                      August 1, 1962



Honorable W. C. Lindsey        Opinion No. ~~-1406
CYlmlnal District Attorney
Courthouse                     Re:   Matters relating to the
Beaumont, Texas                      sale to the county of
                                     highway rights-of-way by
                                     certain County Cornmls-
Dear Mr. Lindsey:                    sloners.
          Your letter with enclosures recites the fact that
on April 19, 1962, two of the County Commissioners of your
County submitted to the County Commissioners' Court their
personal checks In repayment of the amounts they received
for the sale of certain highway rights-of-way to.the County,
after having been advised by you that such sales were Illegal.
We are requested to answer the following questions:
         1. 'Must the County condemn the lands afore-
         .said In order to obtain for the State clear
         title to the rights-of-way?

          2. Would the fact that In a similar sltua-
          tlon involving another Commissioner the land
          was the separate property of the Commisslonerls'
          wife, alter the answer to question No. 1, where
          the husband joined in the deed to the County?

          3.   If the land In question was originally
          deeded jointly to the Commfssloner and his
          wife by her parents, In consideration of
           "love and affection," would the property be
          the separate property of the wife, or commu-
          ;nlty property?
          4.  What dlspO8itlOn should be made of the
          two checks above mentioned?

          5.  When the checks are cashed by the County,
          what recourse do the Commissioners have?
Honorable W. C. Lindsey, page 2 (~~-1406)


          Article 373,   Vernon's Penal Code, makes it a misde-
meanor:
               "If any officer of any County . . .
          shall become Interested . . . In the
          purchase or sale of anything made for
          or on account of such County . . . or'
          who shall contract for or receive any
          money or property . . . In consldera-
          tlon $f such . . . purchase or sale
          . . .
          Article 2340, Vernon's Civil Statutes, requires
each member of the County Commissioners' Court to
                      take a written oath that he
          will n&'be directly or indirectly ln-
          terested In any contract with, or claim
          against, the County In which he resides,
          except such warrants as may Issue to him
          as fees of office. Each Commissioner
          shall execute a bond, to be approved by
          the County Judges in the sum of $3,000.0?,
          payable to the County Treasurer, condl-
          tloned for the faithful performance of
          the duties of his office, that he will
          pay over to his County all monies ll-
          legal;y paid to him out of County funds
          . . .
          In construing Article 373, .&pra, Judge Sharp,
speaking for the Commission of Appeals In City of Edlnburg v.
Ellis, 59 S.W.2d 99 (1933), said:

               "The rule prohibiting public officers
          from being Interested In public contracts
          should be scrupulously enforced."
          In OPlnlon No. O-3567, this office held that the
sale by a County Commissioner of an easement to the County
was void by virtue of the statutes aforesaid, and that the
Commissioner therefore had the duty to restore the purchase
money to the County.
Honorable W. C. Lindsey, page 3 (WW-1408)


           That contracts of this type are illegal is ^^
                                                       well-
                                                         .
settled. Rlgby v. State, 10 S.W. 760    Ct. of App. Ioog);
Cornutt v. Clay County, 75 S.W.2d 299 IClv.App. 1934); Bland
v. State, 38 S.W. 252 (Clv.App. 1896,  error ref.); Attorney
General '8 Opinion No. o-3307.  In the opinion last mentioned,
this office held that condemnation was the proper remedy for
acquiring right-of-way owned by a County Commissioner. We
re-affirm this holding and answer the first question In the
affirmative.
          Question No. 2 involves the validity of the sale of
separate property of a Commissioner's wife to the County.
Under the said statutes, the Commissioner must not be
"interested" In the contract. What then is the relationship
of the Commissioner to the transaction Involving his wife's
separate property?
 ‘,       You did not state whether or not the right-of-way
involved was a part of the homestead of the Commissioner and
his wife. If homestead, the husband has certain rights en-
abling hlm to block the disposition of same. Article 4618,
V.C.S. Unless he joins In the conveyance, the wife is power-
less to dispose of any part of her separately owned homestead.
The.~only
,.-.
   -,.   exceptions to this rule are in the event of perma-
nent,abandonment by the husband or hls.becomlng insane. In
eitherof those events, the wife may make the sale under order
of the District Court. Article 4617,  V.C.S. Under the 1957
amendment to Articles 4614 and 4617, It 1s true that a married
woman at least 21 years of age may take the necessary steps
to dispose of her separate property without the joinder of
her husband, but this Is true only as to the non-homestead
property. With the two exceptions noted, neither the husband
nor the wife can dispose of the homestead, regardless of which
spouse Is the owner, wlthout both joining In the conveyance.
Further, In the event of the death of the wife, the husband
Is entitled to use and occupy the homestead for the remainder
of his life, even If title to same Is willed by his wife to
third parties. 28 Tex.Jur.2d 629, Homesteads, Sec. 203.
These matters,,we think, clearly make the husband "interested"
In any disposition of the homestead property, even though
separately owned by the wife.
         * If the property Is not homestead, the husband cannot
 revent the wife from conveying her separate estate. Article
t614, V.C.S.   The proceeds of such sale would continue to be
Honorable W. C. Lindsey, page 4 (~-1406)


 her separate estate and the husband would own no part thereof.
 We call attention, however, to the fact that in a very real
 sense, the separate property of either spouse Is a'capltal
 asset of the marriage, Inasmuch as the rents and revenues
 therefrom are In law the community property of both and this
 Is true even though the Statute (Article 4614, V.C.6.) makes
 "the Increase of all lands" belonging to the wife her sepa-
 rate property. The Texas Constitution, Article XVI, Section
 15, defines the wife's separate property, which definition
 does not Include rents and revenues from such property, thus
 limiting the legislative power to enlarge such definition.
 Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925).  A8
 stated I Conrmisslonerof Internal Revenue v. Wilson, 76 F.2d
 766 (C.C:A. 5th, 1935) "the rents and revenues of thenwife's
 separate estate, thereiore, still go to the community.    And
.see 30 Tex.Jur.2d 121, Husband and Wife, Section 67.
           The fact that the separate property of the wife Is
a capital asset of the marriage, the rents and revenues there-
from belonging equally to the spouses, In our oplnlon makes
the husband,"lnterested" in the disposition of such property.
We accordingly answer question No. 2 In the negative.
                       ~..C
                         _.                             --
            We are unable to answer the third qtiestloninaKrnaeh'
as the determination of a question of fact Is Involved; : We
point out that there Is a presumption that property conveyed
-to husband and wife. or for that matter to either spouse,
during marriage, ls~communlty property. Brick and Tile 6.
 Parker, 143 Tex. 383, 186 S.W.2d 66 (1945).   It appears, how-
ever, that the presumption may be overcome by proof that the
Intentjon of the parties to the conveyance waithat the prop-
erty was to be the separate estate of the wife, such Intention
being ascertainable by
                "par01 evidence of aurroundlng clrcum-
           stances, contemporaneous declarations of
           the ptrtles and other admissible evidence
           . . .
Dunham v. Chatham, 21 Tex. 231 (1858); Panhandle Construction
company v. Flesher, 87 S.W.28 273 (Clv.App. 1935, error dlsm.)
honorable W. C. Lindsey, page 5 (~~-1406)


          With reference to question No. 4, since the sales
In question are void, the checks should be cashed by the
County and placed to the credit of the particular County fund
from which the purchase money was originally drawn. The
deeds to the County being void, title to the lands remains
In the original owners and Is subject to their disposition
just as before the attempted sales were made, except that
they cannot, of course, make a voluntary sale to the County.
This answers question No. 5.

                             SUMMARY

               Article 377, Vernon's Penal Code,
          and Article 2340, Vernon's Civil Stat-
          utes, Invalidate a sale of highway rlght-
          of-way by a County Commissioner to his
          County. However, the County may acquire
          such right-of-way by condemnation pro-
          ceedings. The fact that property sold
          to the County was the separate property
          of the wife of a Commissioner would not
          make the transaction a valid one. The
          question of whether land conveyed jointly
          to husband and wife by~the wife's parents
          In consideration of "love and affection"
          is the separate property of the wife Is
          a question of fact. Checks received by
          the County from two (2) County Commls-
          sioners repaying the purchase money re-
          ceived by them for rights-of-way sold to
          the County should be deposited by the
          County to the credit of the County fund
          from which the purchase money was orlg-
          lnally paid. The sales being void, title
          to the rights-of-way remains In the
          original sellers.
                                   Very truly yours,
                                   WILL WILSON
                                   Attorney General of Texas



                                        : Arthur Sandlln              t
                                       Assistant Attorney   General
JAS:afg
Honorable W. C. Lindsey, page 6 (~~-1406)



APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Tom McFarllng
Bob Shannon
Joe Osborn

REVIEWEDFOR THEATTORNEYGENERAL
BY: Leonard Passmore
