DAN MORALES 

ATTORNEY GENERAL 

QBffice of the !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 set by its board of directors. 

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 district judges appointed the executive 

director of the 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 of the non-profit housing corporation. 

On the basis of the foregoing facts, you ash whether the wunty auditor may also 

be employed as the executive director of the 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 ex rel. 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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Honorable Charles D. Johnson - Page 2 (~~-303) 

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 of public, and private trust previously held 

and the length of service in each of those positions and that states: 

(1) that he has the qualifications requhed by this chapter; 

and 

(2) hut he will not be persumdlly interested in a wnbvrct 

with the mm@. 

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., in conjunction 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 a wntract 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 “a direct 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 of fact which are beyond the scope of the opinion process. 

The situation you describe also implicates the wnflicts of interest provisions 

applicable to local public officials, including wunty auditors,’ in chapter 17 1 of the Local 

‘M 171.001(l) of the Local Govanmnt cdeduieestheteIm”localpublicoaiciat”to 

mcaa: 

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Honorable Charles D. Johnson - Page 3 (DM-303) 

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 if the 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 10 percent 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 a matter 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. 3 11. provides as follows: 

(a) If a general provision wntlicts with a special or local 

provision, the provisions shag be wnstrued, if possible, so that effect 

is given to both. 

(b) If the 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 171 and section 84.007(b) to the extent of conflict. 

Therefore, we must apply the rule of statutory wnstruction set forth in Government Code 

section 3 11.026(b) to the extent of wn5ict. 

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 171.4 the scope of the 

wnduct which it reguiates,~ and the detailed requirements6 and penalties7 it imposes, we 

believe that the kgislature intended for chapter 171 to 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 171 prevails 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 8 1.002). 

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 Gob4 Gde 4 171.001(l) (de6oing “local public otxcial”); s?e sup wte 1. 

5~LocalGorhCode~171.004(govcminglocalplblic~~pacticipptioninvotesor 

dWi6lOllS). 

6&e id. 

‘See id. 0 171.003. We wte Uw the kgishue has net enacted a penally for violelbns of 

seuion 84.007@) of the IAlcAl clowmwa code. 

p. 1625 
Honorable Charles D. Johnson - Page 3 (~~-303) 

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 Governmen tCodeprevailsoverthe 

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 of Texas 

weMtethatsctions4.o21oftheL+ GnwnmentCe&authori7.csaannayaedtrerreht~ 

asismns and provides that an s&tarn “during the abmnx or unavoidable detention ef the sunny 

auditor, my perform the duties required by law of the counly auditor.” We do not &de here whether 

thispmvisionauthorizaacountyauditorto&legatcdccisionsU,ansgistantinthccvcntoTam~i~of 

imcrcat 

%tter Opinion No. 88-126 (19%). which held that a county auditm is not prohibited under 

chapter 171 oftheLLlcel GananmentCMefromselliimadmate&lstothecountybutdidnotconsidu 

tbc~~oftbccarntyaudi~soathsctfoRhinaection&o.oO7~)ofthcLocalGwcmmentcode,is 

wasiuas with this opinion. Attorney Geoed Opinions V-381 (1947) aml WW-1241(1%2), which WQT 

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 

p. 1627