Can a Texas county auditor be removed for having a personal interest in a county contract?

TX AG Opinion GA-0442: Is a county auditor's interest in a county contract official misconduct?

Plain-English summary

The Polk County Criminal District Attorney told the Attorney General that the Polk County Auditor was president of a corporation that leased a commercial building, and that Polk County had signed a one-year lease with that corporation, which the auditor signed on the corporation's behalf as "President Lessor." Local Government Code section 84.007 requires a county auditor to take an oath swearing the auditor "will not be personally interested in a contract with the county." On those facts, the District Attorney asked three questions: whether violating that oath is "official misconduct," what remedies exist, and whether the auditor can cure the violation by later giving up the personal interest.

On official misconduct, the Attorney General explained that chapter 84 does not define the term, but chapter 87 does: "official misconduct" means intentional, unlawful behavior relating to official duties by an officer entrusted with administering justice or executing the law, including an intentional or corrupt failure to perform a legal duty. A county auditor is such an officer, and section 84.007(b)(2) bars an auditor from having a direct personal or pecuniary interest in a county contract. So an auditor who holds a personal interest in a county contract has engaged in unlawful behavior relating to official duties, and if that violation was intentional, it is official misconduct that can support removal under section 84.009. But intent is a fact question, and whether the auditor committed official misconduct is for the district judges who appointed the auditor to decide in the first instance; even then, whether to pursue removal is within their discretion.

On other remedies, the Attorney General declined to predict criminal or civil penalties, noting that most carry an intent element that is intensely fact-dependent and that the request supplied very few facts about the auditor's interest. The opinion observed that the legislature placed substantial discretion over a county auditor's conflicts in the hands of the district judges.

On curing the violation, the Attorney General found no law allowing a county auditor to cure an oath violation by later divesting the personal interest. A subsequent divestment may, however, be a fact the district judges consider in exercising their discretion over whether official misconduct occurred.

Currency note

This opinion was issued in 2006. 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 provisions on county auditors (chapter 84) and on removal of county officers and "official misconduct" (chapter 87) have been amended since 2006. Anyone weighing a county auditor conflict-of-interest question today should check the current statutes and consult counsel rather than rely on the 1999-era section numbers and definitions quoted here.

Who this opinion affected (as of 2006)

County auditors: The opinion explained that an intentional personal interest in a county contract, in violation of the section 84.007(b)(2) oath, could be "official misconduct" supporting removal, and that the auditor could not undo it by later divesting.

District judges who appoint county auditors: The opinion placed the key determinations with them, whether the violation was intentional and amounted to official misconduct, and whether to pursue removal, both described as matters of their discretion.

Prosecutors and counties: The opinion told the requesting district attorney that whether other criminal or civil penalties applied was too fact-dependent to resolve in an opinion, given the limited facts provided.

Common questions

Is it official misconduct for a county auditor to have a stake in a county contract?
According to the opinion, it can be. The violation is official misconduct if it was intentional, but whether it was intentional is a fact question for the district judges to decide first.

Does the auditor automatically get removed?
No. The opinion explained that removal under section 84.009 is discretionary; the district judges who appointed the auditor decide whether to proceed.

Can the auditor fix the problem by giving up the interest later?
No. The opinion found no law allowing a county auditor to cure the oath violation by a later divestment, although the judges may consider a divestment as a fact.

What other penalties might apply?
The opinion did not say. It explained that most criminal and civil penalties turn on intent and specific facts, and the request did not provide enough facts to determine whether any applied.

Background and statutory framework

Local Government Code section 84.007(b)(2) requires a county auditor's oath to state that the auditor will not be personally interested in a contract with the county (Tex. Loc. Gov't Code Ann. § 84.007(b)(2) (Vernon 1999)). Section 84.009 allows a county auditor to be removed and a successor appointed if, after due investigation by the appointing district judges, it is proven the auditor committed official misconduct (§ 84.009(a)(1)), but chapter 84 does not define the term (§§ 84.001-.902 (Vernon 1999 & Supp. 2005)). Chapter 87, the general county-officer removal chapter (§§ 87.001-.043), supplies the definition: "official misconduct" means intentional, unlawful behavior relating to official duties by an officer entrusted with the administration of justice or the execution of the law, including an intentional or corrupt failure, refusal, or neglect to perform a duty imposed by law (§ 87.011(3)).

