THE ATTORNEY GENERAL
OF TEXAS
August 27. 1987
Honorable Tommy W. Wallace opinion No..3M-776
Criminal District Attorney
Van Zandt County Courthouse Re: Whether an individual whose
Canton, Texas 75103 spouse is a bail bondsman may
be employed as an investigator
for the office of criminal dis-
trict attorney
Dear Mr. Wallace:
You ask vhether an individual whose spouse is the owner of a bail
bond business may serve as an investigator for the office of criminal
district attorney.
Factual information you furnished states that an applicant for
the position of investigator in your office has an interest in his
wife's bail bond business. The business was initiated during their
marriage, the marriage continues to exist, and the income therefrom is
community property.
Under section 41.109 of the Government Code an investigator
appointed by a prosecuting attorney has the same authority as the
sheriff to make arrests. Your concern stems from the correlation
existing between the number of arrests made in the county and the
number of bail bonds the applicant's wife writes in the course of her
business.
The authority of an investigator is delineated in Section 41.109,
as follows:
(a) An investigator appointed by a prosecuting
attorney has the same authority as the sheriff of
the county to make arrests anywhere in the county
and to serve anywhere in the state warrants,
capiases, subpoenas in criminal cases, and all
other processes in criminal cases issued by a
district court, county court, or justice court of
this state.
C
(b) An investigator is under the exclusive
authority and direction of the prosecuting
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Honorable Tommy W. Wallace - Page 2 (JM-776)
attorney and is not under the authority and
direction of the sheriff. The prosecuting
attorney is responsible for the official acts of
his investigators and has the same remedies
against his investigators and their sureties as
any person,has against a prosecuting attorney and
his sureties.
(c) An investigator may not draw a fee of any
character for performing a duty prescribed by this
section.
You suggest that the scenario you have detailed may present a
common law conflict of interest.
In Attorney General Opinion JM-270 (1984) it was noted that a
prior Attorney General Opinion, JM-99 (1983) had discussed common law
conflict of interest but the conclusion reached in JM-270 had been
modified by the enactment of article 988b. V.T.C.S.. by the 68th
Legislature. In JM-270 it was stated:
The opinion discussed common law prohibitions
against conflicts of interest and concluded that
-,
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 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.
This general conclusion has been modified by
the enactment of article 988b. V.T.C.S.. which
became effective January 1. 1984. Acts 1983, 68th
Leg., ch. 640 at 4079. Article 988b. V.T.C.S.,
relates to conflicts of interest by local public
officials:
Section 1. In this Act:
(1) 'Local public official' means a member of
the governing body or another officer, whether
elected or appointed, paid or unpaid, of any
district (including a school district), county,
city 9 precinct, central appraisal district,
transit authority or district, or other local
governmental entity who exercises responsibilities
beyond those that are advisory in nature.
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Bonorable Tommy W. Wallace - Page 3 (JM-776)
. . . .
sec. 3. (a) Except as provided by Section 5 of
this Act, a local public official coxmnits an
offense if he knowingly:
(1) participates in a vote or decision on a
matter involving a business entity in which the
local public official has a substantial interest
if it is reasonably foreseeable that an action on
the matter would confer an economic benefit to the
business entity involved;
(2) acts as surety for a business entity that
has a contract, work, or business with the govern-
mental entity; or
(3) acts as surety on any official bond
required of an officer of the governmental entity.
(b) An offense under this section is a Class A
misdemeanor.
sec. 4. 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
wouldsbe peculiarly affected by an 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 record-
keeper of the governmental entity.
sec. 5. (a) The governing body of a govern-
mental entity may contract for the purchase of
services or personal property with a business
entity in which a member of the governing body has
a substantial interest if the business entity is
the only business entity that provides the needed
service or product within the jurisdiction of the
governmental entity and is the only business
entity that bids on the contract.
(b) The governing body must take a separate
vote on any budget item specifically dedicated to
a contract with an entity in which a member of the
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Bonorable Tommy W. Wallace - Page 4 (JM-776)
governing body has a substantial interest and the
affected member must abstain from that separate
vote. The member who has complied in abstaining
in such vote under procedures set forth in
Sections 3 and 4 of this Act may vote on a final
budget only after the matter in which he is
concerned has been resolved.
Sec. 6. . . . The finding by a court of a vio-
lation under this article does not render an
action of the governing body voidable unless the
measure that was the subject of an action
involving conflict of interest would not have
passed the governing body without the vote of the
person who violated this article.
An investigator is an appointed officer who exercises
responsibilities beyond those that are advisory in nature. Gov't Code
641.109. We is therefore a local public official within the
definition in section l(1) of article 988b, V.T.C.S.
While you do not furnish us with information relative to the
value of the bail bond business, we will assume in answering your
question that the applicant has a substantial interest in same.
Attorney General Opinion JM-310 (1985) contrasted the common law
conflict of interest prohibition with article 988b. stating:
.
Article 988b. the current local conflict of
interest statute, which became effective January
1, 1984, applies a narrower conflict of interest
prohibition to a broader group of public officials
and, despite the existence of a conflict, does not
void governmental action unless influence is
actually exerted.
In reviewing the conduct prohibited by article 988b, Attorney
General Opinion JM-310 stated:
Article 988b does not bar such an official's
interest in a local government contract, however,
but instead penalizes the official if he knowingly
participates in a vote or decision on a
matter involving a business entity in
which the local public official has a
substantial interest if it is reasonably
foreseeable that an action on the matter
would confer an economic benefit to the
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Honorable Tommy W. Wallace - Page 5 (JM-776)
business entity involved. . . . (Emphasis
added).
A prime example of a decision an investigator would be called
upon to make in the performance of the duties of his office would be
the determination of whether probable cause existed to make a
varrantless arrest. We are of the opinion that this is not a vote or
decision on a matter involving a business entity in which the
applicant has a substantial interest. Further indication that it was
not the intent of the legislature to include the decision-making of a
public official such as an investigator is the requirement set-forth
in section 4 that the public official file an affidavit stating the
nature and extent of the interest in the business entity before voting
or making a decision on the matter and abstain from further participa-
tion. Clearly, it was not intended that an investigator file an
affidavit before making a decision on whether probable cause existed
to make a warrantless arrest.
We note that under section 41.109(b) of the Government Code that
an investigator appointed by you is under your exclusive authority and
direction and you have the same remedies against him and his sureties
as any person has against a prosecuting attorney and his sureties.
SUMMARY
An individual whose spouse operates a bail bond
business may be appointed as an investigator for
the office of criminal district attorney and
perform the duties of such position without
violating the prohibition against conflict of
interest by a local public official.
JIM MATTOX
Attorney General of Texas
MARY KFLLER
Executive Assistant Attorney General
JUDGE ZOLLIE STRAKLCl
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3658
Untitled Texas Attorney General Opinion
Combined Opinion