Office of the Attorney General
Honorable George Kirkpatrick, Jr.
Opinion No. MW-155
Re: Validity of city's use of county landfill garbage dump when the county has contracted with city councilmen to operate the dump.
Dear Mr. Kirkpatrick:
You have requested our opinion concerning the use by the City of Kountze, Texas, of a county landfill garbage dump when the county has contracted with two Kountze city councilmen to operate the dump. The contract between the county and the city councilmen provides that, in addition to certain payments from the county, the councilmen are authorized to charge certain fees from users of the dump. Under this contract the fees are paid to and retained by the councilmen. Since the effective date of this contract the City of Kountze has utilized this dump and incurred substantial user fees which have not been paid.
Article 988, V.T.C.S., provides, in part: 'No member of the city council . . . shall be directly or indirectly interested in any work, business or contract, the expense, price or consideration of which is paid from the city treasury. . . .'
Whether a municipal official has an unlawful interest in a municipal contract is ordinarily a question of fact. Meyers v. Walker, 276 S.W. 305 (Tex. Civ. App.--Eastland 1925, no writ). Texas Anchor Fence Co. v. City of San Antonio, 71 S.W. 301 (Tex. Civ. App. 1902, no writ). However, since the user fees from the city would be paid directly to the councilmen, this obligation is clearly prohibited by article 988, V.T.C.S., and is void as against public policy. City of Edinburg v. Ellis, 59 S.W.2d 99 (Tex. Comm'n App. 1933, holding approved); Attorney General Opinion MW-34 (1979). The authority of the city to contract for landfill usage may also be subject to competitive bidding. See article 2368a, V.T.C.S.; Attorney General Opinion MW-91 (1979). While the city may not pay user fees which directly or indirectly accrue to the benefit of the city councilmen, it may contract for landfill services with the county. Article 4413(32c), V.T.C.S.
A city cannot pay user fees to city councilmen who operate a county landfill dump under contract with the county.
Very truly yours,
Attorney General of Texas
John W. Fainter, Jr.
First Assistant Attorney General
Ted L. Hartley
Executive Assistant Attorney General
Prepared by Jim Allison
Assistant Attorney General