                                           ‘,


                THEATTORNEY        GENERAL
                         OF -rExAs
GEFtALD
      c. MANN             Aus~l~ll.T~xAe




 Honorable R. A. Barton
 County Attorney
 Calhoun County
 Port Lavaca, Texas
 Dear Sir:                 Opinion No.     ad2980
                           Re:   Can a contract as county
                                 depository be made with a bank
                                 In which the county judge of the
                                 county is a director or stock-
                                 holder?
 We have received your letter of recent date requesting our opinion
 on the above stated question. Your letter reads:
      "Can a contract as county depository be made to a bank
      in which the County Judge of the county Is a director or
      stockholder of the bank?
      "Regardlessof the fact'that Art. 373 Penal Code of Texas
      is indefinite in regard to the above question and in fact
      seems to deal with entirely different contractualmatters,
      in the year 1913, in Opinion No. 36 your department says
      among other things, 'A bank having as director one of the
      County Commissioners,la not eligible to bid for or become
      the.custodlatiof the county funds, and If It were to do so
      and the CommlsslonerstCourt awarded the funds to such a
      bank, It would be a violation of law and the parties subject
      to prosecutlont C.M. Cureton, 1st Asst. Atty. Gen.
      "In the next opinion which Is also weitten by Judge Cureton,
      Opinion No. 37,among other things the opinion says: 'Under
      no circumstances,so long as you are County Judge and at
      the same time a stockholder in the bank, can the Commis-
      sioners' Court name the bank as County Depository.'
      "I can find no court decisions on this matter and so far
      as I can determine your department has not passed on the
      question since the above said opinions were handed down,
      Will you please give me your opinion at,this time on this
      question at your earliest convenience?
Honorable R. A. Barton, Page.2, O-2980


In the case of First National Rank v. Terry, et al, 83 So. 170,
the Supreme Court of Alabama stated:
    "In common acceptance of that term, a depository Is a
    oontractee with ministerial duties, performance of which
    may be oompelled In proper oases by the writ of mandamus."
The commlssloners~court is composed of the several commissioners
of the county and the county judge, and the county judge when
present, Is the presiding officer of said court. Article 2342,
Vernon's Civil Statutes.                                         *
Article 2544 to Article 2558, lnclusfireVernon's Civil Statutes,
as amended by House Bill No. 572, ch. 464, Regular Session, 45th
Legislature,page 1298-1316, provides thatthe county commissioners%
court of each county shall select, approve and supervise the county
depository for such county.
Article 373 of the Penal Code provides:
    "If any officer of any county, or of any city or town shall
    become In any manner pecuniarily Interested In any contracts
    made by such county, city or town, through Its agents, or
    otherwise, for the constructionor repair of any bridge, road,
    street, alley u?house, or any other work undertaken by such
    county, city or town, or shall become Interested Sn any bid
    or proposal for such work or in the purchase or sale of any-
    thing made for or on account of such county, city or town,
    or who shall contractfor or receive any money or property,
    or the representativeof either, or any emolument or
    advantage whatsoever in considerationof such bid, proposal,
    contract, purchase or sale, he shall be fined not less than
    Fifty nor more than Five Hundred Dollars."
It Is to be noticed that Article 373, supra, does not refer to all
types of contracts,in which the public officer may be Interested,
but Is limited to "any contract * * * for the constructionor
repair of any bridge, road, street, alley or house, or any other
work * * l or any bid or #reposal for such work or in the purchase
or sale of anything * + * . We are of the opinion that a
contract with a bank to act as county.depositoryIs not such a
contract as described In this Article.
Article 373, supra, is a penal statute, and our courts have
conslstently'heldthat penal statutes  cannot be extended beyond
their plain meanlpg. In the case of Ratcliff v. State, 106 Tex.
Cr. R. 37, the following language is quoted from Lewis Sutherland
Statutory Construction, sec. 520:
Honorable   R. A. Barton, Page 3, O-2980


     “The oase must be a very strong one Indeed which would
     justify a court In departing from the plain meaning of the
     words, especially In a penal act, In search of an Intention
     whloh the words themselves did not suggest.”
It is a well established rule, however, even In the absence of a
statute, that one In his official capacity oannot deal with him-
self In his lndldrrfdualcapacity; and it la well settled In Texas
that If a public official, directly or lndlreotly,has a pecuniary
Interest In a contract, no matter how honest he might be, and
although he may not .be Influenced by the Interest, such a contr&t
Is against public policy. Meyers, et al v. Walker, 276 S.W. 305;
City of Edlnburg v. Ellis, 59 S.W. (2d) 99.

Therefore, In view of the foregoing authorities, It Is our
opinion, and you are so advised, (1) that Article 372 of the
Penal Code Is not applicable to a contract with a bank to act as
county depoeltory; (2) that a contract as county depository made
with a bank In which the county judge of the county Is a
director or stockholder,is void. For your Information,we are
enclosing herewith a copy of Opinion No. o-2656,written upon a
related question.
In further support of our oonoluslon number two, In the para-
graph above, we call your attention to that portion of Article
2340, Vernon’s Cltil Statutes, wherein It Is provided:
     “Before entering upon the duties of their offloe, the
     county &age and each oommlseioner shall take the offlo
     oath, and shall also take a written oath that he will not be
     directly or Indirectly Interested in any oontraot with, or
     claim against, the county In which he resides, except such
     warrants as may issue to him as fees of office. + l *.”
Letter Opinion Nos. 36 and 37, written by C. M. Cureton,
Assistant Attorney General during the Looney Administration,
referred to by you and which may be found on pages 170 and 172
of the Attorney Generals’ Biennial Report for the year 1912-1914,
likewise hold, In effect, that similar oontraots entered into
between the oonunlsaloners~oourt and a depository bank are ab-
solutely void. The above opinions do not, In any way, refer to
Article 373 of the Penal Code, thererore we cannot take the
position that these opinions passed upon the appllaatlon of said
Article 373 to such a situation.
Trusting that this answers your question, we remain
Honorable R. A. Barton, P&se 4, O-2980


                                 Yours very truly
                             ATTORNEYGENERAL OFTJZXAS
                             a/ B; Burle Davisa
                                     D.'Burle Davis8
                                           Assistant
APPROVED JAN 22, 191
s/ Gr6ver Sellers
F&T km.s’EAN1:
ATTORNEY GENERAL
DBD:RS
APPROVED OPINION COMMITTEE
BY BWB, Chairman




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