                   October 31, 1963


Honorable G. F. Steger
county Attorney
Colorado County
Columbus, Texas
                           Opinion No. C-168
                           Re:     Whether a contract for the
                                   sale of gravel and other
                                   road material by a County
                                   Clerk, in his individual
                                   capacity, to a contractor
                                   for use in,the construction
                                   of a public highway, financed
                                   solely with state and federal
                                   funds, is invalid and related
Dear Mr. Steger:                   questions.
          This office is in receipt of your    request for an
opinion on the following questions:
          "1. Is a contract for the sale of gravel
     and other road material by a county clerk, in
     his individual capacity, to a contractor for
     use in the construction of a public highway,
     financed solely with state and federal funds,
     Invalid?
          "2. Would such sale amount to 'official
     misconduct' within the meaning of Article 5,
     Section 24 of the Constitution, and Articles
     5970, 5973 and related articles of the Revised
     Civil Statutes?
          "3. Would the sale of material by a land-
     owner, who happens to be a County Clerk, under
     such a contract amount to a violation of Article
     373 of the Penal Code?"


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Hon. G. F. Steger, page 2 (C-168)


            Article V, Section 24 of the Texas Constitution
provides:
          "County Judges, county attorneys, clerks of
     the District and County Courts, . . ., may
     be removed by the Judges of the District Courts
     for incompetency, official misconduct, habitual
     drunkenness, or other causes defined by law,
     upou the cause therefor being set forth in
     writing and the finding of its truth by a jury."
          Article 5970 of Vernon's Civil Statutes reads,
in part, as follows:
          "All district and county attorneys, county
     Judges, commissioners, clerks of the district
     and county courts and single clerks in counties
     where one clerk discharges the duties of district
     and county clerk, county treasurer, sheriff,
     county surveyor, assessor, collector, constable,
     cattle and hide inspector, justice of the peace
     and all county officers now or hereafter existing
     by authority either of the Constitution or laws,
     may be removed from office by the judge of the
     f3i;;;;;tcourt fIorincompetency, official mis-
             . . . .
          Article 5973 of Vernon's Civil Statutes reads
as follows:
          "By 'official misconduct,' as used herein with
     reference to county officers, is meant any unlawful
     behavior in relation to the duties of his office,
     wilful in its character, of any officer intrusted
     In any manner with the administration of justice,
     or the execution of the law; and includes any
     wilful or corrupt failure, refusal or neglect of
     an officer to perform any duty enjoined on him
     by law."
            Article 373 of Vernon's Penal Code reads as
follows:
          "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 construction or repair of any bridge,


                              -816-
Hon. G. F. Steger, page 3 (C-168)


     road, street, alley or house, or any other
     work undertaken by such county, city or
     town, or shall become interested in any
     bid or proposal for such work or In the
     purchase or sale of anything made for or on
     account of such county, city or town, or
     who shall contract for or receive any money
     or property, or the representative of either,
     or any emolument or advantage whatsoever in
     consideration of such bid, proposal, contract,
     purchase or sale, he shall be fined not less
     than fifty nor more than five hundred dollars."
          The sale of road material by a person does not
in and of itself constitute a wrong. The above questions
arise on,lyfor the reason that the person making the sale
is a county official.
          There is no constitutional or statutory prohibition
which would render invalid a contract between a County
Clerk, acting in his individual capacity, for the sale of
material to either the State of Texas or the federal
government.
          The contract for sale of material in question 1s
not a "contract made by such county, city or town, through
its agents, or otherwise, for the construction or repair
of any bridge, road, street, alley or house, or any other
work undertaken by such county -n, under the provisions
of Article 373 of the Penal Code. Under the facts stated
the contract under consideration Is not one in which the
county is Involved or is not made by or on behalf of the
county.
          Under the facts submitted the sale of road
building material by a County Clerk is not such an act
as would be construed as 'official misconduct" within
the meaning of Article 5, Section 24 of the Constitution
or Articles 5970 or 5973 of Vernon's Civil Statutes.

                         SUMMARY
          A contract for the sale of gravel by a
          County Clerk, in his individual capacity,
          to a contractor for use in construction
          of a public highway, financed solely with
          state and federal funds is valid, and is
          not such a sale that would amount to

                            -817-
Hon. G. F. Steger, page 4 (C-168)


            'official misconduct" within the
            meaning of Article 5, Section 2&
            of the Constitution, or Articles
            5970 and 5973 of Vernon's Civil
            Statutes, and is not a violation
            of Article 373 of the Penal Code.

                            Yours    very       truly,

                            WAGGONER CARR
                            Attorney General


                                    Bill Morse, Jr.
                                    Assistant

BMjr:aj
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Malcolm Quick
James Stofer
Edward R. Moffett
APPROVED FOR THE ATTORNEX GENERAL
By:   Stanton   Stone




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