Untitled Texas Attorney General Opinion ( 1970 )

Hon. A. J. (Jack) Hartel Opinion No. PI-671
County Attorney
Liberty County Courthouse Re: Whether a aothcr May h
Liberty, Texas promoted to tax asscssor-
collector of a s.chooldis-
trict when her son is a
member of the board of such
district without violating
Article 132, Vernon's Penal
Dear Mr. liartel: Code.
Tour recent letter to-this office requesting an
opinion concerning the referenced matter states, in part, as
follows:
"The Hardin Independent School District
ha8 had in its continuous employ, Mrs. A. E.
Cessna, for the past six (6) years as Assistant
Tax Assessor-Collector. This past April (1970)
Mrs. Cessna’s son was elected to serve on the
Board of Education of the Hardin Independent
School District . . .
'The Hardin Independent School District
would like to promote Mrs. Cessna to the'job
of Tax Assessor-Collector . . .
"The question has been raised by a tax-
payer in the Hardin Independent School District
as to whether this would be a violation of
Article 432 of the Penal Code, pertaining to
nepotimn . . .
*. . . .
"I would appreciate your opinion as to
whether the above-mentioned fact situation
would constitute a violation of Article 132 of
the Penal Code . . ."
lion.A. J. (Jack) Hartel, page 3 (M-671)
hold their employment, or to office which
might give rise but for this amendatory Act to
a conflict with the nepotism laws of this State
or some municipal corportition;the fact that
persons who have continuously served in public
office and employment in this State prior to the
election to some office of a relative should not
be discharged for that reason alone: and the
fact that the purpose of the nepotism law was
not to oust such persons frcm legitimate employ-
ment in this State, create an emergency and an
imperative public necessity that the Constitutional
Rule requiring all bills to be read on three
revere1 days in each House be and the mama is
hereby suspendedt and this Act shall take effect
and be in force froa and after its passage: and
it is so enacted." Acts 52nd Leg. R.S. 1951, ch.
97, p. 159.
It is clear that the party involved in the instant
fact situation may remain in her position as Assistant Tax
Assessor-Collector, despite the fact that her son is on the
school board, by virtue of the underscored provisions of
the Article.
What is at issue here is whether her promotion to a
higher position, within the same office, would be allowable as
being within the language of the Article relating to "such of-
fice, position, clerkship, employment or duty.'
The statement of legislative purpose quoted in
Section 3 of the Act, supra, evidences that the,underscored
provisions of the Article were added to prevent a person's
losing his job solely because a relative within,the prohibited
degree had been elected to another public position.
It is our opinion that the Legislature intended by
the underscored language of the Article, supra, only that a
person would not lose his job if a relative were elected to
an office within the Article's purview. We cannot conclude
that the Legislature, in view of the spirit of the other
provisions of the Article, intended that a relative of such
&n officeholder could be promoted to & position whereby his
financial remuneration would be enhanced.
In view of the foregoing, your question is answered
in the affirmative.
-x03-
Hon. A. 3. (Jack) Hartel, page 2 (M-671)
Article 432, Vernon's Penal Codi, provides dad follows:
'No officer of this State nor any officer
of any district county, city, precinct, school
district, or any other municipal subdivision of
this State, nor 4ny 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
&egislature, shall appoint, or vote for, or con-
firm the appointment of any office, position,
clerkship, employment or duty, of any person
,,relatedwithin 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, when the salary, fees, or
compensation or such appointee is to be paid for,
directly or indirectly, out.of or from public
funds or fees of office of any kind or character
appointing, voting for, or confirming,the an-
pointment, or to the election or appointment Of
the officer or member related to such employee
In the prohibited degree." (Emphasis added.)
Section 3 of the Act amending Article 432, supra, to
include the above underscored prwisionr therein, atates that
the reasons the Article was so amended were as follows:
*The fact that numerous employees of the
State and its agencies and subdivisions whose
services are valuable to the State are .required
to give up such employment because members of
their family may be; from time to ~timc, elected
to office in this State, under whom such employees
-3LOL-
Hon. A. J. (Jack) Hartel, Page 4 (M-671)
Pursuant to Article 432, Vernon’8 Penal
Code, a mother, currently employed as assistant
.taxassessor-collectorof a school dirtrict, ruy
not be promoted to the positionof tax assessor-
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMJUTTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Grace
Bob Flowers
Bob Lattimore
Arthur Ssndlin
I4EADEF. GRIFFIN
Staff Legal Assistant
ALIRE WALKER
Executive Assistant
NOLAWHITE
First Assistant
-3204.