Untitled Texas Attorney General Opinion ( 1986 )

Honorable David T. Garcia Opinion No. JM-581
Brooks County Attorney
P. 0. Box 557 Re: Constitutionality of article
Falfurrias, Texas 78355 5996a. V.T.C.S., the nepotism
statute
Dear Mr. Garcia:
You ask several quesi:ions about the nepotism statute, article
5996a, V.T.C.S., which provides:
No officer of t:hisState nor any officer of any
district, county, city, precinct, school district,
or other municip;x:lsubdivision of this State, nor
any officer or ,member of any State district,
county, city, school district or other municipal
board, or judge of any court, created by or under
authority of any General or Special Law of this
State, nor any member of the Legislature, shall
appoint, or vote for, or confirm the appointment to
any office, position, clerkship, employment or
duty. of' any ptzrson related within the second
degree by affiniEr or within the third degree by
consanguinity to the person so appointing or so
voting, or to an:r other member of any such board,
the Legislature, or court of which such person so
appointing or vcting may be a member, when the
salary, fees, or compensation of such appointee is
to be paid for, i:Lrectlyor indirectly, .out of or
from public funds or fees of office of any kind or
character whatsoever; provided, that nothing herein
contained, nor ir;any other nepotism law contained
in any charter or ordinance of any municipal
corporation of this State, shall prevent the
appointment, vot:Lng for, or confirmation of any
person who shall have been continuously employed in
any such office, position, clerkship, employment or
duty for a period of one (1) year prior to the
election or appointment of the officer or member
appointing, v0tir.g for, or confirming the appoint-
ment , or to the election or appointment of the
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Honorable David T. Garcia - Page 2 (~~-581)
officer or member related to such employee in the
prohibited degree., When a person is allowed to
continue in an office, position, clerkship, employ-
ment, or duty tecause of the operation of the
exceptions contaLned in the two foregoing pro-
visions then the Judge, Legislator, officer, or
member of the governing body who is related to such
person in the prchibited degree shall not partici-
pate in the deliberation or voting upon the
appointment, rea;?pointment, employment, confirma-
tion, reemployment, change in status, compensation,
or dismissal of such person, if such action applies
only to such person and is not taken with respect
to a bona fide class or category of employees.
(Emphasis added).
You first ask whether .article 5996a is unconstitutionally vague
because it fails to specify whether the conraonlaw method or the civil
law method is to be used in adeterminingdegrees of kinship.
In Bean v. State, 691 S.W.2d 773, 776 (Tex. App. - Eastland 1985,
writ ref'd), the court helC, that the provisions of article 5996a were
clear and unambiguous and were not unconstitutionally vague. The
court in Bean did not addrcissthe failure of article 5996a to specify
the appropriate method for ~determinlngdegrees. After studying that
specific issue, however, we find no reason to question the holding in
Bean.
Some American jurisdictions use the civil law method of determin-
ing degrees of kinship, while others use the common law method.
Under [the civil law] method the degree of kinship
is determined by counting upward from the intestate
to the nearest common ancestor, then downward to
the claimant, each generation representing one
degree. Computir,g by the rule of the civil law,
parents and chil(.renof a deceased are related to
him in the first degree; and grandparents, grand-
children, brothers, and sisters of the deceased are
related to him in the second degree. Uncles, aunts,
nephews, nieces, and great-grandparents of the
deceased are related to him in the third degree.
The fourth degree of relationship includes first
cousins, great-uncles and great-aunts, and great-
great-grandparents. The great-great uncles and
great-great aunts, the children of a cousin, and
the children of 2: great-uncle or great-aunt are
related in the fiEth degree, while the relationship
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Honorable David T. Garcia - Page 3 (JM-581)
of children of second cousins is in the sixth
degree.
. . . .
Under [the common law or canon law] method the
degree of kinsh:.p is determined by counting the
number of generations from the nearest common
ancestor down to the intestate or to the claimant,
taking the longe::of the two lines where they are
unequal.
23 Am. Jur. 2d Descent and ;istribution, 955.
In 1878 a Texas Cour,: held that the common law method was the
proper method for computlne,degrees of kinship under Texas law. Tyler
Tap R.,R. Co. & Douglas v. Overton, 1 White & W. 267 (Tex. Ct. .App.
1878): Since then this office has consistently applied the common
law method in answering questions about the nepotism statute. Attorney
General Opinions O-791 (1939); O-2523 (1940); o-3016, O-3996 (1941);
O-4670, O-4987 (1942); O-5452 (1943); O-6307, O-6337 (1945); V-785
(1949); LA-67 (1973); JM-I!53 (1984). See also Jackson v. Maypearl
Independent School District, 392 S.W.2d 892 (Tex. Civ. App. - Waco
1965, no writ).
