                                 The Attorney          General of Texas

  JIM MATTOX                                      my     19, 1986
  Attorney General

                                 Honorable W. C. Kj.rkendall           Opinion No. J'M-492
  Supreme Court Building         District Attorney
  P. 0. BOX 12546
                                 113 South River. Suite 205            Re: Whether the commissioners
  Austin, TX. 76711. 2546
  5121475-2501                   Se&n,   Texas   7e155                 court may contract with the son
  Telex 9101874-1367                                                   of the county commlssioaer and
  Telecopier   512/475-0266                                            related questions

  714 Jackson, Suite 700
                                 Dear Mr. Kirkendal.1:
  Dallas, TX. 75202.4506
  214/742-8944                        Your letter requesting an opinion from this office advises that a
                                 county commission~z:cwho was formerly the owner of a fence business
                                                          to his sons to own and operate, retaining no
                                 transferred the bltcilness
  4624 Alberta Ave., Suite 160
  El Paso, TX. 79905.2793
                                 interest in it hdnlself directly or indirectly. After the change in
  919533.3464                    ownership, the comuissioners court authorized a request for bids on a
                                 fence to be built around the county jail. The sons' company submitted
                                 the low bid.
/401   Texas, Suite 7W
    ,uston, TX. 77002.3111
                                      The commissioners court, with the father participating, voted to
  713223.5886
                                 award the contract to the sons' company. The company then performed
                                 the work and wau paid. You ask whether the commissioners court
  606 Broadway, Suite 312        violated article 5996a. V.T.C.S., the nepotism law.~ or whether the
  Lubbock. TX. 79401.3479        father violated article 39.01 of the Penal Code, which proscribes
  606/747-5236
                                 official misconduct, by voting to approve the contract with the sons'
                                 company.
  4309 N. Tenth, Suite S
  McAllen, TX. 76501-1665             As a preliminary matter, we emphasize that in opinions rendered
  512,682.4547                   under article 4393, V.T.C.S., this office decides questions of law --
                                 not disputed questions of fact. Accordingly, this opinion cannot be
  200 Main Plaza, Suite 400      taken as a detersdnation that the individual in the case you present
  San Antonio, TX. 76205.2797    has in fact committed a crlmiaal offense; this kind of assessment
  512/225-4191                   requires a fact judgment by the courts. The decision of whether the
                                 specific facts ju:,tifyprosecution is a matter for you to decide. This
  An Equal Opportunity/
                                 opinion couments only on the general scope of the law with regard to
  Affirmative Action Employer
                                 what actions would, depending on proof of the allegations in court.
                                 constitute an offssnse.

                                      The nepotism statute, article 5996a. V.T.C.S., reads in part:

                                           No off,Lc:er. . . of any county . . . shall ap-
                                           point, or vote for, or confirm the appointment to
                                           any of:iice, position, clerkship, employment or
                                           duty, of any person related within the second


                                                           P. 2242
Eonorable W. C. Kirkendell I-Page 2 (JM-492)




         degree by affinity or within the third degree by
         consanguinity to the person so appointing or so
         voting, or to any other member of any . . .
         board . . . or court of which such person so
         appointing or voting may be a member, when the
         salary. fees, or compensation of such appointee is
         to be paid for, directly or indirectly, out of or
         from public funds or fees of office of any kind or
         character whatsoever.

     We need not address, hmaever, the nepotism statute, since article
988b now speaks expressly to the letting of contracts to relatives by
local public officials. It.prohibits officials from participating In
a vote or decision on a matter involving a business entity in which
the official or anyone related to him within the first or second
degree of affinity or conau~gulnity has a substantial interest. See
V.T.C.S. art. 988b, §Sl(l), 2(a)(c), 3(a)(l). Sons are relatedx
their fathers in the first degree of consanguinity. See Attorney
General Opinion O-780 (1939); Letter Advisory No. 115 (197x    The new
statute modifies the law r,agardingthe permissible extent of a local
official's governmental dealings with his relatives.

     A violation of sectixr 3(a) article 988b Is a Class A mis-
demeanor. V.T.C.S. art. 988b, §3(b). Prohibited contracts with           n
relatives of commissioners are not automatically void, and avoiding
such a contract does not relieve public officials of criminal and
civil liability for such violations. Id. 56. Under certain circum-
stances and if certain Procedural steps are taken, both by the
official related to the contractor and by the governing body, con-
tracts with the officials' relatives may be legally executed. See
V.T.C.S. art. 988b, $54, 5. Here, the required circumstances and rhe
necessary procedural steps are not reflected by the question presented
to us.

     In the situation you describe, therefore, we advise that the
commissioners court, as a body, has not violated article 5996a,
V.T.C.S.. because that statute no longer controls county contracts
with independent contractors. Consequently, we need not address
whether article 5996a ever extended to an independent contract
relationship with the county’.  See generally Attorney General Opinion
JM-45 (1983); cf., Attorney General Opinions R-354 (1974); WW-432
(1958). Whatevrmight     tire been the original scope of the nepotism
1aW. article 988b now controls the letting of contracts by local
public officials. The unrelated commissioners who voted for the
letting of the contract have not violated article 988b. Article 988b
applies only to a public official who knowingly participates in a vote
or decision on a matter involving a business entity in which "the
local public official" himself has a substantial interest. TbiS
includes the interest of persons related to him in the prohibited
degree. -See V.T.C.S. art.     988b. 53(a)(l). In the question you




                                p. 2243
Ronorable W. C. Kirkendall - Page 3      (JM-492)




presented, the   other   ctmmissioners      have    no   such   interest   or
relationship.

     In the question you present, the father would not violate article
39.01 of the Penal Code, rhe "official misconduct" law, unless he
acted with intent to obtain a benefit for himself or to harm another.
This intent is a necessary element of the crime. The existence of the
elements of a crime in a particular case depend upon factual
determinations for which zhe opinion process is not intended. See
V.T.C.S. art. 4399. Similarly, under the fact situation presentedto
us, the father's actions would constitute a violation of article 988b,
V.T.C.S., but only if all rllegations were proven along with all other
necessary elements of a criminal offense.

                               SUMMARY

             Article 988b. V.T.C.S., rather than the
          napotism statute, article 5996a, V.T.C.S., con-
          trols the lettinS of contracts to relatives by
          local public off!.cials. A county commissioner who
          voted to award a county construction contract to a
          company owned by his sons would violate article
          988b, V.T.C.S. The unrelated county commissioners
          would not violate article 988b by voting to make
          the award.


                                         /z-z&

                                                   MATTOX
                                           Attorney General of Texas

JACK HIGRTOWER
First Assistant Attorney General

NARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committe~z

Prepared by Jennifer Riggs
Assistant Attorney General




                                 p. 2244
