The Attorney General of Texas
JIM MATTOX my 19, 1986
Attorney General
Honorable W. C. Kj.rkendall Opinion No. J'M-492
Supreme Court Building District Attorney
P. 0. BOX 12546
113 South River. Suite 205 Re: Whether the commissioners
Austin, TX. 76711. 2546
5121475-2501 Se&n, Texas 7e155 court may contract with the son
Telex 9101874-1367 of the county commlssioaer and
Telecopier 512/475-0266 related questions
714 Jackson, Suite 700
Dear Mr. Kirkendal.1:
Dallas, TX. 75202.4506
214/742-8944 Your letter requesting an opinion from this office advises that a
county commission~z:cwho was formerly the owner of a fence business
to his sons to own and operate, retaining no
transferred the bltcilness
4624 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
interest in it hdnlself directly or indirectly. After the change in
919533.3464 ownership, the comuissioners court authorized a request for bids on a
fence to be built around the county jail. The sons' company submitted
the low bid.
/401 Texas, Suite 7W
,uston, TX. 77002.3111
The commissioners court, with the father participating, voted to
713223.5886
award the contract to the sons' company. The company then performed
the work and wau paid. You ask whether the commissioners court
606 Broadway, Suite 312 violated article 5996a. V.T.C.S., the nepotism law.~ or whether the
Lubbock. TX. 79401.3479 father violated article 39.01 of the Penal Code, which proscribes
606/747-5236
official misconduct, by voting to approve the contract with the sons'
company.
4309 N. Tenth, Suite S
McAllen, TX. 76501-1665 As a preliminary matter, we emphasize that in opinions rendered
512,682.4547 under article 4393, V.T.C.S., this office decides questions of law --
not disputed questions of fact. Accordingly, this opinion cannot be
200 Main Plaza, Suite 400 taken as a detersdnation that the individual in the case you present
San Antonio, TX. 76205.2797 has in fact committed a crlmiaal offense; this kind of assessment
512/225-4191 requires a fact judgment by the courts. The decision of whether the
specific facts ju:,tifyprosecution is a matter for you to decide. This
An Equal Opportunity/
opinion couments only on the general scope of the law with regard to
Affirmative Action Employer
what actions would, depending on proof of the allegations in court.
constitute an offssnse.
The nepotism statute, article 5996a. V.T.C.S., reads in part:
No off,Lc:er. . . of any county . . . shall ap-
point, or vote for, or confirm the appointment to
any of:iice, position, clerkship, employment or
duty, of any person related within the second
P. 2242
Eonorable W. C. Kirkendell I-Page 2 (JM-492)
degree by affinity or within the third degree by
consanguinity to the person so appointing or so
voting, or to any other member of any . . .
board . . . or court of which such person so
appointing or voting may be a member, when the
salary. fees, or compensation of such appointee is
to be paid for, directly or indirectly, out of or
from public funds or fees of office of any kind or
character whatsoever.
We need not address, hmaever, the nepotism statute, since article
988b now speaks expressly to the letting of contracts to relatives by
local public officials. It.prohibits officials from participating In
a vote or decision on a matter involving a business entity in which
the official or anyone related to him within the first or second
degree of affinity or conau~gulnity has a substantial interest. See
V.T.C.S. art. 988b, §Sl(l), 2(a)(c), 3(a)(l). Sons are relatedx
their fathers in the first degree of consanguinity. See Attorney
General Opinion O-780 (1939); Letter Advisory No. 115 (197x The new
statute modifies the law r,agardingthe permissible extent of a local
official's governmental dealings with his relatives.
A violation of sectixr 3(a) article 988b Is a Class A mis-
demeanor. V.T.C.S. art. 988b, §3(b). Prohibited contracts with n
relatives of commissioners are not automatically void, and avoiding
such a contract does not relieve public officials of criminal and
civil liability for such violations. Id. 56. Under certain circum-
stances and if certain Procedural steps are taken, both by the
official related to the contractor and by the governing body, con-
tracts with the officials' relatives may be legally executed. See
V.T.C.S. art. 988b, $54, 5. Here, the required circumstances and rhe
necessary procedural steps are not reflected by the question presented
to us.
In the situation you describe, therefore, we advise that the
commissioners court, as a body, has not violated article 5996a,
V.T.C.S.. because that statute no longer controls county contracts
with independent contractors. Consequently, we need not address
whether article 5996a ever extended to an independent contract
relationship with the county’. See generally Attorney General Opinion
JM-45 (1983); cf., Attorney General Opinions R-354 (1974); WW-432
(1958). Whatevrmight tire been the original scope of the nepotism
1aW. article 988b now controls the letting of contracts by local
public officials. The unrelated commissioners who voted for the
letting of the contract have not violated article 988b. Article 988b
applies only to a public official who knowingly participates in a vote
or decision on a matter involving a business entity in which "the
local public official" himself has a substantial interest. TbiS
includes the interest of persons related to him in the prohibited
degree. -See V.T.C.S. art. 988b. 53(a)(l). In the question you
p. 2243
Ronorable W. C. Kirkendall - Page 3 (JM-492)
presented, the other ctmmissioners have no such interest or
relationship.
In the question you present, the father would not violate article
39.01 of the Penal Code, rhe "official misconduct" law, unless he
acted with intent to obtain a benefit for himself or to harm another.
This intent is a necessary element of the crime. The existence of the
elements of a crime in a particular case depend upon factual
determinations for which zhe opinion process is not intended. See
V.T.C.S. art. 4399. Similarly, under the fact situation presentedto
us, the father's actions would constitute a violation of article 988b,
V.T.C.S., but only if all rllegations were proven along with all other
necessary elements of a criminal offense.
SUMMARY
Article 988b. V.T.C.S., rather than the
napotism statute, article 5996a, V.T.C.S., con-
trols the lettinS of contracts to relatives by
local public off!.cials. A county commissioner who
voted to award a county construction contract to a
company owned by his sons would violate article
988b, V.T.C.S. The unrelated county commissioners
would not violate article 988b by voting to make
the award.
/z-z&
MATTOX
Attorney General of Texas
JACK HIGRTOWER
First Assistant Attorney General
NARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committe~z
Prepared by Jennifer Riggs
Assistant Attorney General
p. 2244