Furthermore, it is well-established that the common law method is
the proper method for computing degrees of kinship under other Texas
statutes. See Warner v. Rice, 541 S.W.2d 896, 898 (Tex. Civ. App. -
Eastland 19% no writ) cgest statute); Whitworth v. Bynum. 679
S.W.2d 608 (Tex. App. - Houston [lst Dist.] 1984, no writ) (computing
affinity relationships under guest statute); see also Fry v. Tucker,
202 S.W.2d 218 (Tex. 194;') (disqualification of judges); Smith v.
Bates, 27 S.W. 1044 (Tex. Civ. App. 1894, no writ) (disqualification
of jurors).
A statute must be read with reference to other laws. McBride v.
Clayton, 166 S.W.2d 125, 128 (Tex. 1942) (meaning of statute is to be
1. Tyler relied on the rule that the common law of England is
the law of Texas except wt.ere it has been changed by constitution or
statute. The issue may not have been as clear-cut as Tyler suggests
because the so-called "common law" rule of computing degrees of kin-
ship is actually the ecclesiastical or canon-law ru$e, and it is not
clear that this method bec,unepart of the common law of England. See
26A C.J.S. Descent and Distribution 622, at 562; D. Robertson,%
Succession (1836). Nonetheless, Tyler established the "cormnon la7
rule as the Texas rule.
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Honorable David T. Garcia - Page 4 (JM-581)
determined with reference to common law, other statutes, and court
decisions). We know of no case holding that a statute is unconstitu-
tionally vague because one must turn to other laws in order to know
the precise meaning of the statute in question. See generally Village
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498-99 (1982) and Brockert v. Skornicka, 711 F.2d 1376, 1381 (7th Cir.
1983) (it is relevant to v&eness inquiry that persons affected have
ability to seek clarification of law in order to plan behavior).
Therefore, we find no reason to question the holding in Bean that
article 5996a is clear and unambiguous and not unconstitutionally
vague.
Your second question is whether it is a violation of the nepotism
statute for a first cousin of the mother of the county judge to be
hired as a county library employee. A first cousin of the mother of
the county judge is relatei.to the county judge in the third degree of
consanguinity, so the relationship is in a degree prohibited by the
nepotism statute. Therefo1.earticle 5996a prohibits the employment in
question if the commission~!rscourt -- of which the county judge is a
member -- appoints, votes for, or confirms the appointment of an
employee of the county libr,ary.
The commissioners cou::tappoints the county librarian. V.T.C.S.
art. 1683. The countv lib,carianhas authority to auuoint
__ and dismiss 4
library employees with the approval of the commissioners court.
V.T.C.S. art. 1685. In rSF'l56 (1978) this office considered whether
the nepotism law prohibited a junior .college district from hiring
relatives of the college president. That opinion stated:
The Board of Trustees of a junior college is
authorized to hire faculty and other employees
upon the prerfident's recommendation. Art.
130.082(d), Educ. Code. Thus the president and
the board exercise joint control over the selec-
tion of employers and faculty. We believe this
control is sufficient to make the nepotism statute
applicable to the employment of persons related to
the president. !le,eLetter Advisory No. 152 (1978)
(chief of police--- had influence over retaining
probationary employee); Letter Advisory No. 148
(1977) (university may not employ niece of
regent).
Similarly, the joint control exercised by the county librarian and the
commissioners court is cx~fficient to make the nepotism statute
applicable to the employment by a county library of persons related to
the county judge or another member of the commissioners court.
You tell us, however, that the commissioners court has authorized
the county librarian to enploy personnel without the approval of the
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Honorable David T. Garcia - Page 5 (JM-581)
conrmissioners court. The fact that the court does not use its
statutory authority to exercise control over the appointment of county
library employees does not .abrogateor limit the authority. Pena v.
Rio Grande City Consolidated Independent School District, 616 S.W.2d
658 (Tex. Civ. App. - Eastrand 1981, no writ). Thus, the employment
by the county library of a first cousin of the county judge is
prohibited by article 5996a. LA-148 (1977).
SUMMARY
The nepotism statute, article 5996a. V.T.C.S.,
is not unconstitutionally vague. The nepotism
statute prohibits the county library from
employing someone related to a county judge within
a prohibited .degreeof consanguinity.
Very/truly yours;lA&
I
U-//v’
JIM MATTOX
..
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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