Untitled Texas Attorney General Opinion ( 1991 )

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DAN MORALES February 4, 1991
A-oENEML
Honorable Maida Modgling Opinion No. DM- 2
County Attorney of Medina County
Medina County Courthouse Re: Application of nepotism law when an
Hondo, Texas 78861 officer holds over, and construction of prior
continuous service provisions of nepotism
law (RQ-2160)
Dear Ms. Modgling:
You ask several questions about the Texas nepotism law, article 5996a, V.T.C.S. As
background, you inform us that the city council of.~Devine, a Type A general-law
municipality, has, by ordinance, delegated to its city administrator the authority to hire city
employees. & Local Gov’t Code 9 22.071 (governing body of general-law municipality
may appoint officers and agents). You explain that when the brother of a member of the
city council applied for employment with the city, the city administrator took the position
that the nepotism law prevented the city from hiring him. As a consequence, the city
council member resigned. The city then hired his brother.
Your first question is whether the nepotism law would in fact prohibit the city from
‘.
hiring the brother of a crty council member if the city had delegated all hiring decisions to a
city administrator.~ The nepotism law prohibits a member of a governing body from voting
for the hiring of a person related to any member of the body within a prohibited degree.1
Delegation of hiring decisions does not relieve the members of the governing body of the
burdens of the nepotism law. Attorney General Opinion O-4686 (1942). You bring to our
attention, however, Attorney General Opinion O-5274 (1943), which stated that a city
could hire a relative of a member of the &y’s governing body because the city’s charter
prohibited members of the governing body from participating in hiring decisions. That
holding is not inconsistent with Attorney General Opinion O-4686. The applicability of the
nepotism law depends on whether an officer m exercise control over hiring decisions.
g chool Dist., 616 S.W.2d 658 (Tex. Civ. App. -
Eastland 1981. no writ); Attorney General Letter Advisory LA-148 (1977). The governing
body of a home-rule city may not, by ordinance, override a provision of the city
l. The councilmemberis relatedto his brother-inthe Fust degree. & Attorney GeneraI Opinion
JM-581(1!386) (descriii method for computing degrees Of kinship).
Honorable Maida Modgling - Page 2 (DM-21
charter. Tex. Const. art. XI, 9 5. In this instance, the grant of authority to the city
administrator was made hy ordinance, which the city council has the power to repeal.
Local Gov’t Code B 51.001 (regarding adoption and repeal of city ordinances). Therefore,
the city administrator correctly advised that the city could not hire the brother of a member
of the city’s governing body.
Several of your other questions are based on the assumption that the resignation of
the council member resolved the nepotism problem. We must point out, however, that the
council member would continue to serve in a holdover capacity until replaced.* Plains
Co mm on Conso 1. School Dist. No. 1 of Yoakum Countv v. Havhurst, 122 S.W.2d 322,326-
27 (Tex. Civ. App. - Amarillo 1938, no writ); Tex. Const. art. XVI, 3 17. Although the
council member’s resignation would create a vacancy that could be filled in accordance
with section 22.010 of the Local Government Code, the nepotism statute would continue to
bar the hiring of his brother as long as the council member held over. Attorney General
Gpiion Jh4-636 (1987).
Your final question is in regard to the construction of subsection (b) of section 1 of
article 5996a, which provides:
Nothing herein contained, nor in any other nepotism law
contained in any charter or ordinance of any municipal corporation of
this State, shall prevent the appointment, voting for, or confirmation
of any person who shall have been continuously employed in any such
office, position, clerkship, employment or duty for the following
period prior to the election or appointment, as applicable, of the
offker or member related to such employee in the prohibited degree:
(1) at least 30.days, if the officer or member is appointed;
(2) at least six months, if the officer or member is elected at an
election other than the general election for state and county officers;
or
(3) at least one year, if the officer or member is elected at the
general election for state and county officers.
2. A personcan divesthimselfof an ofticeby qualiljingfor and enteringupoa the duties of another
office that he cannotlawfullyhold at~tbesame time. Pmitt v. Glen Rose Indea.~School Dist. No. 1.~84 S.W.2d
1004 (Tex. 193.5); see alsQAttorneyGeneral OpinionJM-423(19%) (offker does not bold over when
appointmentrejectedby Senate).
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Honorable Maida Modgling - Page 3 (DM-2)
In other words, a relative of an officer may continue in his position if he has served for a
specified length of time before the related officer’s election or appointment.
You ask how long the brother must have worked for the city in order to retain his
job if the other brother were either reappointed or re-elected to the city council. & Local
Gov’t Code 8 22.010(b) (filling vacancy on governing body by appointment); &
3 22.010 (c), (d) (filling vacancies by election). As we have discussed, the nepotism law
would not permit the hiring of the brother of the council member unless the council
member had ceased to hold over. In answering your question, we will assume that the
brother’s hiring was valid.
If the former council member were elected to fill a council vacancy at a special
election, his brother would be able to retain his job if he had served for the six months
preceding the election. V.T.C.S. art. 5996a, 5 (b)(2) (applicable when officer is elected);
see genera Attorney General Opinion JM-636 (1987). If the former council member
were appointed to Sll a vacancy, his brother would be able to retain his job if he had served
for 30 days before his brother’s appointment. V.T.C.S. art. 5996a, 5 l(b)(l) (applicable
when officer is appointed). It has been suggested that subsection (b)(2), which sets out the
prior continuous service requirement for relatives of an officer elected to his position,
should apply in the case of a person who is appointed to an elective office. The language of
subsection (b) of section 1 of article 5996a does not, however, support that suggestion. It
makes the six-month prior continuous service requirement applicable “if the [related]
officer or member is elected.” V.T.C.S. art. 5996a, g l(b)(2). It makes the 30-day
requirement applicable “if the [related] officer or member is appointed.” u 5 l(b)(l).
Those. requirements are not linked to types of office, but rather to the manner by which an
individual succeeds to an office. We think a court would apply those provisions in
accordance with their litera! language, especially since there are criminal penalties
attached to violations of the nepotism law. V.T.C.S. art. 5996f (making violation of
nepotism laws a misdemeanor involving official misconduct). See vf
Jacksonville, 405 U.S. 156 (1972) (holding that due process requires that criminal statutes
give fair notice of the activity that is outlawed).
SUMMARY
Members of a city council do not avoid the prohibitions of the
nepotism law, article 5996a, V.T.C.S., by delegating the responsibility
to hire city employees. The nepotism law applies to a city council
member who has resigned but who is holding over in his office. The
30-day prior continuous service requirement in subsection (b)(2) of
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Honorable Maida Modgling - Page 4 (DM-2)
section 1 of the nepotism law applies when an officer is appointed to
an elective office.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARYKELLJZR
Executive Assistant Attorney General
RENEAHICKS
Special Assistant Attorney General
SUSAN GARRISON
Chairmaq Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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