                                                The Attorney        General of Texas

   JIM MATTOX                                                 December 19, 1983
   Attorney General



   Supreme      Court Building                 Honorable Romeo M. Flares              Opinion No. JM-gg
   P. 0. Box 12546                             Jim Wells County Attorney
   Austin.    TX. 78711- 2546                                                         Re: May county treasurer con-
                                               P. 0. Drawer 2080
   5121475.2501
   Telex    9101674-1387
                                               Alice, Texas   78332                   tract with county to provide
   Telecopier     5121475.0266                                                        services in connection with
                                                                                      acquisition of right-of-way
   714 Jackson.    Suite 700
   Dallas,   TX. 75202.4506
                                               Dear Mr. Flores:
   2141742.6944
                                                    You have asked whether the county may contract with the county
                                               treasurer, who owns and operates a "right-of-way service company" in
   4624 Alberta           Ave., Suite    160   his private capacity, for the acquisition of right-of-way property for
   El Paso, TX.           79905.2793
                                               the county. The county treasurer would be paid for the services which
   9151533-3464
                                               are separate and apart from his regular duties and compensation as
                                               county treasurer.
PO01         Texas, Suite 700
        lowton,    TX. 77002.3111                   There is no general statutory prohibition of a county official or
       7131223-5886                            employee contracting with the county in a private capacity. Article
                                               373 of the former Penal Code had applied to all county officials,
       606 Broadway,        Suite 312          prohibiting them from contracting with the county. This provision,
       Lubbock,     TX.    79401.3479          however, was repealed with the passage of the new Penal Code in 1973.
       6061747-5238                            Article 2340, V.T.C.S., is now the only statute applicable which
                                               explicitly prevents county officials from contracting with the county.
       4309 N. Tenth, Suite S
                                               This statute, however, applies only to members of the commissioners
       McAllen,     TX. 76501-1685             court and it provides that a conrmissionermay not be directly or
       5121662.4547                            indirectly interested in any contract with the county. Article 2364,
                                               V.T.C.S., provides that no county official may be interested, directly
                                               or indirectly, in any county contract for the purchase of stationery
       200 Main Plaza, Suite 400
       San Antonio.  TX. 76205.2797
                                               supplies.
       51212254191
                                                    The only other provisions of state law which may be applicable to
                                               your question would be (1) the Penal Code provisions pertaining to
       An Equal       Opportunity/             official misconduct, (2) the official oath of office taken by the
       Affirmative      Action     Employer
                                               county treasurer, and (3) a common law conflict of interest which 1x1~
                                               render such a contract void on public policy grounds.

                                                    Chapter 39 of the present Penal Code pertains to the offenses of
                                               official misconduct and abuse of office.       Section 39.01 defixs
                                               official misconduct as generally the unauthorized or excessLve
                                               exercise of official power, failure to perform an official duty,
                                               violating laws relating to the office, and taking or misapplying
                                               anything of value. So long as the county treasurer clearly segregares
                                               his official duties and conduct from his private business concerns, it



                                                                           p. 418
Honorable Romeo M. Flares - Page 2    (JM-99)




is unlikely that the official misconduct provisions of section 39.01
can be invoked. Section 39.03 of the Penal Code concerns the misuse
of official information. If the county treasurer, in the acquisition
of a right-of-way through his private business concern, uses
information in his official capacity, which has not been made public,
in order to acquire the property, he may be guilty of a criminal
offense. Naturally, this determination is based on the resolution of
factual questions not before us.       We simply note the possible
application of section 39.03.

     The county treasurer is required to take the official oath of
office. V.T.C.S. arts. 16 and 1708; Tex. Const. art. XVI, §I. The
constitutional oath of office calls for the faithful execution of
official duties and the obligation to preserve, protect, and defend
all state and federal laws. The official oath contains no provisions
which would preclude a county officer from contracting 1~" a private
capacity with the county.

     County contracts with county officials have been found invalid
where there is a conflict of interest. For example, a former county
judge cannot be paid for services rendered in the acquisition of
right-of-way property pursuant to an agreement entered into while the
county judge was still in office., Attorney General Opinion MW-34
                                                                        -.
(1979). Such an arrangement violates article 2340, V.T.C.S., which,
again, applies only to members of the commissioners court. See also
Attorney General Opinion WW-1406 (1962) (county may not acquire
property from county commissioner for right-of-way except by
condemnation). See generally Bexar County v. Wentworth, 378 S.W.2d
126 (Tex. Civ. App. - San Antonio 1964, writ ref'd n.r.e.) (county
commissioner may not have an interest in the county's purchase of
voting machines); Attorney General Opinions MU-124 (1980) (county may
not purchase crushed rock where county commissioner receives
royalties); H-624 (1975) (county may not purchase supplies from
cooperative owned in part by commissioner); H-354 (1974) (county may
purchase supplies from company owned by          brother of county
commissioner); M-1140 (1972) (county purchases may not be made from
store owned by county commissioner); WW-1241 (1962) (auditor may not
have interest in depository and companies contracting with county).

     However, 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 through the commissioners court 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. However, we believe further that if there is a reasonably
arguable case to be made that a conflict of interest exists, such
contracts should be avoided.      The county treasurer performs no
function with regard to the county acquisition of right-of-way
property.   He simply collects and disburses money.           If the
commissioners court   wishes   to   employ him to render services



                             p. 419
Honorable Romeo M. Flares - Page 3     (JM-99)




unconnected with his official duties as county treasurer, we believe
they are empowered to do so. The fact that the county treasurer might
be required to sign a county check payable to himself presents no more
of a conflict than when he signs his own paycheck. The monies
disbursed from his office must be approved by the county auditor and
the commissioners court.

     In Attorney General Opinion NW-236 (1980) this office concluded
that a deputy sheriff may legally contract with a road district -- a
subdivision of the county -- to transport and deposit money collected
at a toll bridge. Such duties and compensation would be separate and
in addition to his regul~arduties and salary as a peace officer. We
believe that your question is comparable to the issue raised in MW-236
and we are of the opinion that a county treasurer is not, as a matter
of law, barred from contracting with the county to provide services in
connection with the acquisition of right-of-way property.

                             SUMMARY

             Jim Wells County may contract with the county
          treasurer, in his private capacity, for the
          acquisition of right-of-way property, and may be
          compensated for such services.




                                        JIM     MATTOX
                                        Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by David Brooks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin. Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




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