-
. R-20 Honorable Clayton Bray, County Attorney, Sutton County, Sonora, Texas Oplnlon No. V-20 Re: Whether or not a daughter of the Sheriff may 5erve as deputy without pay. And a related question. Dear Sir: Yam request for an opinion upon the above titled sub- ject matter 15 as followe: “Uill ye advise a8 to whether the Nepotism Statute, or any other pizohibltion statute, pre- cludes a shsr;ff,,from making the following appoint- ments: “(1) A daughter to be Deputy without pay. If she may not be a Deputy without’ pay, may she aeeiat in the office’ a8 a voluntary worker? “(2) A huqband of an already appointed Office z;yt& #aId husband to be e Deputy with- . “Obviously, the appointment of a Depltg wLthout pag ’ would be to the advantage of the Sheriff a5 it would enable him to dlscti%ge the duties of his offloe with a min1m.m expense, however, I am quieelcal a- bout the sanctity of the public records of the Sher- iff's duties,as a Tax Assessor and Collector, and a- bout the usual authority of a deputy to do all things his principal might do,. even though the dep- uty serves without pay. Article 3902 of the Revised Civil Statute5 as far as pertinent is au follows: “Whenever any district, county OP precinct officer shall require the seFvicea of deputies, assistants or clerks in the performance of hia Hon. Clayton Bray, page 2 v-20 duties he shall apply to the County Commi.ssfoners Court of, his county for authority to appoint such deputies, assistants or clerks, stating by sworn application the number needed, the position to be filled a?$ the amouiWto be paid* Said appli- cation shall. be accompanied by.a statement showing the probable receipt from fees, cdmmisslons and compensation to b’e collected by said office dixr- ing the fiscal year cind the’probable disbursements which shall Include all salaries and expenses of said office, and said court shall’make Its order authorlrilhg the appointment of such deputies, as- sretants and clerksand fix the compensation to be paid them within the llmitatlona herein prescribed and determine the number to be appointed as in the discretion of said court may be proper; provided that in .no case shall the Commfsaioners t Court or any member there attempt to influence the appolnt- ment of any person as deputy, assistant or clerk in any office. Upon the entry OP such order the offi- cers applying for such asslstahts, deputies or clerks shall be authorized tb appoint them; provid- ed that said compensation shall not exceed the max- irrmmamount hereinafter set out. The compensation whLch may be’allowed t. the deputies, assistants or clerks above named fo ;P the services shall be a rea- sonable one, not to exceed the following amounts : “1 * In countiee having a population of twentg- five thouqand (25,000) or less inhabitants, first assistant ‘or ohief deputy not to exceed eighteen hundred ($1800) dollars per annum; other assistants, deputies or clerks not to ex@eed $i:tm$n hundred ($1500) dollars per annum each, This bracket provision applies to Sutton County. A deputy sheriff is a public officer as contra- distinguished from a mere employee of the sheriff, and Is charBed with the p~rformanoe Of certain governmental functions. The office is created by law0 The appointment of such deputy is reg - ulated by law, To becolpe a.depixty sheriff;’ therefore, the statutes regulating such 6ffice and the manner of fil%fng must be compli6d with, The mere vbluntarg’servfcea of one in the sheriff’s offfce, Wth or.wlthout gag from any h)oiwoe, “~would not make such volunteer a deputy’ sheriff D He would be a stralager to the duties of the ehetifff and wouPd not be authorFzecP to perform any of them what- soever o It IE the poliCy of the law to fix’ and allowI;o;~e;M;tion adequate to the offfofal services to be performed. Hon. Clayton Bray, page 3 v-20 .: contemplated by law that any officer sha2.L hold or exercise any plblib offtoe upo.n, any consideration other then that provfd@ by the law creatlng+&ls office. So emphatically does the law require this that the framers of our COnstitutlon have written an official oath to be :. taken by the officer solemnly swearing, “that I have not directly ‘I or lndlrectlg paid, offered, or promised to pay, contributed, or promised to contrlbute any money, or valuable ,thing, or promise3 any public office or employment, or as a reward for the giving or withholding a vote at the election at which I was elected.” (Art. XVI, Sec. 1,) In State vs. Humphreys,
12 S.W. 99, a quo warrant0 case before the Supreme Court,, Justice Gaines, afterwards Chief JustLce, oonaidered Mr e Humpbreys t public announcement for oandldates ,for county clerk in the following words: “To the voters of Mills County: As I have been unable to make such a oanvas as was necessary to infdrm, you in person of my views on the question of ox-officio services, I beg leave by this method to aay that, if elected to the office of county clerk, I will serve for the fees of the office, and without ex-officio pay.” Concerning this the Justice said: “To permit a candl- date, in order to influence the voters, to hold out a promise that he will serve in case of election for less than the fees ‘or salary fixed by law, is to thwart the will of the LegFslature, and to defeat the object of the law, It 15 unjust to honest aspirants who rely upon their merits for polltlcal preferment, and tends to degrade ,the public service by making the offfces not the reward of official capacity and honorable conduct, but the prey of those \?po, by reason of incapacity to earn a livelihood in the common pursuits of life, and wllllng to undertake the duties of public service for less sum than the Legislature has” detmed an adequate compensation for the work. It puts up the 8 offices of the State to the lowest bidder, and conduces to ln- fluence the voters to lose sight of the personal fitness of the respective candidates, and to be governed by consfderatLons of a false eoonomy I) It Is gratifying consideration that this practice has been of such Infrequent occurrence in our State that the Legislature has not felt called upon to pass a etatute In aid of the Constltutlon more effectually to r?medy the evF1.” The soun&$ubllc policy of the State thus announced ia supported by the’&.&tlcels quotations from standard textbook wrFtera and judlclal declslons O .~ While deputy sheriffs are not selected by popular elec- tions, they are nevertheless officers of the State who.are re- gutred to take the Constltuttonal oath of offlce, and the same high standard of policy applies to them as to elective officers. ‘I Hon. Clayton Brag, page 4 v-20 If a prOWee such a8 that made by canaidate Humph~eys to accept comp6nsatfon at a lesser sum than that allowed by law is censuFable,“for nsnch gsea%er lpeaaon the promise of one to ~889’90 without any reslneratlon fs offensfve to the policy of %he State. .~., Throop, a reapeotable authorfty on Public Offfc6pe; has this to 88 0 ‘Every pepson gho 18 appofn%ed to any office of’ this kind f public) ’ 1s forbidden to make, and the person who makea <+* the appbfntment fs forbidden to receive, any paymen% In respect of the appointment 0” (set b 52) 0 Again he say; “An English case, where, such a bargain, between~ a lIPanfcfpal corporation and its officer, was decreed in equity to be unlawful, as being ,’ against plb$ic polWg, on the ground thert the law would not allow any bargain to be made, reepsotfrg an appointment to a public office, and also beoause the officer Is considered to require them (his fees) sto enable him to uphold the’ dignity ‘and perform the duties of hfs offfoe’ wa8 fully cited fn a former chapter.” (Set m 452) o Yet again $6 safsin “A board Of officers, havfng the power of appointment to an offLoe, oannot reduoe the amount, ffXed by law as %bs salary Of the office, or make a binding eon- %??a&, with the pemon agpofntW to till it, to perform its ilutlea at a less aurn0 and the acceptamcr of the office bg him, and his dfacharge’ of ‘&he &ta$fesrthereof, do not oon&f%ute a bintiimg ccn- .tract to accept au&i PeduoeiI sum, or a waivep of the statutory p~?ovliaioit; but he aan aftePwar"&a enfOrm hii, right %O %h& statu- tory’aalsPg, bg mandamus, or other appropH.ate legal p~oeeedfng.” (Sea. 456) o Cf&tek%iooa, &a. eialkm`` aPath@Pfty on Public Policy, “So far haa the Bpoc%rI~e wbfoh prohfbfta anything that migh?!:i fluence the aeleetion of #MALo 0fffoePr ‘from other o6nsidere- tfons %hm that of’pw5oma~ merit besaa aamL16, %%a%an electlom secured lag a poaomiae on %he pap% bf a candidate to pepfom %Re dutfea of the ofifce to whieh.he eglpfre8, if e%eoted, fop less than the legal fees or saPaPy~ fa void. Chn6hp??omfses tend to swerve’the voters Pram $18 duty a8 a ~f%fzsn; to blind hfs peroep- tfons aB to the sole question he ubOul& con~&W?~ --- ,%he qualf- fWa%ions of the oaM2dats ---anfl to fir them upon considera- tions, altoge%her fo46eign to the props exePofee of the highest right known to free men, the Fight of 8luffrage -- a Light upon whose abaolutsly free and epntz?anapnePl~elsr~oise depend8 the pe~petuitg of O~P republican: fnatf%ut;fon& a E~wever lauudable fte object, ft fe demo~a$LzAng fn ftar taadlenefep,, and utterly aub- ve~slve of the plafneat dfe%a%ss of pnbUc policy0 We will ilwthe~ say8 however, there Is no law of nepotf em OP other whateoever %ha%would forbfd a’she~iff to have another, pepson in his offfae w%o $ratuLtatsPy pe~fo%sus manual OP efePfea1 work no% pertainfng to the official dutfep, of the klherfff 0 SW% person would be acting in hfa ‘fncUvfdua% capacity and not in any attempted capacity set a deputy or even an employee. Such a Pel- Hon. Clagton Bray, Page 5 v-20 ation would no% be contractual or binding on anyone. Further, we will say there Is