Honorable J..M. Fallcner Opinion th. c- 438
Comnlssloner
Department of Banklng Re: Whether a county depository
Austln, Texas may be validly selected If
such bank has-on its board
of directors, or among its
stockholders,one of the fol-
lowing officers of the county:
county judge, county attorney,
county treasurer or county
Dear Hr. Falknert clerk.
You have requested our..oplnlon
on the following questions:
"1. May a county‘depoeltorybe validly select-
ed if'such bank has on its Board of Directors, or
: among Its stockholders,one of the following officers
or the countyr
County Judge '
2 County Attorney
County Clerk
2: County Treasurer.
“2 . May one of the above named officers become
a rtockholder or a director of a bank after such
bank has been designated es county depository,NM-
while the depository contract Ls In effect, without
affecting the validity of the contract or without
creating a violatlon of the offlcerle oath."
Article 2340, Vernon’s Civil Statutes, provides as follows:
"Before entering upon the duties of their of-
flee, the county judge and each comissioner shall
taka the official oath, an4 shall also take a wrlt-
tea mth that he will not be directly or Indirectly
interwted lnan~coatracttith, or claimagainst,
th8.count.yIn which ha realdea, except such warrants
aa m8y Irsue to haa aa ftrw or orficei Each commie-
8loner shall execute l baad to be approved by the
county judge In the mm oi three thoxiaanddollars,
payable to the county treawrer, conditioned for the
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.
.
I
Hon. J. M. Falkner; page 2 (C-438)
faithful performantieof the duties of.his of-
fice, 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
will not vote orglve his consent to'pay out.
county funds axcept for lawful purposes."
In vlew.of these provlslons,It has been ‘the.tionelrtent opln-.
Ion of this ,offlcesince .19&3that.thecdmmisslonerscourt cannot
_
salect as a~county aepositorya hank In Which -tnecounty juage or
any member of the ccaunlselonerscourt Is a stockholder~or,dlrectpr
of such bank; and that such contract la void as against public pol-
icy. See Attorney.Ceneralls'oplnlon to A. M. Turney, County Judge
of Taylor County, dated February 3, 1913, bye C. X. Cureton, First
AssistantAttornay General, and Attorney Gon$ralts Opinion O-2980
For ‘simlZ8rresults, see Attdmey.Geneialts Opinions ~~-161
W-359 (i58) .
?ou are therefore advleed that a county depositorymay not be
Validly selectedIf such bank'has on Its board of directors or among
lts~stockhol&er~ the county'judge.ofthe county.
The oath pxsacxlbod by Artlcie'2340,Vernon's Civil Statutes;
~1s not.appUcable to ,thecounty 'attorney,county clerk,or county
treasurer,and ,tI$rsofficers, do not take 'anoath that,they will not
be directly or bdfrect&y Interestedin,any contract with or claim
against the.countyIn ~whlchthey reside, except warrants as may b.e
$ssued to.theni.as~ fees of office. 'Nevertheless, -It la fell settled
In Texas that'lf. a public official,directly or Indirectly has a
pecuniary'Interestln a contract, nozmatterbox honest he nilghtbe,
and althoughha may not be influencedby the interest, such contract
is agalnst'public:poUcy. 76 S.W. 05 .(1925).
~Attorney Gonoral’tsopinion -359 (1% ii ) and WV-1241
(x%2). I
In this connection,Article 2364, Vernon's Civil Statutes,
provides as folbowe:.
"No member of the com.mzLssioners
court or
any county offlcer:shall-be, either directly or
lndlrectlyiinterested In any such,contract."
While this artlclo applies only to contracts authorized by
the precedlngartlcles in the Revlded Civil Statutes of-Texas;1925,
as amended, and therefore does not apply'to county depository con-
tracts, such article, together with Articles 2340 and 1649, Ver-
non's Civil Statutes, and Article 373; Vernon's Penal Code, estab-
the public policy of prohibitingany county officer from
,,&&ehes
having any laterest In any contract, directly or Indirectly.
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I
Hon. J. M,.y
Falkner, page 3 (C-438)
Attorney ,General'sOpinions O-6280 (1944), o-2980 (1941),O-878
;;;z ~) v-381
: (lg47),~~-1241 (lg62),~~-161 (1957) and WW-359
. This public policy as above noted is of long standing
i since1 1913), and the Legislaturehas not seen fit to change this
public policy. Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570
(1944)*
You are thereforeadvised that a county depositoryplaynot be
validly selected If such bank has on Its board of directors or among
Its stockholdersthe county,Judge,county attorney, county clerk or
county Measurer of the county. This long continued administrative
construct$onIs entitled to great weight.
In answer to your second question, If one of the above named
officers becomes a stockholderor director of a bank after -Cn bank
has been selected as a county depository, such action eon the part
of the county offlcsr will not affect the validity of the contract
or violate the officer!6 oath. The commissionerscourt would, how-
ever, be -prbcludedfrom renewing the depository contract so long
as such offioer remains a stockholderor director of such bank.
',
SUMMARY
A county depositorymay not be validly
selected If such bank has on Its board of
directors or among~its stockholdersthe county
judge, county attorney, county clerk or county
treasurer of the county.
._
~*irre~.ve.ry
truly,
WAGGONER CARR
Attorney General of Texas
By jki5AeP--’
JR:ms Assistant
APPROVED:
OPINION COMUITTEE
W. V. Geppert, Chairman
Bob Flowers
Jack Goodman
Bon Uarrison
Roy Johnson
APPROVED FOR THE ATTORNEY
GENERAL
By! Stanton Stone
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