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
P. 389