Untitled Texas Attorney General Opinion ( 1993 )

QBfficeof tiy !Zlttornep Qkneral
6btate of aexas
DAN MORALES March 17,1993
ATTORNEY
GmErw.
Honorable John W. Segrest OpinionNo. DM-208
CriminalDistrict Attorney
McLulMncounty Re: Whether a person related to a district
219 North Sii Street, Suite 200 judge within the degree prohibited by the
Waco, Texas 76701 nepotism statute, V.T.C.S. article 5996a, can
take employment with a community super-
vision and corrections department without
causing a violation of the nepotism statute in
light of the provisions of article 42.131 of
the Code of CriminalProcedure (RQ-473)
Dear Mr. segrest:
You have asked us to determine whether, in light of the provisions of the Code of
Crimind FVocedure article 42.131, the director of a community supervision and
cmrections department may hire, without causing a violation of the state nepotism statute,
V.T.C.S. article 5996a, a person related to a district judge who sits in the same county as
the community supervision and corrections department. Your question is based on the
following facts:
1. McLawncountyhasfwrdisbictcourts,...eachofwhich
can be considered as “trying uiminal cases” in th[e] judicial
diStZiCt;
2. On January 1, 1987, one district judge took office after his
election the previous November, and continues to serve to this
date;
3 On SeptemLxr 12. 1988, all of the judges appointed
[a] . . Director [of the community supervision and correction
department in McLennsn County], a position [the same person]
holds to this date;
. . . .
5. OnMayl. l99o,theDirectorhiredthermployeeinquestion;
6. The Employee is a nephew of the Judge, being the son of the
Judge’s natural brother, and is thus related within the third
degree of consanguinity.
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Honorable John W. Segrest - Page 2 (``-208)
We undemtand that you have rewived wntlicting opinio* one from the general counsel
oftheTexa,DepartmentofCriminalJusticeandonefrom~attonyrwtrOhs
representedMcLuman County in civil matters,on whether the directo~‘shiring of the
judge’s nephew constitutes a nepotistic hiring. We wnchxle that the hiring is not
llt@StiC.
Section l(a) of the nepotism statute, V.T.C.S. article %%a, states in pert&m
palt as fbllowa:
[n]o officer. . . of any. . . rmuricipal subdivision of this State, nor
anyofficerormemberofanyStatedistrict,wunty,city,...orother
``~board,orjudgeofanycourt,cnatedbyorundaauthority
of any General or Special Law of this Stat% . . . shall appoint. or vote
for, or confirm the appointment to any office, positioq clerkship,
employment or duty, of any person reJated...within the third
degreebywnsqhity, asdetermined under Article 5996h, Revised
Statutes, to the person so appointing or so voting. or to any other
manbaoflllly``board,...ofwtrichsuchpasonsoappointing
or voting may be a memk, when the salary, fees, or compensation
of such appointee is to be paid for, directly or indktiy, out of or
fkompublicfimds.. . ofany kind or charactexwhatsoeva.
By its terms, section l(a) applies only to officers or judges who have actual, statutory
authority to hire PCfSOMCt. Attomey General Opiion DIM-163(1992) at 1. A person
with such authority does not, even if the person attempts to delegate the authority to
another, “abdicate [its] statutory authority or control.” .%e Pena v. Rio Cm& C@Y
f3ansd. In&p. Sch. Disl., 616 S.W.Zd 658.660 (Tar Cii. App.-EasUand 1981, no writ);
Babcock & Collins, Local Government Luw, 36 SW. L.J. 471, 509 (1982) @mmakiq
Penal. Thus, to determinewhethera wmmunity supavision and tions departmmt
(the departmeat) lavAidlymay employ the nephew’of a district judge who tries crimbml
casesintheMmecountyasthedepamnent,wcmustda~hasMuaZ``~
authority to appoint persod fbr the deparhnmt.
