   OFFlCE   OF THE   ATTORNEY   GENERAL   STllTB   OF TEXAS

   JOHN      CORNYN




                                                   August 27, 1999



The Honorable Joe Warner Bell                             Opinion No. JC-0100
Trinity County Attorney
P.O. Box 979                                              Re: Whether a county commissioner in his or her
Groveton, Texas 75845                                     capacity as ex officio road commissioner     or the
                                                          commissioner’s employees may purchase auto parts
                                                          from a corporation in which the commissioner owns
                                                          a substantial interest (RQ-0032)

Dear Mr. Bell:

         Each Trinity County Commissioner serves as ex officio road commissioner for the road
maintenance crews in the commissioner’s precinct. See Letter from Honorable Joe Warner Bell,
Trinity County Attorney, to Attorney General (Feb. 24, 1999) (on tile with Opinion Committee)
[hereinafter “Request Letter”]. You ask whether a county commissioner, in his or her capacity as
road commissioner, or one of the commissioner’s employees may, without violating conflict-of-
interest laws, purchase auto parts from a corporation in which the commissioner owns a substantial
interest. We conclude that a purchase is impermissible under sections 252.005 and 252.006 of the
Transportation Code. See TEX. TRANSP. CODE ANN. $5 252.005, ,006 (Vernon 1999). We do not
consider, consequently, whether such a purchase violates conflict-of-interest  laws. See TEX. Lot.
GOV’T CODE ANN. 5 8 1.002 (Vernon 1999); 9 171.004 (Vernon Supp. 1999). The commissioner         or
a member of the commissioner’s road crew may pick up goods from the corporation, however, ifthe
commissioners court has preapproved or will subsequently approve the contract. The conflict-of-
interest laws preclude the commissioner’s participation in the court’s decision.

        You explain that occasionally the commissioner or a member ofthe commissioner’s precinct
road crew purchases a vehicle part from a local auto-parts store. See Request Letter, supra. ARer
the purchase, the commissioner “reviews and approves the requisition for the item bought. The
auditor reviews the purchases and they are ultimately submitted to the Commissioners Court for
Audit and Approval.” Id. You do not explain what you mean by the term “purchase.” The term
may indicate that the commissioner       or a member of the commissioner’s        road crew makes a
supposedly binding contract on behalf of the county to pay the auto-parts corporation for the goods
received. By contrast, the term may indicate that the commissioner or a member of the work crew
simply picks up an auto part, and the corporation either applies the charge against a line ofcredit that
the county commissioners court already has established with the corporation or bills the county for
the auto part. We will consider both scenarios.
The Honorable   Joe Warner Bell - Page 2        (.Jc-0100)




        In your letter, you indicate that each Trinity County Commissioner serves as ex officio road
“superintendent” for road maintenance crews in the commissioner’s precinct. See Request Letter,
supra. A county commissioner might serve as ex officio road superintendent under section 257.002
of the Transportation Code. See TEX. TRANSP. CODE ANN. 5 257.002(a) (Vernon 1999). Section
257.002 provides an ex officio road superintendent with specific contracting authority. See id.
5 257.002(a), (b) (providing superintendent power to enter into contract worth no more than $50,
with commissioners      court’s approval).   But by telephone your oftice indicated that the county
commissioners serve as ex officio road “commissioners” under chapter 252, subchapter A of the
Transportation Code, which provides for the establishment of an ex officio road commissioner
system.    Telephone conversation with Ms. Susan Brooks, Trinity County Attorney’s Office
(July 2, 1999). We assume, based upon the information provided orally, that the Trinity County
Commissioners      serve as ex officio road commissioners,     not ex officio road superintendents.
Accordingly, we do not consider a road superintendent’s authority under section 257.002 of the
Transportation Code.

         Under chapter 252, subchapter A of the Transportation Code, a county commissioner may
serve as the ex officio road commissioner of his or her precinct. See TEX. TRANSP. CODE ANN.
5 252.003 (Vernon 1999). As ex officio road commissioner, the commissioner is “[ulnder the
direction of the commissioners     court, .   responsible for the vehicles, tools, and machinery
belonging to the county and placed in the commissioner’s control by the court.” Id. § 252.006(a).
The commissioners      court retains the authority to “purchase vehicles, tools, and machinery
necessary” to work on public roads. Id. 4 252.005(b).

         Thus, if by the word “purchase,” you mean that the commissioner or a member of the road
crew, on the commissioner’s      behalf, purports to make a binding contract with the auto parts
corporation, the commissioner’s    action is impermissible under chapter 252, subchapter A of the
Transportation Code. Neither the commissioner nor any of the members of the road crew have
authority to make a contract binding on the county. See id. 3 252.006; cf id. 5 257.002(a), (b)
(delineating road superintendent’s contract authority). Rather, it is the commissioners court, as a
body, that has authority to make a contract binding on the county.

         Moreover, without statutory authority, a commissioners court may not delegate its powers
requiring the exercise ofjudgment and discretion. See Guerru v. Rodriguez, 239 S.W.2d 915,920
(Tex. Civ. App.-San Antonio 1951, no writ); Tex. Att’y Gen. Op. No. V-532 (1948) at 6. A
commissioners court may, for instance, delegate to an agent the authority to make contracts in certain
circumstances because the delegation is authorized by statute. See, e.g., TEX. Lot. GOV’T CODE
ANN. 5 262.001 (Vernon 1999) (authorizing county commissioners court to appoint agent to make
binding contracts on behalf of county in certain circumstances); id. $5 262.011, .0115 (permitting
county to appoint or employ purchasing agent). “The power.         to buy    . tools[] and equipment”
is a discretionary function that may not be delegated except in accordance with statutory authority.
See Guerru, 239 S.W.2d at 920; Tex. Att’y Gen. Op. No. V-532 (1948) at 6. We find no statutory
 authority enabling a commissioners court to delegate its power to bind the county by contract to an
 individual commissioner acting as road commissioner.
The Honorable Joe Warner Bell - Page 3             (.Jc-0100)




         We next assume the alternative scenario, using the term “purchase” to indicate a situation
in which the commissioner or road-crew member simply picks up an auto part. The cost of the
purchase either is applied toward the county’s line of credit, which the commissioners court has pre-
approved, or may be subsequently approved (or disapproved) by the commissioners court. In this
scenario, the commissioner’s role is merely ministerial, and nothing precludes the commissioner or
a precinct employee from making the pickup.

         When the matter is before the commissioners court, however, either to preapprove a line of
credit or to consider the purchase of items that have been picked up, the commissioner must comply
with the relevant conflict-of-interest laws. In particular, section 17 1.004(a) ofthe Local Government
Code requires a “local public official” who has a “substantial interest in a business entity” to tile,
“before a vote or decision on any matter involving the business entity           , an affidavit stating the
nature and extent of the interest” and to “abstain from” participating further in the matter if “the
action on the matter will have a special economic effect on the business entity that is distinguishable
from the effect on the public.” TEX. Lot. GOV’T CODE ANN. § 171.004(a)(l) (Vernon 1999). A
“local public official” includes a county commissioner. See id. 9 171.001(l) (defining “local public
official”). A “business entity” includes a corporation. See id. 5 171.001(2) (defining “business
entity”). A local public official has a “substantial interest in a business entity” if the official or
anyone related within the first degree by consanguinity or affinity to the official:

                        (1)     owns 10 percent or more of the voting stock or shares
                of the business entity or owns either 10 percent or more or $15,000
                or more of the fair market value of the business entity; or

                        (2)    received [funds]    . from the business entity [totaling
                 more than] 10 percent of the person’s gross income for the previous
                 year.

Id. 5 171.002 (Vernon 1999).

         If, as you say, the commissioner has a substantial interest in a business entity selling auto
parts for purposes of chapter 171 of the Local Government Code, see Request Letter, supra, the
commissioner must tile an affidavit stating the interest and must recuse him- or herself from
participating in the matter. Because section 171.004 applies to the purchase and provides a
mechanism by which the commissioner may avoid the conflict of interest, section 81.002 of the
Local Government Code (the oath-of-office provision) does not prohibit the transaction. See Tex.
Att’y Gen. Op. No. DM-279 (1993) at 4 (determining relationship of sections 171.004 and 81.002
of Local Government Code); see also TEX. TRANSP. CODE ANN. § 252.004(a) (Vernon 1999) (setting
bond requirements for ex officio road commissioner).     Additionally, section 8 1.002 does not apply
to a situation in which the commissioner or a precinct road-crew employee merely picks up an item
because neither the commissioner nor the road-crew employee purports to make a contract binding
on the county. See TEX. Lot. GOV’T CODE ANN. 5 81.002 (Vernon 1999).
The Honorable Joe Warner Bell - Page 4        (JC-0100)




                                     SUMMARY


                      Under sections 252.005 and 252.006 of the Transportation
              Code, a county commissioner, in his or her capacity as precinct road
              commissioner, may not purchase or authorize a purchase by precinct
              employees from an auto-parts corporation. The commissioner or a
              member of the commissioner’s    road crew may pick up goods from
              the corporation, however, if the commissioners       court has pre-
              approved or subsequently will consider the purchase. In accordance
              with section 171.004 of the Local Government           Code, if the
              commissioner has a substantial interest in a purchase from the auto-
              parts corporation, he or she must disclose that interest and abstain
              from participating in the matter when it comes before the full
              commissioners court.




                                            Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
