Attorney General Opinion JM-0492

JIM MATTOX Attorney General Supreme Court Building P. 0. BOX 12546 Austin, TX. 76711. 2546 5121475-2501 Telex 9101874-1367 Telecopier 512/475-0266 714 Jackson, Suite 700 Dallas, TX. 75202.4506 214/742-8944 4624 Alberta Ave., Suite 160 El Paso, TX. 79905.2793 919533.3464 /401 Texas, Suite 7W ,uston, TX. 77002.3111 713223.5886 606 Broadway, Suite 312 Lubbock. TX. 79401.3479 606/747-5236 4309 N. Tenth, Suite S McAllen, TX. 76501-1665 512,682.4547 200 Main Plaza, Suite 400 San Antonio, TX. 76205.2797 512/225-4191 An Equal Opportunity/ Affirmative Action Employer The Attorney General of Texas my 19, 1986 Honorable W. C. Kj.rkendall District Attorney 113 South River. Suite 205 Se&n, Texas 7e155 Opinion No. J'M-492 Re: Whether the commissioners court may contract with the son of the county commlssioaer and related questions Dear Mr. Kirkendal.1: Your letter requesting an opinion from this office advises that a county commission~z:c who was formerly the owner of a fence business transferred the bltcilness to his sons to own and operate, retaining no interest in it hdnlself directly or indirectly. After the change in 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. The commissioners court, with the father participating, voted to award the contract to the sons' company. The company then performed the work and wau paid. You ask whether the commissioners court violated article 5996a. V.T.C.S., the nepotism law.~ or whether the father violated article 39.01 of the Penal Code, which proscribes official misconduct, by voting to approve the contract with the sons' company. As a preliminary matter, we emphasize that in opinions rendered under article 4393, V.T.C.S., this office decides questions of law -- not disputed questions of fact. Accordingly, this opinion cannot be taken as a detersdnation that the individual in the case you present has in fact committed a crlmiaal offense; this kind of assessment requires a fact judgment by the courts. The decision of whether the specific facts ju:,tify prosecution is a matter for you to decide. This opinion couments only on the general scope of the law with regard to 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,agarding the 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 relatives of commissioners are not automatically void, and avoiding n 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