June 10. 1975
The Honorable Clarence L. Darter Opinion No. H- 624
County Attorney
Cbildress County Re: Authority of commissioners
Gildress, Texas 79201 court to purchase supplies from
a cooperative in which one com-
Dear Mr. Darter: missioner is a member.
You ask if it would be legal for a commissioners court to purchase supplies
for county road machinery from a farmers’ cooperative in which one of the
commissioners owns a small share. You explain the functions of the coopera-
ti-.W:
[The cooperative] was created in 1970 and members
could purchase a share in the Cooperative for $200.00
each. A member could only purchase one share. The
Cooperative sold its merchandise, consisting of diesel,
gas, oil, chemicals, and other items to not only the
members but also to the public at retail. At the end
of the year, the members of the Cooperative received
a refund or dividend on the amount that they had pur-
chased for themselves, 20% in cash and 80% to go back
into the business as their equity in the business and is
used to expand their business and service to the public
and to members. They do not receive any dividend or
refund on the purchases made by the general public or
non-members. The member’s refund or dividend
depends upon the amount that was sold overall, after
all expenses were taken care of from the profit of the
business as a whole.
Article 2340, V. T. C. S., provides:
Before entering upon the duties of their office, the
county judge and each commissioner shall take the official
oath, and shall also take a written oath that he will not be
p. 2765
The Honorable Clarence L. Darter, page 2 (H-624)
directly or indirectly interested in any contract with,
or claim against, the county in which he resides,
extent such warrants as may issue to him as fees of
office. Each commissioner shall execute a bond to
be approved by the county judge in the sum of three
thousand dollars, payable to the county treasurer,
conditioned for the faithful. performance of the duties of
his office, that he will pay over to his county all moneys
illegally paid to him out of county funds, as voluntary
payments or otherwise, and that he wili not vote or
give his consent to pay out county funds except for
lawful purposes. (Emphasis added)
The design of article 2340 is to eliminate any conflicts of interest between
the county and those who manage its fiscal affairs. See Attorney General
Opinion M-1140 (1972); Bexar County v. Wentworth, S. W. 2d 126 (Tex. Civ.
APP. --San Ant.onio 1964, writ ref’
d., n. r. e. ).
In our opinion, based on the facts outlined above, a commissioner who owns
a share of the cooperative is indirectly interested, within the meaning of
article 2340. in any contracts made by the commissioners court with the coopera-
tive.
While the interest involved here appears so negligible as to be insignificant,
the controlling statute is cast in absolute terms and the public policy of the
matter is clear: members of a commissiongs court must avoid all situations
which result in their personal pecuniary gain at the expense of the county.
See Attorney General. Opinion H-329 (1974). Compare Attorney General Opinions
.H-354 (1974) and M-1236 (1972). Contracts by the county which have such a
result are contrary to public policy and are void. Bexar County v. Wentworth,
w; Starr County v. Guerra, 297 S. W. 2d 379 (Tex. Civ. App. --San Antonio
1956, no writ): Cornutt v. Clay County, 75 S. W. 2d 299 (Tex. Civ.App. --Eastland
1934. no writ); Meyers v. Walker, 276 S. W. 305 (Tex. Civ. App. --Eastland
1925, no writ): Knippa v. Stewart Iron Works, 66 S. W. 322 (Tex. Civ.App. --1902,
no writ); Rigby v. State, 10 S. W. 7bO(Tex.Civ. App. --1889. no writ). See also
Attorney Geheral Opinion M-340 (1969); City of Edinburg V. Ellis, 59 S. W. 2d
99 (Tex. Comm. 1933, approved~) ; Delta Electric Construction Co. V. City of
San Antonio, 437 S. W. 2d 602 (Tex. Civ. App. --San Antonio 1969, writ ref’d.,
n. r. e. 1.
p. 2766
The Honorable Clarence I,. Darter, page 3 (H-624)
SUMMARY
A commissioners court may not legally purchase
supplies from a farmers’ cooperative in which a com-
missioner owns one or more shares.,
Very truly yours,
Attorney General of Texas
APPROVED:
DAVIDm KENDALL, First As’sistant
C. ROBERTHFATH, Chairman
Opinion Committee
p. 2767