Can a county commissioner's company sell materials to the county in Texas?

Plain-English summary

The Aransas County Attorney described a situation where a person likely to be appointed county commissioner owned most or all of a corporation that sells concrete materials, the only such company in the area. The commissioners court had hired a general contractor for runway construction at the county airport, and the contractor was expected to buy concrete from that company. The county attorney asked whether a concrete company owned by a county commissioner could sell materials and services to the county, or to a contractor already under contract with the county, given two conflict-of-interest provisions: the oath in section 81.002 of the Local Government Code and the substantial-interest rules in chapter 171.

The Attorney General concluded that chapter 171 controls. Section 81.002 has required the county judge and commissioners, since 1876, to swear they will not be interested in a contract with the county. But chapter 171, adopted in 1983, changed the old common-law rule that voided any contract in which a member of the governing body had a financial interest. Chapter 171 lets a local government enter such a contract, while requiring an officer with a "substantial interest" in the business to file an affidavit disclosing the interest and to abstain from any vote or decision on the matter. The office held that chapter 171 authorizes a county to contract with a business in which a commissioner is interested to the same extent as other local governments, and that section 81.002's oath is impliedly repealed to the extent it conflicts. Applying that to the facts, the office said that because the prospective commissioner owned at least a majority of the concrete corporation, he had a "substantial interest," and that a county decision to buy materials from his corporation would, as a matter of law, have a special economic effect on the company distinguishable from the effect on the public. So he would have to file the affidavit and abstain from participation, including the discussions leading up to a vote. As for sales to the county's general contractor rather than the county itself, the office said section 171.004 would apply only if the commissioners court took some action involving the concrete business with a special economic effect distinguishable from the public, and it could not determine from the facts whether that would happen.

Currency note

This opinion was issued in 1993. 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. The Local Government Code conflict-of-interest provisions described here have been amended since 1993 (for example, the dollar thresholds in chapter 171), so confirm the current law before relying on anything described here.

What the opinion meant for those who asked

For Aransas County and the commissioners court: The opinion concluded that chapter 171 authorizes the county to enter contracts in which a commissioner is pecuniarily interested, to the same extent other local governments may, and that section 81.002's oath is impliedly repealed where it conflicts with chapter 171.

For the commissioner who owned the concrete company: With at least majority ownership, he had a "substantial interest." The opinion held that a county purchase from his corporation would, as a matter of law, have a special economic effect on the company, so he would have to file the section 171.004 affidavit and abstain from participation, including discussions, on the contract.

For sales to the county's general contractor: The opinion explained that section 171.004 would apply only if the commissioners court took an action involving the concrete business with a special economic effect distinguishable from the effect on the public. It said it could not determine from the facts provided whether the court would take any such action.

Background and statutory framework

Section 81.002(a) of the Local Government Code requires the county judge and each county commissioner, before taking office, to swear they will not be interested, directly or indirectly, in a contract with or claim against the county, except a contract or claim expressly authorized by law or a warrant issued as a fee of office. That oath has existed since 1876 (Acts 1876, 15th Leg., ch. 55, at 51). Under the common-law rule Texas courts applied, a public contract in which a member of the contracting body had a direct or indirect pecuniary interest was against public policy and void (Meyers v. Walker, 276 S.W. 305 (Tex. Civ. App.-Eastland 1925, no writ); City of Edinburg v. Ellis, 59 S.W.2d 99 (Tex. Comm'n App. 1933, holding approved); Bexar County v. Wentworth, 378 S.W.2d 126 (Tex. Civ. App.-San Antonio 1964, writ ref'd n.r.e.); Starr County v. Guerra, 297 S.W.2d 379 (Tex. Civ. App.-San Antonio 1956, no writ); Trippe v. Stewart Iron Works, 66 S.W. 322 (Tex. Civ. App. 1902, no writ)).

