                                The Attorney General of Texas
                                                       December      27,        1984
JIM MATTOX
Attorney General


Suprem Court Buildin          Honorable   Charles      D, Houston                             Opinion    No. JM-270
P. 0. BOX 12949               District   Attorney
*uslln. TX. 79711. 2549       155th Judicial      Distl:ict                                   UC:     Whether     a constable  may
51214752501                   P. 0. Draver     10                                             sell   computers     to his county
Telex Qloia74.1397
                              Bellville.    Texas        :l:f41a
Telecopier 51214750299

                              Dear Mr. Houston:
714 Jackson, Suite 700
O~llas. TX. 75292.45ob                You state   that  the constable-elect     for a Ualler   County   precinct
2W74289u
                              ovus a computer      store from which Wailer County and other counties          have
                              purchased     computerri.    You ask vhether      he may legally     continue      to
4S24 Albert. me.. sulle la0   service    the account8   he has with the county     governments  and whether      he
El Paso. TX. 799952793        may legally     make nc# sales   to the counties.
91%33-3494
                                      We have previoclsly           issued      Attorney       General     Opinion      JM-99 (19&3)
dl   Texas. Suite 700
                              which provides’s          partial      answer      to your question.            It concluded        that a
Hou~~Q~. TX. 77002.3111       county     treasurer       who ovned           a “right-of-way           service      company”        could
713/2236999                   contract      with     his     county      to assist          it  in acquiring          right      of way
                              property.         The opinion         pointed        out    the   Penal     Code provisions            pro-
                              hibiting      official      misconduct         and the misuse         of official         information.
808 Bro4dwy. Sulle 312
                              Penal     Code 1139.01.           39.03.        Whether      an officer        hes been       guilty      of
Lubbock. TX. 79401.3479
909/747-5239                  conduct     proscribed       by these        statutes       Is a fact      question.       The opinion
                              discussed       co-on      16      prohibitions          against    conflicts        of interest         and
                              concluded      that
4309 N. Tenlh. Suite B
McAllen. TX. 79591-1995
51279924347                                  as long 8,s there        is no conflict          of Interest.        self-
                                             dealing,      or potential         for dereliction           of duties,
                                             we belie\se      that  as s general         proposition,        a county
209 Main Plaza, Suits 490                    official      or employee       may contract         with    the county
Sm Antonio. TX. 792052797
                                             through      the comissioners             court     for    services        or
51212254191
                                             materials;       which     are     furnished        by    that      county
                                             employee       in his     private       capacity       and which         are
An Eaucd Opportunityl                        separate        and   wholly      unrelated        to his       official
Alllrmalive Action Employer                  county     duties.

                                      This     general    conclusion    has been modified           by the enactment     of
                                           .-
                              article      988b. V.T.C.S..        which became effective          January  1. 1984.    Acts
                              1983. 68th Leg.,         ch. 640 at 4079.         Article      9ggb. V.T.C.S.,   relates    to
                              conflicts       of lnter’P:;t   by local   public    officials:

                                                  Sectim       1.    In this           Act:




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Honorable   Charles           D. Houston    - Page        2 (JM-270)




                  (1) ‘Local       publ,Lc: official’      means a member of
            the     governing      body    or another        officer,       whether
            elected       or appointed,          paid   or     unpaid.      of     any
            district       (including      a school       district),        county,
            city,       precinct,        central      appraisal          district,
            transit      authority       or district,          or    other      locel
            governmental        entity    who exercises       responsibilities
            beyond those        that a’rs advisory       in nature.

                 .    .   .    .

                Sec.          3.     (a)   Except   as provided           by     Section     5
            of this            Act,     a l,oc:al public  official              conrmlts    an
            offense           if   he knowln:gly:

                 (1)   participates         in a vote      or decision       on a
            matter    involving        s business     entity      in which      the
            local    public     official      has a substantial         interest
            if it Is reasonably,          foreseeable      that    an action      on
            the matter      would confer       an economic      benefit    to the
            business    entity      involved;

                (2)  acts   as surety  for a business                          entity  that
            has s contract,    work. or business   vlth                        the govetn-
            mental  entity;   or

                (3)           act8  as    rnmety           on    any   official          bond
            required           of an officer   of         the   governmental        entity.

                (b)   An offense             under    this      section    is     a Class    A
            misdemeanor.

