’ ,
THE ATTORNEY GENERAL
OF TEXAS
August 28, 1989
Honorable Abelardo Garza Opinion No. JR-1090
Duval County Attorney
P. 0. Drawer M Re: Authority of a county judge
San Diego, Texas 78384 to sell prescription drugs to
indigents for reimbursement by
the county (RQ-1696)
Dear Mr. Garza:
you state that the county judge of Duval County is a
licensed pharmacist who owns the only drug store in the City
of Freer in Duval County. Aside from this pharmacy, the
nearest pharmacies in the county are 25 and 27 miles from
Freer. Before the county judge assumed office, indigent
persons used vouchers approved by the county welfare
department to buy medicines from his dNg store, and he
submitted them to the county for payment. &B Local Go-."t
Code 8 115.021 (commissioners court shall audit and settle
all accounts against the county-and direct their payment).
You ask whether the pharmacist may continue to provide
medicines to indigent persons for reimbursement by the
county now that he is county judge.
Section 81.002 of the Local Government Code provides in
part:
(a) Before undertaking the duties of the
county judge or a county commissioner, a
person must take the official oath and swear
in writing that the person will not be
interested, directly or indirectly, in a
contract with or claim against the county
except:
(1) a contract or claim exnressly
authorized bv lay; or
(2) a warrant issued to the judge or
commissioner as a fee of office.
(Emphasis added.)
p. 5701
Honorable Abelardo Garza - Page 2 (JM-1090)
Local Gov't Code 8 81.002. The underlined language in the
above provision was added by a 1981 amendment to article
2340, V.T.C.S., now recodified as section 81.002 of the
Local Government Code. Acts 1981, 67th Leg., ch. 527, 5 3,
at 2230 (amending V.T.C.S. art. 2340 (1925) (repealed
1987)).
Prior to the 1981 amendment, article 2340, V.T.C.S.,
and its predecessors incorporated the strict common law
policy which prohibits contracts between a governmental body
and a private entity in which a member of that body is
interested. See. e.cr., Bexar Countv v. Wentworth, 378
s.W.Zd 126 (Tex. Civ. APP. - San Antonio 1964, writ ref'd
n.r.e.) (invalidating contract entered into.in violation of
article 2340, V.T.C.S.); see also Kninna v. Stewart Iron
Works, 66 S.W. 322 (Tex. Civ. App. 1902, no writ) (commis-
sioner may not enforce an assignment of a contractor's claim
against the county). The 1981 enactment which added the
underlined exception to article 2340 also adopted article
988a, V.T.C.S. This provision, now codified as section
271.902 of the Local Government Code, authorizes a county to
make purchases from a cooperative association even though
one or more members of its governing body belong to it and
might indirectly benefit from the purchase through increased
dividends. Acts 1981, 67th Leg., ch. 527, 8 1, at 2229: ~99
Attorney General Opinion H-624 (1975) (article 2340,
V.T.C.S., barred county from contracting with a cooperative
in which a commissioner had a small interest). The excep-
tion added to article 2340 -ensured that counties would get
the benefit of the legislative change in the common law.
See Bill Analysis, H.B. 450, 67th Leg. (1981). The
exception was, however, stated in expansive terms and was
not limited to a county's transactions with a cooperative.
In 1983 the legislature adopted article 988b, V.T.C.S.,
now codified as chapter 171 of the Local Government Code,
establishing financial disclosure and recusal requirements
for a local public officer who has a substantial interest in
a business entity that will receive an economic benefit from
an official action by the governmental body on which the
officer serves. Local Gov't Code 88 171.003, 171.004. See
Acts 1983, 68th Leg., ch. 640, at 4079. An official who
knowingly fails to comply with these requirements commits an
offense punishable as a Class A misdemeanor. Local Gov't
Code 8 171.003. A violation of chapter 171 does not make
the action of the governing body voidable unless it would
not have been approved without the vote of the person who
violated the chapter. Local Gov't Code § 171.008
(renumbered as section 171.006 by Acts 1989, 71st Leg., ch.
1, 8 40, at 46).
p. 5702
Honorable Abelardo Garza - Page 3 (JM-1890)
This enactment thus modifies the strict common-law rule
which would have invalidated those governmental actions even
if the interested official had not participated. &S Local
Gov't Code 8 171.007 (as amended, Acts 1989, 71th Leg.,
chapter 1, at 47, incorporating into chapter 171 an amend-
ment to art. 988b, V.T.C.S., adopted by Acts 1987, 70th
Leg., ch. 362): see also Attorney General Opinion JM-424
(1986). Instead, it permits the transaction but forbids the
interested official from. participating in it, enforcing
these requirements by subjecting him tb criminal liability
for violations.
Chapter 171 defines "local public officialt' as follows:
a member of the aovernins bodv or another
officer, whether elected, appointed, paid,
or unpaid, of anv district (includins a
chool district). county, municipality,
:recinct . . . or other local governmental
entity who exercises responsibilities beyond
those that are advisory in nature. (Emphasis
added.)
Local Gov't Code 5 171.001(l).
