Can a Texas constable own a wrecker service that's on the sheriff's rotation list?

TX AG Opinion GA-0510: Can a constable own a wrecker service on the sheriff's rotation list?

Plain-English summary

A county attorney asked whether the conflict-of-interest rules in chapter 171 of the Local Government Code stop a county constable from owning and operating a wrecker (tow truck) service that is on the county sheriff's wrecker rotation list. The constable for Precinct 1 in Cooke County owned such a service. The rotation worked like this: at law enforcement's discretion, a dispatcher calls one of six wrecker services on the list, and if that service does not respond, the dispatcher moves to the next name in rotation. The wrecker services worked in connection with the county but did not contract with it and were not paid by it.

The opinion first confirmed that a constable is a "local public official" subject to chapter 171, because a constable is an elected precinct officer who exercises responsibilities beyond those that are merely advisory, and is also a peace officer. The key provision is section 171.004, which requires a local official with a substantial interest in a business entity to file an affidavit and abstain before a vote or decision on a matter that would have a special economic effect on that business, distinguishable from the effect on the public.

The opinion concluded that section 171.004 applies only to an official who can actually participate in a vote or decision of the governmental entity that would specially affect the official's business. Here, the constable did not vote or decide which wrecker services went on the sheriff's list or which service a dispatcher called for a particular tow. The opinion also explained that a constable's law-enforcement duties, such as the authority to order a vehicle towed, are not the kind of "vote or decision" the statute targets; like an investigator's decision whether probable cause exists for an arrest, an ordinary law-enforcement call does not trigger the affidavit-and-abstention rule. Because no other part of chapter 171 applied, the answer was that the conflict-of-interest provisions do not prohibit the constable from owning the wrecker service.

Currency note

This opinion was issued in 2007. 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.

Chapter 171 of the Local Government Code and the related constable and towing statutes have been amended since 2007. Anyone evaluating a constable's or other local official's potential conflict of interest today should check the current statutes and later opinions rather than relying on the 1999-2006 versions cited here.

Who this opinion affected (as of 2007)

County constables: The opinion told constables that owning a wrecker service on the sheriff's rotation list did not by itself violate chapter 171, because the constable did not cast a vote or decision over the list that would specially benefit his own business.

County attorneys and commissioners: The opinion clarified that section 171.004's affidavit-and-abstention requirement is triggered only when a local official can participate in a governmental vote or decision with a special economic effect on the official's business, not by mere ownership of a business that does work connected to the county.

Wrecker service owners and operators: The opinion meant a business owner who also held an office like constable was not automatically barred from the sheriff's rotation list, so long as the official did not control the list or the dispatching.

Common questions

Does chapter 171 stop a constable from running a wrecker service on the sheriff's list?
No. The opinion concluded the conflict-of-interest provisions in chapter 171 do not prohibit a county constable from owning and operating a wrecker service that is on the county sheriff's wrecker rotation list.

Is a constable covered by the conflict-of-interest law at all?
Yes. The opinion explained that a constable is a "local public official" under chapter 171, because the constable is an elected precinct officer with more than advisory responsibilities and is also a peace officer.

Why didn't the affidavit-and-abstention rule apply?
The opinion reasoned that section 171.004 applies only to an official who can participate in a vote or decision of the governmental entity that would specially affect the official's business. The constable did not vote on or decide the sheriff's list or which wrecker the dispatcher called.

Do a constable's law-enforcement decisions count as a "vote or decision"?
No. The opinion explained that ordinary law-enforcement choices, such as a peace officer's authority to order a vehicle towed, are not the kind of vote or decision section 171.004 covers, drawing an analogy to an investigator's decision whether probable cause exists for an arrest.

Background and statutory framework

Chapter 171 of the Local Government Code regulates local public officials' conflicts of interest and preempts the common law; a "local public official" includes a precinct officer who exercises responsibilities beyond those that are advisory, and a constable, as an elected precinct officer and a peace officer, qualifies (Tex. Loc. Gov't Code Ann. § 171.007 (Vernon 1999); §§ 171.001-.010 (Vernon 1999 & Supp. 2006); § 171.001(1); Tex. Const. art. V, § 18(a), (c); Tex. Loc. Gov't Code Ann. § 86.021 (Vernon Supp. 2006); Tex. Code Crim. Proc. Ann. art. 2.12(2) (Vernon 2005); Act of May 30, 1983, 68th Leg., R.S., ch. 640, 1983 Tex. Gen. Laws 4079).

