Untitled Texas Attorney General Opinion: KP-0244

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 7, 2019

The Honorable J.D. Lambright Opinion No. K.P-0244
:Montgomery County Attorney
501 North Thompson, Suite 300 Re: Whether the city attorney and city
Conroe, Texas 77301 administrator are local public officials subject
to chapter 171 of the Local Government Code
(RQ-0249-KP)

Dear Mr. Lambright:

You ask on behalf of the City of Conroe (the "City") whether the city attorney and city
administrator are local public officials subject to chapter 171 of the Local Government Code with
respect to a particular matter. 1 You inform us that the city attorney and the city administrator
negotiated· a proposed agreement on behalf of the City whereby a landowner would donate a
portion of a defunct golf course property to the City for park and open space purposes. Request
Letter at 1. The proposed agreement would require the City to grant an exception from its tree
preservation ordinance for the property retained by the landowner and consent to the property's
inclusion in a municipal utility district in accord with the owner's planned development of the
remaining property for single family homes. Id. You tell us that the city attorney and the city
administrator each own~ a home adjacent to the property.,Jd. at 1-2.2 You st~te that the city
attorney presented the. proposed agreement at a public workshop but that the city council has not
voted on the proposal. Id: at 2. The City's question arises out of"public comments or suggestions
that the terms of the proposed agreement, if approved by the City, may have a special economic
effect on the value of the properties" that the city administrator and the city attorney own. Id.

Chapter 171 of the Local Goverpment Code "preempts the common law of conflict of
interests as applied to local public officials." TEX. Loe. Gov'T CODE§ 171.007(a). A local public
official who knowingly violates section 171.004 commits an offense. Id.§ 171.003(a)(l). 3 Section

1
See Letter from Honorable J.D. Lambright, Montgomery Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at I (Sept. 7, 2018) ("Request Letter") and attached Letter from Honorable Toby Powell, Mayor, Conroe, Tex.,
to Honorable J.D. Lambright (Aug. 27, 2018) ("Mayor's Letter"), https://www2.texasattorneygeneral.gov/
opinion/requests-for-opinions-rqs.
2
You state that the city administrator's home is adjacent to the property to be donated to the City and the
city attorney's home is adjacent to the property to be retained for development. Request Letter at 1-2.
3
Section 171.003 also makes it an offense for a local public official to knowing act as surety "for a business
entity that has work, business, or a contract with the governmental entity" or as surety "on any official bond required
of an officer of the governmental entity." TEX. Loe. Gov'T CODE § 17 I .003(a)(2), (3).
The Honorable J.D. Lambright - Page 2 (KP-0244)

171.004 prohibits a "local public official" from participating in a "vote or decision" involving
property in which the official has a substantial interest:

(a) If a local public official has a substantial interest ... in real
property, the official shall file, before a vote or decision on any
matter involving ... the real property, an affidavit stating the nature
and extent of the interest and shall abstain from further participation
in the matter if:

(2) in the case of a substantial interest in real property, it is
reasonably foreseeable that an action on the matter will have a
special economic effect on the value of the property,
distinguishable from its effect on the public.

Id. § 171.004(a)(2). Chapter 171 defines a "local public official" as "a member of the governing
body or another officer, whether· elected, appointed, paid, or unpaid, of any ... municipality ...
who exercises responsibilities beyond those that are advisory in nature." Id. § 171.001(1)
(emphasis added). Thus, as applicable here, an individual may be subject to the conflict of interest
provisions of section 171.004 if the individual (1) has a substantial interest in real property that
may be involved in municipal action; (2) is a local public official of the municipality as that term
is statutorily defined; and (3) votes or makes a decision on a matter that will have a special
economic effect on the value of the individual's property. Id.§§ 171.001(1), .004.

Home ownership may constitute a "substantial interest in real property" under the statute.
See id. § l 71. 002(b) (" A person has a substantial interest in real property if the interest is an
equitable or legal ownership with a fair market value of$2,500 or more."). However, we need not
decide whether the city administrator or the city attorney meets the definition of a local public
official because they do not vote or make a decision on a matter that will have a special economic
effect on the value of their respective property. "[P]otential conflicts of interest are evaluated on
a case by case basis as they relate to particular governmental actions." Tex. Att'y Gen. Op. No.
GA-0337 (2005) at 4. This office has determined that "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 or the value of the official's real property. Tex.
Att'y Gen. Op. No. GA-0510 (2007) at 2 (determining that a constable is a local public official but
need not comply with disclosure and abstention requirement with respect to his towing business);
see also Tex. Att'y Gen. Op. Nos. JM-450 (1986) at 1 (determining that the predecessor statute
did not apply to a deputy sheriff's auto repair contract with the county because the deputy does not
vote on or decide county business), JM-310 (1985) at 3--4 (determining that a county clerk may
own a title company doing business with the county because the clerk does not vote or decide
county contracts). The facts as described by the mayor suggest that the city administrator and the
city attorney do not possess the authority to vote or make a decision on the City's acceptance of
The Honorable J.D. Lambright - Page 3 (KP-0244)

the proposed agreement. Mayor's Letter at 3. 4 Taking these facts as true, the city administrator
and the city attorney are not subject to the requirements of section 171.004 of the Local
Government Code with respect to the proposed agreement as described.

4 But see Tex. Att'y Gen. Op. No. KP-0105 (2016) at 2--4 (determining that members of a planning and
zoning commission whose decisions are treated as final must comply witn section 171.004 even though the city
council has concurrent authority).
The Honorable J.D. Lambright - Page 4 (KP-0244)

SUMMARY

Section 171.004 of the Local Government Code prohibits a
"local public official" from participating in a vote or decision
involving property in which the official has a substantial interest
when it is reasonably foreseeable that an action on the matter will
have a special economic effect on the value of the property. Because
the city attorney and a city administrator at issue do not possess
authority to vote or make a decision on a proposed agreement as
described, they are not subject to the requirements of section
171.004 of the Local Government Code with respect to that
agreement.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee