Could a Texas county commissioner donate copyrighted court forms to his own county while marketing the same forms to other counties for personal profit?
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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-82: County Commissioner Donating Copyrighted Forms
Plain-English summary
JM-82 concluded that a Collin County commissioner could not donate the use of copyrighted "simplex forms" to his own county while marketing the forms to other Texas counties for personal profit.
"It is therefore our opinion that, under the facts presented, a commissioner may not donate the use of 'simplex forms' to his county."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf
The opinion assumed that the sales to other counties would be private activity for the commissioner's personal gain and that Collin County would pay nothing for its use of the forms.
"We assume that such distribution and sale of these forms is being pursued by the commissioner in his private capacity and for personal gain or profit."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf"Collin County, however, will not expend any county funds for the use of the forms."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf
The lack of a county payment did not remove the conflict. JM-82 treated an offered and accepted gift as a contract, and article 2364 barred a commissioner or county officer from having a direct or indirect interest in a contract for forms and stationery supplies.
"This decision indicates that the offer of a gift by a donor, together with its acceptance by a donee, constitutes a 'contract.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf"No member of the commissioners court or any county officer shall be, either directly or indirectly, interested in any such contract [for forms and 'stationery supplies']."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf
The planned commercial benefit was Collin County's use as a showcase for sales to other counties. The opinion concluded that article 2364's strict prohibition covered those circumstances.
"[T]he facts submitted to us indicate that this commissioner intends to use Collin County as a showcase for the sale of his forms to other counties."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf"Although we may not agree with the strictness of the prohibition of article 2364, we believe it is clear that it embraces the circumstances related here."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf
Currency note
This opinion was issued in 1983. 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.
Common questions
Why did a free donation count as a contract?
JM-82 relied on Bridewell v. Clay for the rule that a gift involved mutual consent: the donor transferred the item gratuitously and the donee accepted it. The opinion therefore treated the offer and acceptance as a contract.
"It is also said that a gift is 'a contract which takes place by the mutual consent of the giver, who divests himself of the thing given in order to transmit the title of it to the donee gratuitously, and the donee, who accepts and acquires the legal title to it.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf"This decision indicates that the offer of a gift by a donor, together with its acceptance by a donee, constitutes a 'contract.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf
Did article 2364 require the commissioner to receive money directly from Collin County?
No. The statute barred both direct and indirect interests, and JM-82 read it to prevent a county officer from profiting directly or indirectly from supplying goods or services to the officer's county.
"No member of the commissioners court or any county officer shall be, either directly or indirectly, interested in any such contract."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf"In our opinion, article 2364 means that a county official may not profit, either directly or indirectly, from the supplying of goods or services to his county."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf
What indirect benefit did the opinion identify?
The commissioner intended to use Collin County's adoption of the forms as a showcase while selling them to other counties.
"[T]his commissioner intends to use Collin County as a showcase for the sale of his forms to other counties."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf
Did the opinion accuse the commissioner or county of bad faith?
No. It presumed that everyone involved was acting in the public interest, but concluded that the statutory prohibition still applied.
"In the present instance, we presume that all parties to the transaction are acting in the public interest."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf"Although we may not agree with the strictness of the prohibition of article 2364, we believe it is clear that it embraces the circumstances related here."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf
Did JM-82 decide whether Collin County generally had authority to accept donated forms?
No. It assumed that authority for purposes of the conflict question but expressly declined to decide it.
"For purposes of this opinion we assume but do not decide that Collin County has authority to accept donated forms of the type in question."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf
Background and statutory framework
The request concerned copyrighted forms for justice-of-the-peace offices. The commissioner proposed free use in Collin County while selling the forms to other Texas counties.
"You have asked whether a county commissioner may donate 'simplex forms' for use in justice of the peace offices."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf"You stated that these forms have been copyrighted and that the commissioner intends to market these forms to other counties in Texas."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf
Article 2364 supplied the controlling prohibition against a commissioner's direct or indirect interest in the relevant county contract.
"No member of the commissioners court or any county officer shall be, either directly or indirectly, interested in any such contract [for forms and 'stationery supplies']."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf
Holding
"Under the circumstances described, a county commissioner is prohibited by article 2364, V.T.C.S., from donating 'simplex forms' for use by his county."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.pdf
Citations and references
Statute discussed by JM-82:
- "Article 2364, V.T.C.S." Official PDF
Case cited by JM-82:
- "Bridewell v. Clay, 185 S.W.2d 170, 172 (Tex. Civ. App. - Dallas 1944, writ ref'd)" Official PDF
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0082
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0082.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
JIM MATTOX
Attorney General
October 24, 1983
Honorable H. Ownby
Criminal District Attorney
Collin County Courthouse
McKinney, Texas 75069
Opinion No. JM-82
Re: Whether commissioner of Collin County may donate use of forms copyrighted in his own name to Collin County and sell use of forms to other counties
Dear Mr. Ownby:
You have asked whether a county commissioner may donate "simplex forms" for use in justice of the peace offices. You stated that these forms have been copyrighted and that the commissioner intends to market these forms to other counties in Texas. We assume that such distribution and sale of these forms is being pursued by the commissioner in his private capacity and for personal gain or profit. Collin County, however, will not expend any county funds for the use of the forms.
For purposes of this opinion we assume but do not decide that Collin County has authority to accept donated forms of the type in question. In Bridewell v. Clay, 185 S.W.2d 170, 172 (Tex. Civ. App. - Dallas 1944, writ ref'd) (quoting 38 C.J.S., Gifts §3, at 781), the court stated:
It is also said that a gift is "a contract which takes place by the mutual consent of the giver, who divests himself of the thing given in order to transmit the title of it to the donee gratuitously, and the donee, who accepts and acquires the legal title to it; it operates, if at all, in the donor's lifetime, immediately and irrevocably, and is a gift executed, no further act of parties, no contingency of death or otherwise, being needed to give it effect."
This decision indicates that the offer of a gift by a donor, together with its acceptance by a donee, constitutes a "contract."
Article 2364, V.T.C.S., provides:
No member of the commissioners court or any county officer shall be, either directly or indirectly, interested in any such contract [for forms and "stationery supplies"].
In our opinion, article 2364 means that a county official may not profit, either directly or indirectly, from the supplying of goods or services to his county. In the present instance, we presume that all parties to the transaction are acting in the public interest. Nevertheless, we can imagine instances in which a county official's donation of goods or services to his county might have a substantial impact on future elections. Moreover, the facts submitted to us indicate that this commissioner intends to use Collin County as a showcase for the sale of his forms to other counties. Although we may not agree with the strictness of the prohibition of article 2364, we believe it is clear that it embraces the circumstances related here. It is therefore our opinion that, under the facts presented, a commissioner may not donate the use of "simplex forms" to his county.
SUMMARY
Under the circumstances described, a county commissioner is prohibited by article 2364, V.T.C.S., from donating "simplex forms" for use by his county.
Very truly yours,
JIM MATTOX
Attorney General of Texas
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by David Brooks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Nancy Sutton
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