Chapter 171 of the Local Government Code, adopted in 1983 (Acts 1983, 68th Leg., ch. 640, § 1, at 4079), changed that rule. It permits a local governing body to enter into contracts in which a member has a "substantial interest" as defined by section 171.002, provided the interested official complies with section 171.004: the official must file, before any vote or decision on a matter involving the business entity or real property, an affidavit stating the nature and extent of the interest, and must abstain from further participation if, for a business entity, the action will have "a special economic effect on the business entity that is distinguishable from the effect on the public." A "local public official" includes a member of the governing body of a county (§ 171.001(1)), and a "business entity" includes a sole proprietorship, partnership, corporation, and other recognized entities (§ 171.001(2)). A knowing violation of section 171.004 is an offense (§ 171.003(a)(1)), but the violation invalidates the contract only if the measure would not have passed without the interested member's vote (§ 171.006).

The office reconsidered an earlier opinion, JM-1090 (1989), which had tried to harmonize section 81.002 and chapter 171 by treating a chapter 171 contract as one "expressly authorized by law." The office agreed chapter 171 prevails over section 81.002 but found that reasoning flawed: the "expressly authorized by law" exception was adopted in a bill addressing purchases from cooperative associations (now Local Gov't Code § 271.902), and chapter 171 lacks that kind of specificity. The better reading, the office said, is that chapter 171 authorizes a county to act in matters in which a commissioner is interested to the same extent as other local governments, with the affidavit-and-abstention requirement applying to a substantial interest, and that chapter 171 creates an exception to the section 81.002 oath to that extent. The office pointed to the legislative history of chapter 171 (recommended by the Public Servant Standards of Conduct Advisory Committee) and to a 1989 amendment adding section 81.002(c) (House Bill 1976, Acts 1989, 71st Leg., ch. 475), which let the county judge or a commissioner serve as an officer or director of an entity doing business with the county, subject to chapter 171, as confirming that chapter 171 applies to county contracts. It noted that other statutes have likewise modified the oath provision, including the 1935 amendment to article XVI, section 61 of the Texas Constitution placing county officers on a salary basis, and article 2529c, V.T.C.S., on depository banks.

Applying the framework, the office concluded that the commissioner's majority ownership was a "substantial interest," that a county purchase from his corporation would as a matter of law have a special economic effect distinguishable from the public, and that he would have to file the affidavit and abstain (see Attorney General Opinion JM-379 (1985)). For purchases by the county's general contractor, section 171.004 would apply only if the commissioners court took an action with a special economic effect on the business, which the office could not determine from the facts. It modified JM-1090 to the extent inconsistent.

Common questions

Can a Texas county buy from a company owned by a county commissioner?
Yes. The office concluded that chapter 171 of the Local Government Code lets a county do business with a company in which a commissioner is interested, to the same extent as other local governments, but the commissioner must file a conflict-of-interest affidavit and abstain.

Does the commissioner have to disclose and step aside?
Yes, if he has a substantial interest. The office found that majority ownership is a substantial interest and that a county purchase from his corporation has a special economic effect on the company as a matter of law, so he must file the section 171.004 affidavit and abstain from the vote and from the discussions leading up to it.

What happened to the old rule that such contracts are void?
Chapter 171 changed it. A knowing violation is a criminal offense, but it voids the contract only if the measure would not have passed without the interested officer's vote. The office held that section 81.002's oath is impliedly repealed to the extent it conflicts with chapter 171.

What if the commissioner's company sells to the county's contractor rather than the county directly?
The office said section 171.004 would apply only if the commissioners court took an action involving the company with a special economic effect distinguishable from the effect on the public, and that it could not tell from the facts provided whether the court would take such an action.

Citations

Constitutional and statutory provisions discussed:

• Tex. Const. art. XVI, § 61 (county officers on salary basis; 1935 amendment)
• Local Gov't Code § 81.002 (oath of county judge and commissioners; subsections (a), (b), (c))
• Local Gov't Code ch. 171 (conflicts of interest of local officials): §§ 171.001 (definitions), 171.002 (substantial interest), 171.003 (offense), 171.004 (affidavit and abstention), 171.006 (effect on contract), 171.009 (service on nonprofit boards)
• Local Gov't Code § 271.902 (purchases from cooperative associations)
• Local Gov't Code § 152.011 (compensation of county officers)
• V.T.C.S. art. 2529c (depository banks)

Cases discussed:

