The members of Commissioners Court have a fiduciary duty to act in the best interest of the county and its citizens. This duty of trust requires that these officers act prudently to protect and preserve the assets of the county. This duty is enshrined in the constitutional oath of office in Section 1 of Article XVI of the Texas Constitution. Before assuming the duties of the office, each officer is sworn to “faithfully execute the duties of the office” and “preserve, protect, and defend the Constitution and laws of the United States and of this state.” This fiduciary duty underlies all of the powers and responsibilities of public service.
However, the Texas Legislature has engrafted numerous additional statutory requirements upon this basic constitutional duty. A lack of attention to these requirements can have disastrous results. In this and future columns, we will review some of these traps for the unwary, beginning with the oath of office.
The oath requirements for a member of Commissioners Court are found in Section 81.002(a), Local Government Code. In addition to the official oath, a member of Commissioners Court must “swear in writing that the person will not be interested, directly or indirectly, in a contract with or a 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.” Generally, this provision prohibits a member of Commissioners Court from contracting with the county.
Although Chapter 171, Local Government Code provides for contracts with interested business entities upon disclosure and abstention by the interested member, the oath of office continues to bar individual contacts between a member of Commissioners Court and the county; see Attorney General Opinion JC-61. The exception for business entities and real estate in Chapter 171 will be reviewed in a future column.
The attorney general has opined that the provisions of the oath preclude a Commissioners Court member from (1) acting as a surety on a bail bond in the county (JC-121); (2) leasing hanger space from the county at the county airport (JM-855); (3) being paid to drive a county ambulance (JC-61); and (4) being a paid employee in the sheriff’s office (GA-645).
Since this provision does not appear in the official oath of other county officers, they are not prohibited by the oath from contracting with the county, although other prohibitions may apply. In summary, a member of Commissioners Court may not personally contract with the county. Since a violation of this provision may result in civil or criminal penalties, including removal from office, Commissioners Court members need to avoid such agreements.