Untitled Texas Attorney General Opinion ( 1971 )

,
October 8, 1971
Ronarable Preston Smith Opinion No. M-971
Governor of Texas
State Capitol Re: Effect of State’s nepotism
Austin, Texas 78711 law (Articles 432 and 435,
V.P.C.) on employments by
regional councils of govern-
Dear Werner With: ment .
Yout request reads in part a8 folIowr:
“The Governor, as the State’s chief
Zanning officer, has the responsibility
$ or “’administering State financial assis-
tance to the verious regirsael councils of
governments in Texas. By stats law, this
office also prerider techmical assistance
to these regional counc~ils as necessary.
In thir regard, I am hereby requesting youi
WEftten OpiaiOm CWcsrmimg a point e§ law
which has recently arisen in one sf there
Ngional ceuucils.
“Specifically, what effect, if any,
does the State’s nepotism statute have in
.regard to re ional ceuncils of governments?
If the nepot 4 am law is applicable, are there
points WI&h may ,be wwmerated as general
uidelines for ,regional councils to follow
f o insure
.‘, that they are not in violation?”
Arttcle 433, Vernou’s Penal Code, provides in part:
“No officer of this State nor any
officer of aay district, county, city, pre-
cinct, sclwaal district, OF other municipal
oubdlvision of this State, nor any officer
er member of any State district, county,
ciQ-9 school district or other municipal
board, or judge of any court, created by or
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Honorable Preston Smith, page 2 (M-971)
under authority of any General 01 Special
Law of this State, nor any member of the
Legislature, shall appoint, or vote for, or
confirm the appointment to any office, posi-
tion, clerkship, em loyment or duty, of any
person related with Pn the second degrees by
affinity or within the third degree by con-
sanguinity to the person so ap ointing or
so voting, or to any other mtm1 er of any
such board, the Legislature, or court of which
such erson so a pointing or voting may be
a mea 1 er, when t Re salary, fees, or compensa-
tion of such appointee is to be paid for, di-
rectly or indirectly, out of or from public
funds or fees of office of any kind or char-
acter whatsoever; . . .‘I.
Article 435, Vernon’s Penal Code, provides:
“No officer or other person included
within then third preceding article shall
a prove any account or draw or authorize
t Re drawing of any warrant or order to pay
any salary, fee or compensation of such
ineligibl,e officer or parson, kpowing him
to be so ineligible.”
It thus appears that Article 432 proNbits any
officer any subdivision
of of the State from appo.inting,
votin for or confirming the appointment to any office,
posit f on, clerkship, e loyment or duty, of any person
related within the proh7 bitive degree when the salary,
fee or compensation is to be paid for directly or in-
dkrectly out of gr from public funds of any kind or char-
acter.
The regional councils of governmsnt,ars created
pursuant to the provisions of Article lOlln, Vernon’s Civil
Statutes, and are governed by,a.regional,planning commission.,
Section 4 of Article 1Ollm specific,ally states, .‘a re,gional
pl;``t;ommissi~n shall be a polite1 subdivision of’
. It is therefore our opinion that the provi-
sions of A&iey432 and 435, Vernon’s Penal Code, are appli-
cable to the smpioyees of a regional planning commission.
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. ~. ,, ,/’
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Ibnorabla Preston !%ith, page J (M-971)
<
Section 6 of Article lOllm, supra. provides:
“Sec. (a) A Regional Planning Com-
6.
mission is authorized to apply for, contract
for, receive and expend for its purposes any
funds or grants from any participating govarn-
mental unit or from the State of Texas, federal
government, or any other source.
*l(b) The Commission shall have no p;;;r
to levy any character of tax whatever.
participating governmental units may appro-
priate funds to the Commission for the cost
and lxpenses required in the performance of
its purp0sas.e
Articles 432 and 43s do not rohibit the payment
by a participating govornmantal unit o e a rant payable
to a regional plrnniag commission. Thaso rticlos would,
however, prohibit the payment of any salary, fee or corn--
pensatian to a parson related within the prohibitive
degree by eithor tho rogional planning cammission or govom-
mental unit.
Tho wtim laws of this State (Articles
432 and 435, V.P.C.) lro licablo to rogianal
planning caissions and t7 3 ir amployeos. These
Articles do not prohibit payments of grants by
governmental units to a ro ional planning corn- .
missicm, but the do rohi it lyments to per-
sems related %
rit h in t ii a prohib Ptive dograa af
a salary, foe or compoasation whether suck pay-
mont is made by a gevormmental unit or the
rogional plannimg commission.
Prepared by John Reeves
Assistant Attorney Ganoral
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Honorablo Proston Smith, pago 4 (Y-971)
APPROVED:
OPINIONCOMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Malcolm Quick
Sally' Phillips
Dick Chote
Harriet Burke
SAMMCDANIEL
Acting Staff Legal Assistant
ALFREDWALKER I.‘.
Executive Assistant
NOLAWHITE
First Assistant
.
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