Untitled Texas Attorney General Opinion ( 1970 )

. .
Hon. C. W. Karisch Opinion No. M-710
County Attorney
Wailer County Courthouse Re: Can the wife of the County
Hempstead,. Texas 77445 Road Administrator of
Wailer County, which
operates under the Optional
County Road Law (Art. 6716-1,
V.C.S.) be employed in the
Road and Bridge Department
of the County, in view of
Article 433, Vernon's Penal
Code.
Dear Sir:
By your recent letter you have asked the following
question:
"Can the wife of the County Road Administra-
tor of Wailer County be empLoyed in the Road and
Bridge Department of Waller County?"
Your letter further states that Wailer County operates
under the Optional County Road Law of 1947, Article 6716-1,
Vernon's Civil Statutes.
Our answer to your question is "yes", the wife of the
County Road Administrator may be employed in the Road and
Bridge Department ofiwaller County.
Article 6716-1, Section 5, reads, in part, as follows:
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. .
Hon. C. W. Karisch, page 2 (M-710)
"If the Commissioners Court is not able to
employ a licensed professional engineer for any
reason, then the Commissioners Court is authorized
to employ a qualified road administrative officer,
who shall be known as, the County Road Administrator,
to perform the duties of the County Road Engineer.
The County Road Administrator shall have had ex-
perience in road building or maintenance or other
types of construction work qualifying him to per-
form the duties imposed upon him, but it shall
not be necessary that he have had any fixed amount
of,professional training or experience in engineering
work. The County Road,Administrator shall perform
the same duties as are imposed upon the County Road
Engineer, and all references in other Sections of
this Act to the 'County Road Engineer shall inolude
and apply to the County Road Administrator."
The pertinent part of Article 432, Vernon's Penal Code,
reads as follows:
"No officer of this State nor any officer of
any district, county, city, precinct, school district,
or other municipal subdivision of this State, nor
any officer or member of any State district, county,
city, school district, or other municipal board, or
judge of any court, created by or under authority
of any General or Special Law of this State, nor
any member of the Legislature, shall appoint, or
vote for, or confirm 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 Legislature, or court
of which such person so appointing or voting may be
a member, . .."
-3431-
. ,
Hon. C. W. Karisch, page 3 (M-710)
Article 433, Vernon's Penal Code, reads as follows:
"The inhibitions set forth in this law shall
apply to and include the Governor, Lieutenant Governor,
Speaker of the House of Representatives, Railroad Com-
missioners, head of departments of the State government,
judges and members of any and all Boards and courts
established by or under the authority of any general
or special law of this State, members of the Legis-
lature, mayors, commissioners, recorders, aldermen and
members of school boards of incorporated cities and
towns, public school trustees, officers and members of
boards of managers of the State University and of its
several branches, and of the various State educational
institutions and of the various State eleemosynary insti-
tutions, and of the penitentiaries. This enumeration
shall not be held to exclude from the operation and
effect of this law any~person included within its general
provisions. Acts 1909, p. 86."
It is apparent that a County Road Administrator occupies
the same position that a County Road Engineer occupies, and
lacks only certain professional training or experience in
engineering work. Article 6717-1, Sec. 5, supra. However,
the administrator holds no higher position than the engineer.
The question of whether a County Road Engineer is a public
officer was discussed in Dunbar v. Brasoria Countv, et al., 224
S.W.Zd 738 (Tex.Civ.App. 1949, error ref.) wherein the court
stated:
“From an analysis of said Article 6716-1, it is,
we think, apparent that the legislature intended in
enacting the Statute to make the County Road Engineer
a member of the administrative personnel of the County
Road Department and not an officer as contemplated in
Article 16, Section 30 of the Constitution of this State."
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. ,
Hon. C. W. Karisch, page 4 (M-710)
The Dunbar case was cited in Hill v. Sterrett, 252 S.W.Zd
766 (Tex.Civ.App. 1952, error ref., n.r.e.). The court, while
considering Article 6716-1, stated, in part, as follows:
II
. . .As relevant to above proposition, the
following conclusions of law appear to be well settled:
. . . (7) That sec. 4 of said Road Law, though pur-
porting to create the office of County Engineer, in-
vested the incumbent thereof with no discretionary or
sovereign powers: the sum of his duties being under
control and supervision of the Commissioners' Court:
the section on the whole creating an administrative
position and its occupant an emplovee of the county
road department." (Emphasis added.)
The Dunbar case was further cited with favor in Aldine
Independent School District v. Standlv, 154 Tex. 547, 280
S.W.2d 578 (1955).
In view of the above, it is our opinion that the County
Road Engineer/Administrator is not a position or "officer"
within the purview of Articles 432 or 433, Vernon's Penal Code.
SUMMARY
The Texas nepotism laws, Articles 432 and
433, Vernon's Penal Code, are not applicable
to a County Road Engineer/Administrator hired
under the authority of Article 6716-1, Vernon's
Civil Statutes.
The wife of the County Road Administrator of
Waller County, which operates under Article 6716-1,
Vernon's Civil Statutes, may be employed in the
Road and Bridge Department of that County.
;^I
V&y truly yours,
Attor&y General of Texas
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Hon. c. W. Karisch, page 5 (M-710)
Prepared by Melvin E. Corlay
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Reeves
Arthur Sandlin
Steve Hollahan
Max Hamilton
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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