                              ATTORNEY GENERAL OF TEXAS
                                           GREG       ABBOTT




                                              January 31,2007



The Honorable Tanya S. Davis                            Opinion No. GA-05 10
Cooke County Attorney
3rd Floor, Courthouse                                  Re: Whether the conflict of interest provisions in
Gainesville, Texas 76240                               Chapter 171 of the Local Government Code
                                                       prohibit a county constable from owning and
                                                       operating a wrecker service that is on the county
                                                       sheriffs wrecker rotation list (RQ-0487-GA)

Dear Ms. Davis:

        You ask whether the conflict of interest provisions in chapter 171 of the Local Government
Code prohibit a county constable from owning and operating a wrecker service that is on the county
sheriffs wrecker rotation list.’

         You inform us that the constable for Precinct 1, Cooke County, owns a wrecker service that
is on the county sheriffs wrecker rotation list. See Request Letter, supra note 1, at 1. You state that
at the discretion of law enforcement, a dispatcher calls one of six wrecker services on the wrecker
rotation list. See id. If that service does not respond for any reason, the dispatcher calls the next
name on the list in rotation. See id. You further state that “although the wrecking services work in
connection with the County, they are not contracting with the county for those services. They are
not paid by the County for their services.” Id. at 2.

         Chapter 171 of the Local Government Code regulates local public officials’ conflicts of
interest, preempting the common law on the subject. See TEX. LOC. GOV’T CODE ANN. 5 171.007
(Vernon 1999) (preemption); see generally id. $5 171.001-,010 (Vernon 1999 & Supp. ,2006)
(chapter 171). The statutory definition of a “local public official” to whom chapter 171 applies
expressly includes a precinct officer “who exercises responsibilities beyond those that are advisory
in nature.” Id. 5 171.001(l). A constable is an elected precinct officer. See TEX. CONST. art. V,
 8 18(a), (c). A constable’s general duties include such functions as serving process and attending
justice court. See TEX. Lot. GOV’TCODEANN. 5 86.021 (Vernon Supp. 2006). A constable is also
 a peace officer with the attendant authority and responsibilities of that office. See TEX. CODE CPJM.
PROC. ANN. art. 2.12(2) (Vernon 2005) (designating a constable as a peace officer). Because a



           ‘See Letter from Honorable Tanya S. Davis, Cooke County Attorney, to Opinion Committee, Office of the
Attorney General of Texas, at I (May 10, 2006) (on tile with the Opinion Committee, also available a
http://~w.oag.state.tx.us)   [h&n&x     Request Letter].
The Honorable Tanya S. Davis - Page 2                (GA-0510)




constable is a precinct officer “who exercises responsibilities beyond those that are advisory in
nature,” a constable is a “local public official” and therefore generally subject to chapter 171. See
TEX.LOC. GOV’TCODEANN. 5 171.001(l) (Vernon 1999); see also Tex. Att’y Gen. Op.No. JM-270
(1984) at 3 (interpreting predecessor to chapter 171 as generally applicable to constables).2

        Because a constable is a local public official, we must consider whether the constable must
comply with the disclosure and abstention requirements, in section 171.004. Section 171.004
provides:

                 (a) If a local public official has a substantial interest in a business
                 entity or in real property, the official shall~ tile, before a vote or
                 decision on any matter involving the business entity or the real
                 property, an affidavit stating the nature and extent of the interest and
                 shall abstain from further participation in the matter if:

                         (1) in the case of a substantial interest in a business entity the
                 action on the matter will have a special economic effect on the
                 business entity that is distinguishable from the effect on the public[.]

TEX. Lot. GOV’T CODE&.             $ 171.004(a) (Vernon 1999).