The opinion reasoned that a county auditor is an officer entrusted with executing the law and that section 84.007(b)(2) bars a direct personal or pecuniary interest in a county contract, so an auditor with such an interest has engaged in unlawful behavior related to official duties; if intentional, the behavior is official misconduct (§ 87.011(3)). Because intent is required, whether a violation amounts to official misconduct is for the appointing district judges to determine in the first instance (§ 84.009(a)), and the discretionary word "may" governs whether removal is pursued. The opinion drew on Attorney General Opinion GA-0360 (2005) for the auditor's status and duties and for the point that the district judges decide official misconduct in the first instance. On additional remedies, the opinion declined to speculate about fact-dependent criminal or civil penalties. On cure, it found no law permitting an auditor to cure an oath violation by later divesting, while noting a divestment may factor into the judges' discretion.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. §§ 84.007(b)(2), 84.009, 84.009(a), 84.009(a)(1), 84.001-.902, 87.001-.043, 87.011, 87.011(3) (Vernon 1999 & Supp. 2005)

AG opinions referenced: Tex. Att'y Gen. Op. No. GA-0360 (2005).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0442
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0442.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

June 28, 2006

The Honorable John S. Holleman
Polk County Criminal District Attorney
Post Office Box 1717
Livingston, Texas 77351

Opinion No. GA-0442

Re: Whether a county auditor who violates Local Government Code section 84.007(b)(2) has committed "official misconduct" and whether a violation of section 84.007(b)(2) can be cured retroactively (RQ-0420-GA)

Dear Mr. Holleman:

You ask whether a county auditor who violates Local Government Code section 84.007(b)(2) has committed "official misconduct" and whether a violation of section 84.007(b)(2) can be cured retroactively.[1]

I. Background and questions

You provide us with the following background information: The Polk County Auditor serves as the president of 512 West Church, Inc., a corporation that leases commercial real estate. See Request Letter, supra note 1, at 1. On February 17, 2004, Polk County entered into a one-year agreement to lease a commercial building from 512 West Church, Inc. See id. (Exhibit A). The Polk County Auditor signed the lease on the corporation's behalf as "President Lessor." Id. at 1. Local Government Code section 84.007, however, provides that a county auditor must take an oath that states the auditor "will not be personally interested in a contract with the county." TEX. LOC. GOV'T CODE ANN. § 84.007(b)(2) (Vernon 1999). In light of these facts, you suggest that the Polk County Auditor has violated the oath, and thus you ask three questions related to such a violation:

1. Does a county auditor's violation of his oath of office, as set forth in Section 84.007(b)(2) of the Local Government Code, constitute "official misconduct" under Local Government Code, Section 84.009(2)?

2. What remedies are available to rectify a county auditor's violation of his oath of office established by Section 84.007(b)(2) of the Local Government Code?

3. Will a county auditor's subsequent divestment of any personal interest in an existing contract with a county "cure" a prior violation of the auditor's oath of office as established under Section 84.007(b)(2) of the Local Government Code?

Request Letter, supra note 1, at 1.

II. Analysis

A. "Official misconduct"

You first ask whether a violation of Local Government Code section 84.007(b)(2) is "official misconduct" under section 84.009 and therefore warrants an auditor's removal. See id.; see also TEX. LOCAL GOV'T CODE ANN. § 84.007(b)(2) (Vernon 1999) (requiring auditor's oath not to be personally interested in a county contract). Section 84.009 provides in relevant part that "[a] county auditor may be removed from office and a successor appointed if, after due investigation by the district judges who appointed the auditor, it is proven that the auditor . . . has committed official misconduct[.]" TEX. LOC. GOV'T CODE ANN. § 84.009(a)(1) (Vernon 1999) (emphasis added). Neither section 84.009 nor any other provision in chapter 84 defines "official misconduct." See id. §§ 84.001-.902 (Vernon 1999 & Supp. 2005). Rather, the term "official misconduct" is defined in Local Government Code chapter 87, which contains the general removal provisions for county officers. See id. §§ 87.001-.043 (Vernon 1999). Section 87.011 provides that:

"Official misconduct" means intentional, unlawful behavior relating to official duties by an officer entrusted with the administration of justice or the execution of the law. The term includes an intentional or corrupt failure, refusal, or neglect of an officer to perform a duty imposed on the officer by law.

