JIM MATTOX Attorney General

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# The Attorney General of Texas

December 19, 1983

Honorable RomeoM. Flares JimWells CountyAttorney P. 0. Drawer 2080 Alice, Texas 78332 OpinionNo. JM-gg

Re: May county treasurercontract with county to provide services in connection with acquisitionof right-of-way

DearMr. 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 acquisitionof right-of-wayproperty for the county. The county treasurerwould be paid for the serviceswhich
are separate and apart from his regular duties and compensation as county treasurer.

There is no general statutoryprohibitionof a county officialor 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 contractingwith the county. This provision, however,was repealedwith the passage of the new Penal Code in 1973. Article 2340, V.T.C.S., is now the only statute applicable which explicitlyprevents countyofficials from contractingwith 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 contractwith the county. Article 2364, V.T.C.S.,provides thatno countyofficialmay be interested,directly
or indirectly, in any county contract for the purchase of stationery supplies.

The only otherprovisionsof state lawwhich 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 conflictof interestwhich 1x1~ render such a contractvoid on publicpolicygrounds.
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 excessLve exercise of official power, failure to perform an official duty, violating laws relating to the office, and taking or misapplying anythingof value. So long as the county treasurerclearly segregares his officialduties and conduct fromhis privatebusiness concerns, it

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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 applicationof 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 containsno provisions which would preclude a county officer from contracting 1~"a private capacitywith 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-wayproperty pursuant to an agreement entered intowhile the county judge was still in office., Attorney General Opinion MW-34 (1979). Such an arrangementviolates article 2340, V.T.C.S., which, again, applies only to members of the commissionerscourt. 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 OpinionsMU-124 (1980) (countymay 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) (countymay 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) (auditormay not have interest in depositoryand companiescontractingwith county).

However, as long as there is no conflict of interest, selfdealing, or potential for derelictionof duties,we believe that as a general proposition. a county official or employee may contractwith the county through the commissionerscourt 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 -.

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unconnectedwith his official duties as county treasurer,we believe they are empowered to do so. The fact that the county treasurermight be required to sign a county checkpayable tohimselfpresentsno 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 commissionerscourt.

In Attorney General Opinion NW-236 (1980) this office concluded that a deputy sheriffmay legally contractwith a road district -- a subdivisionof the county -- to transportand depositmoney collected at a tollbridge. Such duties and compensationwould be separate and in addition to his regul~ar duties and salary as a peace officer. We believe thatyour question is comparableto the issue raised inMW-236 and we are of the opinion that a county treasurer is not, as a matter of law,barred from contractingwith the county to provide services in connectionwith the acquisitionof right-of-wayproperty.

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 compensatedfor such services.

JIM MATTOX Attorney General of Texas

TOM GREEN FirstAssistantAttorney General

DAVID R. RICHARDS ExecutiveAssistantAttorney General
Preparedby David Brooks AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE
Rick Gilpin. Chairman David Brooks Colin Carl SusanGarrison JimMoellinger Nancy Sutton

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