JIM MATTOX 

Attorney General 

Suprem Court Buildin 

P. 0. BOX 12949 

*uslln. TX. 79711. 2549 

51214752501 

Telex Qloia74.1397 

Telecopier 51214750299 

714 Jackson, Suite 700 

O~llas. TX. 75292.45ob 

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El Paso. TX. 799952793 

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Lubbock. TX. 79401.3479 

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McAllen. TX. 79591-1995 

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Sm Antonio. TX. 792052797 

51212254191 

An Eaucd Opportunityl 

Alllrmalive Action Employer 

The Attorney 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: 

of Texas 

Opinion No. JM-270 

UC: Whether a constable may 

sell computers to his county 

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

ovus a computer store from 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. 

We have 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,s there is no conflict of Interest. selfdealing, or potential for dereliction of duties, 

we belie\se that as s general proposition, a county 

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

(1) ‘Local publ,Lc: official’ means a member 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 a business entity that 

has s contract, work. or business vlth the govetnmental entity; or 

(3) act8 as rnmety on any official bond 

required of an officer of the governmental entity. 

(b) An offense under this section is a Class A 

misdemeanor. 

Sec. 4. If a local public official or a person 

related to that of!ficial in the first or second 

degree by either rif finity 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 a vote 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 

aff idavlt must ‘242 filed with the official 

recordkeeper of the governmental entity. 

sec. 5. (a) Ihe governing body of a govcrnmental entity may contract for the purchase of 

services or personal property with a busines!: 

entity in which a member of the governing body has 

p. 1205 
Ronorablc 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 

a contract with an entity in which a member 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 3 and 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 who violated thds article. 

A constable 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 3 states the pwhlbited conduct. Under the circumstances 

described in section 3(a:l(l), a local public official may not 

participate in a vote or decl.sion affecting a business 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 on a matter in order to violate 

section 3(a)(l). See sec. 5 (exception for sole bidder requires the 

interested off icerto ahstain from vote) ; sec. 6 (violator’s 

participation in vote does nt3t necessarily 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. 1206 
Honorable Charles D. Houston -’ Page 4 (JM-270) 

We have 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. 

.I I M MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

RlCK GILPIN 

Chairmen. Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney Genetsl 

APPROVED : 

OPINION CONMITTEE 

Rick Gilpin. Chairman 

Colin Carl 

Susan Garrison 

Tony Gulllory 

Jim noellinger 

Jennifer Riggs 

Nancy Sutton 

p. 1207