Is it a conflict of interest for a district attorney to work in an office the county rents from the DA's own spouse?

TX AG Opinion GA-0730: Is it a conflict for a DA to work in an office the county rents from the DA's spouse?

Plain-English summary

The 25th Judicial District Attorney asked about the legality of Guadalupe County leasing office space in a privately owned Seguin building that had housed the district attorney's office since 1984. The building was bought in 1991 by Gerald Hollub, who married the requesting district attorney in 2001; she was elected DA for a term beginning January 1, 2009. The county had renewed the leases in December 2008, before her term started. She asked whether her continued occupancy of that space was a conflict of interest or a violation of public policy.

The opinion narrowed the question to chapter 171 of the Local Government Code, which governs local officials' pecuniary conflicts of interest and expressly preempts the common law of conflicts of interest for local public officials. Section 171.004, the chapter's main provision, can require an official with a substantial interest in a business entity or real property to disclose that interest and abstain, but, as the opinion explained, it applies only to a local official who may participate in a vote or decision of the governmental entity on the matter.

Authority to lease office space for county or district offices is vested in the commissioners court, not the district attorney. The DA represented that neither she nor her predecessor participated in negotiating the contract, voted on it, or took part in any decision about it. On those facts, the opinion concluded that her continued occupancy did not constitute a conflict of interest under chapter 171.

The opinion also noted that a brief had raised an "appearance of impropriety" concern. It declined to address that, explaining that questions about appearances of impropriety generally fall outside the scope of an attorney general opinion, and it stressed that its conclusion rested on a strict application of chapter 171 to the specific facts described.

Currency note

This opinion was issued in 2009. 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 Government Code conflict-of-interest and financial-disclosure provisions may have been amended since 2009. Confirm current law before relying on anything below.

Who this opinion affected (as of 2009)

District attorneys and other local officials: The opinion explained that chapter 171's main provision reaches an official only when the official can participate in the vote or decision on the matter. An official who took no part in a contract decision was not in a chapter 171 conflict on these facts.

County commissioners courts: The opinion noted that the authority to lease office space for county and district offices is vested in the commissioners court, which was the body that negotiated and decided the lease.

Anyone worried about appearances: The opinion expressly declined to resolve "appearance of impropriety" concerns, locating those outside what an AG opinion will address, and limited itself to the chapter 171 analysis.

Common questions

Why wasn't this a conflict of interest?
The opinion explained that chapter 171's main provision applies only to an official who can participate in the vote or decision. Because the DA did not negotiate, vote on, or decide the lease (the commissioners court did), the provision did not apply to her on these facts.

Does the spouse's ownership of the building matter?
The opinion did not treat ownership by the spouse as the controlling fact. What mattered under chapter 171 was whether the official participated in the governmental decision, and here she did not.

Did the AG say there was nothing improper about it at all?
No. The opinion was careful to say it addressed only chapter 171 and declined to weigh "appearance of impropriety" concerns, which it said fall outside the scope of an AG opinion.

Background and statutory framework

Chapter 171 of the Local Government Code governs local public officials' pecuniary conflicts of interest and expressly "preempts the common law of conflict of interests as applied to local public officials" (Tex. Loc. Gov't Code Ann. § 171.007(a) (Vernon 2008); see id. §§ 171.001-.010). Section 171.004 can require disclosure of a substantial interest in a business entity or real property and abstention, but applies only to a local official who may participate in a vote or decision involving that interest (id. § 171.004(a)(2); Tex. Att'y Gen. Op. No. GA-0510 (2007) at 2). Authority to lease office space for county or district offices is vested in the commissioners court (id. § 292.001(a) (Vernon 2005); Tex. Gov't Code Ann. § 41.107(a) (Vernon 2004)). The opinion assumed a district attorney is a "local public official" under section 171.001(1), since no court had decided the point.

