Untitled Texas Attorney General Opinion ( 1992 )

03fficeof tiy Igttotnep 63tneral
Qtatt of Qtxas
Jaauary 17,1992
Hoaorable Roalero Moliaa Opinion No. DM-76
~CountyAttorney
P. 0. Box 1198 Rez Whether aepodm law applies to
. .
Rio Graade City, Texas 7gS82 iadldds lllred as iadepeadent
coatmctors (PG.111)
Dear Mr. Moliaaz
You~wbetheraschool~hasPuthoritytoemplayaseeondeousInofa
number of the hoard to perfom legal services. Tim Texas aepotisar law, article
%%a, V.T.C.S., prohiiits a snltool board from hiring any person related to a board
atember wlthia the third degree of coasaag&uty. The 72d L@ature amended the
aepotism law to substitute the civil law method of computing degrees of relatioaship
for the common-law method of anaputiag degrees of relationship. Acts 1991,72d
Leg., dt. 561, at 1979. Uader the dvil law’metbod,secoad cousias are related withia
the siath degree of coasaaguMty and are therefore not covered by the aepotkua law.
Id;’ &e getam@ Attorney General Opiioa JIM-581(1986) (describii civil sad
cormaoa law methods for computiag degrees of relationship).
You also ask whether the nepotism law applies to a person hired as aa
iadependeat contractor rather than as a regular school district employee. Attorney
General Opiaioa Jhi-45 (1983) stated that the nepotism law atakes no distinction
between “employees” and independent comractors. See u&o Attorney General
Opinion O-718 (1939) (nepotism law prohibits couaty commissioners court froar
hiring son of county coauaisdoaer as architect). See guwuPy &rm v. Stare, 691
S.W.2d 773 (T&x.App.-El Paso 1985, pet. ref’d) (aepoti.wa law pmhiiits district
judge from appoiatiag uncle to represent indigent in aimiaal case).
YOU .mgge.st, however, that Attorney General Opinion JM-492 (1986)
overruled the holding of Attorney General Opinion N-45 ia regard to independent
contractors. The issue ia Attorney General Gpiioa JM492 was whether .a County
could contract for the coastructioa of a fence with a company owued by 9 county
uxaa&sioaer’s soas. The opinion stated that a contract between a goveramental
body and a company owaed by relatives of a member of the governmental body was
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Honorable Romem Moiiae - Page 2 (DM-76)
governed not by tbe nepotism law but b a 1983 enactmeat that goveras contracts
between a Iocai governmental body aad business entities ia which a member of the
governmental body or certaia relatives of a member of the governmental body have
a financial interest Acts 1983.6&h Leg,, ch. 640, at 4079 (initially codified es
V.TC.!I. erticIe 988b, mcodified ia 1987 es chepter 171 of the Load Government
Code) (hereinafter dmpter 171). The opinion went on to say tbat the
commissioners court had not vioked the nepotism Iaw because “that statute no
longer coat&r county contrects with independent coatrectors.” Although the
opinionwascorrectineondudingthotchspter171appliedtothecontraain
question. the suggestion in the opialoa that the 1983 enactment of the confiict-of-
interest law somehow altered the scope of the nepotism law end thereby oven&d
Attorney General Gpiaioa Jh4-45was, we conclude, incorrect.
Conflict-of-intemt rules existed ia the coamtoa law for a coasiderable time
before chapter 171 was adopted. See, cg., Mqexr v. We, 276 S.W. 305 (Tcx. Civ.
Appdhtlaad 1925, no writ); Attomey General opinion JM-424 (1986). The
eaectmeat of chapter 171 made soare &cages in the cotmaoa-Iaw confiict-of-
interest rules. UaIike the comaron-Iew coaflict-of-interest rules, the statutory
scheag imputes to a member of a governmental body certain fiaaaciaI interests of
his relatives within the 5mt degree of coasea&ity.l It thus appIks to certain
contracts in which a publie officer’srelatives have a 6aaadeI interest that before the
adoption of chapter 171 would have been within neither the aepodsm statute nor
tbe comrnoa-lew coafIictot-intereJt rules. Chapter 171 did not, as Attorney
General Opinion JM-492 suggests, make changes that effected the scope of the
nepotism statute. In suggestingthat it did, Attorney General opinion JM492 erred
ia focusing on the fact that the contract at issue was with en independent coatrector.
To determine whether the nepotism law applied, Attorney General opinion JM-492
should have considered whether the independent connector was a “person”within
the aepotim statute, since the nepotism law applies to the hiring of natural persons.
~Lcwisv.``RollsMillCa,23S.W.338``civ.App.1893, aowrit)
(judge not disquaiiikd under former V.T.CS. article 1X%, now Government code
section 21.005, to try suit when his brother-in-Iaw is stockholder and president of
plaintiff corporation). Thus, the nepotism law applies whenever a governmental
body hires a natural person, whether as en employee or es an independent
p. 360
Honorable Romem Moliaa - Page 3 (DM-76)
coatrnctor. If the independent contractor is related to a ate&r of the governing
body within a prohibited degree, the aepotism law would pmhibft tlte hiriag.
Ln~,tbenepodsm1Pwgovenuthehirineofanindividualwhether
tlte iadividual fs hired as an employee or aa independent contractor? To the extent
that Attorney General Gpiaioa JM492 stated that the enactment of V.T.CS. article
w18b(now chapter 171 of the Local Government code) ia 1983made the nepotism
statute ianpplicable to na individual independent contractor who is hired to provide
persoaal services, it is incorrect and should be disregarded. Therefore, a school
district may not hire an individual related to a board me&r within a prohibited
degree to provide legal setvices, regardless of whether the iadividunl is hired as a
regular employee or as aa independent contractor.
SUMMARY
A anmty commissioners court may not hire an individual
related to a camty commissioner within a pmhiiited degree,
regardless of whether the individual is hired as a regular
eatployee or .as an independent contractor. Statements ia
Attorney General Opiioa JM-492 (1986) to the effect that the
nepotism statute did nbt apply to nn individual hired as an
independent contractor are incorrect and should be disregarded.
DAN ‘MORALES
Attomey General of Texas
WIIL PRYOR
Pii As&ant Attorney GeneraI
MARYKRLLRR
l2axutive Assistant Attomey General
p. 381
Honorable Romem Moliaa- Page 4 (DM-76)
JUDGEZOLUE !ITMKLBY (Ret)
spedaIAssistaatAttomeyGeaeral
RENEAHIcK!l
Spedal Assistaat Attomey Geaeral
MADELEJNER JOHNSON
Chair, OpMoaCommittee
Prepared by Sarah Woelk
Assistant Attorney General
p. 362