Untitled Texas Attorney General Opinion ( 1949 )

THEATTORNEY GENERAL
PRICE DANIEL
ATTORNEYGENERAL
WY 31, 1949
Hon. Tom MoLeroy Opfnion IlO! V-833
County Attorney
Shelby Codnty He: Applicability of’ the
Center, Texas anti-nepotism rbte-
tutos to tkm appolnt-
ment of a policemm
by the City Counoif
of 6 @it9 inoorporrted
under Title 28, Chap-
tern 140, V.C.S.
Dear Sir:
You have requcbe+te&an Irptnlan oD & flouaCLon
which, in subkitanoe, is 8~6follows:
Is the City Oooa 11 of a city iw~-
porated under Tltll 28 Chsptsre l-10, Q.i?.;s.,
prohIbIted by ths uv&upot:iiun p~ovfsiaos
of V .P .C a ,from appoiablad; a brother of a
mtmber of the c~ouadil bs, the #ffi~ of city
polioemad, who will. 8180 cot as oLtg eoave~cc,
anu comptsnaate hllr fW hfs eervldee Erom pubala
funde of the olty end fees of offioe?
A cl Incorporated tier tW Siwt WkI obap-
ters of title 2
3 , V.C.S., may provfda bg or6iwrio4 for
the ap ointment of its police offloers. art. 99,
V.C.S. 7 Aseumlng in the in&ant ease that the citg
council has passed such an ordinance, the oounoll may
impose upon a policemau the added drXties of city
scavenger. (Apt. 1002, V.C.S.) APtfcrle 998 provl@Ies
such police officers “shall receive a, salarg or fees
of office, or both, as shall ba flxed bs the city
council .”
Article 432, VePQC., re@bss
‘I1000ffPcek of %hSs &ate Or any officer
of any district, county, city, reefnot, school
dlstrfct ) or other munleipal aui?division of
this State, or any offfee~ of member, 0% any
State, district, countyj city> school dlstMct
or other munfcipal board, or judge 0% sag OoutiP
created by or under auP;borlty of %~y genePa 0~
..
Hon. Tom MeLeroy, page 2 iv-8331
speefal Paw 0% this State, or any member of
the Legislature, shall appoint, or vote for,
or conffrm the appointment to any office,
posltlon, clerkship, employment OP duty, of
any person related within the second degree
by afffnf%g or wfthin &he third degree by
consanguinity to the person so erppoln%fng
OF so voting, or to any o&her member of any
such board, %&heLegfslatore, or cotit OS
which such persOn 80 appoln%ing op voting
may be a member, when %he .salary, Sees, or
compensstfon of such s.ppoin%ee is %o be pafd
for, directly or fndi%ee%lg, out OS OF from
publfe funds or Sees of odfiee OS any kl~nd
or character whetsoever .*
Article 433> V.P,C, 9 speei%ieallg provides
that the provlsfons of this law (I@%$. 432 ttiough
437, V.P.C.) shall apply to and include mayors, oom-
missioners, recordden‘s, and aldermen of fnoorporated
cltiee and towns.
Articles 435 and 437, V.P,C-, read respee-
tlvely as follows:
Ar6. 435. “No o%fioer OP other person
Ineluded wf%hfn the third pkecedlng &%fole
shall approve sny aoooun% OP draw op author
lze the 5sawfng of as-q warrant OF order tb
pay any salary, See or compenee.%lon of such
fnellgible of%icer QP”pepsoD, knowing him
to be so fnelfgfble.”
Art. 437. “Whoeve violates any pro-
vlalon of %he ffive preceding Ap%foles shs.Pl
be guilty of a misdemeanor involving of’ffelal
misconduct, md shall be Slned not less %hm
One Hundred nor lhoFe &hamODe Thousand Dollars.”
Artlole 5906, V,C.S., fn part, provides:
“WboeveF violates e,ny provision of the
Penal Code relating to nepotism and the fn-
hlblted acts connected therewith shall be
removed from hfs okifeej elerPkshipL employ-
ment or duty, as therein provided.
,
Hon. Tom McLeroy, page 3 (‘J-833)
These and other statutes evidence the meti-
culous care taken by the Legislature to prohibit pub-
lic officers of this State, including mayors e,nd el-
dermen of cfties, from eppolntfng their near relatives
to public office or employing them fn any other public
capacity, when their compensetfon Pa to be pald, direct-
ly or Indirectly, out of public funds or fees of offlce
of eng kind or character whatsoever.
A policemen of a city Is a public offfcer.
uparte-- Preston, 72 Tex. Crfm. 77, 161 S.W. 115 (1913);
Yett v. Coo~lg Tex. 205, 281 S.W. 837 (1926). The
mi6itions set forth in Article 432 BDD~Yto mayors
end aldermen of cftfes Incorporated under-Tftle $8,
Chapters l-10, V.C.S. Brothers are related to eech~
other with the first degree of consanguinity, and, as
stated by you, come within the prohibited degree of
relationship deflzned In Article 432. The brother of
an alderman, If appointed to the office of city police-
men by the city council, wlll.be compensated for his
services from public funds end fees of office.
In view of the facts recited and the plain
provisions of the statutes cited, it Is the opinion
of this office that such en appointment cannot law-
fully be made.
SUMMARY
----
The city council of e cltr fncoppor-
eted under Title 28, Chapters l-10, V,C.S.,
cannot lawfully appoint a brother of en
alderman of the city to the office of oitg
polioemen and compensate him for his ser-
vices from public funds of the city or fees
of office of any kind or character whatso-
ever. Arts. 432-437, V,P.C.; Art. 5906,
V.C.S.
Very truly yours
RPROVEDt ATTORNEY
6EfU3AT.OP TEXAS
A
Assietant
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