Untitled Texas Attorney General Opinion ( 1951 )

PRICE DANIEL
ATTORNEYOENERAL
January 15, 1951
Hon. Charles R. Martin Opinion No. V-1142
County Auditor
Harriron coun* Ra: Legality under nepotism
Marshall, Texas statutes of continuing county
employment of a brother of
a newly elected County Com-
mirrioner under .eubmitted
facts.
Dear Mr. bdarfin:
You state that for a number of years subsequent to 1932
the Couuty Commissioners Court employed a certain peraon in
Precinct No. 2 as an employee in the County Road and Bridge De-
partment. Gn October 21, 1948, the employee’resigned his position
with the Road and Bridge Department, and accepted employment in
December. 1948, with the Harrison County Tarracfn8 Committee,
an agency,authorined by the Commin~ionerr Court under Article
2372. V.C.S. The employee in question served ~continuoualy with
the Terracing Committee from December, 1948, to June 1.1949.
when he returned to the Road and Bridge Department’in Precinct
No. 2. Hir employment in Precinct No. 2 has been continuous
rince ae date d hi8 return on June 1,1949.
At the last General Election in November, 1950. the
brother of the employee in queatioa wag elecbd County Commilr-
sioner from one of the County Precincts ather than Precinct No.
2. Ho qualified and took office as County Commissioner on Sanu-
ary 1, 1951.
You amk whether the retention of the county employee in
question l
ubeequent to January 1,1951, will violate the nepotism
dab&e (Article 432, V.P.C.).
Article 432, Vernon’s Penal Code, as amended by House
Bill 508, Acts 51rt Leg., R.S. 1949, ch. l26, p. 227# provides:
“No officer of thimState or any officer of any
district. county, city, precinct, school dirtrict, or
other municipal aubdfviaion of thir State, or any of-
ficer or member of any State, district, county, city,
rchool district or other municipal board, or judge
Hon. Charles R. Martin, page 2 (V-1142)
of any court, created by or under authority of any
General or Special Law of this State, or any Member
of the Legislature, shall appoint, or vote for, or con-
firm the appointment to any office, position, clerkship,
employment or duty, of any person related within the
second degree by affinity or within the third degree by
consanguinity to the person so appointing or so voting,
or to any other member of any such board, the Legisla-
ture, or court of which such person so appointing or vot-
ing may be a member, when the salary, fees, or com-
pensation of such appointee is to be paid for, directly
or indirectly. out of or from public funds or fees of of-
fice of any kind or character whatsoever; provided,
that nothing herein contained shall prevent the appoint-
ment, voting for, or confirmation of any person who
shall have been continuously employed in any such of--
fice. position, clerkship, employment or duty for a per-
iod of two (2) years prior to the election or appointment
of the officer or member appointing, voting for, or con-
firming the appointment of such person to such office,
position,. clerkship, employment or duty.’
It will be observed from the above that the retention of
the employee in question after January 1, 1951,will violate the nep-
otism statute unless he comes Within the proviso added by the 1949
amendment.
Certainly the employment of the party in question by the
Harrison County Terracing Committee made him a county employee.
See Article 2372~. V.C.S. Counting such employment, her has been
continuously employed by the county in one capacity or another from
December, 1948. to January 1, 1951,a period in excess of two years.
Such continuous employment is necessary because as we construe
the Act, the Legislature intended that the employment for a period
of “two (2) years” be immediately prior to the critical date which
brings the nepotism law into operation. The language found in the
emergency clause of H.B. 508. supra. to the effect that *numerous
employees . . . are required to give up such employment. . . who
have continuously served the State” clearly indicates that the pro-
viso was not intended to apply to a pe.rson not employed at the time
the related official takes office and for two years immediately prior
thereto.
Our conclusion with respect to the meaning of the -two
year period’ as used in the above statute finds support in ~Common-
wealth ex rel. Adamn v. Stephens, 345 Pa. 436, 28 A.2d 92=,
wherein the Court sad:
Hon. Charles R. Martin, page 3 (V-1142)
‘The ‘Act. . . providing for the office . . . sets
forth the following qualification for said office: ‘One
person who shall be a competent accountant and an
elector of the borough for at least four years prior
to his election’. (CourPs emphasis.]
‘We are called upon to determine what the
Legislature meant by the words ‘four years prior
to bis election’. It is contended on the part of the
respondentthat,~we can go back any number of years.
in order to make up the four year requirement. In
other words, that since the respondent was an’elector
of the Borough of Wilkinsburg from 1920 to 1925 that
he has satisfied the requirements of the Act insofar.
as it relates to the four year requirement as an eleti-
tar.
“We are of the opinion that when the Legislature
provided that the prospective officeholder shall have
been ‘an elector of the borough for at least four years
~. prlOr to his eleCtion’, it meant immadiately prior to
his election. Since it is conceded that the respondent
was not’aa elector for four years immediately prior
to his election, he is not entitled to hold the office of
controller and must be ousted therefrom. . . .v (Em-
phasis added.).
The only further question to be determined is what was
meant by the worda “prior to the clcctisn or appointment of the
officer” as used in the ~abwe proviso. If by the use of the word
‘electionv it was intended thst the two-year period would date
from the tims of the official’s election at the polls, or from the
time of tha canvassing of votes by the, proper officials, then ob-
vious1y we do not have’here a trvo-~ear,priod of Coatinuotta rm-
ployment.
We have concluded that the word ‘election” as used in
the above Act should be construed to mean the time of taking of-
fice, which in this instance was January 1, 1951. It is to be noted
that the Act uses the words “election or appointment.” and clearly
the Legislature intended the critical date from which the two-year
period was to be computed should be the same in the case of either
an appointed official or an elected official, or it would have used
language different from that found here. The crption,to House Bill
508 so provider, because it is there stated that the provisions of
Article 432, Penal Code, shall not apply to permono holding posi-
tion8 for two years *prior to the time an officer or board member
related to them takes office.”
--. .
Hon. Charles R. Martin, page 4 (V-1142)
You are therefore .&vised that the retention of the
county employee in question st+sr Sanuaiy ,l, 1951,will not vi-
olate the fiep&ism law (Articlh 432, V.P.C.).
SUMMARY
A person who was employed by the county at
the time’bis brother first took office as County Com-
missioner,,on January 1,1951, and had been continuous-
ly so employed for a peripd of ,taroyears immediately
prior thereto, m+ be reta&md as a county employee
witbout violating tke nepotism’statUt.e (Article, 432.
V.P.C., as amended, Acts 51s$.&eg., R.S. 19t9, ch.
126; .p. 227).
Yours very truly,
PRICEDANIEL .
:. .
Attorney
Gea@tal
.
APPROVED:
&Ldb.S
Price Daniel Ckarles D. Matkews
Attorney General First Assistant
CD&b :’
.