Honorable J..M. Fallcner                    Opinion th.   c-   438
Comnlssloner
Department of Banklng                       Re: Whether a county depository
Austln, Texas                                   may be validly selected If
                                                such bank has-on its board
                                                of directors, or among its
                                                stockholders,one of the fol-
                                                lowing officers of the county:
                                                county judge, county attorney,
                                                county treasurer or county
Dear Hr. Falknert                               clerk.
      You have requested our..oplnlon
                                    on the following questions:
           "1. May a county‘depoeltorybe validly select-
      ed if'such bank has on its Board of Directors, or
:     among Its stockholders,one of the following officers
      or the countyr
                County Judge          '
           2    County   Attorney
                County Clerk
           2:   County Treasurer.
            “2 . May one of the above named officers become
      a rtockholder  or a director of a bank after such
      bank has been designated es county depository,NM-
      while the depository contract Ls In effect, without
      affecting the validity of the contract or without
      creating a violatlon of the offlcerle oath."
      Article 2340,   Vernon’s      Civil     Statutes,   provides as follows:
           "Before entering upon the duties of their of-
      flee, the county judge and each comissioner shall
      taka the official oath, an4 shall also take a wrlt-
      tea mth that he will not be directly or Indirectly
      interwted lnan~coatracttith, or claimagainst,
      th8.count.yIn which ha realdea, except such warrants
      aa m8y Irsue to haa aa ftrw or orficei Each commie-
      8loner shall execute l baad to be approved by the
      county judge In the mm oi three thoxiaanddollars,
      payable to the county treawrer, conditioned  for the
                                     -2083-
.
                                         .
                                                                      I

    Hon. J. M. Falkner; page 2 (C-438)


             faithful performantieof the duties of.his of-
             fice, that he will pay over to his county all
             moneys Illegally paid to him out of county funds,
             as voluntary payments or otherwise,and that he
             will not vote orglve his consent to'pay out.
             county funds axcept for lawful purposes."
           In vlew.of these provlslons,It has been ‘the.tionelrtent opln-.
    Ion of this ,offlcesince .19&3that.thecdmmisslonerscourt cannot
                                                                _
    salect as a~county aepositorya hank In Which -tnecounty juage or
    any member of the ccaunlselonerscourt Is a stockholder~or,dlrectpr
    of such bank; and that such contract la void as against public pol-
    icy. See Attorney.Ceneralls'oplnlon  to A. M. Turney, County Judge
    of Taylor County, dated February 3, 1913, bye C. X. Cureton, First
    AssistantAttornay General, and Attorney Gon$ralts   Opinion O-2980
             For ‘simlZ8rresults, see Attdmey.Geneialts Opinions ~~-161
               W-359   (i58) .
             ?ou are therefore advleed that a county depositorymay not be
    Validly selectedIf such bank'has on Its board of directors or among
    lts~stockhol&er~   the county'judge.ofthe county.
              The oath pxsacxlbod by Artlcie'2340,Vernon's Civil Statutes;
    ~1s not.appUcable to ,thecounty 'attorney,county clerk,or county
     treasurer,and ,tI$rsofficers,   do not take 'anoath that,they will not
     be directly or bdfrect&y Interestedin,any contract with or claim
     against the.countyIn ~whlchthey reside, except warrants as may b.e
     $ssued to.theni.as~ fees of office. 'Nevertheless, -It la fell settled
     In Texas that'lf.  a public official,directly or Indirectly       has a
     pecuniary'Interestln a contract, nozmatterbox honest he nilghtbe,
     and althoughha may not be influencedby the interest, such contract
     is agalnst'public:poUcy.                       76 S.W.     05 .(1925).
    ~Attorney   Gonoral’tsopinion                  -359 (1% ii  ) and WV-1241
    (x%2).                                      I
          In this connection,Article 2364,     Vernon's Civil Statutes,
    provides as folbowe:.
                  "No member of the com.mzLssioners
                                                  court or
             any county offlcer:shall-be, either directly or
             lndlrectlyiinterested In any such,contract."
           While this artlclo applies only to contracts authorized by
    the precedlngartlcles in the Revlded Civil Statutes of-Texas;1925,
    as amended, and therefore does not apply'to county depository con-
    tracts, such article, together with Articles 2340 and 1649, Ver-
    non's Civil Statutes, and Article 373; Vernon's Penal Code, estab-
           the public policy of prohibitingany county officer from
    ,,&&ehes
    having any laterest In any contract, directly or Indirectly.
                                     -20$4-
                                                               I

Hon. J. M,.y
           Falkner, page 3 (C-438)


Attorney ,General'sOpinions O-6280 (1944), o-2980 (1941),O-878
  ;;;z ~) v-381
           :    (lg47),~~-1241 (lg62),~~-161 (1957) and WW-359
        . This public policy as above noted is of long standing
i since1 1913), and the Legislaturehas not seen fit to change this
public policy. Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570
(1944)*
       You are thereforeadvised that a county depositoryplaynot be
validly selected If such bank has on Its board of directors or among
Its stockholdersthe county,Judge,county attorney, county clerk or
county Measurer of the county. This long continued administrative
construct$onIs entitled to great weight.
       In answer to your second question, If one of the above named
officers becomes a stockholderor director of a bank after -Cn bank
has been selected as a county depository, such action eon the part
of the county offlcsr will not affect the validity of the contract
or violate the officer!6 oath. The commissionerscourt would, how-
ever, be -prbcludedfrom renewing the depository contract so long
as such offioer remains a stockholderor director of such bank.
            ',

                          SUMMARY
                A county depositorymay not be validly
        selected If such bank has on Its board of
        directors or among~its stockholdersthe county
        judge, county attorney, county clerk or county
        treasurer    of the county.
                                 ._
                                  ~*irre~.ve.ry
                                            truly,
                               WAGGONER CARR
                               Attorney General of Texas


                               By    jki5AeP--’
JR:ms                                 Assistant
APPROVED:
OPINION COMUITTEE
W. V. Geppert, Chairman
Bob Flowers
Jack Goodman
Bon Uarrison
Roy Johnson
APPROVED FOR THE ATTORNEY
                        GENERAL
By! Stanton Stone
                                    -2085-