Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
Aul:ust30, 1984
JIM MATTOX
Attorney General
Supreme Court Building Honorable Gibson D. (Gib) Lewis Opinion No. JM-195
P. 0. Box 12548
Speaker of the House!
Austin, TX. 78711. 2546
5121475-2501
Texas House of Reprc!$entatives Re: Whether article 5996a.
Telex 9101874-1367 P. 0. Box 2910 V.T.C.S., the nepotism law,
Telecopier 5121475.0266 Austin, Texas 78?('5 is applicable to appointments
to the interim State Board of
714 Jackson, Suite 700
Education
Dallas, TX. 75202.4506
2141742.6944 Dear Speaker Lewis:
You request our opinion as to whether article 5996a, V.T.C.S..
4824 Alberta Ave., Suite 160
the nepotism statute, is applicable to appointments to the interim
El Paso, TX. 79905.2793
9151533.3464 State Board of Edwzltion created by House Bill No. 72. Acts 1983,
68th Leg., 2d C.S.: ch. , 94. at (not yet published).
That bill creates :I transitional State Board of Education, whose
‘701 Texas. Suite 700 members are to be ;llBpointedby the governor. upon recommendation of
.ousto”. TX. 77002~3111
the Legislative Edwation Board. The bill enacts section 11.22(k) of
7131223.5886
the Education Code t:cprovide that members
606 Broadway. Suite 312 shall receive no salary but shall be reimbursed
Lubbock. TX. 79401.3479 for all e,:pensesincurred in attending meetings of
6061747-5236
the board csrincident to any judicial action taken
because oi'appeal from a board order.
4309 N. Tenth, Suite S
McAllen. TX. 78501.1685 You ask whethw: article 5996a applies to appointments to the
512,662.4547 board. That statute provides, in pertinent part:
200 Main Plaza, Suite 400 No off<.c:erof this State nor any officer of any
San Antonio, TX. 78205.2797 district, county, city, precinct, school district,
5121225.4191 or other municipal subdivision of this State, nor
w officer or member of any State district,
county, ciry, school district or other municipal
An Equal Opportunity/
Affirmative Action Employer
board, or ijudgeof any court, created by or under
authority >f any General or Special Law of this
State, nor any member of the Legislature, shall
appoint, '+: vote for, or confirm the appointment
to any ofFLce, position, clerkship, employment or
duty, of sny person related within the second
degree by affinity or within the third degree by
consanguin:.tyto the person so appointing or so
vlxing, o:: to any other member of any such board,
p. 857
Honorable Gibscr!D. (Gib) Lwis - Page 2 (JM-395)
the Legislature, or court of which such person so
appointing or votl.rg may be a member, when the
salary, fees, or wn!pensation of such appofntee j-6
to be paid for, dirxtly or indirectly, out of or
from public funds (IIfees of office of any kind or
character whatsoewz . . . .
Specifically, you inquire whether the reimbursement of expenses to
board members constitutes "salary, fees, or compensation" for purposes
of article 5996a.
No Texas case has direcl::yaddressed this question.
Although one
court has said that the word "'compensation' is broad enough to
include recompense of expen!;I!s,"Tierney v. Van Arsdale, 332 S.W.2d
546, 549 (KY. 1960), the majority of cases from other !urisdictions
which have considered the q;estibn have held that reimbursement for
expenses is not embraced within the meaning of the term. In Manning
v. Sims, 213 S.W.2d 577 (Ky. :948). for example; the court said that
the allowance of :xasonable expenses'incurred in
the discharge of the official duties of an office
is neither salary, compensation nor an emolument
of the office . . .
213 S.W.2d at 580. In *x,rman v. Williams,,415 P.2d 597 (Okle.
1966), the Supreme Court of Oklahoma declared: ‘
office and traveling expenses iuctirredby rcembers
of the Legislative Council are expenses of the
performance of clifjcial duties and are not
compensation, salnr:ror emoluments . . . .
415 P.2d at 602. And in Happe v. State, 469 P.2d 909 (Wash. 1970),
the court said that
the word 'compensation' . . . does not embrace nor
include appropriats reimbursement for expenses
incurred . . . .
469 P.2d at 912. ---
See Whitehc'adv. Julian, 476 S.W.2d 844 (Tex. 1972)
(expense allowance paid tcs city mayor does not make position a
"lucrative" office within meaning of art. III, P19, Tex. Const.,
making the holder of a l.ucrative office ineligible for state
legislature).
In our opinion, the telal"compensation" as used in article 5996a
should not be construed to include statutory reimbursement for
expenses incurred in attendj,r,g
meetings of the interin:State Board of
Education. Thus, since no "salary, fees or compensation" wjll be paid
p. 858
Honorable Gibson D. (Gib) Lew:.s- Page 3 (JM-195)
to members of the board, article 5996a has no application to appoint-
ments thcl-eto.
_:iUMM"RY
Article 5996a, V.T.C.S., the nepotism law, is
not applicable tc appointments to the interim
State Board of Edw;~tion created by House Bill No.
72, Acts 1983, Sj.xty-eighthLegislature, Second
Called Session, chapter , section 4, St
, since the rlembers thereof do not receive
"compensation," I!lli only reimbursement for
expenses incurred.
Attorney General of Texas
TOM GREEN
First AssistaritP.ttorneyGem.:al
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMNITTIX
Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moell.inger
Nancy Sutton
p. 859