Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
December 14, 1984
M MATTOX
ttorney General
qreme Court Building
Honorable Abelardo Garza Opinion No. .JM-254
0. Box 12548 Duval County Attorney
Jstin. TX. 78711-2548 P. 0. Drawer H Re: Whether the salary of an
1214752501 San Diego, Texas 78384 investigator employed by a county
,,ex 910/674-1367
attorney and related to a county
dcopier 51214750266
commissioner may be increased
‘4 .lackson. Suite 700 Dear Mr. Garra:
allas. TX. 75202.4506
.41742-6944
You employ an investigator who is a first cousin of a Duval
County commissioner. You would like the coraaissioners court to grant
324 Alberta Ave.. Suile 160 the investigator a salary increase and, for this reason, ask whether
Paso. TX. 799052793 the commissioners court would violate the nepotism statute, article
151533.3464 5996a. V.T.C.S.. if it approved the increase.
101 Texas. Suite 700
Article 3328, V.T.C.S.. governs the employment of assistants,
ousbm, TX. 77002.3111 investigators, and other personnel by county attorneys. See art.
131223-5666 332a. §l (“prosecuting attorney” f;fned to include Tounty
attorney”). The county attorney employ such assistant
prosecuting attorneys, investigators, secretaries, and other office
36 Broadway, Suite 312
personnel” as are necessary to operate his office. Id. 12. He is to
“bbOCk. TX. 79401.3479
x1747.5238 set the salaries of his investigators and other personnel subject to
the approval of the commissioners court. Id. 55. Article 3902,
V.T.C.S.. prohibits the commissioners couF from attempting to
Jo9 N: Tenth. Suite S
influence the county attorney’s choice of employees. See Renfro V.
IcAllen, TX. 78501-1685
121662-4547
Shro shire, 566 S.W.Zd 688 (Tex. Civ. App. - Eastland 1978,wrlt ref’d
‘beeper v. Stewart, 66 S.W.2d 812 (Tex. Civ. App. - Eastland
1933, writ ref’d).
30 Main Plaza. Suite 400
an Antonio. TX. 78205-2767
Article 5996a. V.T.C.S.; provides that no member of the
121225~4191
commissioners court
” Equal OpPortunltYl shall appoint, or vote for. or confirm the
ffirmative~Action Employer 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 appoint-
ing or so voting, or to any other member of any
such board . . . 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
p. 1131
Honorable Abelardo Garra - Page 2 (JM-254)
from public funds or fees of office of any kind or
character whatsoever. . . .
The commissioners court authorizes the position of investigator
and has approval power over the county attorney’s salary recommenda-
tions but has no control over the person who is appointed to that
position. Under such circumstances, this office has determined that
the action of the commissioners court does not come within the
nepotism statute. See Attorney General Opinions H-697 (1975); O-4895
(1942); O-1954 (194n O-480 (1939); Letter Advisory Nos. 116 (1975);
70 (1973). Nor does the court's action in approving a salary increase
for the county attorney's investigator violate article 5996a. V.T.C.S.
Attorney General Opinion H-1210 (1978). See Attorney General Opinion
O-1849 (1940). The commissioners court caxt require that the salary
be paid to a particular person. Thus, the commissioners court would
not violate the nepotism law by approving a salary increase for the
position of county attorney's investigator, even though the individual
who serves as investigator is related to a commissioner within the
prohibited degree.
SUMMARY
The commissioners court would not violate
article 5996a. V.T.C.S., by approving a salary
increase for the position of county attorney's
investigator, even though a first cousin of a
commissioner holds that position. Article 3902,
V.T.C.S.. bars the cosasissioners court from
influencing the selection of a person for that
position.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
D. 1132
Honorable Abelardo Garza - Page 3 (JM-254)
APPROVED:
OPINION COMHITTEE
Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood
p. 1133