The commissioners court is the governing body of a
county. See Tex. Const. art. V, 5 18. Members of the
commissioners court are local public officials within
chapter 171 and are subject to its provisions and procedures
for transactions in which a member of the court has a
substantial interest. In our opinion, chapter 171
authorizes the commissioners court to enter into a contract
or approve a claim in which the county judge or a commis-
sioner has a pecuniary interest, as long as it complies with
the requirements of this legislation. The claim or contract
which arises under authority of chapter 171 is 'Ia contract
or claim expressly authorized by law" within the exception
to section 81.002 of the Local Government Code.
This construction of the two provisions is supported by
the rule that statutes in pari materia should be construed
together, giving effect to both, if possible. See. e.a.,
Duval Core. v. Sadler, 407 S.W.2d 493 (Tex. 1966): Conlev v.
Dauahters of the RenubliG 156 S.W. 197 (Tex. 1913): Allen
v. Texas Deu't of Public 'Safetv 411 S.W.2d 644 (Tex. Civ.
APP. - Texarkana 1966, no writ): Both section 81.002 and
chapter 171 of the Local Government Code deal with conflicts
between a county commissioner's private economic interest
and his official duty to participate in decisions on the
p. 5703
Honorable Abelardo Garza - Page 4 (JM-1090)
expenditure of county funds or the use of other county
resources. As statutes on the same subject, they are to be
COnStNed together and any apparent inconsistencies are to
be harmonized. See. e.a Conlev D aht r of the
Reoublic, suora. AccordiAgly, a &sa%one shat the
commissioners court enters into in compliance with chapter
171 of the Local Government Code will not be invalid under
section 81.002 even though the county judge has an economic
interest in it. Transactions not authorized by chapter 171
or section 271.902 are still subject to section 81.002.1
See Attorney General Opinions JM-1006 (1989): JM-927 (1988);
Letter Opinion 88-127 (1988); see also Letter Opinion 88-40
(1988) (reserving question on whether chapter 171 applied to
transaction).
Attorney General Opinion JM-855 (1988) stated that
chapter 171 did not expressly authorize a county commis-
sioner to contract with the county. This opinion determined
that section 81.002 barred a county commissioner from
leasing space from the county to operate a private business.
The facts presented in Attorney General Opinion JM-855
indicated that chapter 171 would not apply to the lease
transaction in any case. Thus, chapter 171 did not except
that proposed transaction from section 81.002. The state-
ments made by Attorney General Opinion JM-855 about the
relationship of section 81.002 and chapter 171 of the Local
Government Code should be limited to the fact situation
addressed by that opinion and not applied to county
contracts generally.
You suggest that section 171.005 of the Local Govern-
ment Code prohibits the county judge from providing
prescription medicines to indigent persons and seeking
reimbursement from the county. This provision states as
follows:
The governing body of a governmental
entity may contract for the purchase of
services or personal property with a business
1. House Bill 1976 of the 71st Legislature amends
section 81.002 of the Local Government Code to allow members
of the commissioners court to serve as officers of certain
other entities, subject to the provisions of chapter 171.
This bill becomes effective on August 28, 1989. Acts 1989,
71st Leg., ch. 475, § 1, at 1647.
p. 5704
E
Honorable Abelardo Garza - Page 5 (JM-1090)
entity in which a member of the governing
body has a substantial interest if the
business entity is the only business entity
that
(1) provides the needed service
product within the jurisdiction of 2:
governmental entity: and
(2) bids on the contract.
Local Gov't Code 5 171.005 (repealed 1989). We need not
consider whether the quoted provision would prohibit your
transaction, because~ it was repealed in 1989.
In adopting the Local Government Code in 1987, the
legislature recodified and repealed article 988b, V.T.C.S.
Acts 1987, 70th Leg., ch. 149, gg 1, 49(l). Section 5(a) of
article 988b, V.T.C.S., was recodified as section 171.005 of
the Local Government Code. The same legislature adopted an
amendment to article 98833 repealing the language quoted as
section 171.005 and replacing it with an entirely different
provision. Acts 1987, 70th Leg., ch. 362, § 5. In these
circumstances, we apply the following rule from the Code
Construction Act:
The repeal of a statute by a code does not
affect an amendment . . . of the statute by
the same legislature that enacted the code.
The amendment . . . is preserved and given
effect as part of the code provision that
revised the statute so amended . . . .
Gov't Code § 311.031(c). Accordingly, the provision set out
as section 171.005 of the Local Government Code has been
repealed and may be disregarded. The 71st Legislature has
adopted a bill which incorporates into chapter 171 of the
Local Government Code the amendments to article 988b,
V.T.C.S., adopted by the 70th Legislature. Acts 1989, 71st
Leg., ch. 1, 5 40, at 45 (effective August 29, 1989). The
language quoted above as section 171.005 does not appear in
section 171.005 as adopted by the new bill or in any other
provision of chapter 171 included therein. The county judge
may provide medicines to indigent persons for reimbursement
by the county in accordance with the provisions of chapter
171 of the Local Government Code as amended.
p* 5705
Honorable Abelardo Garza - Page 6 (JM-1090)
SUMMARY
Chapter 171 of the Local Government Code
applies to transactions between a county and
the county judge or another member of the
commissioners court. Transactions that are
not subject to chapter 171 are still subject
to section 81.002 of the Local Government
Code.
JIM MATTOX
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
P. 5706