Section 171.004 requires a local official with a substantial interest in a business entity to file an affidavit and abstain before a vote or decision on a matter that would have a special economic effect on the business distinguishable from the effect on the public, but by its plain language it applies only to an official who may participate in such a vote or decision; the courts have applied it to officials who voted on matters benefiting their businesses, and this office has held it does not reach officials who cannot vote or contract on the relevant matter (Tex. Loc. Gov't Code Ann. § 171.004(a), 171.004 (Vernon 1999); Walk v. State, 841 S.W.2d 430 (Tex. App.-Corpus Christi 1992, pet. ref'd); Dallas County Flood Control Dist. v. Cross, 815 S.W.2d 271 (Tex. App.-Dallas 1991, writ denied); Rosamond v. State, 730 S.W.2d 147 (Tex. App.-Corpus Christi 1987, no pet.)).

Because the constable did not participate in a vote or decision about the sheriff's list or dispatching, and because a constable's law-enforcement duties, such as the peace-officer authority to order a vehicle removed from a highway, are not the kind of vote or decision section 171.004 intends, the opinion concluded chapter 171 did not bar the constable's wrecker business (Tex. Transp. Code Ann. § 545.305(a) (Vernon 1999); Tex. Loc. Gov't Code Ann. § 171.004 (Vernon 1999)).

Citations

Constitution, statutes, and session laws:

• Tex. Const. art. V, § 18(a), (c)
• Tex. Loc. Gov't Code Ann. §§ 171.001-.010 (Vernon 1999 & Supp. 2006); §§ 171.001(1), 171.004, 171.004(a), 171.007
• Tex. Loc. Gov't Code Ann. § 86.021 (Vernon Supp. 2006)
• Tex. Code Crim. Proc. Ann. art. 2.12(2) (Vernon 2005)
• Tex. Transp. Code Ann. § 545.305(a) (Vernon 1999)
• Act of May 30, 1983, 68th Leg., R.S., ch. 640, 1983 Tex. Gen. Laws 4079

Cases:

• Walk v. State, 841 S.W.2d 430 (Tex. App.-Corpus Christi 1992, pet. ref'd)
• Dallas County Flood Control Dist. v. Cross, 815 S.W.2d 271 (Tex. App.-Dallas 1991, writ denied)
• Rosamond v. State, 730 S.W.2d 147 (Tex. App.-Corpus Christi 1987, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0510
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0510.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

January 31, 2007

The Honorable Tanya S. Davis
Cooke County Attorney
3rd Floor, Courthouse
Gainesville, Texas 76240

Opinion No. GA-0510

Re: Whether the conflict of interest provisions in Chapter 171 of the Local Government Code prohibit a county constable from owning and operating a wrecker service that is on the county sheriff's wrecker rotation list (RQ-0487-GA)

Dear Ms. Davis:

You ask whether the conflict of interest provisions in chapter 171 of the Local Government Code prohibit a county constable from owning and operating a wrecker service that is on the county sheriff's wrecker rotation list.[1]

You inform us that the constable for Precinct 1, Cooke County, owns a wrecker service that is on the county sheriff's wrecker rotation list. See Request Letter, supra note 1, at 1. You state that at the discretion of law enforcement, a dispatcher calls one of six wrecker services on the wrecker rotation list. See id. If that service does not respond for any reason, the dispatcher calls the next name on the list in rotation. See id. You further state that "although the wrecking services work in connection with the County, they are not contracting with the county for those services. They are not paid by the County for their services." Id. at 2.

Chapter 171 of the Local Government Code regulates local public officials' conflicts of interest, preempting the common law on the subject. See TEX. LOC. GOV'T CODE ANN. § 171.007 (Vernon 1999) (preemption); see generally id. §§ 171.001-.010 (Vernon 1999 & Supp. 2006) (chapter 171). The statutory definition of a "local public official" to whom chapter 171 applies expressly includes a precinct officer "who exercises responsibilities beyond those that are advisory in nature." Id. § 171.001(1). A constable is an elected precinct officer. See TEX. CONST. art. V, § 18(a), (c). A constable's general duties include such functions as serving process and attending justice court. See TEX. LOC. GOV'T CODE ANN. § 86.021 (Vernon Supp. 2006). A constable is also a peace officer with the attendant authority and responsibilities of that office. See TEX. CODE CRIM. PROC. ANN. art. 2.12(2) (Vernon 2005) (designating a constable as a peace officer). Because a constable is a precinct officer "who exercises responsibilities beyond those that are advisory in nature," a constable is a "local public official" and therefore generally subject to chapter 171. See TEX. LOC. GOV'T CODE ANN. § 171.001(1) (Vernon 1999); see also Tex. Att'y Gen. Op. No. JM-270 (1984) at 3 (interpreting predecessor to chapter 171 as generally applicable to constables).[2]

Because a constable is a local public official, we must consider whether the constable must comply with the disclosure and abstention requirements in section 171.004. Section 171.004 provides:

(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 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[.]

TEX. LOC. GOV'T CODE ANN. § 171.004(a) (Vernon 1999).

You state that the constable, a local public official, owns "a substantial interest in a business entity," the wrecker service. Request Letter, supra note 1, at 2. From the statute's plain language, however, section 171.004 applies only to a local official who may participate in a vote or decision of the governmental entity that will result in a special economic effect on the official's business entity. See, e.g., Walk v. State, 841 S.W.2d 430 (Tex. App.-Corpus Christi 1992, pet. ref'd) (county judge's decision to order county supplies from son-in-law); Dallas County Flood Control Dist. v. Cross, 815 S.W.2d 271 (Tex. App.-Dallas 1991, writ denied) (vote to purchase easement over district president's land); Rosamond v. State, 730 S.W.2d 147 (Tex. App.-Corpus Christi 1987, no pet.) (vote to pay bill of rental company represented by a town alderman). As this office has observed, the statutory disclosure and abstention requirements do not apply to a local public official who is not authorized to participate in any vote or decision of the local governing body that could have a special economic effect on the official's business entity. See, e.g., Tex. Att'y Gen. Op. Nos. JM-450 (1986) at 1 (predecessor statute did not apply to deputy sheriff who owned auto repair business because deputy cannot vote on county business); JM-310 (1985) at 3-5 (county clerk may own title company that does business with the county because the clerk does not vote or have contracting authority); JM-270 (1984) at 3 (constable who does not vote or contract on behalf of county may sell computer equipment to county).

From the facts you describe, the constable does not participate in a vote or decision of the governmental entity that will result in a special economic effect on the constable's business entity. You characterize the wrecker services list as the sheriff's list and state that wreckers are called on a rotation basis. See Request Letter, supra note 1, at 1. From that, we assume that the constable does not participate in a vote or decision about which wrecker services are included on the sheriff's list, or which service the dispatcher will call to respond to a particular situation. See id. at 1.

Moreover, a constable's statutory duties do not require a vote or decision of the kind intended in section 171.004. Most relevant here is the constable's duty and authority as a peace officer to order a vehicle towed in certain circumstances. See, e.g., TEX. TRANSP. CODE ANN. § 545.305(a) (Vernon 1999) (authority of a peace officer to order the removal of a vehicle from a highway). But the apparent purpose of section 171.004 does not include ordinary law enforcement decisions. For example, in JM-776, this office considered whether the predecessor of section 171.004 applied to an investigator of the district attorney's office whose spouse was a bail bondsman. See Tex. Att'y Gen. Op. No. JM-776 (1987) at 2-5 (construing former Revised Civil Statute article 988b, now Local Government Code §§ 171.001-.010). The opinion concluded that a typical duty-related decision of an investigator, such as the determination of the existence of probable cause to make a warrantless arrest, "is not a vote or decision on a matter involving a business entity in which the applicant has a substantial interest." Id. at 5. From the apparent purpose of the statute, the opinion reasoned that "[c]learly, it was not intended that an investigator file an affidavit before making a decision on whether probable cause existed to make a warrantless arrest." Id. Likewise, section 171.004 of the Local Government Code does not apply to a constable's law enforcement decisions under the facts as you describe them. See TEX. LOC. GOV'T CODE ANN. § 171.004 (Vernon 1999). And as no other provision in chapter 171 is pertinent, we conclude that the chapter's conflict of interest provisions do not prohibit a county constable from owning and operating a wrecker service that is on the county sheriff's wrecker rotation list.

SUMMARY

The conflict of interest provisions in chapter 171 of the Local Government Code do not prohibit a county constable from owning and operating a wrecker service that is on the county sheriff's wrecker rotation list.

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

William A. Hill
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Tanya S. Davis, Cooke County Attorney, to Opinion Committee, Office of the Attorney General of Texas, at 1 (May 10, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] See Act of May 30, 1983, 68th Leg., R.S., ch. 640, 1983 Tex. Gen. Laws 4079 (enacting former article 988b of the Revised Civil Statutes, chapter 171's predecessor).