Untitled Texas Attorney General Opinion ( 1940 )

THEATITORNEY GENERAL OFTEXA~ Honorable Harry Knox, Chairman State Board of bontrol Austin, Texas Dear General Knox: Opinion O-2$97 Re: AuthorLy of the Board of Control to apnoint the wife of the Superinten- dent of the Alabama and Coushatti Indian Agency Livingston to the posi- tion of office assist- ant bookkeeper. We have your request for any opinion under date of November 14, 1940, as follows: "tinclosedis a letter from honorable Clem Fain of Livingston, Texas addressed to this Board and suggesting that this Board hire Mrs. Corley, wife of the super- intendent of the *ndian Reservation, as secretary to the superintendent. "In view of the facts set out in l*lr. Fain's letter and in view of the terms of Article 693, Section 3 of the Revised Civil Statutes, your valued opinion is resnectfully requested as to whether or not this Board would have the power tc hire &s. Corley as set forth in lvir.Fain's letter, without violating the NepotJ',,n law." Item 2 of the current appropriation for the Alabama and Coushatti Indian Agency Livingston is: "Office assistant-hookkeeper, if U. S. Salary ceases....0......#900.00n We understnad this position to be the one con- templated in your reference to "secretary to the super- intendent." - * General Knox - page 2 C-2897 Article 693, subdivision 2, of the Revised Civil Statutes, authorized the hoard of Control "to ap- point all officers and employees of such Institutions IState eleemosynary institutions) and fix their salar- ies and wages." lhe Alabama and Coushatti Indian Agency Livingston is an eleemosynary institution of the State. A rider to the current appropriation for the Agency, Special Laws 46th Leg. p. 306, provides: "The expenditure of all money herein appropriated for the welfare of the Alabama and Coushatti Indians in Polk dounty and all employees therefor, shall be under the supervision and appointment of the State Board of Control. You are therefore respectfully advised that it is the prerogative and duty of the Board of Control to make the appointment to the position under consideration, and in doing so, it would not violate the Penal statute against nepotism if it appointed to that position the wife of the Superintendent. Article 432 of the Penal Code of Texas, defining nepotism, is as follows: "No officer of this State or any officer of any district, county, city! precinct, school district; or other municipal subdivision of this State. or any officer or member OS any State, r"strict, county, city, school district or other municinal hoard, or judge of any court, created by or under authority of any general of special law of this State, or any clemberof the Eegislature, shall appoint, or vote for, or con- firm the appointment to any office, position, clerkship, employment or duty, of any person re- lated within the second degree by affinity or within the third degree by consanguinity to the person so appointing or so voting, or to any other member of any such board, the Legislature, or court of which such person so appointing or voting may be a member, when the salary, fees, or compensation of such appointee is to be paid for directly or indirectly, out of or from nub- lit funds or fees of office of any kind or char- acter whatsoever." “, - General Knox - page 3 0-2S97 "bile this Article contemplates "all boards" es- tablished by or under the authority of any general or special law of this State, such as the Board of Control, (See Article 433 Penal Code) nevertheless, it would not be violated in the appointment by the Board of Control here under consideration, unless, of course, Mrs. Corley is related within the prohibit- ed degree to some member of your Board. It your Board has heretofore made any order author- izing the Superintendent of this Agency to appoint the employees of such Agency, such order should be rescinded, and the Board itself should henceforth actually make such appointments. It will be observed the appropriation for this item or position is a conditional one, that is, dependent upon the ceasing of the U. S. salary therefor. We are not advised whether the United States has ceaseu to provide for such sal- ary, and we are not therefore passing upon the question of the availability of any funds for payment of the office of assistant bookkeeper. Our conclusions are not in conflict with our Opinion No. o-1857, for we had there only the question of the power of the Board of Control to remove employees of eleemosynary insti- tutions. The implications of that opinion as to f.heright of the Board to remove such employees as are officers under the State are overruled in,,thecase of Harry Knox et al. vs. Dr. ii.J. Johnson, 141 S. . (2) 69g. Very truly yours ATTORNEY GENtiRALOF TEXAS BY Ocie Speer Assistant OS-MR/pam APPROVED NOV 22, 1940 GERALD C. MANN ATTORNEY GENERAL OF TEXAS APPROVED OPINION BnlB,CHAIRMAN