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# THEAYTORNEY GENERAL, OF TEXAS

March 5, 1962

Honorable Bradley C. Miles Opinfon No. W~J-1270 County Attorney Abilene, Texas Re: Whether a school board trustee is in c.ontraventlon of Article 373, Vernon’s Penal Code, or guilty of official misconduct under any statutes relative to school trustees, by virtue of Dear Nr. Miles: the stated facts.

Youhave asked this office for an official opinion as to whether a school board trustee would be In c.ontravention of Article 373of the Penal Code or guilty of official misc,onduc,t under any statutes relating to a school board trustee, in being an exec.utive or amember of an insurance firm which acts as agent for acorporation which issues payment and performance bonds for general construction c.ontractors whoregularly bid on and submit proposals fcr the construction of school buildings to be built by such school district, when suc.hbids are always accepted by the school board on a “low bid” basis.

Article 373of the Penal Code‘does not provide a basis for criminal prosecution of an independent school distr-ict board trustee whohas become involved in sc.hool contrac.ts in his private capac.ity, for the reason that such article applies “to any officer of any county or of any city or town. ” However, any contracts so entered into are void, being in violation of public policy and the particular trustee is sub,jec,t to removal proceedings onthe basis of his official misconduct. Artic,les 5970, 5973, V.C.S. 276s.w.305 (Civ.App.1925). Meyers v. l!alker, The qilestion thereLore involved in your request ,.i.Swhether an insurance firmwhich acts for acorporation which issues such payment and performance bonds outlined In your request has madeacontract with the school district. Mebelieve the answer to this question to be no.

The contract for the construction of school build?‘.ngs is between the school district and the cortrac,tor. The payment bond and the performance bond is betvieen the contractorIIon. Bradley C. F;iles, page 2 (1V!:l-1270)

and the surety company. lhe school district has no authority to require acontractor to enter into bond c.ontracts with any particular surety company.

Under the facts outlined above, the prospec.tive trustee would net be in violation of Article 

# 372 of the Penal Code nor guilty of any official misconduct as defined in Articles 

# 5970 and

# 5973,

Vernon's Civil Statutes, if he wrote payment or performance bond contracts for contractors whodid business with t:?e school district.

Aschool board trustee !::hois also an,executive or amember of an insurance firm which acts as agent for acorporation which issues payment and performance bonds for general construction contractors whoregularly bid on and submit proposals for the construction of school buildings to be built by such school ciis-trict is not in violation of Article 

# 373, Vernon's Penal Sode nor is he guilty of any offkial misconduct whenhe writes paymeiit or performance bonds :for a contractor with the school district.

Yours very truly, ';/ILL:~'Ij-JSo~J Attorney General of Texas

JR:ms By

.“,‘.~/ ” L’&- ~,~,

~LG:2 ,,iJohn Reeves (7 Assistant. -

Hon. Bradley C. Miles, page 3 (:i?;l-l273)

APPROVED: OPINIONCOl:I;II-IITTEE W.V. Geppert, Chairman NormanV. Suarez Henry Braswell 3. C. Davis REVIEWED

FORTHEATTORNEY GENXRAL By: Houghton BFOvJnlee, Jr.