nothing iti the law which would prevent a sheriff from appointing the husband of a woman whopwa% already appointed an office deputy, merely~ because of that tielationship, and where, of course, such husband was sppointed as regular deptles are appointed, and not as a voluntatiy worker “‘without pay. Thus far we have dealt particularly with the ques%idn of a deputy sheriff serving without pay. In order that we may be sure to cover every phase of the question raised by your in- ” quirg, we now discuss the features of nepotism. Article 432, penal code, reads as follows: “No officer of this State or any officer of any district, county, city, pre- cinct; school district, or other m.Niicipal subdivision of this State, or any officer or member of any Sta%e, district, county, city;school distr$c% or other mnicipal board, or judge of any ‘cixart, areated 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 confirm the appointment to any office, positton, clerkship, employment or duty, of any peraon related within the second degree by affinity or within the third degree by consangui- nity to the person so appointing or so voting, or to any other member of any such board, the Legislature, or court of which such psrson 80 appointing or so voting, may be a member, when the salary, feea or compensation of such appointee is to be paid for directly or indirectly, out of or from public funds or fees of office OP any kind OP character whatsoever.” Discussing our questions seriatim, we beg to advise the Nepotism Statute wou9d no% prevent a sheriff’s appointing his daughter to be deputy without pay (if any person cculd be appointed depaty without pay) since aa ia seen from the Nepotism Statute ‘, above quoted, ;%lis not applicable p x CBDtw heI?e it involves DayA ment Out of ~1 1 c funds as comnenaation. There is no statute, whether fiepotiam or other, that would prevent the sheriff’s per- mltting a voluntary worker in his office, to do clerical or other unoffiaial work. The husband of a woman who is already an office deputy as we have”shown above, could no% be appointed deputy with- out pay, but there is no rsason why he might not be appointed a deputy in the statutory method unless, of course, he is related to the sheriff within the prohiblted degree above quoted. These authorities IAPBOld, but the sound principle of mblic policy there announced is itself old and well-grounded in any Democratic system OS seleotion of plbllc servants. We know of no court declaion OP text writer announcing any contrary rule. Hon. Clayton BPEI~, p&e 6 v-20 There is an opinion by this department, however, No. o-1896. which oontaina this language: “Thus we advise thst the sheriff has authority, with the approval of the commissioners’ Court, to appoln% an additional deputy to serve without any com- pensation.” TRe wrl%eP of that opinion cites no authority for the holding; and indeed such statemen% was not a% all necessary .. to a complete answer to the only queatlon propounded to him ,for an opinion Q His dfscussfon of the pertinent statzltes ~involv.&?l ! in the request shows ths$ %he,language above quoted was not re- sponsive o The question ‘of public policy waa In no way presented OP cons ideped a We think the opinion should be ov,erruled, and it . ,’ is here overruled insofar as i% announcea %he doctrine that the ‘I sheriff may fn alag event bargafn with 0 depltg to accept the office for any consideration o%beF than the compensation therefor t as fixed by law, I These considerations, we think, compel a negative answer 0’ to all of your inquiries involving ln any way the question of the right to appoint an deputy sheriff without compensation, regardless of any consi i eration of the Statute of Nepotism0 This concluglion Fe in line with the opinion by this De- partment of date April 26, 1932, written by Assistant Attorney General Scott Qainea, to Honorable Wapdlow hne, County Attorney of Shelby Counfg. SUrnRY : (1) The public policy of this State forblds the appointment of a depatg sheriff to serve without pay. (2) A sheriff’s daughter mery~%awful.ly perform non-official, manual, or clerical sewices for him, but such gpatuitoua services are VoluntaPg a~cl the agreement thepefor binds no one, and Imposes no du- ties upon the daugh%er ;nos llabflltles on ithe father or the county. (3) T%e husband of a appointed dep- utg, may not lawfully be appointad eputy 8herlff without pay. .(4) 8uch hubian& of a depm%T may lawfully be appointed depr%y in; the statutory manner of such appofritment Q .: Hon. Clayton Brag, page 7 V-20 Very truly yours ATTORNEYG~ERALOFTEXAS By s/Ocie Spear Ocle Speer Assistant gS/JMc/jrb/wc APPROVED FEB. 4, 1947 s/Price Daniel ATTORNEY GENERAL Approved Opinton Committee By BUB Chairman
Document Info
Docket Number: V-20
Judges: Price Daniel
Filed Date: 7/2/1947
Precedential Status: Precedential
Modified Date: 2/18/2017