JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin. TX. 78711- 2546 

5121475.2501 

Telex 9101674-1387 

Telecopier 5121475.0266 

714 Jackson. Suite 700 

Dallas, TX. 75202.4506 

2141742.6944 

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El Paso, TX. 79905.2793 

9151533-3464 

PO01 Texas, Suite 700 

lowton, TX. 77002.3111 

7131223-5886 

606 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

6061747-5238 

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McAllen, TX. 76501-1685 

5121662.4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 76205.2797 

51212254191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

December 19, 1983 

Honorable Romeo M. Flares 

Jim Wells County Attorney 

P. 0. Drawer 2080 

Alice, Texas 78332 

Opinion No. JM-gg 

Re: May county treasurer contract with county to provide 

services in connection with 

acquisition of right-of-way 

Dear Mr. Flores: 

You have asked whether the county may contract with the county 

treasurer, who owns and operates a "right-of-way service company" in 

his private capacity, for the acquisition of right-of-way property for 

the county. The county treasurer would be paid for the services which 

are separate and apart from his regular duties and compensation as 

county treasurer. 

There is no general statutory prohibition of a county official or 

employee contracting with the county in a private capacity. Article 

373 of the former Penal Code had applied to all county officials, 

prohibiting them from contracting with the county. This provision, 

however, was repealed with the passage of the new Penal Code in 1973. 

Article 2340, V.T.C.S., is now the only statute applicable which 

explicitly prevents county officials from contracting with the county. 

This statute, however, applies only to members of the commissioners 

court and it provides that a conrmissioner may not be directly or 

indirectly interested in any contract with the county. Article 2364, 

V.T.C.S., provides that no county official may be interested, directly 

or indirectly, in any county contract for the purchase of stationery 

supplies. 

The only other provisions of state law which may be applicable to 

your question would be (1) the Penal Code provisions pertaining to 

official misconduct, (2) the official oath of office taken by the 

county treasurer, and (3) a common law conflict of interest which 1x1~ 

render such a contract void on public policy grounds. 

Chapter 39 of the present Penal Code pertains to the offenses of 

official misconduct and abuse of office. Section 39.01 defixs 

official misconduct as generally the unauthorized or excess Lve 

exercise of official power, failure to perform an official duty, 

violating laws relating to the office, and taking or misapplying 

anything of value. So long as the county treasurer clearly segregares 

his official duties and conduct from his private business concerns, it 

p. 418 
Honorable Romeo M. Flares - Page 2 (JM-99) 

is unlikely that the official misconduct provisions of section 39.01 

can be invoked. Section 39.03 of the Penal Code concerns the misuse 

of official information. If the county treasurer, in the acquisition 

of a right-of-way through his private business concern, uses 

information in his official capacity, which has not been made public, 

in order to acquire the property, he may be guilty of a criminal 

offense. Naturally, this determination is based on the resolution of 

factual questions not before us. We simply note the possible 

application of section 39.03. 

The county treasurer is required to take the official oath of 

office. V.T.C.S. arts. 16 and 1708; Tex. Const. art. XVI, §I. The 

constitutional oath of office calls for the faithful execution of 

official duties and the obligation to preserve, protect, and defend 

all state and federal laws. The official oath contains no provisions 

which would preclude a county officer from contracting 1~" a private 

capacity with the county. 

County contracts with county officials have been found invalid 

where there is a conflict of interest. For example, a former county 

judge cannot be paid for services rendered in the acquisition of 

right-of-way property pursuant to an agreement entered into while the 

county judge was still in office., Attorney General Opinion MW-34 

(1979). Such an arrangement violates article 2340, V.T.C.S., which, 

again, applies only to members of the commissioners court. See also 

Attorney General Opinion WW-1406 (1962) (county may not acquire 

property from county commissioner for right-of-way except by 

condemnation). See generally Bexar County v. Wentworth, 378 S.W.2d 

126 (Tex. Civ. App. - San Antonio 1964, writ ref'd n.r.e.) (county 

commissioner may not have an interest in the county's purchase of 

voting machines); Attorney General Opinions MU-124 (1980) (county may 

not purchase crushed rock where county commissioner receives 

royalties); H-624 (1975) (county may not purchase supplies from 

cooperative owned in part by commissioner); H-354 (1974) (county may 

purchase supplies from company owned by brother of county 

commissioner); M-1140 (1972) (county purchases may not be made from 

store owned by county commissioner); WW-1241 (1962) (auditor may not 

have interest in depository and companies contracting with county). 

However, as long as there is no conflict of interest, selfdealing, or potential for dereliction of duties, we believe that as a 

general proposition. a county official or employee may contract with 

the county through the commissioners 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. However, we believe further that if there is a reasonably 

arguable case to be made that a conflict of interest exists, such 

contracts should be avoided. The county treasurer performs no 

function with regard to the county acquisition of right-of-way 

property. He simply collects and disburses money. If the 

commissioners court wishes to employ him to render services 

-. 

p. 419 
Honorable Romeo M. Flares - Page 3 (JM-99) 

unconnected with his official duties as county treasurer, we believe 

they are empowered to do so. The fact that the county treasurer might 

be required to sign a county check payable to himself presents no more 

of a conflict than when he signs his own paycheck. The monies 

disbursed from his office must be approved by the county auditor and 

the commissioners court. 

In Attorney General Opinion NW-236 (1980) this office concluded 

that a deputy sheriff may legally contract with a road district -- a 

subdivision of the county -- to transport and deposit money collected 

at a toll bridge. Such duties and compensation would be separate and 

in addition to his regul~ar duties and salary as a peace officer. We 

believe that your question is comparable to the issue raised in MW-236 

and we are of the opinion that a county treasurer is not, as a matter 

of law, barred from contracting with the county to provide services in 

connection with the acquisition of right-of-way property. 

SUMMARY 

Jim Wells County may contract with the county 

treasurer, in his private capacity, for the 

acquisition of right-of-way property, and may be 

compensated for such services. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by David Brooks 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin. Chairman 

David Brooks 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

p. 420