The Attorney General of Texas
October 24, 1983
JIM MATTOX
Attorney General
Supreme Court Sullding Honorable H. Ownby Opinion No. JM-82
P. 0. BOX 12546 Criminal District Attorney
Austin, TX. 76711. 2546 Collin County Courthouse Re: Whether commissioner of
5121475-2501
MeKinney, Texas 75069 Collin County may donate use of
Telex 9101674.1367
Telecopier 5121475-0266 forms copyrighted in his own
name to Collin County and sell
use of forms to other counties
714 Jackson, Suite 700
Oallcis. TX. 75202.4506
214/742-6944
Dear Mr. Ownby:
You have asked whether a county commissioner may donate "simplex
4624 Alberta Ave., Suite 160 forms" for use in justice of the peace offices. You stated that these
El Paso, TX. 79905.2793
forms have been copyrighted and that the commissioner intends to
915/533-3464
market these forms to other counties in Texas. We assume that such
distribution and sale of these forms is being pursued by the
m.001 Texas, Suite 700 commissioner in his private capacity and for personal gain or profit.
muston, TX. 77002-3111 Collin County, however, will not expend any county funds for the use
71312235666 of the forms.
606 Broadway. Suite 312
For purposes of this opinion we assume hut do not decide that
Lubbock, TX. 79401.3479 Collin County has authority to accept donated forms of the type in
606/747-5236 question. In Bridewell V. Clay, 185 S.W.2.d170. 172 (Tex. Civ. ADD. -
Dallas 1944, writ ref'd) (quoting 38 C.J.S., Gifts Q3, at 781), the
court stated:
4309 N. Tenth. Suite S
McAllen. TX. 76501-1665
5121662.4547 It is also said that a gift is 'a contract which
takes place by the mutual consent of the giver,
who divests himself of the thing given in order to
200 Main Plaza. Suite 4W
transmit the title of it to the donee
San Antonio. TX. 76205-2797
512/225-4191
gratuitously, and the donee. who accepts and
acquires the legal title to it; it operates, if at
all, in the donor's lifetime, immediately and
An Equal Opportunity/ irrevocably, and is a gift executed, no further
Affirmative Action Employel
act of parties, no contingency of death or
otherwise, being needed to give it effect.'
This decision indicates that the offer of a gift by a donor, together
with its acceptance by a donee, constitutes a "contract."
Article 2364, V.T.C.S., provides:
No member of the commissioners court or any
county officer shall be, either directly or
p. 347
Honorable H. Ownby - Page 2 (JM-82)
indirectly, interested in any such contract [for
forms and 'stationerysupplies].
In our opinion, article 2364 means that a county official may not
profit, either directly or indirectly, from the supplying of goods or
services to his county. In the present instance, we presume that all
parties to the transaction are acting in the public interest.
Nevertheless, we can imagine instances in which a county official's
donation of goods or services to his county might have a substantial
impact on future elections. Moreover, the facts submitted to us
indicate that this commissioner intends to use Collin County as a
showcase for the sale of his forms to other counties. Although we may
not agree with the strictness of the prohibition of article 2364, we
believe it is clear that it embraces the circumstances related here.
It is therefore our opinion that, under the facts presented, a
commissioner may not donate the use of "simplex forms" to his county.
SUMMARY
Under the circumstances described, a county
commissioner is prohibited by article 2364,
V.T.C.S., from donating "simplex forms" for use by
his county.
JIM MATTOX
Attorney General of Texas
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by David Brooks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Nancy Sutton
p. 348
Untitled Texas Attorney General Opinion
Combined Opinion