                 Sec. 4.       If a local          public     official        or a person
            related      to that        of!ficial        in the first           or second
            degree     by either         rif finity       or consanguinity             has a
            substantial          interest         in    a business           entity       that
            would     be     peculia:::ly          affected        by      any     official
            action      taken       by tbe         governing         body,      the     local
            public     official.        before       a vote      or decision          on the
            matter,     shall      file     sn affidavit          stating      the nature
            and extent        of the interest              and shall        abstain       from
            further        particlp;8tion              in      the       matter.            The
            aff idavlt        must        ‘242 filed          with        the      official
            recordkeeper          of the governmental               entity.

                 sec.       5.    (a)   Ihe governing       body of a govcrn-
            mental         entity     may contract      for    the purchase     of
            services           or personal     property       with  a busines!:
            entity        in which a member of the governing            body has




                                                     p.    1205
Ronorablc      Charles      D. Houston       - Page      3   (JIG270)




               a substantial      interest      if the           business       entity      is
               the only business        entity    that          provides       the needed
               service    or product     within    the          jurisdfctlon        of the
               governmental      entity      and    is           the    only      business
               entity   that bids on the contract.

                     (b)    The governing         body must     take     a separate
               vote on any budget           item specifically          dedicated      to
               a contract       with an entity        in which a member of the
               governing       body has a substantial           interest      and the
               affected       member mwrt abstain            from that       separate
               vote.       The member uho has complied               in abstaining
               in     such     vote     ucdet      procedures      set     forth      in
               Sections       3 and 4 111: this       Act may vote       on a final
               budget       only    afte:r    the    matter    In which         he    is
               concerned       has been resolved.

                    Sec.   6.    . . . The finding              by a court         of    a
               violation      under     this     article      does    not render       an
               action    of the governing            body voidable        unless      the
               measure      that      wai3    the      subject       of   an     action
               involving       conflict       of    interest       vould    not     have
               passed    the goverxng          body without         the vote of ‘the
               person who violated           thds article.

       A constable      is a precinct    officer   vho exercines     responslblllties
beyond   those     that   are adviwry     in nature.      Tex. Const. art.         V. $18;
V.T.C.S.    arts.     6878,  6885.     He is therefore      a local   public     official
within   the definition       in section   l(1)  of article    988b. V.T.C.S.

        Section      3 states       the pwhlbited            conduct.       Under the circumstances
described        in      section       3(a:l(l),       a     local      public      official          may not
participate        in a vote or decl.sion              affecting        a business        in which he has
a substantial            interest.          The prohibition            expressly       applies        only    to
officers      who have authority               to participate          in such votes          or decisions
for the governmental                 entity      which     they     serve.       Other      provisions        of
article     988b.      V.T.C.S..        desonstrate         that    a local      public      official       must
have legal       authority         to decide       or vote on a matter             in order       to violate
section      3(a)(l).         See sec.        5 (exception         for sole       bidder      requires       the
interested          off icerto             ahstain       from      vote) ;      sec.       6     (violator’s
participation          in vote does nt3t necessarily                  invalidate        the contract).

       The     constable-elect          it1 this    case wishes to continue          contracting
with    his     county.        The coemlssioners         court     Is the contracting       agency
for the       county.        Anderson      \I. Wood, 152 S.W.Zd 1084 (Tex.             1941).      A
constable         thus     does   not    tave    legal    authority       to vote   on a county
decision      about      Its existing       computer    service     contracts    or Its decision
tc buy a        new computer.          Section     3(a)   therefore      will  not apply    to the
constable        elect’s     contracts      with his county.




                                                    p.   1206
Honorable    Charles     D. Houston       -’ Page    4     (JM-270)




       We have     found  no other   provision     of law which would   bar   the
constable     from continuing    to service    the accounts he has with   Wailer
County and other counties       or from making new sales of computers to the
county    governments.

                                          ~UHMARY

                  Article        988b.  V.,T.C.g.,    does    not   prohibit           a
              constable        from contracting    with    the government             of
              the county        in which his precinct       is located.




                                                           .I I M     MATTOX
                                                           Attorney    General   of    Texas

TOM GREEN
First Assistant        Attorney      General

DAVID R. RICHARDS
Executive Assistant            Attorney   General

RlCK GILPIN
Chairmen. Opinion        Committee

Prepared    by Susan     L. Garrison
Assistant    Attorney     Genetsl

APPROVED:
OPINION CONMITTEE

Rick Gilpin.        Chairman
Colin    Carl
Susan Garrison
Tony Gulllory
Jim noellinger
Jennifer      Riggs
Nancy Sutton




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