                                 ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                   June 28,2006



The Honorable John S. Holleman                             Opinion No. GA-0442
Polk County Criminal District Attorney
Post Office Box 1717                                       Re : Whether a county auditor who violates
Livingston, Texas 773 5 1                                  Local Government Code section 84.007(b)(2) has
                                                           committed “official misconduct” and whether a
                                                           violation of section 84.007(b)(2) can be cured
                                                           retroactively (RQ-0420-GA)

Dear Mr. Hollernan:

         You ask whether a county auditor who violates Local Government Code section 84.007(b)(2)
has committed “official misconduct” and whether a violation of section 84.007(b)(2) can be cured
retroactively.’

I   l    Background       and questions

         You provide us with the following background inforrnation: The Polk County Auditor serves
as the president of 5 12 West Church, Inc., a corporation that leases commercial real estate. See
Request Letter, supra note 1, at 1. On February 17, 2004, Polk County entered into a one-year
agreement to lease a commercial building from 5 12 West Church, Inc. See id. (Exhibit A). The Polk
County Auditor signed the lease on the corporation’s behalf as “President Lessor.” Id. at 1. Local
Government Code section 84.007, however, provides that a county auditor must take an oath that
states the auditor “will not be personally interested in a contract with the county.” TEX.LOC. GOV’T
CODEANN. 5 84.007(b)(2) (V ernon 1999). In light of these facts, you suggest that the Polk County
Auditor has violated the oath, and thus you ask three questions related to such a violation:

                  1. Does a county auditor’s violation of his oath of office, as set
                  forth in Section 84.007(b)(2) of the Local Government Code,
                  constitute “official misconduct” under Local Government Code,
                  Section 84.009(2)?




            ‘Letter from Honorable John S. Holleman, Polk County Criminal District Attorney, to Honorable Greg Abbott,
Attorney General of Texas, at 1 (Nov. 22, 2005) (on file with the Opinion Committee, also available at www.oag
.state.tx.us) [hereinafter Request Letter] .
The Honorable John S. Holleman          - Page 2      (GA-0442)




                   2. What remedies are available to rectify a county auditor’s
                   violation of his oath of office established by Section 84.007(b)(2) of
                   the Local Government Code?

                   3. Will a county auditor’s subsequent divestment of any personal
                   interest in an existing contract with a county “cure” a prior violation
                   of the auditor’s oath of office as established under Section
                   84.007(b)(2) of the Local Government Code?

Request Letter, supra note 1, at 1.

II 0    Analysis

        A.    “Official misconduct”

         You first ask whether a violation of Local Government Code section 84.007(b)(2) is “official
misconduct” under section 84.009 and therefore warrants an auditor’s removal. See id.; see also
TEX. LOCAL GOV’T CODE ANN. 8 84.007(b)(2) (V ernon 1999) (requiring auditor’s oath not to be
personally interested in a county contract). Section 84.009 provides in relevant part that “[a] county
auditor may be removed from office and a successor appointed if, after due investigation by the
district judges who appointed the auditor, it is proven that the auditor . . . has committed ofJiciaZ
misconduct[.]” TEX. Lot. GOV’T CODE ANN. 5 84.009(a)( 1) (Vernon 1999) (emphasis added).
Neither section 84.009 nor any other provision in chapter 84 defines “official misconduct.” See id.
§§ 84.001-.902 (Vernon 1999 & Supp. 2005). Rather, the term “official misconduct” is defined in
Local Government Code chapter 87, which contains the general removal provisions for county
officers. See id. §§ 87.001-.043 (Vernon 1999). Section 87.011 provides that:

              “Official misconduct” means intentional, unlawful behavior relating to
              official duties by an officer entrusted with the administration of justice or
              the execution of the law. The term includes an intentional or corrupt
              failure, refusal, or neglect of an officer to perform a duty imposed on the
              officer by law.

Id tj 87.011(3).

