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                    THEAYTORNEY                          GENERAL,
                                      OF    TEXAS




                                     March 5, 1962


     Honorable Bradley        C. Miles             Opinfon     No. W~J-1270
     County Attorney
     Abilene,  Texas                               Re:    Whether a school       board
                                                          trustee     is in c.ontra-
                                                          ventlon    of Article     373,
                                                          Vernon’s      Penal Code, or
                                                          guilty    of official    mis-
                                                          conduct under any stat-
                                                          utes relative      to school
                                                          trustees,      by virtue   of
     Dear Nr. Miles:                                      the stated facts.

                You have asked this office       for an official      opinion
     as to whether a school board trustee           would be In c.ontraven-
     tion of Article      373 of the Penal Code or guilty          of official
     misc,onduc,t under any statutes      relating    to a school     board
     trustee,    in being an exec.utive     or a member of an insurance
     firm which acts as agent for a corporation            which issues        pay-
     ment and performance       bonds for general     construction     c.ontrac-
     tors who regularly      bid on and submit proposals         fcr the con-
     struction     of school  buildings   to be built     by such school        dis-
     trict,    when suc.h bids are always accepted        by the school       board
     on a “low bid” basis.

                  Article     373 of the Penal Code ‘does not provide              a
     basis     for criminal        prosecution      of an independent      school    dis-
     tr-ict board trustee           who has become involved          in sc.hool con-
     trac.ts in his private            capac.ity,    for the reason that such arti-
     cle applies        “to any officer        of any county or of any city           or
     town. ” However, any contracts                 so entered    into are void,      being
     in violation         of public     policy     and the particular      trustee    is
     sub,jec,t to removal proceedings               on the basis     of his official
     misconduct.          Artic,les    5970, 5973, V. C. S. Meyers v. l!alker,
     276 s.w.305 (Civ.App.1925).                  The qilestion   thereLore    involved
     in your request ,.i.S whether an insurance                 firm which acts for
     a corporation         which issues       such payment and performance           bonds
     outlined      In your request         has made a contract        with the school
     district.        Me believe       the answer to this question           to be no.

              The contract for the            construction   of school build?‘.ngs
     is between the school   district           and the cortrac,tor.   The pay-
     ment bond and the performance             bond is betvieen the contractor
IIon. Bradley    C. F;iles,   page   2 (1V!:l-1270)



and the surety company.     lhe school   district  has no
authority  to require a contractor     to enter into bond
c.ontracts with any particular   surety company.

           Under the facts   outlined   above, the prospec.tive
trustee    would net be in violation       of Article     372of the
Penal Code nor guilty      of any official     misconduct       as de-
fined   in Articles    5970and 5973,    Vernon's      Civil   Statutes,
if he wrote payment or performance          bond contracts       for
contractors     who did business    with t:?e school      district.




                  A school   board trustee     !::ho is also
          an,executive      or a member of an insurance
          firm which acts as agent for a corpora-
          tion which issues       payment and performance
          bonds for general       construction       contractors
          who regularly      bid on and submit proposals
          for the construction         of school    buildings
          to be built      by such school     ciis-trict    is not
          in violation      of Article    373,Vernon's Penal
          Sode nor is he guilty         of any offkial        mis-
          conduct when he writes         paymeiit or perform-
          ance bonds :for a contractor         with the school
          district.


                                       Yours     very        truly,

                                       ';/ILL :~'Ij-JSo~J
                                       Attorney      General          of   Texas


                                       By         .“,‘.~/”     L’&-   ~,~,
                                                                         ~LG:2
                                            ,,i John Reeves
JR:ms                                   (7      Assistant
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Hon. Bradley   C. Miles,     page   3 (:i?;l-l273)



APPROVED:

OPINION COl:I;II-IITTEE
W. V. Geppert,    Chairman

Norman V. Suarez
Henry Braswell
3. C. Davis

REVIEWEDFOR THE ATTORNEYGENXRAL
By:  Houghton BFOvJnlee, Jr.
