapter 171and section 84.007(b) to the extent of conflict. Therefore, we must apply the rule of statutory wnstruction set forth in Government Code section 311.026(b) to the extent ofwn5ict.
The statutory predecessor to section 84.007(b), the specific provision, was adopted in 1905, while the statutory predecessor to chapter 171 was adopted in 1983. See Acts 1983,68th Leg., ch. 640, at 4079; Acts 1905,29th Leg., ch. 161, at 381. Given the breadth of the detinition of “local public official” in chapter 171.4the scope of the wnduct which it reguiates,~ and the detailed requirements6 and penalties7 it imposes, we believe that the kgislature intended for chapter 171to prevail over the wunty auditor oath of office provision in section 84.007(b) to the extent of conflict. Because chapter 171 is the later enacted statute and we believe that it is the intent of the legislature for chapter 171 to prevail over the specitic wunty auditor oath of 05ce provision in section 84.007(b), we conclude that chapter 171prevails over section 84.007(b) to the extent of wnilict. See ah Attorney General Opiion DM-279 (1993) (wnchtding that Local Gov’t ch. 171 imphedly modified provisions setting forth county wmmissioners oath, Local Goti Code 3 81.002).
You have not supplied this office with sufficient information to determine deiinitively whether the county auditor has a “substantial interest” in the non-profit

**‘ Lacal**  Gob4Gde 4 171.001(l)(de6oing“local publicotxcial”);

s?esup wte 1. 5~LocalGorhCode~171.004(govcminglocalplblic~~pacticipptioninvotesor dWi6lOllS).

6&e id.

‘See id. 0171.003. Wewte Uw the kgishue has net enacteda penallyforviolelbns of seuion 84.007@)oftheIAlcAl clowmwa code.

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housing corporation or whether the county auditor must make “decisions” on matters that affect the non-profit housing corporation. See supro note 3. Amuming that the county auditor’s income as executive director of the non-profit housing corporation exceeds 10 percent of his gross income for the previous year and that he must m&e “decisions” on matters that a&ct it, he must adhere to the requirements set forth in chapter 171 of the Local Oovemment Code, inch&g submitting an atWavit and abstahdng gem participating in any decision* which would “have a special economic effect” on the non-profit homing wrporation.9
SUMMARY

Chapta 171 of the Local GovernmentCodeprevailsoverthe county auditor oath of office provision, Local Goti Code 3 84.007(b), to the extent of wnflict. A county auditor who is employed as the acecutive director of a private, non-profit housing wrporation which receives timcling from the county is required to adhere to the requirements set forth in chapter 171 of the Local Government Code, if his inwme as executive director exceeds 10 percent of his gross income for the previous year. Attorney General Opiions V-381 (1947) and WW-1241 (1%2) are overruled to the extent they are inwnsistent with this opinion.

y~:2?L7L DAN MORALES Attorney General ofTexas

weMtethatsctions4.o21oftheL+ GnwnmentCe&authori7.csaannayaedtrerreht~ asismns andprovidesthat an s&tarn “duringthe abmnx or unavoidable detentionef the sunny auditor,my perform

thedutiesrequired

bylawofthecounlyauditor.”Wedonot&de herewhether thispmvisionauthorizaacountyauditorto&legatcdccisionsU,ansgistantinthccvcntoTam~i~of imcrcat
%tter OpinionNo. 88-126 (19%).which heldthata countyauditmis notprohibited under chapter171oftheLLlcelGananmentCMefromselliimadmate&lstothecountybutdidnotconsidu tbc~~oftbccarntyaudi~soathsctfoRhinaection&o.oO7~)ofthcLocalGwcmmentcode,is wasiuas withthisopinion. Attorney Geoed OpinionsV-381(1947)amlWW-1241(1%2),whichWQT isaedhgbcfoKthc erWunentefthestalutelyp- tochapter171oftheLccal~t cc&,areow3mlkdtolheex6wtthcyareiawwistmtwitbdlisopiaioo.Honorable Charles D. Johnson - Page 6 (DM-303)

JORGE VEGA Fii Assistant Attorney Gene-ml
DREW T. DURHAh4 Deputy Attorney General for Crimind Justice
JAVJER AGULAR special Assistant AnorneyGeneral
RENEAHIcK!3 St& solicitor
SARAH J..SHIRLEY chair, opinion conuni& PrcparedbyMaryRCrouter AssistantAnomeyGeneral

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