         A county auditor is an officer entrusted with the execution of the law. See Tex. Att’y Gen.
Op. No. GA-0360 (2005) at 1 (describing a county auditor’s appointment and duties). Section
84.007(b)(2) prohibits a county officer from having a direct personal or pecuniary interest in any
county contract. See id. at 6 (citing past opinions from this office that analyze various county auditor
interests prohibited by section 84.007(b)(2)). Thus, an auditor who has a personal interest in a
county contract has engaged in unlawful behavior related to the auditor’s official duties. If the
violation was intentional, a necessary element of the offense, see TEX. LOC. GOV’T CODE ANN.
5 87.01 l(3) (V ernon 1999) (requiring “intentional, unlawful behavior”) (emphasis added), then an
auditor has engaged in official misconduct. Whether the violation was intentional, however, is a fact
The Honorable John S. Holleman       - Page 3       (GA-0442)




question for the district judges to determine in the first instance. See id § 84.009(a) (“A county
auditor may be removed . . . by the district judges . . . .”); Tex. Att’y.Gen. Op. No. GA-0360 (2005)
at 10 (“It would be for the district judges to determine in the first instance whether a county auditor
has committed official misconduct or is incompetent.“). Provided that the district judges establish
that the county auditor, in violating the auditor’s oath, committed official misconduct, then the
auditor could be removed from office. But the district judges have discretion to prosecute the
auditor’s removal. See TEX.LOC. GOV’T CODEANN. 5 84.009(a) (Vernon 1999) (“A county auditor
may be removed . . . by the district judges . . . .“) (emphasis added).

       B0     Remedies

         You next ask what remedies beyond removal are available when a county auditor violates
the auditor’s oath. See Request Letter, supra note 1, at 1. Though you speak in terms of remedies,
we understand your question to be about the legal consequences for a county auditor who violates
the auditor’s oath. See id. at 3 (questioning whether, beyond removal, there are other remedies
“available to address a violation of the Auditor’s oath”). Most criminal and civil penalties have an
element of intent, which is intensely fact dependent. You have given us very few facts related to the
Polk County Auditor’s personal interest in the contract. See generally id. Thus, it would be too
speculative for us to determine whether a criminal and civil penalty could be a legal consequence
of the Polk County Auditor’s actions. To reiterate, whatever the potential legal consequences of an
oath violation might be, beyond removal, the legislature has seen fit through Local Government
Code chapter 84 to invest substantial discretion in a county’s district judges to regulate a county
auditor’s conflicts of interest.

        C0    Subsequent    divestment of personal interest

         You last ask: “Will a county auditor’s subsequent divestment of any personal interest in an
existing contract with a county ‘cure’ a prior violation of the auditor’s oath . . . .” See id. at 1. We
can find no law that permits a county auditor to cure the auditor’s oath violation through a
subsequent change in the auditor’s personal interest in an existing county contract. As for any legal
consequences resulting from section 84.007(b)(2)’ s violation, a subsequent divestment of personal
interest may be a fact for the district judges to consider in exercising their discretion to determine
whether a county auditor has committed official misconduct.
The Honorable John S. Holleman      - Page 4        (GA-0442)




                                        SUMMARY

                        A county auditor who has a personal interest in a county
               contract in violation of Local Government Code section 84.007(b)(2)
               may have committed “‘official misconduct” as this term is used in
               Local Government Code section 84.009, which provides for a county
               auditor’s removal under certain circumstances.     Whether a county
               auditor has committed official misconduct is for the district judges
               who appointed the county auditor to decide in the first instance. It is
               also within the district judges’ discretion whether to proceed with
               removal.

                       No law permits a county auditor to cure a violation of section
               84,007(b)(2) through the auditor’s subsequent action. Thus, a county
               auditor may not cure a violation of Local Government Code section
               84.007(b)(2) by divesting himself of his interest in the county contract
               subsequent to the oath’s violation.

                                               Very t@y yours,




                                                             BBOTT
                                                           eneral of Texas



KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee
