                      The Attorney               General of Texas
                                           January    8,   1980

MARKWHITE
Attorney General


                   Honorable Tom O’Connell                    Opinion No. PIW-12 4
                   Criminal District Attorney
                   Collin County Courthouse                   Re: Legality of county contracts
                   McKinney, Texas 75069                      in which a county commissioner is
                                                              indirectly interested, and related
                                                              questions.

                   Dear Mr. O’Connell:

                        You esk:

                              May a county legally enter into a contract for the
                              purchase of road materials from a company when said
                              company is in turn paying a county commissioner
                              royalties or other monies for some of these road
                              materials?

                   You explain that the county purchases its needs for crushed rock pursuant by
                   a single bid submitted to the Commissioners Court of Collin County by a
                   company that for many years has mined the material, crushed it, and stereo
                   it at five specific quarries.    When crushed rock is needed for road
                   maintenance,    the county commissioner       responsible  for the district
                   maintained sends county trucks to one of the quarries for the rock needed.
                   The company pays the quarry owner a royalty for each truckload of rock
                   removed from his quarry. Your question arises because one of the quarries
                   is owned by a county commissioner and his son. The circumstances of the
                   matter, according to your office, were well known to all members of the
                   commissioners court at the time the bid was accepted.

                        In Attorney General Opinion MW-34 (1979), we observed:

                                 Article 2340, V.T.C.S., requires that, upon entering
                              the duties of office, a county judge and each member
                              of the commissioners court

                                   take a written oath that he will not be directly
                                   or indirectly interested in any contract with, or
                                   claim    against,    the county    in which he
                                   resides. . . .




                                                P.   387
nonorame



           It has long been firmly established in this state that a contract
           between a public official and the public body of which he is a
           member is contrary to public policy and therefore void, if the
           official has any personal pecuniary interest in the contract.       Bexar
           County v. Wentworth, 378 S.W.2d 126 (Tex. Civ. App. - San
           Antonio 1964, writ reFd n.r.e.); Starr County v. Guerra, 297 S.W.2d
           379 (Tex. Civ. App - San Antonio 1956, no writ>; Me ers v.
           Walker, 276 SW. 305 (Tex. Civ. App. - Eastland 1925,+ no writ .
           Thisfice       has said that the purpose of article 2340 is ‘to eliminate
           any conflicts of interest between the county and those who manage
           its fiscal affairs.’ Attorney General Opinion No. H-624 (1975). See
           Attorney General Opinions M-1140 (1972); WW-1406 (1962). EG
           compelling circumstances         are not sufficient   to render such a
           contract     lawful.      Attorney   General Opinions H-734, H-695
           (1975). . . . Such a contract may not be subsequently ratified,
           Limestone County v. Knox, 234 S.W. 131 (Tex. Civ. App. - Dallas
           1921, no writ). . . .

       The situation you describe does not involve a contract directly between a public
official and the public body of which he is a member, but it does invoive a contract and
claims against the county in which a public official has an indirect pecuniary interest, at
least, and perhaps a direct one. The arrangement is violative of article 2340, V.T.C.S.,
which is designed to eliminate such conflicts of public and private interests

      Attorney General Opinion H-354 (19741, cited by one of the briefs submitted to us,
 does not support a contrary conclusion.    There, it was determined that a county might
purchase gasoline from a comoration owned bv the brother of a countv commissioner
“assumingit to be true that no county commissioner has an interest, dire& or indirect. in
the corporation. . . .‘I s at 3. See also Attorney General Opinions H-1309 (1978); H-993
‘(1977);H-329 (1974). -Cf. Attorney General Opinion O-6044 (1944).

       This office does not pass upon disputed matters of fact in its opinion process, but
applies the law to the facts given us. Under the facts given here, it is our opinion that the
contract is illegal and void. See Bexar County v. Wentworth, 378 S.W.2d 126 (Tex. Civ.
APP. - San Antonio 1964, wxref’d       n.r.e.); Penal Code § 39.Oh V.T.C.S. art. 2340; cf,
Attorney General Opinion H-354 (1974).

                                       SUMMARY

           Where a county commissioner receives royalties on the sale of rock
           to a company which in turn sells the rock to the county, the
           contract for sale of the rock to the countv is void.

                                          -&?h$&&
                                               MARK     WHITE
                                               Attorney General of Texas




                                          P.   388
Honorable Tom O’Connell     -   Page Three     (MW-124)



JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Jim Allison
David B. Brooks
Walter Davis
Bob Gam mage
Susan Garrison
Rick Gilpin
Bruce Youngblood




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