Id. § 87.011(3).

A county auditor is an officer entrusted with the execution of the law. See Tex. Att'y Gen. Op. No. GA-0360 (2005) at 1 (describing a county auditor's appointment and duties). Section 84.007(b)(2) prohibits a county officer from having a direct personal or pecuniary interest in any county contract. See id. at 6 (citing past opinions from this office that analyze various county auditor interests prohibited by section 84.007(b)(2)). Thus, an auditor who has a personal interest in a county contract has engaged in unlawful behavior related to the auditor's official duties. If the violation was intentional, a necessary element of the offense, see TEX. LOC. GOV'T CODE ANN. § 87.011(3) (Vernon 1999) (requiring "intentional, unlawful behavior") (emphasis added), then an auditor has engaged in official misconduct. Whether the violation was intentional, however, is a fact question for the district judges to determine in the first instance. See id. § 84.009(a) ("A county auditor may be removed . . . by the district judges . . . ."); Tex. Att'y Gen. Op. No. GA-0360 (2005) at 10 ("It would be for the district judges to determine in the first instance whether a county auditor has committed official misconduct or is incompetent."). Provided that the district judges establish that the county auditor, in violating the auditor's oath, committed official misconduct, then the auditor could be removed from office. But the district judges have discretion to prosecute the auditor's removal. See TEX. LOC. GOV'T CODE ANN. § 84.009(a) (Vernon 1999) ("A county auditor may be removed . . . by the district judges . . . .") (emphasis added).

B. Remedies

You next ask what remedies beyond removal are available when a county auditor violates the auditor's oath. See Request Letter, supra note 1, at 1. Though you speak in terms of remedies, we understand your question to be about the legal consequences for a county auditor who violates the auditor's oath. See id. at 3 (questioning whether, beyond removal, there are other remedies "available to address a violation of the Auditor's oath"). Most criminal and civil penalties have an element of intent, which is intensely fact dependent. You have given us very few facts related to the Polk County Auditor's personal interest in the contract. See generally id. Thus, it would be too speculative for us to determine whether a criminal and civil penalty could be a legal consequence of the Polk County Auditor's actions. To reiterate, whatever the potential legal consequences of an oath violation might be, beyond removal, the legislature has seen fit through Local Government Code chapter 84 to invest substantial discretion in a county's district judges to regulate a county auditor's conflicts of interest.

C. Subsequent divestment of personal interest

You last ask: "Will a county auditor's subsequent divestment of any personal interest in an existing contract with a county 'cure' a prior violation of the auditor's oath . . . ." See id. at 1. We can find no law that permits a county auditor to cure the auditor's oath violation through a subsequent change in the auditor's personal interest in an existing county contract. As for any legal consequences resulting from section 84.007(b)(2)'s violation, a subsequent divestment of personal interest may be a fact for the district judges to consider in exercising their discretion to determine whether a county auditor has committed official misconduct.

SUMMARY

A county auditor who has a personal interest in a county contract in violation of Local Government Code section 84.007(b)(2) may have committed "official misconduct" as this term is used in Local Government Code section 84.009, which provides for a county auditor's removal under certain circumstances. Whether a county auditor has committed official misconduct is for the district judges who appointed the county auditor to decide in the first instance. It is also within the district judges' discretion whether to proceed with removal.

No law permits a county auditor to cure a violation of section 84.007(b)(2) through the auditor's subsequent action. Thus, a county auditor may not cure a violation of Local Government Code section 84.007(b)(2) by divesting himself of his interest in the county contract subsequent to the oath's violation.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee

Footnotes

1. Letter from Honorable John S. Holleman, Polk County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Nov. 22, 2005) (on file with the Opinion Committee, also available at www.oag.state.tx.us) [hereinafter Request Letter].