• Meyers v. Walker, 276 S.W. 305 (Tex. Civ. App.-Eastland 1925, no writ)
• City of Edinburg v. Ellis, 59 S.W.2d 99 (Tex. Comm'n App. 1933, holding approved)
• Bexar County v. Wentworth, 378 S.W.2d 126 (Tex. Civ. App.-San Antonio 1964, writ ref'd n.r.e.)
• Starr County v. Guerra, 297 S.W.2d 379 (Tex. Civ. App.-San Antonio 1956, no writ)
• Trippe v. Stewart Iron Works, 66 S.W. 322 (Tex. Civ. App. 1902, no writ)

Prior Attorney General opinions referenced: JM-1090 (1989) (modified); JM-424 (1986); JM-1006 (1989); JM-379 (1985); EM-24 (1975); H-916 (1976); V-640 (1948); MW-110 (1979); H-992 (1977); MW-505 (1982); H-596 (1975).

Legislation referenced: House Bill 1976, Acts 1989, 71st Leg., ch. 475, § 1, at 1647-48 (adding § 81.002(c) and § 171.009); Acts 1983, 68th Leg., ch. 640 (chapter 171); Acts 1981, 67th Leg., ch. 527; H.J.R. 6, Acts 1935, 44th Leg., at 1235.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0279
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0279.pdf

Original opinion text

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

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

December 31, 1993

Honorable James L. Anderson, Jr.
Aransas County Attorney
301 North Live Oak
Rockport, Texas 78382

Opinion No. DM-279

Re: Whether a concrete material company owned by a county commissioner may provide services and materials to the county or to another contractor under contract with the county (RQ-295)

Dear Mr. Anderson:

You state that a person who is likely to be appointed county commissioner in the future owns either the majority interest in or all of the stock in a corporation that sells concrete materials. The commissioners court has contracted with a general contractor for extensive runway construction at the Aransas County Airport, and you believe he will purchase materials from the concrete company because it is the only such company in the area. [Footnote 1] On the assumption that the owner of the concrete company will be a member of the commissioners court when the materials are purchased, you ask whether a concrete material company owned by a county commissioner may provide services and/or concrete materials to the county, or to a contractor performing services to the county under contract. Thus, you inquire about a sale from the concrete company to the county as well as a sale from the concrete company to the contractor who is already under contract with the county.

You wish to know how section 81.002 and section 171.004 of the Local Government Code apply to the facts you have presented. Section 81.002 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 expressly authorized by law; or

(2) a warrant issued to the judge or commissioner as a fee of office.

(b) [bond requirement]

(c) [permitting county judge or county commissioner to serve as member of the governing body or as officer or director of another entity that does business with the county, subject to the provisions of chapter 171].

The special oath required of the county judge and a county commissioner by section 81.002(a) has been in effect since 1876. See Acts 1876, 15th Leg., ch. 55, at 51. Prior to 1981, when the precursor of section 81.002(a)(1) was adopted, only the county judge's and county commissioners' fees of office were specifically excepted from the oath provision. See Acts 1981, 67th Leg., ch. 527, § 3, at 2230. Public contracts in which a member of the contracting body had a direct or indirect pecuniary interest were against public policy and void, according to the common-law rule applied by Texas courts. Meyers v. Walker, 276 S.W. 305 (Tex. Civ. App.-Eastland 1925, no writ); see also City of Edinburg v. Ellis, 59 S.W.2d 99 (Tex. Comm'n App. 1933, holding approved); Bexar County v. Wentworth, 378 S.W.2d 126 (Tex. Civ. App.-San Antonio 1964, writ ref'd n.r.e.); Starr County v. Guerra, 297 S.W.2d 379 (Tex. Civ. App.-San Antonio 1951, no writ); Trippe v. Stewart Iron Works, 66 S.W. 322 (Tex. Civ. App. 1902, no writ). This rule applied to counties, cities, school districts, and other state and local governmental bodies. See Attorney General Opinions H-916 (1976); V-640 (1948).

In 1981 the legislature adopted an exception applicable to the predecessor of section 81.002(a) and to former article 988, V.T.C.S. (1925), which prohibited members of a city council from being "directly or indirectly interested in any work, business or contract, the expense, price or consideration of which is paid from the city treasury." Acts 1875, 14th Leg., ch. 100, at 154 (repealed by Acts 1983, 68th Leg., ch. 640, at 4082). The 1981 exception read upon adoption as follows:

An incorporated city or town or a county may purchase equipment or supplies from a cooperative association to which one or more members of its governing body . . . belongs if no member of the governing body . . . will receive a pecuniary benefit from the purchase except as is reflected in an increase in dividends distributed generally to members of the cooperative association.