The opinion noted other conflict-related provisions it was not applying, including Government Code chapter 572 (which defines an "elected officer" and "state officer" to include a district attorney and restricts certain leases of office space to the state) and chapter 573 (nepotism), and discussed "public policy" as a vague concept expressed through various sources of law (Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 250 (Tex. 2002); Sherrill v. Union Lumber Co., 207 S.W. 149, 153-54 (Tex. Civ. App.-Beaumont 1918, no writ); Montgomery v. Browder, 930 S.W.2d 772, 778 (Tex. App.-Amarillo 1996, writ denied); Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 613 (Tex. App.-Houston [14th Dist.] 2006, pet. denied)). On appearances of impropriety, the opinion followed Tex. Att'y Gen. Op. No. GA-0557 (2007) in declining to opine.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. §§ 171.007(a), 171.001-.010, 171.004(a)(2), 171.001(1) (Vernon 2008); 292.001(a) (Vernon 2005)
• Tex. Gov't Code Ann. §§ 41.107(a) (Vernon 2004); 572.002(4)(E), (12) (Vernon Supp. 2008); 572.057(a) (Vernon 2004)

Cases:

• Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240 (Tex. 2002)
• Sherrill v. Union Lumber Co., 207 S.W. 149 (Tex. Civ. App.-Beaumont 1918, no writ)
• Montgomery v. Browder, 930 S.W.2d 772 (Tex. App.-Amarillo 1996, writ denied)
• Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603 (Tex. App.-Houston [14th Dist.] 2006, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0730
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0730.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

July 22, 2009

The Honorable Heather Hollub
25th Judicial District Attorney
113 South River, Suite 205
Seguin, Texas 78155

Opinion No. GA-0730

Re: Whether a district attorney's occupation of office space leased by the county from the district attorney's spouse constitutes a conflict of interest (RQ-0780-GA)

Dear Ms. Hollub:

You ask about the legality of a county's lease of office space in a building owned by the spouse of the newly elected district attorney.[1] You relate that Guadalupe County leases space in a privately-owned building in Seguin, which has housed the office of district attorney since 1984 and the office of the 25th judicial district judge since 2005. Requestor's Brief at 1. You further inform us that Mr. Gerald Hollub purchased the building in 1991, that you and Mr. Hollub married in 2001, and that you were elected as district attorney for a term beginning on January 1, 2009. Id. at 1-2. The county renewed the leases for the office space in December 2008, prior to the beginning of your term of office. Id.

Specifically, you ask, "Is there a conflict of interest or a violation of public policy if an elected official, other than a member of the County Commissioners Court, continues to occupy office space leased by the County Commissioners Court in a building owned by the elected official's spouse?" Id. at 3. Although "conflict of interest" and "public policy" are broad concepts, your request identifies only the laws regulating and the public policy pertaining to conflicts of interest of a local government official, as reflected in chapter 171 of the Local Government Code and in the common law. Id. at 4-8.[2] Chapter 171 generally governs local public officials' pecuniary conflicts of interest and expressly "preempts the common law of conflict of interests as applied to local public officials." TEX. LOC. GOV'T CODE ANN. § 171.007(a) (Vernon 2008). See generally id. §§ 171.001-.010 ("Regulation of Conflicts of Interest of Officers of Municipalities, Counties, and Certain Other Local Governments").[3] Accordingly, we limit our analysis to whether the district attorney's continued occupancy of the county's leased office space under the circumstances described would violate chapter 171 of the Local Government Code.

Section 171.004 is the chapter's primary provision regulating a local public official's pecuniary interests. Id. § 171.004. Under that section, a local public official may be required to disclose a substantial interest in a business entity or real property prior to a vote or decision involving the business entity or real property and to abstain from further participation in the matter. Id. § 171.004(a)(2). While section 171.004's application depends on several factors, most pertinent to your question is that "section 171.004 applies only to a local official who may participate in a vote or decision of the governmental entity" involving the business entity or real property in which the official has an interest. Tex. Att'y Gen. Op. No. GA-0510 (2007) at 2.

Statutory authority to lease office space "for the housing of county or district offices" is expressly vested in the county commissioners court. TEX. LOC. GOV'T CODE ANN. § 292.001(a) (Vernon 2005); see also TEX. GOV'T CODE ANN. § 41.107(a) (Vernon 2004) (authorizing the commissioners court to furnish a prosecuting attorney with "office space"). Further, you represent that neither you nor your predecessor participated in the negotiations for the contract, voted on the contract, or participated in any decision concerning the contract. Requestor's Brief at 6 n.6. Thus, because the district attorney did not vote or participate in a decision concerning the county's lease of office space, the district attorney's continued occupancy of office space under the circumstances you describe does not constitute a conflict of interest under chapter 171 of the Local Government Code.

As a final matter, we received a brief asserting that the described circumstances create an appearance of impropriety and raise ethical concerns. Brief of Guadalupe County Attorney (Mar. 31, 2009). The resolution of questions concerning appearances of impropriety generally fall outside the scope of an attorney general opinion. Cf. Tex. Att'y Gen. Op. No. GA-0557 (2007) at 3 (questions concerning the appearance of impropriety under the Texas Disciplinary Rules of Professional Conduct are inappropriate in an attorney general opinion). As such, we do not address those concerns. We note, however, that the analysis and conclusion in this opinion is based on a strict application of chapter 171 of the Local Government Code to the unique fact scenario described in your brief.

SUMMARY

A district attorney's occupation of office space leased by the county commissioners court from the spouse of the district attorney under the factual scenario described in the requestor's brief does not constitute a conflict of interest under chapter 171 of the Local Government Code.

Very truly yours,

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[Footnote 1: See Requestor's Brief at 3 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: In particular, public policy is a "vague and uncertain" concept. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 250 (Tex. 2002) (quoting Sherrill v. Union Lumber Co., 207 S.W. 149, 153-54 (Tex. Civ. App.-Beaumont 1918, no writ)). Public policy may find expression in various sources of law, such as the constitution, statutes, or the common law. Montgomery v. Browder, 930 S.W.2d 772, 778 (Tex. App.-Amarillo 1996, writ denied); see also Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 613 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (observing that a court may deem the Texas Disciplinary Rules of Professional Conduct as an expression of public policy and determine that a contract violating the rules is unenforceable). We do not attempt to catalogue the myriad public policy concerns that, depending on the particular facts, might be relevant to a county's lease of office space.

Also, "conflict of interest" is a similarly broad concept encompassing a variety of circumstances and conduct. See, e.g., TEX. LOC. GOV'T CODE ANN. §§ 176.001-.012 (Vernon 2008) (requiring disclosure statements by members of governing body of a local government entity and certain employees who contract with the entity); TEX. GOV'T CODE ANN. §§ 572.001-.061 (Vernon 2004 & Supp. 2008) (financial statements, standards of conduct, and conflict of interest provisions); id. §§ 573.001-.084 (Vernon 2004) (nepotism provisions). For example, under chapter 572 of the Government Code, a district attorney is expressly included in the definitions of an "elected officer" and a "state officer" and, as such, may be subject to the chapter's provisions as applicable. TEX. GOV'T CODE ANN. § 572.002(4)(E), (12) (Vernon Supp. 2008) (definitions). Compare id. §§ 572.021 (personal financial statement required of state officers), and id. § 572.051 (standards of conduct of state officers and employees) with id. § 572.057(a) (Vernon 2004) (prohibiting a legislator, certain "officer[s] elected in a statewide election," and certain related business entities from leasing "office space or other real property to the state, a state agency, the legislature or a legislative agency, the Supreme Court of Texas, the Court of Criminal Appeals, or a state judicial agency"). We confine our analysis to the question asked, namely, the potential application of chapter 171 of the Local Government Code or related common law in the circumstances you have described.]

[Footnote 3: No court has addressed whether chapter 171's definition of a "local public official" includes a district attorney. See TEX. LOC. GOV'T CODE ANN. § 171.001(1) (Vernon 2008) (defining a "local public official" as an elected or appointed officer of "any district" or "who exercises responsibilities beyond those that are advisory in nature"). We assume for purposes of this opinion that a district attorney is a local public official subject to chapter 171.]