          You state that the constable, a local public official, owns “a substantial interest in a business
‘entity,” the wrecker service. Request Letter, supra note 1, at 2. From the statute’s plain language,
 however, section 171.004 applies only to a local official who may participate in a vote or decision
 of the governmental entity that will result in a special economic effect on the official’s business
 entity. See, e.g., Walk v. State, 841 S.W.2d 430 (Tex. App.-Corpus              Christi 1992, pet. refd)
 (county judge’s decision to order county supplies from son-m-law); Dallas County Flood Control
 D&v. Cross, 815 S.W.2d 271 (Tex. App.-Dallas             1991, writ denied) (vote to purchase easement
 over district president’s land); Rosamond Y. State, 730 S.W.2d 147 (Tex. App.-Corpus                Christi
 1987, no pet.) (vote to pay bill of rental company represented by a town alderman). As this office
 has observed, the statutory disclosure and abstention requirements do not apply to a local public
 official who is not authorized to participate in any vote or decision of the local governing body that
 could have a special economic effect on the official’s business entity.. See, e.g., Tex. Att’y Gen. Op.
 Nos. JM-450 (1986) at 1 (predecessor statute did not apply to deputy sheriff who owned auto repair
 business because deputy cannot vote on county business); JM-3 10 (1985) at 3-5 (county clerk may
 own title company that does business with the county because the clerk does not vote or have
 contracting authority); JM-270 (1984) at 3 (constable who does not vote or contract on behalf of
 county may sell computer equipment to county).

        From the facts you describe, the constable does not participate in a vote or decision of the
 governmental entity that will result in a special economic effect on the constable’s business entity.



           ‘See Act of May 30, 1983, 68th Leg., RX, ch. 640, 1983 Tex. Gen. Laws 4079, 4079-U   (enacting former
 article 988b ofthe Revised Civil Statutes, chapter 171’s predecessor).
The Honorable Tanya S. Davis - Page 3            (GA-0510)




You characterize the wrecker services list as the sheriffs list and state that wreckers are called on
a rotation basis. See Request Letter, supra note 1, at 1. From that, we assume that the constable
does not participate in a vote or decision about which wrecker services are included on the sheriffs
list, or which service the dispatcher will call to respond to a particular situation, Seeid. at 1.

         Moreover, a constable’s statutory duties do not require a vote or decision of the kind intended
in section 171.004. Most relevant here is the constable’s duty and authority as a peace officer to
order a vehicle towed in certain circumstances. See, e.g., TEX.TRANSP.CODEANN. 5 545.305(a)
(Vernon 1999) (authority of a peace officer to order the removal of a vehicle from a highway). But
the apparent purpose of section 171.004 does not include ordinary law enforcement decisions. For
example, in JM-776, this office considered whether the predecessor of section 171.004 applied to
an investigator of the district attorney’s office whose spouse was a bail bondsman, See Tex. Att’y
Gen. Op. No. JM-776 (1987) at 2-5 (construing formerRevised Civil Statute article 988b, now Local
Government Code $5 171 .OOl-,010). The opinion concluded that a typical duty-related decision of
an investigator, such as the determination of the existence of probable cause to make a warrantless
arrest, “is not a vote or decision on a matter involving a business entity in which the applicant~has
a substantial interest.” Id. at 5. From the apparent purpose of the statute, the opinion reasoned that
“[cllearly, it was not intended that an investigator file an affidavit before making a decision on
whether probable cause existed to make a warrantless arrest.” Id. Likewise, section 171.004 of the
Local Government Code does not apply to a constable’s law enforcement decisions under the facts
as you describe them. See TEx. LOC.GOV’TCODEANN. 5 17 1.004 (Vernon 1999). And as no other
provision in chapter 171 is pertinent, we conclude that the chapter’s conflict of interest provisions
 do not prohibit a county constable from owning and operating a wrecker service that is on the county
 sheriffs wrecker rotation list.
The Honorable Tanya S. Davis - Page 4           (GA-0510)




                                       SUMMARY

                       The conflict of interest provisions in chapter 171 of the Local
               Government Code do not prohibit a county constable from owning
               and operating a wrecker service that is on the county sheriffs wrecker
               rotation list.

                                              Very truly yours,




KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