Acts 1981, 67th Leg., ch. 527, § 1, at 2229 (revised and recodified 1987) (current version at Local Gov't Code § 271.902). The bill that adopted the provision quoted above also adopted the exception for "such contracts or claims as are expressly authorized by law," now codified as section 81.002(a)(1), Local Government Code. Acts 1981, 67th Leg., ch. 527, § 3, at 2230.

Chapter 171 of the Local Government Code, adopted in 1983, effected a major change in the traditional common-law prohibition against a public officer's direct or indirect interest in a public contract entered into by the governing body to which the officer belonged. Acts 1983, 68th Leg., ch. 640, § 1, at 4079 (adopting predecessor of chapter 171 as V.T.C.S. art. 988b (1925); see generally Attorney General Opinion JM-424 (1986)). Chapter 171 permits local governing bodies to enter into contracts in which a member of the governing body has a "substantial interest" as defined by section 171.002, but the "interested" public officer must comply with section 171.004 of the Local Government Code, which provides as follows:

(a) If a local public official has a substantial interest in a business entity or in real property, the official shall file, before a vote or decision on any matter involving the business entity or the real property, an affidavit stating the nature and extent of the interest and shall abstain from the further participation in the matter if:

(1) in the case of a substantial interest in a business entity the action on the matter will have a special economic effect on the business entity that is distinguishable from the effect on the public; . . .

A "local public official" includes the following:

a member of the governing body or another officer . . . of any district (including a school district), county, municipality, precinct, central appraisal district, transit authority or district . . .

Local Gov't Code § 171.001(1) (emphasis added).

A local public official commits an offense by knowingly violating section 171.004, id. § 171.003(a)(1), but this violation will not invalidate the contract unless the measure would not have passed the governing body without his vote. Id. § 171.006. This enactment modifies the strict common-law rule that would have invalidated the contract even if the public officer had not participated. It permits the transaction but forbids the interested officer from participating in it, enforcing this requirement by a criminal penalty. Id. § 171.003.

The legislature has not expressly repealed section 81.002 of the Local Government Code, but the apparent overlap of this provision with chapter 171 of the Local Government Code raises an issue of implied repeal. Section 81.002 requires the county judge and county commissioners to take an oath that they will not be interested in contracts with the county, but chapter 171 permits the county to enter into contracts in which these officers are interested. See Local Gov't Code § 171.001(1) (defining "local public official" to include a member of the governing body of a county).

In Attorney General Opinion JM-1090 (1989) this office attempted to harmonize these two provisions, concluding that the provisions of chapter 171 impliedly repealed those of 81.002 to a certain extent. On review of Attorney General Opinion JM-1090, we believe that it correctly concluded that chapter 171 prevails over section 81.002, but that its reasoning is erroneous. In particular, Attorney General Opinion JM-1090 was incorrect in stating that a contract entered into under chapter 171 was "a contract . . . expressly authorized by law." As we have pointed out, the quoted language was adopted in a bill that authorized a county to purchase equipment or supplies from a cooperative association to which a member of the commissioners court belonged. See Local Gov't Code § 271.902. A contract to purchase equipment or supplies from a cooperative association is necessarily a contract "expressly authorized by law." The terms of the authorizing law are specific as to the subject matter of the contract and the kind of entity with which the county contracts. Chapter 171 does not have that kind of specificity. Assuming that the commissioners court has authority under another statute or a constitutional provision to contract with a business entity or with regard to real estate, chapter 171 permits the commissioners court to enter into the contract even though a member of the court has a personal pecuniary interest in it. As a consequence of characterizing contracts made pursuant to chapter 171 as contracts "expressly authorized by law," Attorney General Opinion JM-1090 reached the doubtful conclusion that a county could enter into contracts in which a county commissioner had a "substantial interest" within chapter 171, but could not enter into contracts in which a county commissioner had a lesser interest.

