JIMMATTOX Attorney General

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AnEaucdOpportunityl Alllrmalive ActionEmployer 

# TheAttorney General
December 27, 1984

Honorable Charles D, Houston District Attorney 155th Judicial Distl:ict P. 0. Draver 10 Bellville. Texas :l:f41a Dear Mr. Houston: 

# ofTexas

Opinion No.JM-270 UC: Whether aconstable may sell computers to his county

You state that the constable-elect for a Ualler County precinct ovus acomputer 

### storefrom which Wailer County and other counties have purchased computerri. You ask vhether he may legally continue to service the account8 he has with the county governments and whether he may legally make nc# sales to the counties. Wehave previoclsly issued Attorney General Opinion JM-99 (19&3) which provides

’s partial answer to your question. It concluded that a county treasurer who ovned a “right-of-way service company ” could contract with his county to assist it in acquiring right 

### of way property. The opinion pointed out the Penal Code provisions prohibiting official misconduct and the misuse of official information. Penal Code 1139.01. 39.03. Whether an officer hes been guilty of conduct proscribed by these statutes Is a fact question. The opinion discussed co-on 16 prohibitions against conflicts of interest and concluded that

as long 8,sthere is no conflict of Interest. selfdealing, or potential for dereliction of duties, webelie\se that as s general proposition, acounty official or employee may contract with the county through the comissioners court for services or materials; which are furnished by that county employee in his private capacity and which are separate and wholly unrelated to his official county duties.

This.-general conclusion has been modified by the enactment of article 988b. V.T.C.S.. which became effective January 1. 1984. Acts 1983. 68th Leg., ch. 640 at 4079. Article 9ggb. V.T.C.S., relates to conflicts of lnter’P:;t by local public officials:

Sectim 1. In this Act:

P. 1204Honorable Charles D. Houston - Page 2(JM-270)



### (1) ‘Local publ,Lc: official’ means amember of the governing body or another officer, whether elected 

### or appointed, paid or unpaid. of any district (including a school district), county, city, precinct, central appraisal district, transit authority or district, or other locel governmental entity who exercises responsibilities beyond those that a ’rs advisory in nature.

**. .**  **. .**  Sec. 3. (a) Except as provided by Section 5 of this **Act,** a l,oc:al public official conrmlts an offense if he knowln:gly: (1) participates in a vote or decision on a matter involving s business entity in which the local public official has a substantial interest if it Is reasonably, foreseeable that an action **on** the matter would confer an economic benefit to the business entity involved; (2) acts as surety for abusiness entity **that** has s contract, work. or business vlth the govetnmental entity; or (3) act8 as **rnmety** on any official bond required of anofficer of the governmental entity. (b) Anoffense under this section is aClass A misdemeanor. Sec. 4. If alocal public official or aperson related to that of!ficial in the first or second degree by either riffinity or consanguinity has a substantial interest in a business entity that would be peculia:::ly affected by any official action taken by tbe governing body, the local public official. before avote or decision on the matter, shall file sn affidavit stating the nature and extent of the interest and shall abstain from further particlp;8tion in the matter. The affidavlt must ‘242 filed with the official recordkeeper of the governmental entity.

sec. 5. (a) Ihe governing body of a **govcrn** mental entity may contract for the purchase of services or personal property with a busines!: entity in which amember of the governing body has

p. 1205Ronorablc Charles D. Houston - Page 3 (JIG270)

a substantial **interest** if the business entity is the only business entity **that provides**  **the needed**  service or product within the jurisdfctlon of the governmental entity and is **the** only business entity that bids on the contract. (b) The governing body must take a separate vote on any budget item specifically dedicated to acontract with an entity in which amember of the governing body has a substantial interest and the affected member mwrt abstain 

### from that separate vote. The member uho has complied in abstaining in such vote ucdet procedures set forth in Sections 3and 4 111:this Act may vote on a final budget only afte:r the matter In which he is concerned has been resolved. Sec. 6.

. . . The finding by a court of a violation under this article does not render an action of the governing body voidable unless the measure that wai3 the subject of an action involving conflict of interest vould not have passed **the goverxng**  body without the vote of ‘the person whoviolated thds article. Aconstable is a precinct officer vho exercines responslblllties beyond those that are adviwry in nature. Tex. 

### Const.art. V. $18; V.T.C.S. arts. 6878, 6885. He is therefore a local public official **within the**  definition in section l(1) of article 988b. V.T.C.S. Section 3states the pwhlbited conduct. Under the circumstances described in section 3(a:l(l), a local public official may not participate in avote or decl.sion affecting abusiness in which he has a substantial interest. The prohibition expressly applies only to officers who have authority to participate in such votes or decisions for the governmental entity which they serve. Other provisions of article 988b. V.T.C.S.. desonstrate that a local public official must **have** legal authority to decide or vote onamatter in order to violate **section** 3(a)(l). See sec. 5 (exception for sole bidder requires **the** interested officerto ahstain from vote) ; sec. 6 (violator’s participation in vote does nt3tnecessarily invalidate the contract). The constable-elect it1 this case **wishes** to continue contracting with his county. The **coemlssioners** court Is the contracting agency for the county. Anderson \I. Wood, 152 S.W.Zd 1084 (Tex. 1941). A constable thus does not tave legal authority to vote on a county decision about Its existing computer service contracts or Its decision tc buy a new computer. Section 3(a) therefore will not apply to the constable elect’s contracts with his county.

p. 1206Honorable Charles D. Houston

-’Page 4 (JM-270)

Wehave found no other provision of law which would bar the constable from continuing to service the **accounts** he **has** with Wailer County **and**other **counties or**  from **making new** **sales** of **computers to**  **the** county governments. ~UHMARY

Article 988b. V.,T.C.g., does not prohibit a constable from contracting with the government of the county in which his precinct is located.

.IIM MATTOX Attorney General of Texas TOMGREEN First Assistant Attorney General DAVIDR. RICHARDS Executive Assistant Attorney General RlCKGILPIN Chairmen. Opinion Committee Prepared by Susan L. Garrison Assistant Attorney Genetsl APPROVED

: OPINIONCONMITTEE Rick Gilpin. Chairman Colin Carl Susan Garrison Tony Gulllory Jimnoellinger Jennifer Riggs Nancy Sutton

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