The Attorney General of Texas
March 26, 1980
MARKWtilTE
Attorney General
Honorable George Kirkpatrick, Jr. Opinion No. MN-155
District Attorney
Hardin County Courthouse Re: Validity of city’s use of
Kountze, Texas 77625 county landfiil garbage dump when
the county has contracted with city
councilmen to operate the dump.
Dear Mr. KirQatrick:
You have requested our opinion concerning the use by the City of
Kountze, Texas, of a county landfill garbage dump when the county has
contracted with two Kountze city councilmen to operate the dump. The
contract between the county and the city councilmen provides that, in
addition to certain payments from the county, the councilmen are
authorized to charge certain fees from users of the dump. Under this
contract the fees are paid to and retained by the councilmen Since the
effective date of this contract the City of Kountze has utilized this dump
and incurred stistantial user fees which have not been paid
Article 988, V.T.C.S., provides, in part: “No member of the city
council . . .shall be directly or indirectly interested in any work, businem or
contract, the expense, price or consideration of which is paid from the city
treasury. . . .I’
Whether ‘a municipal official has an unlawful interest in a municipal
contract is ordinarily a question of fact. Meyers v. Walker, 276 S.W. 305
(Tex. Civ. App. - Eastland 1325, no writ). Texas Anchor Fence Co. v. City
of San Antonio, 71 S.W. 391 (Tex. Civ. App. 1902, no wrtt). However, since
the user fees from the city would be paid directly to the councilmen, this
obligation is clearly prohibited by article 998, V.T.C.S., and is void as
against public policy. City of Edinburg v. Ellis, 59 S.W.2d 99(Tex. Comm’n
App. 1933, holding approved); Attorney General Opinion MW-34 (1979). The
authority of the city to contract for landfill usage may also be subject to
competitive bidding. See article 2368a, V.T.C.S.; Attorney General Opinion
MW-91 (1979). While-e city may not pay user fees which directly or
indirectly accrue to the benefit of the city councilmen, it may contract for
landfill services with the county. Article 4413(32c), V.T.C.S.
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,
Honorable George Kirkpatrick, Jr. - Page Two (MW-155)
SUMMARY
A city cannot pay user fees to city councilmen who operate a
county landfill dump under contract with the county.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Jim Allison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Walter Davis
Bob Gammage
Susan Garrison
Rick Gilpin
Bruce Y oungblood
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