Untitled Texas Attorney General Opinion

January 12, 1962 Honorable Shelby Ii.Blaydes Opinion No. WW-1241 matrlct Attorney Fort Stockton, Texas Re: Whether a County Auditor would be in violation of \I3 oath-under Article 1619, Vernon's Civil Statutes, in certain DearMr. Blaydea: stated fact alfuatlons. You have requested an opinion of thla office In a letter which sate out a group of questions and f'actsand which reads In part as follows: '1. A Countp Auditor owns a few shares of stock In Qulf oil Corporation, Standard ml COW pany of New Jersey, . . . me county purchases 011 and gas on bids from one or more of the dis- tributors oi'theae varloulrcompanies . . . Under that fact situation would the County Auditor as owner of stock In the company that was the suc- cessful bidder be violating hie oath that he will not be personally interested In any contracts with the county? "2: In yearn past, the county haa always selected the bid of a slagle.bauk located at the oounty Beat as county depository. The County'Audltor In y-car8past by urcharrehas aaquitisda total of leas than 55JJ stock of this particular bank. . :'.giyEi again was selected by the Commlerloners as county depository. Under this set of circumstances la there any violation or the oath of the county auditor am set out In Article 1649. “3. Awume the came eet or facts ae est. 'out in paragraph 2, except now the county auditor one year priorto the last reelectionof county depository . . . has beqn elected to the Board of Dlrectore of the . . . bank. Under this q et of clrcumstancee,18 there any vlolatlon ol the - oath of the county audltor,under that statute? Honorable Shelby H. Ilaydes, page 2 (WI-1241) "4. Under the facts set out in paragraph 3 above, 'Isthere any statute which disqualifies the county auditor from serving as a director of the bank selected as county depository while he also serves as county auditor? "5. Is there any statute that would dla- qualify the county auditor from serving as a director of a bank? "6. Is there any statute by which the county auditor-would be disqualified to own stock in a. the bank b. the 011 companies under question l?" The questions which you raise necessitatea reading orArticles 1649 and 2364. Vernon's civil Statutes. Article 1649 reads in part as hollows: ?The Auditor shall within twenty days of his appointment and before he enters upon the duties of hia office make bond . . . He shall further include in his oath that he will not.be personally lnterested in any contracts with the county.U Article 2364,.Vernon's Civil Statutes, in referring to contracts w&th the county, reads In part as follows: 'No member or the commissionerscourt or any county oSSicer shall be either directly or in- &-sot zntereated in any such contract.' (Empha% ahpplled.) .Thu~.it.appeara'thatthe answer to your first ,four questions depends on nhether.a county auditor who is a stockholder or director in ilrst, an oil company from which the county purchases oil and gasoline on.bids, and.secondly, a bank nhich ia the county depository by virtue of the receipt and acceptance of bide, violates the prohibition against a county officer havlng a financial intereat in contracts with the county. We are ol the opinion that such interests of the county auditor are proh$b%ted by these atatutea. The duties of a county auditor are prescribed by qtatute. He has the general nupervision over all the books and records of all the officea of the county having'authority Honorable Shelby H. Blaydes, page 3 (W-1241) to receive and collect money or property i'orthe county (Article 1651, Vernon's Civil Statutes, et seg). Among other things, he has the duw under Article 1 55, V.C.S., to inquire Into, Inspect, and count the cash in the hands o? the county treasurer or deposited by him in the banks. 'Under ArtiCleS 1658 and 1659, V.C.S., he has the duty tq receive bids for materials and euppliee for the county. .15 Tex. Jur. 2nd 287. 288. Counties, Sec. 59. He is clearly a "county officer" within the ineanlngof that term. bmerican Being a "county offloer" the question resolves ltslef Into whether the holding of stock In the various 011 companies and the bank Is a su??lclent “interest” in a contract with the county aa is prohibited under the various statutes. In Attorney QBneralss Opinion O-878 (1939), this office held that such would be the case, and that a stock- holder's Interest, regardless of how nominal or small the amount of such stock held happened to be, would be a financial interest. ..Theopinion reads in part: 'The fact that the municipal officer la a atookholder,or an offlcar, ln the corporation with whom the coatract le made constitutes such an lnterest'la the contract as to taint It with Illegality . . . Dillon on Municipal Corporations, supra; McQlllan on Mublclpal Corporations, 2nd Edition, Vol. 2, p. 217, and Vol. 3, p. 945; 44 C.J. 93 . e ." The above general principle of law applies, of course, with equal Porte to county o??lol~lsas well as municipal o??lclals. Neither Is the prohibitionof the statutesclrcum- vented by the mere fact that p county auditor In this situation as such does not have direct voting power as to the awarding of such contraotuwith the county. In Attorney @eneral*a Opinion V-381 (1947), this office held that a county auditor was definitely within the statutory prohibitions In regard to county contracts. He has the statutory duty to receive bids for materisle and rupplles and au such has a part in the contractproceaa. He haa the additional duty to 'Inquire Into, count, and Inspect* the funds of the county on deposit In the depoeltozybank. The fact that an officer takes no direct part in the actual act o? letting the contract la lmmaterlal. See Attorney C+eneral*sOpinion O-878, aupra. Honorable Shelby H. Blaydes, page 4 (WW-1241) In addltlon, we point out that Article 2364, Vernon's civil Statutes, clearly prohibits any county officer from Indirect;~ l;erri; l..t&a;;;ounty having contract, directly or "any county officer with voting erlvileges on the aw!rdlng of the contract," but Bays slm ly an county of?lcer. In Attorney General*8 Opinion o-62 f;0 (19x4) relating to a county officer being a bank director, it was pointed out In part: "It Is not a question whether the particular contract thus forbidden is hurtful. It might, on the contrary, be actually beneficial, but the law will not permit an Inquiry lnto the actual conse- quences of the transaction. It Is contrary to sound public policy." In Attorney '&?nerallsOpinion O-2980 (1941), this office held that where a County Judge of a county Is a director and stockholderof a bank, such bank could not be a county depository. The opinion reads In part: I It Is well settled in Texas that if a pubild ~??lclal, directly or lndlrebtly has a pecuniary interest in a contract, no matter how honest he might be, and although he may not be Influenced by the Interest, such a conttgot Is against public policy. Meyers. et al v. Walker, 276 S.W. 305; city of Edknburg v. ellls, XJ s .N . 26 99.” With the foregoing general principles in mind, we are o? the opinion that the fact that the county auditor holds stock or Is a director In the,011 companies and bank, violates the etatutory prohibitions outlined herein. Consequently, your firat four questions may be answered as ?ollows: 1. The county audlto? Is prohlblted by law from owning stock, no matter how small the Interest In an oil company wi.thwhich the county has con- tractual dealings. 2. The .county auditor is prohibited by law from owning stock or being a member of the Board of Directors of any bank which serves as the county depository. 3.and 4. The county auditor thus violates his oath.under Article 1649, Vernon*s Civil Statutes, by owning stock In an oil company with which tht county contract.8 and also by belng a stockholder Honorable Shelby H. Blaydea, page 5 (W-1241) or member of the Board of Directors In a bank which Is the county depository, and It la Immaterial that the bank 1s the only one located at that par- ticular place. Further, In regard to your last'two questions, we art unable to find any statutes which would disqualify the .county auditor from owning stock or being a director In either an 011 company or a bank I? the county does not contract and do business with such organizations. Your last two question8 are thus answered negatively. SUMMARY (1) The county auditor la prohibited by law from owning stock in an 011 company with which the county has contractual dealings. (2) The county auditor Is prohibited by law irom owning stock or being a director cf a bank whlah serves as the county depository. (3) The county auditor la not prohibited from owning stock In a batikor 011 company with which the county has no business dealings. Very truly yours. WILL WILSON EBS:dhs:kh - Ae;i+iant APPROVZD: OPINION COMKITTEE: w. v. Qeppert, chairman J. Arthur Sandlln Llnward Shlvers Riley Eugene Fletcher REvIEwBDFORTiU3ATTORNEYWNERAL BY: Houghton Brownlee, Jr.