                       The Attorney                General of Texas
                                          March     26,     1980
MARKWtilTE
Attorney General


                   Honorable George Kirkpatrick,    Jr.            Opinion No. MN-155
                   District Attorney
                   Hardin County Courthouse                        Re: Validity     of city’s use of
                   Kountze, Texas 77625                            county landfiil garbage dump when
                                                                   the county has contracted with city
                                                                   councilmen to operate the dump.

                   Dear Mr. KirQatrick:

                          You have requested our opinion concerning the use by the City of
                   Kountze, Texas, of a county landfill garbage dump when the county has
                   contracted with two Kountze city councilmen to operate the dump. The
                   contract between the county and the city councilmen provides that, in
                   addition to certain      payments    from the county, the councilmen    are
                   authorized to charge certain fees from users of the dump.        Under this
                   contract the fees are paid to and retained by the councilmen      Since the
                   effective date of this contract the City of Kountze has utilized this dump
                   and incurred stistantial   user fees which have not been paid

                         Article   988, V.T.C.S., provides, in part:      “No member of the city
                   council . . .shall be directly or indirectly interested in any work, businem or
                   contract, the expense, price or consideration of which is paid from the city
                   treasury. . . .I’

                           Whether ‘a municipal official has an unlawful interest in a municipal
                   contract is ordinarily a question of fact. Meyers v. Walker, 276 S.W. 305
                   (Tex. Civ. App. - Eastland 1325, no writ). Texas Anchor Fence Co. v. City
                   of San Antonio, 71 S.W. 391 (Tex. Civ. App. 1902, no wrtt). However, since
                   the user fees from the city would be paid directly to the councilmen, this
                   obligation is clearly prohibited by article 998, V.T.C.S., and is void as
                   against public policy. City of Edinburg v. Ellis, 59 S.W.2d 99(Tex. Comm’n
                   App. 1933, holding approved); Attorney General Opinion MW-34 (1979). The
                   authority of the city to contract for landfill usage may also be subject to
                   competitive bidding. See article 2368a, V.T.C.S.; Attorney General Opinion
                   MW-91 (1979). While-e         city may not pay user fees which directly or
                   indirectly accrue to the benefit of the city councilmen, it may contract for
                   landfill services with the county. Article 4413(32c), V.T.C.S.




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    Honorable George Kirkpatrick,   Jr.   -    Page Two    (MW-155)



                                              SUMMARY

               A city cannot pay user fees to city councilmen who operate       a
               county landfill dump under contract with the county.




                                                    MARK     WHITE
                                                    Attorney General of Texas

    JOHN W. FAINTER, JR.
    First Assistant Attorney General

    TED L. HARTLEY
    Executive Assistant   Attorney General

    Prepared by Jim Allison
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    C. Robert Heath, Chairman
    David B. Brooks
    Walter Davis
    Bob Gammage
    Susan Garrison
    Rick Gilpin
    Bruce Y oungblood




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