October 31, 1963
Honorable G. F. Steger
county Attorney
Colorado County
Columbus, Texas
Opinion No. C-168
Re: Whether a contract for the
sale of gravel and other
road material by a County
Clerk, in his individual
capacity, to a contractor
for use in,the construction
of a public highway, financed
solely with state and federal
funds, is invalid and related
Dear Mr. Steger: questions.
This office is in receipt of your request for an
opinion on the following questions:
"1. Is a contract for the sale of gravel
and other road material by a county clerk, in
his individual capacity, to a contractor for
use in the construction of a public highway,
financed solely with state and federal funds,
Invalid?
"2. Would such sale amount to 'official
misconduct' within the meaning of Article 5,
Section 24 of the Constitution, and Articles
5970, 5973 and related articles of the Revised
Civil Statutes?
"3. Would the sale of material by a land-
owner, who happens to be a County Clerk, under
such a contract amount to a violation of Article
373 of the Penal Code?"
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Hon. G. F. Steger, page 2 (C-168)
Article V, Section 24 of the Texas Constitution
provides:
"County Judges, county attorneys, clerks of
the District and County Courts, . . ., may
be removed by the Judges of the District Courts
for incompetency, official misconduct, habitual
drunkenness, or other causes defined by law,
upou the cause therefor being set forth in
writing and the finding of its truth by a jury."
Article 5970 of Vernon's Civil Statutes reads,
in part, as follows:
"All district and county attorneys, county
Judges, commissioners, clerks of the district
and county courts and single clerks in counties
where one clerk discharges the duties of district
and county clerk, county treasurer, sheriff,
county surveyor, assessor, collector, constable,
cattle and hide inspector, justice of the peace
and all county officers now or hereafter existing
by authority either of the Constitution or laws,
may be removed from office by the judge of the
f3i;;;;;tcourt fIorincompetency, official mis-
. . . .
Article 5973 of Vernon's Civil Statutes reads
as follows:
"By 'official misconduct,' as used herein with
reference to county officers, is meant any unlawful
behavior in relation to the duties of his office,
wilful in its character, of any officer intrusted
In any manner with the administration of justice,
or the execution of the law; and includes any
wilful or corrupt failure, refusal or neglect of
an officer to perform any duty enjoined on him
by law."
Article 373 of Vernon's Penal Code reads as
follows:
"If any officer of any county, or of any
city or town shall become In any manner pecuniarily
interested in any contracts made by such county,
city or town, through its agents, or otherwise,
for the construction or repair of any bridge,
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Hon. G. F. Steger, page 3 (C-168)
road, street, alley or house, or any other
work undertaken by such county, city or
town, or shall become interested in any
bid or proposal for such work or In the
purchase or sale of anything made for or on
account of such county, city or town, or
who shall contract for or receive any money
or property, or the representative of either,
or any emolument or advantage whatsoever in
consideration of such bid, proposal, contract,
purchase or sale, he shall be fined not less
than fifty nor more than five hundred dollars."
The sale of road material by a person does not
in and of itself constitute a wrong. The above questions
arise on,lyfor the reason that the person making the sale
is a county official.
There is no constitutional or statutory prohibition
which would render invalid a contract between a County
Clerk, acting in his individual capacity, for the sale of
material to either the State of Texas or the federal
government.
The contract for sale of material in question 1s
not a "contract made by such county, city or town, through
its agents, or otherwise, for the construction or repair
of any bridge, road, street, alley or house, or any other
work undertaken by such county -n, under the provisions
of Article 373 of the Penal Code. Under the facts stated
the contract under consideration Is not one in which the
county is Involved or is not made by or on behalf of the
county.
Under the facts submitted the sale of road
building material by a County Clerk is not such an act
as would be construed as 'official misconduct" within
the meaning of Article 5, Section 24 of the Constitution
or Articles 5970 or 5973 of Vernon's Civil Statutes.
SUMMARY
A contract for the sale of gravel by a
County Clerk, in his individual capacity,
to a contractor for use in construction
of a public highway, financed solely with
state and federal funds is valid, and is
not such a sale that would amount to
-817-
Hon. G. F. Steger, page 4 (C-168)
'official misconduct" within the
meaning of Article 5, Section 2&
of the Constitution, or Articles
5970 and 5973 of Vernon's Civil
Statutes, and is not a violation
of Article 373 of the Penal Code.
Yours very truly,
WAGGONER CARR
Attorney General
Bill Morse, Jr.
Assistant
BMjr:aj
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Malcolm Quick
James Stofer
Edward R. Moffett
APPROVED FOR THE ATTORNEX GENERAL
By: Stanton Stone
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