Could a Texas constable who owned a computer store continue servicing county accounts and make new computer sales to counties?

Texas AG Opinion JM-270: Constable Sales to County

Plain-English summary

The constable-elect for a Waller County precinct owned a computer store that had sold computers to Waller County and other counties. The district attorney asked whether he could continue servicing those accounts and make new county sales after taking office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

JM-270 concluded that article 988b did not prohibit the constable's county contracts. Although a constable was a covered local public official, section 3(a)(1) applied to an official who had legal authority to participate in a vote or decision affecting the official's business. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

The commissioners court, not the constable, was the county's contracting agency. Because the constable lacked authority to vote on or decide existing computer-service contracts and new computer purchases, section 3(a)(1)'s participation prohibition did not apply to those contracts. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

The opinion did not erase every conflict rule. It referred to Penal Code provisions on official misconduct and misuse of official information, described their application as fact questions, and repeated the common-law concern with conflicts, self-dealing, and potential dereliction of duty. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Subsequent treatment

The official Attorney General landing page states: “Modified by Tex. Rev. Civ. Stat. Ann. art. 988b.” Source: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0270

Common questions

Could the constable keep servicing the county's existing computer accounts?

JM-270 found no provision barring the work under the circumstances described, because the constable did not control the county's contracting decisions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

Could the computer store make new sales to counties?

The opinion likewise found no statutory bar to new sales on the stated facts. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

Why was the constable covered by article 988b at all?

Article 988b covered a precinct officer whose responsibilities went beyond an advisory role. JM-270 said a constable met that definition of local public official. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

Why did section 3(a)(1) not prohibit the contracts?

That provision prohibited participation in a vote or decision affecting a business in which the official had a substantial interest. The constable had no legal authority over the commissioners court's contract votes or decisions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

Did the opinion approve misuse of office or inside information?

No. It identified official-misconduct and misuse-of-information provisions and said whether an officer violated them was a factual question. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

Background and statutory framework

Attorney General Opinion JM-99 had said a county official generally could contract with the county for private services or materials unrelated to official duties when no conflict, self-dealing, or potential dereliction existed. JM-270 explained that article 988b, effective January 1, 1984, modified that general conclusion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

Article 988b section 3(a)(1) made it an offense for a local public official knowingly to participate in a vote or decision involving a business entity in which the official had a substantial interest when an economic benefit was reasonably foreseeable. Sections 4 and 5 required disclosure and abstention in circumstances involving governing-body action. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

Anderson v. Wood established that the commissioners court was the county's contracting agency. JM-270 used that allocation of authority to conclude that the constable could not participate in the relevant county purchasing decisions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

Citations and references

• Penal Code sections 39.01 and 39.03
• Article 988b, V.T.C.S., sections 1, 3, 4, 5, and 6
• Texas Constitution article V, section 18
• V.T.C.S. articles 6878 and 6885
• Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941)
• Attorney General Opinion JM-99 (1983)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0270
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0270.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

December 27, 1984

Honorable Charles D. Houston
District Attorney
155th Judicial District
P. O. Drawer 10
Bellville, Texas 77418

Opinion No. JM-270

Re: Whether a constable may sell computers to his county

Dear Mr. Houston:

You state that the constable-elect for a Waller County precinct owns a computer store from which Waller County and other counties have purchased computers. You ask whether he may legally continue to service the accounts he has with the county governments and whether he may legally make new sales to the counties.

We have previously issued Attorney General Opinion JM-99 (1983) which provides a partial answer to your question. It concluded that a county treasurer who owned a “right-of-way service company” could contract with his county to assist it in acquiring right of way property. The opinion pointed out the Penal Code provisions prohibiting official misconduct and the misuse of official information. Penal Code §§39.01, 39.03. Whether an officer has been guilty of conduct proscribed by these statutes is a fact question. The opinion discussed common law prohibitions against conflicts of interest and concluded that

as long as there is no conflict of interest, self-dealing, or potential for dereliction of duties, we believe that as a general proposition, a county official or employee may contract with the county through the commissioners court for services or materials which are furnished by that county employee in his private capacity and which are separate and wholly unrelated to his official county duties.

This general conclusion has been modified by the enactment of article 988b, V.T.C.S., which became effective January 1, 1984. Acts 1983, 68th Leg., ch. 640 at 4079. Article 988b, V.T.C.S., relates to conflicts of interest by local public officials:

Section 1. In this Act:

(1) “Local public official” means a member of the governing body or another officer, whether elected or appointed, paid or unpaid, of any district (including a school district), county, city, precinct, central appraisal district, transit authority or district, or other local governmental entity who exercises responsibilities beyond those that are advisory in nature.

. . . .

Sec. 3. (a) Except as provided by Section 5 of this Act, a local public official commits an offense if he knowingly:

(1) participates in a vote or decision on a matter involving a business entity in which the local public official has a substantial interest if it is reasonably foreseeable that an action on the matter would confer an economic benefit to the business entity involved;

(2) acts as surety for a business entity that has a contract, work, or business with the governmental entity; or

(3) acts as surety on any official bond required of an officer of the governmental entity.

(b) An offense under this section is a Class A misdemeanor.

Sec. 4. If a local public official or a person related to that official in the first or second degree by either affinity or consanguinity has a substantial interest in a business entity that would be peculiarly affected by any official action taken by the governing body, the local public official, before a vote or decision on the matter, shall file an affidavit stating the nature and extent of the interest and shall abstain from further participation in the matter. The affidavit must be filed with the official recordkeeper of the governmental entity.

Sec. 5. (a) The governing body of a governmental entity may contract for the purchase of services or personal property with a business entity in which a member of the governing body has a substantial interest if the business entity is the only business entity that provides the needed service or product within the jurisdiction of the governmental entity and is the only business entity that bids on the contract.

(b) The governing body must take a separate vote on any budget item specifically dedicated to a contract with an entity in which a member of the governing body has a substantial interest and the affected member must abstain from that separate vote. The member who has complied in abstaining in such vote under procedures set forth in Sections 3 and 4 of this Act may vote on a final budget only after the matter in which he is concerned has been resolved.

Sec. 6. . . . The finding by a court of a violation under this article does not render an action of the governing body voidable unless the measure that was the subject of an action involving conflict of interest would not have passed the governing body without the vote of the person who violated this article.

A constable is a precinct officer who exercises responsibilities beyond those that are advisory in nature. Tex. Const. art. V, §18; V.T.C.S. arts. 6878, 6885. He is therefore a local public official within the definition in section 1(1) of article 988b, V.T.C.S.

Section 3 states the prohibited conduct. Under the circumstances described in section 3(a)(1), a local public official may not participate in a vote or decision affecting a business in which he has a substantial interest. The prohibition expressly applies only to officers who have authority to participate in such votes or decisions for the governmental entity which they serve. Other provisions of article 988b, V.T.C.S., demonstrate that a local public official must have legal authority to decide or vote on a matter in order to violate section 3(a)(1). See sec. 5 (exception for sole bidder requires the interested officer to abstain from vote); sec. 6 (violator's participation in vote does not necessarily invalidate the contract).

The constable-elect in this case wishes to continue contracting with his county. The commissioners court is the contracting agency for the county. Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941). A constable thus does not have legal authority to vote on a county decision about its existing computer service contracts or its decision to buy a new computer. Section 3(a) therefore will not apply to the constable-elect's contracts with his county.

We have found no other provision of law which would bar the constable from continuing to service the accounts he has with Waller County and other counties or from making new sales of computers to the county governments.

SUMMARY

Article 988b, V.T.C.S., does not prohibit a constable from contracting with the government of the county in which his precinct is located.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton