r                                  Jsnuary19, 1988
    &M MATTOX
    ATTORNEY CIENERAC
               Honorable Tom Maness              opinion No. JM-846
               Criminal District Attorney
               P. 0. Box 2553                    Re:   Whether a provision of
               Beaumont, Texas   77704           the city charter of the city
                                                 of Groves is consistent with
                                                 article 988b, V.T.C.S.
                                                 (RQ-1168)
               Dear Mr. Maness:
                     you ask the following three questions in regard       to
                local conflict of interest situations.
                           1. Is the provision concerning conflict
                        of interest in the city charter of Groves
                        inconsistent with article 988b, V.T.C.S.?
                           2. May a council member, who has a
                        substantial interest in a business entity
                        which was awarded a contract with the city
                        on a bid basis and who did not participate
                        in the vote to award the contract, there-
                        after vote upon the payment of periodic
                        bills submitted under the contract?
                           3. May a member of the council, who has
                        a substantial interest in a business entity,
                        which is the only business entity that
                        provides a needed service or product, parti-
                        cipate in a vote for the purchase of such
                        services or materials?
                     Your first question relates to the possible incon-
                sistency between the provisions of the charter of the city
                of Groves and the provisions of article 988b, V.T.C.S. As
                a matter of policy, this office does not interpret city
                charter provisions, and we decline to do so. We note,
                however, that chapter 362, Acts 1987, 70th Leg., at 3569,
/-
                in amending article 90833, states that the article is
                cumulative of city charter provisions.
                     Before we address your next two questions, it is
                necessary to examine the statute, which was codified and



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Honorable Tom Maness - Page 2 W-846)
                                                             ,




amended by the 70th Legislature. The act governing local
public officials* conflicts     of interest,   originally
designated as article 98033, V.T.C.S., is now codified in
chapter 171 of the,Local Government Code. The reenactment
of the law in the code was a nonsubstantive codification
as indicated by the language in chapter I71 and the
statement of intent found in the co'difyingact.      Acts
1987, 70th Leg., ch. 149, 551, at 2540.
     Section 1.002 of the Local Government Code requires
that the Code Construction Act, now found at chapter 311
of the Government Code, be used to interpret its pro-
visions. Section 311.031, subsections (c) and (d) of the
Government Code, govern the interpretation of statutes
that were codified and amended by the same legislature.
Those subsections read as follows:
          (c) The repeal of a statute by a code
       does not affect an amendment, revision, or
       reenactment of the statute by the same
       legislature that enacted the code.      The
       amendment, revision,        reenactment  *
       preserved and given eff%    as part of tkZ
       code provision that revised the statute so
       amended, revised, or reenacted.
          (d) If any provision of a code conflicts
       with a statute enacted by the same legisla-
       ture that enacted the code, the statute
       controls.
The substantive amendments to the statute enacted by the
70th Legislature must "be given effect as part of the code
provision that revised the statute."    The amendments to
article 988b passed by the 70th Legislature are found in
chapters 323, 362, and 659. Acts 1987, 70th Leg. Section
311.025 of the Government Code aids in the interpretation
of multiple amendments to the same statute during a single
legislative session. That section reads as follows:
          (a) Except as     provided   by   Section
       311.031(d), if statutes enacted at the same
       or different sessions of the legislature are
       irreconcilable, the statute latest in date
       of enactment prevails.
          (b) Except as     provided   by   Section
       311.031(d), if amendments     to the    same
       statute are enacted at the same session of
       the legislature,    one amendment   without



                         p. 4092
Honorable Tom Manes6 - Page 3   UM-846)




