                  THE     ATTORNEY            GENERAL
                              OF   TEXAS

                               August 27. 1987




    Honorable Tommy W. Wallace             opinion No..3M-776
    Criminal District Attorney
    Van Zandt County Courthouse            Re: Whether an individual whose
    Canton, Texas 75103                    spouse is a bail bondsman may
                                           be employed as an investigator
                                           for the office of criminal dis-
                                           trict attorney

    Dear Mr. Wallace:

         You ask vhether an individual whose spouse is the owner of a bail
    bond business may serve as an investigator for the office of criminal
    district attorney.

         Factual information you furnished states that an applicant for
    the position of investigator in your office has an interest in his
    wife's bail bond business. The business was initiated during their
    marriage, the marriage continues to exist, and the income therefrom is
    community property.

         Under section 41.109 of the Government Code an investigator
    appointed by a prosecuting attorney has the same authority as the
    sheriff to make arrests. Your concern stems from the correlation
    existing between the number of arrests made in the county and the
    number of bail bonds the applicant's wife writes in the course of her
    business.

         The authority of an investigator is delineated in Section 41.109,
    as follows:

                 (a) An investigator appointed by a prosecuting
              attorney has the same authority as the sheriff of
              the county to make arrests anywhere in the county
              and to serve anywhere in the state warrants,
              capiases, subpoenas in criminal cases, and all
              other processes in criminal cases issued by a
              district court, county court, or justice court of
              this state.

C
                 (b) An   investigator is under the exclusive
              authority    and direction of   the prosecuting




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Honorable Tommy W. Wallace - Page 2     (JM-776)




         attorney and is not under the authority and
         direction of    the sheriff.     The prosecuting
         attorney is responsible for the official acts of
         his investigators and has the same remedies
         against his investigators and their sureties as
         any person,has against a prosecuting attorney and
         his sureties.

             (c) An investigator may not draw a fee of any
          character for performing a duty prescribed by this
          section.

     You suggest that the scenario you have detailed may present a
common law conflict of interest.

     In Attorney General Opinion JM-270 (1984) it was noted that a
prior Attorney General Opinion, JM-99 (1983) had discussed common law
conflict of interest but the conclusion reached in JM-270 had been
modified by the enactment of article 988b. V.T.C.S.. by the 68th
Legislature. In JM-270 it was stated:

            The opinion discussed common law prohibitions
         against conflicts of interest and concluded that
                                                                        -,
         as long as there is no conflict of interest,
         self-dealing, or potential for dereliction of
         duties, we believe that as a general proposition,
         a county official or employee may contract with
         the county for services or materials which are
         furnished by that county employee in his private
         capacity and which are separate and wholly
         unrelated to his official 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 988b. V.T.C.S.,
         relates to conflicts of interest by local public
         officials:

            Section 1.   In this Act:

            (1) 'Local public 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 9 precinct,    central appraisal district,
         transit authority or district, or other local
         governmental entity who exercises responsibilities
         beyond those that are advisory in nature.



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Bonorable Tommy W. Wallace - Page 3   (JM-776)




             .   .   .   .


             sec. 3. (a) Except as provided by Section 5 of
          this Act, a local public official coxmnits an
          offense if he knowingly:

            (1) participates in a vote or decision on a
         matter involving a 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 a contract, work, or business with the govern-
         mental entity; or

             (3) acts as surety 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 official in the first or second
          degree by either affinity or consanguinity has a
          substantial interest .in a business entity that
          wouldsbe peculiarly affected by an official action
          taken by the governing body, the local public
          official, before a vote or decision on the matter,
          shall file an affidavit stating the nature and
          extent of the interest and shall abstain from
          further participation in       the matter.     The
          affidavit must be filed with the official record-
          keeper of the governmental entity.

             sec. 5. (a) The governing body of a govern-
          mental entity may contract for the purchase of
          services or personal property with a business
          entity in which a member of the governing body has
          a substantial interest if the business entity is
          the only business entity that provides the needed
          service or product within the jurisdiction 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




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Bonorable Tommy W. Wallace - Page 4   (JM-776)




         governing body has a substantial interest and the
         affected member must abstain from that separate
         vote. The member who has complied in abstaining
         in such vote under procedures set forth in
         Sections 3 and 4 of this Act may vote on a final
         budget only after the matter     in which he is
         concerned has been resolved.

            Sec. 6. . . . The finding by a court of a vio-
         lation under this article does not render an
         action of the governing body voidable unless the
         measure that was the subject of an action
         involving conflict of interest would not have
         passed the governing body without the vote of the
         person who violated this article.

     An  investigator is an       appointed officer who     exercises
responsibilities beyond those that are advisory in nature. Gov't Code
641.109.   We is therefore a local public official within the
definition in section l(1) of article 988b, V.T.C.S.

     While you do not furnish us with information relative to the
value of the bail bond business, we will assume in answering your
question that the applicant has a substantial interest in same.

     Attorney General Opinion JM-310 (1985) contrasted the common law
conflict of interest prohibition with article 988b. stating:
                                                          .
             Article 988b. the current local conflict of
          interest statute, which became effective January
          1, 1984, applies a narrower conflict of interest
          prohibition to a broader group of public officials
          and, despite the existence of a conflict, does not
          void governmental action unless influence is
          actually exerted.

     In reviewing the conduct prohibited by article 988b, Attorney
General Opinion JM-310 stated:

          Article 988b does not bar such an official's
          interest in a local government contract, however,
          but instead penalizes the official if he knowingly

              participates in a vote or decision on a
              matter  involving a 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




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Honorable Tommy W. Wallace - Page 5     (JM-776)




             business entity involved. . . .       (Emphasis
             added).

     A prime example of a decision an investigator would be called
upon to make in the performance of the duties of his office would be
the determination of whether probable cause existed to make a
varrantless arrest. We are of the opinion that this is not a vote or
decision on a matter involving a business entity in which the
applicant has a substantial interest. Further indication that it was
not the intent of the legislature to include the decision-making of a
public official such as an investigator is the requirement set-forth
in section 4 that the public official file an affidavit stating the
nature and extent of the interest in the business entity before voting
or making a decision on the matter and abstain from further participa-
tion. Clearly, it was not intended that an investigator file an
affidavit before making a decision on whether probable cause existed
to make a warrantless arrest.

     We note that under section 41.109(b) of the Government Code that
an investigator appointed by you is under your exclusive authority and
direction and you have the same remedies against him and his sureties
as any person has against a prosecuting attorney and his sureties.

                              SUMMARY

             An individual whose spouse operates a bail bond
          business may be appointed as an investigator for
          the office of criminal district attorney and
          perform the duties of such position without
          violating the prohibition against conflict of
          interest by a local public official.




                                          JIM     MATTOX
                                          Attorney General of Texas

MARY KFLLER
Executive Assistant Attorney General

JUDGE ZOLLIE STRAKLCl
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General



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