In our opinion, chapter 171 and section 81.002 may be correctly harmonized by reading chapter 171 to authorize a county to enter into contracts or take actions in which a member of the commissioners court is pecuniarily interested to the same extent that other local governmental bodies may take such actions. Thus, if a county commissioner or county judge has a substantial interest in a business entity that will be subject to a vote or decision by the commissioners court, he must file the affidavit required by section 171.004 and abstain from participation in a matter if "action on the matter will have a special economic effect on the business entity that is distinguishable from the effect on the public." Local Gov't Code § 171.004. If his interest in a business entity is less than a substantial interest, the interested member of the commissioner's court may participate in an action affecting the business entity. Chapter 171 creates an exception in the oath required by section 81.002 to the extent that it permits a county judge or county commissioner to have a direct or indirect interest in a contract with or claim against the county. [Footnote 4]

The legislative history of chapter 171 shows that it was meant to apply to members of the commissioners court just as it applies to members of other local governmental bodies. Its enactment was recommended by the Public Servant Standards of Conduct Advisory Committee, a body established by statute to study laws on the conduct of public servants and to recommend revisions to the legislature. See generally Attorney General Opinion JM-424 (1986). The committee's report stated as follows:

Local officers-elected and appointed officers in city and county government, some special districts, and school districts-perform the same types of functions as state officers and are open to the same types of conflicts of interest, centering around voting, purchasing, and contracts. The full committee eventually recommended solutions that were based on a form of financial disclosure with abstention from participation.

Background Report on Local Officers' Conflict of Interest Problems, published in Final Report of the Public Servant Standards of Conduct Advisory Committee at 17 (August 1982) (on file in Legislative Reference Library) (emphasis added).

In 1989, the legislature adopted House Bill 1976 to overturn Attorney General Opinion JM-1006 (1989), which determined that public policy and section 81.002 barred a county judge from serving on the board of directors of a private corporation that did business with the county. [Footnote 5] House Comm. on County Affairs, Bill Analysis, H.B. 1976, 71st Leg. (1989); Senate Comm. on Intergovernmental Relations, Bill Analysis, C.S.H.B. 1976, 71st Leg. (1989). It added the following provision to section 81.002 of the Local Government Code:

(c) Subject to the provisions of Chapter 171, the county judge or a county commissioner may serve as a member of the governing body or as an officer or director of another entity, except:

(1) a publicly traded corporation; or

(2) a subsidiary, affiliate, or subdivision of a publicly traded corporation;

that does business with the county.

Acts 1989, 71st Leg., ch. 475, § 1, at 1647-48 (emphasis added). [Footnote 6]

The italicized language of section 81.002(c) shows that chapter 171 applies to county contracts. The bill analysis prepared for the Senate Committee on Intergovernmental Relations also shows the legislature's understanding that chapter 171 applied to members of the commissioners' court:

The Local Government Code sets out standards designed to regulate conflicts of interest of officers of municipalities, counties, and certain other local governments. The laws provide that a local public official commits a Class A misdemeanor (1) if that official (i.e., elected or appointed, paid or unpaid member or officer of any district, county, municipality, etc.) has a substantial interest . . . in a business entity, and (2) that official participates in a decision that would confer likely economic benefit on the business . . . .

Senate Comm. on Intergovernmental Relations, supra (emphasis added).

Chapter 171 is not the only enactment that has impliedly modified section 81.002 of the Local Government Code or its predecessors. A 1935 amendment to article XVI, section 61 of the Texas Constitution placed county officers in counties of 20,000 or more on a salary basis, requiring their fees to be paid into the county treasury. H.J.R. 6, Acts 1935, 44th Leg., at 1235. Section 81.002(a)(2), which excepts only "a warrant issued to the judge or commissioner as a fee of office," was not amended. Local Gov't Code § 81.002(c) (emphasis added). County commissioners and the county judge nonetheless may receive the salary, expenses, and benefits authorized by other law. See Local Gov't Code § 152.011; Attorney General Opinions MW-110 (1979); H-992 (1977).

Article 2529c, V.T.C.S., adopted in 1967, Acts 1967, 60th Leg., ch. 179, at 370, permits the state and political subdivisions to choose a depository bank even though members of the body selecting it own stock in it or serve as its officers or directors. This statute expressly modifies the common law, but does not mention the county commissioners' and judge's oath provision. Nevertheless, this office has held article 2529c applicable to the county's contract with its depository. Attorney General Opinions MW-505 (1982); H-596 (1975). Chapter 171 also modifies the special oath required by section 81.002(a).

