Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
December 15, 1980
Honorable John W. LaGrone Opinion No. MN-286
HutchinsonCounty Attorney
HutchinsonCounty Courthouse Re: Whether the wife of an adult
Borger, Texas 79007 probation officer may be employed
as a clerk in the probation depart-
ment
Dear Mr. LaGrone:
You have asked whether the nepotism law prevents the wife of the
chief probation officer from working as a clerk in the probation department.
Article 5996a, V.T.C.S., provides in pertinent part:
No officer of this State nor any officer of any
district, county. . . of this State. .~. created by or
under authority of any General or Special Law of this
State. . ; shall appoint, or vote for, or confirm the
appointment to any office, position, clerkshi&
employment or duty, of any person related within the
second degree by affinity or within the third degree
by consanguinity to the parson 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
public funds. . . . (Emphasisadded).
A person who has been employed for two years continuously prior to the
time his relative attains the power to appoint him may continue in his
employment. V.T.C.S. art. 5996a; -see ‘Attorney General Opinion M-671
m7ox
Article 42.12 of the Code of Criminal Procedure makes the following
provision for staffing the probation office:
Where more thandone probation officer is required,
the judge or judges shall appoint a chief adult
probation officer or director, who, with their
approval, shall appoint a sufficient number of
assistants and other employees to carry on the
professional, clerical, and other work of the court.
p. 912
John W. LaGrone - Page Two f&V-286)
Sec. 10(b). This provision was enacted in 1965and the language has not been changed.
Acts 1965, 59th Leg., ch. 722, at 493. In our opinion, it gives the chief adult probation
officer a joint power with the district judge to appoint assistants and clerical
personneL In Letter Advisory No. 156 (1978), this office considered a similar statute
authorizing the trustees of a junior college to hire persons recommended by the college
president. It determined that article 5996a prohibited the president from recom-
mendhg that his relative be hired. Cqmpare Attorney General Opinion MW-56
(G.9;iizt question whether school supermtendent exercised delegated power to
. See also Letter Advisory No. 152 (1976). Article 5996a prevents the
employment of the chief adult probation officer’s wife in the probation office unless
she served two years in her position prior to her husband’sappointment to that office.
By judicial order effective September 1973, the husband was appointed adult
probation officer. He had previously served as assistant adult probation officer. The
judge issued orders alsO effective September 1, 1973, appointing the wife as clerk of
the adult ptobation department and naming a successor in the position of assistant. No
violation of the nepotism law is found in the initial appointments. These were made by
the judge, who was not related to any of the appointees.
It has been sqgested that there was no chief adult probation officer until
September 1979, when a judicial order setting salaries refers to the husbandas “Chief
Adult Probation Officer.” However, we believe that as of 1973 the husbandwas in fact
the chief adult probation officer. Section 10(b) states that there shall be a chief adult
probation officer when more than one ~probation officer is required. There was an
assistant probation officer in 1973, and we believe that the adult probation officer
occupied the position of chief even though he did not use the formal title. The statutd
gave hhn the powers of the chief whether or not he exercised them. Governmental
powers must be exercised by ,the officer designated by law and may not be delegated to
others. oody
M 373 S.W.2d 793 (Tex. Civ. App. - Austin
1963, writ repd n.r.e.1. Thus, as of September l, 1973, the person designated as adult
probation officer had power to appoint clerks in the department, stiject to the judge’s
approvaL
The adult probation officer did not initially appoint his wife ss clerk in the
department. If the wife were employed on a yearly contract, she could serve out the
year. At that time, the nepotism law would bar the chief probation officer from
renewing her contract. If she were employed on a month-to-month basis, where in
effect a new contract is made each month, she would continue to serve for one month.
See Attorney General Opinions M-857 (1971);G-1406 (1939); Letter Advisory No. 70
(1973). If her employment was at will, she could not be retained after her husband’s
appointment as chief in 1973. Although the nepotism statute would not necessarily
require him to discharge his wife immediately, dependhtg on the term of her initial
employment, it would prohibit any act resulting in her further employment or
improvement of position. Letter Advisory No. 70 (1973).
p. 913
John W. LaGrone - Page Three (NW-286)
SUMMARY
Article 5996a, V.T.C.S., prohibits the chief adult probation
officer appointed under section IO(b)of article 42.12 of the Code
of Criminal Procedure from taking any action to renew or
extend his wife’s employment as clerk in the probation
department.
Attorney General of Texas
JOHNS W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Rxecutive Assistant Attorney General
Prepared~by SusanGarrison
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
SusanL. Garrison, Acting Chairman
Rick Gilpin
Nancy Lynch
Bruce Youngblood
p. 914