      reference to another, the amendments shall
      be harmonized, if possible, so that effect
      may be given to each. If the amendments are
      irreconcilable, the latest    in date    of
      enactment prevails.
The amendment to section 3, chapter 659 only adds to the
definition of "local public official" found in section
l(l) I article 988b, and' is readily harmonized with the
other amendments.   The amendment represented by chapter
362 was finally adopted by the legislature on May 29,
1987, by the concurrence of the house in senate amend-
ments. That amendment represented by chapter 323 was
finally adopted by the legislature on June 1, 1987, by
both the house and the senate adopting a conference
committee report. $&= Acts 1987, 70th Leg., ch. 323, at
3431, and ch. 362, at 3566. For the most part there is no
conflict between the two acts: most of the changes
effected by chapter 323 were included in chapter 362. For
the purposes of this opinion, we will state the law in
terms of the sections of article 988b, because that is the
form in which we find it.
     In responding to your second and third questions,
section l(1) defines "local public official" as 'Iamember
of the governing body . . . of any . . . city . . . who
exercises responsibilities beyond those that are advisory
in nature. . . .'I Local Gov't Code 5171.001(l). Sections
51.001 and 54.001 of the Local Government Code define some
of the responsibilities of the city council, w,     adopt,
amend, repeal and enforce ordinances. A member of the
city council is unquestionably one of those individuals
that this act was intended to include.
     You stated the council member's substantial interest
    a business entity as a matter of fact in both
zestions, and we are in no position to question it.
     We are assuming that the city council member about
whom you inquire has *'asubstantial interest in a business
entity" within the meaning of section 2(a).    Chapter 362
amended that section to read as follows:
          Sec. 2. SUBSTANTIAL  INTEREST. (a) A
       person has a substantial interest in a
       business entity if:
          (1) the person owns 10 percent or more
       of the voting stock or shares or of the fair
       market value of the business entity or owns



                      p. 4093
Honorable Tom Maness - Page 4 O-846)




       $5,000 or more of the fair market value   of
       the business entity: or
          (2) funds received by the person from
       the business entity exceed 10 percent of the
       person's gross income for the previous year.
     Your second question asks whether a city council
member, who has a substantial interest in a business
entity, may vote on the question of the payment of bills
to that business entity.
     Section 4, as last amended by chapter 323, Acts 1987,
70th Leg., reads in part as follows:
          Sec. 4. AFFIDAVIT (a) If a local public
       official or a person related to that official
       in the first or second degree by either
       affinity or consanguinity has a substantial
       interest in a business entity that would be
       pecuniarily affected by any official action
       taken by the governing body, the local public
       official, before a vote or decision on the
       matter, shall file an affidavit stating the
       nature and extent of the interest and shall
       abstain from further participation in the
       matter. The affidavit must be filed with the
       official recordkeeper of the governmental
       entity.
          (b) If a local public official is re-
       quired to file and does file an affidavit of
       interest under    Subsection (a)    of   this
       section, that official shall not be required
       to abstain from further participation in the
       matter or matters requiring such an affidavit
       if a majority of the members of the govern-
       mental entity of which the official is a
       member is composed     of persons who     are
       likewise required to file and who do file
       affidavits of similar interests on the same
       official action.
This section requires that the public official file an
affidavit describing his interest in the business entity
and abstain from further participation in the matter if
the business entity would be pecuniarily affected by the
official action. In our opinion a city council member is
prohibited from voting on the payment of bills submitted



                          p. 4094
 ,
._
      Honorable Tom Haness - Page 5     (m-846)



 P
      by a business entity in which he holds a substantial
      interest. &S Attorney General Opinion JR-424 (1986).
 -         In your third question you ask    if a city council
      member may participate in a vote on the purchase of a
      needed product or service that is available only from a
      business entity in which he holds a substantial interest.
      The only exception to the general prohibition of parti-
      cipation in the matter in the amended law, is found in
      section 4(c), which allows local public officials, after
      filing affidavits, to participate in the decision-making
      in spite of their holding a substantial interest, if 'Ia
      majority of the membership of the governmental entity of
      which the official is a member is composed of persons who
      are likewise required to file and who do file affidavits
      of similar interest. . . .*I
           The member with a substantial interest      *   the
      business entity must file an affidavit declari:: his
      interest and abstain from voting on the matter unless a
      majority of members of the governmental      entity are
      similarly required to file affidavits.
                              SUMMARY
 r-                 A member of the city council is a "local
               public official11wi,thinthe meaning of section
               171.001(1) of the     Local Government    Code
               [former article 988b. V.T.C.S.].    A council
               member violates section 171.004 by voting on
               the payment of bills submitted by an entity in
               which he holds a substantial interest. A city
               council member also violates section 171.004
               of the Local Government Code by voting on the
               purchase of goods or services provided by a
               sole source business entity in which he has a
               substan~tialinterest, unless a majority of
               members of the city council are required
               to file and do file affidavits of similar
               interests on the same official action.



                                        J
                                         Very truly y

                                              A
                                         JIM     MATTOX
                                         Attorney General of Texas
      MARY KELLER
      First Assistant Attorney General




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Honorable Tom Maness - Page 6   UM-846)




IOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General




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