We will address your specific questions. We will assume that the owner of a concrete materials corporation will be a member of the commissioners court at the time the county or the contractor purchases materials from his corporation. You have informed us that the owner of the corporation has at least a majority interest in it, which would be "a substantial interest in a business entity" within chapter 171 of the Local Government Code. See Local Gov't Code §§ 171.001(2), 171.002. He will be subject to the following provision:

the official [who is substantially interested in a business entity] shall file, before a vote or decision on any matter involving the business entity . . . , an affidavit stating the nature and extent of the interest and shall abstain from the further participation in the matter if:

(1) in the case of a substantial interest in a business entity the action on the matter will have a special economic effect on the business entity that is distinguishable from the effect on the public.

Local Gov't Code § 171.004 (emphasis added).

Ordinarily, we cannot decide in the opinion process whether an action of the commissioners court "will have a special economic effect on the business entity" because this decision requires the investigation and resolution of fact questions. However, if the county decides to buy materials from the corporation owned entirely or in large part by the commissioner, we believe that this decision will, as a matter of law, "have a special economic effect on the . . . [corporation] that is distinguishable from the effect on the public." Accordingly, the county commissioner will have to file the affidavit and abstain from further participation in the matter, including participation in discussions leading up to a vote or decision on the contract. See Attorney General Opinion JM-379 (1985).

If the county's general contractor purchases materials from the concrete corporation, section 171.004 of the Local Government Code will apply if the commissioners court takes any action involving the concrete business that "will have a special economic effect on the business entity that is distinguishable from the effect on the public." We are unable to determine from the facts that you have provided whether the commissioners court will take any such actions.

Attorney General Opinion JM-1090 is modified to the extent it is inconsistent with this opinion.

SUMMARY

Chapter 171 of the Local Government Code authorizes a county to enter into contracts or take actions in which a member of the commissioners court is pecuniarily interested to the same extent that other local governmental bodies may take such actions. Section 81.002 of the Local Government Code, which requires the county judge and each county commissioner to take an oath that he will not be directly or indirectly interested in a contract with the county, is impliedly repealed to the extent it is inconsistent with chapter 171.

If Aransas County decides to buy materials from a corporation owned entirely or in large part by a member of the commissioners court, this decision will, as a matter of law, "have a special economic effect on the . . . [corporation] that is distinguishable from the effect on the public." The county commissioner who owns the corporation will have to file the affidavit and abstain from further participation in the matter, including participation in discussions leading up to a vote or decision on the contract.

Attorney General Opinion JM-1090 (1989) is modified to the extent it is inconsistent with this opinion.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

Footnote 1: We assume that the county, in purchasing materials for this project, will comply with any applicable competitive bidding laws. See Local Gov't Code §§ 271.021-271.030.

Footnote 2: This provision overruled Attorney General Opinion EM-24 (1975) (county may not purchase supplies from a farmers' cooperative in which a commissioner owns a small share).

Footnote 4: Chapter 171 of the Local Government Code applies to county contracts involving a "business entity" in which a county judge or county commissioner is interested. Local Gov't Code § 171.002(a), (b). It is an open question whether an attempt by a county judge or a county commissioner to sell property owned in his personal capacity would involve a "business entity" within chapter 171. Thus, it is possible that chapter 171 would not authorize a county commissioner to sell, for example, his automobile to the county, and section 81.002 and the common-law rule would continue to prohibit such transactions. See Starr County v. Guerra, 297 S.W.2d 379 (Tex. Civ. App.-San Antonio 1951, no writ) (county commissioner unlawfully employed as road commissioner was not entitled to receive salary). But see 35 D. Brooks, County and Special District Law § 18.37 (Texas Practice 1989) (suggesting that definition of "business entity" includes an individual selling property or contracting in his own name).

Footnote 5: House Bill 1976 also added section 171.009 to the Local Government Code, allowing any local public official to serve as a member of the board of directors of private, nonprofit corporations if the official serves without compensation or other remuneration.

Footnote 6: We assume that the concrete materials company in question is not a publicly traded corporation or subsidiary of a publicly traded corporation. Accordingly, we will not consider the application of section 81.002(c) to the situation you have presented.