                                              The Attorney        General of Texas
                                                              October 24, 1983
   JIM MATTOX
   Attorney General


   Supreme      Court Sullding              Honorable H. Ownby                       Opinion No. JM-82
   P. 0. BOX 12546                          Criminal District Attorney
   Austin, TX. 76711. 2546                  Collin County Courthouse                 Re:   Whether commissioner of
   5121475-2501
                                            MeKinney, Texas   75069                  Collin County may donate use of
   Telex    9101674.1367
   Telecopier     5121475-0266                                                       forms copyrighted in his own
                                                                                     name to Collin County and sell
                                                                                     use of forms to other counties
   714 Jackson,   Suite 700
   Oallcis. TX. 75202.4506
   214/742-6944
                                            Dear Mr. Ownby:

                                                 You have asked whether a county commissioner may donate "simplex
   4624 Alberta        Ave., Suite    160   forms" for use in justice of the peace offices. You stated that these
   El Paso, TX.        79905.2793
                                            forms have been copyrighted and that the commissioner intends to
   915/533-3464
                                            market these forms to other counties in Texas. We assume that such
                                            distribution and sale of these forms is being pursued by the
m.001        Texas,    Suite 700            commissioner in his private capacity and for personal gain or profit.
        muston,     TX. 77002-3111          Collin County, however, will not expend any county funds for the use
    71312235666                             of the forms.

   606 Broadway.         Suite 312
                                                 For purposes of this opinion we assume hut do not decide that
   Lubbock,     TX.     79401.3479          Collin County has authority to accept donated forms of the type in
   606/747-5236                             question. In Bridewell V. Clay, 185 S.W.2.d170. 172 (Tex. Civ. ADD. -
                                            Dallas 1944, writ ref'd) (quoting 38 C.J.S., Gifts Q3, at 781), the
                                            court stated:
    4309 N. Tenth. Suite S
    McAllen.     TX. 76501-1665
    5121662.4547                                     It is also said that a gift is 'a contract which
                                                     takes place by the mutual consent of the giver,
                                                     who divests himself of the thing given in order to
    200 Main Plaza. Suite 4W
                                                     transmit the     title   of  it   to   the   donee
    San Antonio.  TX. 76205-2797
    512/225-4191
                                                     gratuitously, and the donee. who accepts and
                                                     acquires the legal title to it; it operates, if at
                                                     all, in the donor's lifetime, immediately and
    An Equal       Opportunity/                      irrevocably, and is a gift executed, no further
    Affirmative      Action     Employel
                                                     act of parties, no contingency of death or
                                                     otherwise, being needed to give it effect.'

                                            This decision indicates that the offer of a gift by a donor, together
                                            with its acceptance by a donee, constitutes a "contract."

                                                 Article 2364, V.T.C.S., provides:

                                                         No member of the commissioners court or any
                                                      county officer shall be, either directly or



                                                                         p. 347
Honorable H. Ownby - Page 2    (JM-82)




          indirectly, interested in any such contract [for
          forms and 'stationerysupplies].

In our opinion, article 2364 means that a county official may not
profit, either directly or indirectly, from the supplying of goods or
services to his county. In the present instance, we presume that all
parties to the transaction are acting in the public interest.
Nevertheless, we can imagine instances in which a county official's
donation of goods or services to his county might have a substantial
impact on future elections. Moreover, the facts submitted to us
indicate that this commissioner intends to use Collin County as a
showcase for the sale of his forms to other counties. Although we may
not agree with the strictness of the prohibition of article 2364, we
believe it is clear that  it embraces the circumstances related here.
It is therefore our opinion that, under the facts presented, a
commissioner may not donate the use of "simplex forms" to his county.

                              SUMMARY

             Under the circumstances described, a county
          commissioner is prohibited by article 2364,
          V.T.C.S., from donating "simplex forms" for use by
          his county.




                                         JIM     MATTOX
                                         Attorney General of Texas

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by David Brooks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Nancy Sutton




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