Article 42.131 of the Code of Crimi~I Prowdmx perknstotheestabliAmentof
wmmunity supervision and corrections departments. The article reads in pertinent part as
follows:
Establishmentof Departments
Sec. 2. (a) The...districtjudgestqingcrimimdcasesineach
judicial district in the state shall establish a community supervision
and wrrections department and empky disbicf personnel as mcrybe
necesxq to conduct presentence investigations and risk
p. 1093
Honorable John W. Segrest - Page 3 (Dt+208)
rssessmanq supervise and reh8biuit8teprobatioller& enforce the
terms and wnditions of probatior&and ata wmmunity wrrections
facilities. Both the district judges trying uiminal cases and the
judgesofstaMoryw~wurtstryingcriminalcesesthatare~
by a wmnnurity supewision and wrre-ctions department are entitled
to participate in the mansganent of the department.
. . . .
DepuWent Diir
Sec. 4. The. . . judges shag appoint a department director. i’k
akZ3artmenldirector shall emplv a suficient number of ofjkers and
other employeesIOpe@m the professional and clerical work of the
kprtment. [Emphasisadded.]
Obviously, the emphasizedportions of sections 2 and 4 are inwnsistent: section 2 rewires
the district judges to employ the personnel newssary to perform all of the tasks a
department is to petikm, while section 4 rewires the judges only to appoint a department
director, who, in Turk is rewired to employ all other newssary personnel.
We exam&J a similar statute in Attorney General Opiion DM-79 (1992). Jn that
opinion, we were asked to determine whether the Brazes County Juvenile Board has the
authody to hire employees of the Braws County JuvenileProbation Departmaa at& the
juvenile board has employed a chiefjuvenile probation officer. Attorney General Opinion
DM-79 at 1. Section 152.0007(l) of the Human Resources Code, which de&es the.
duties of the juvenile board, rewires a juvenile board to “employ personnel to wnduct
probation services, including a chief probation 05cer Md, if more than one officer is
neceswy, as&ant officers.” On the other hand, section 152.0008(a) of the. Humsn
Itemmes Code.provides that the chiefjuvenile probation officer “mq appoint wwssaty
personnel with ihe qpraval of he hard’ (Emphasis added.) AdditionaUy, section
152.0271(e) of the Human Resources Code provides that “[t]he chiefjuvenile probation
officer may set the salaries 8nd aUowanccs of juvenile probation persowel with the
qnprcnwIof Ihe &I&..” (Emphasis added.) Given the applicableprovisions of the Human
Resources Code, the requestor was uncertain as to whether the board or the chief
probation officer is rewired to employ other members of the d-t, or if that duty
may vary at the juvenile board’sdiscretion. Id. at 2.
We determined that section lS2.0008(a) delegates to the chiefjuvenile probation
officer the authority to hire assistant juvenile probation officers and other employees
subject to the juvenile board’s approval. Id. Thus, while the juvenile board’s authority
with respect to hiring personnel is limited to approving or rejecting the chief juvenile
probation officefs hiring decisions, it retains the actual authority for hiring personnel. Id.
at 2-3. Section 152.0007(1), which rewires a juvenile board to “employ” personnel,
rewires a juvenile board only to compensate, not to hire, personnel. Id. at 3. These
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Honorable John W. Segrest - Page 4 (DM-208)
detenniwtions, together with the juvenile board’8 role under a predecessor at8tute,ledus
to wnchde that the juvenile board, not the chief juvenile prob8tion offices, was the
appointing authody for purpnses of section 152.0008(b) of the Human Rewurws Code,
which empowers the “appointingauthotity’to tamiaatejuvenile probation officers. Id. at
4.
Article 42.131 of tha Code of Ctiminal Pro&me difFhilltWOSiglli6C8Ilt
``mthe~o~oftheHumanResourcesCodethatwew~daedinAttorney
&nerd Opinion DM-79. Fhst, article 42.13 1, section 4 requires a department director to
employ 05cers and amployws as newssary to perform the de’s profbssional and
clerical work, whereas section,152.0008(a) merely authorizea the chief juvenile probation
officer to hire asktant juvenile probation officers and other employees. Second, article
42.13 1. section 4 does not explicitly reserve to the district judges the pownr to approve
the departmmt directofs employment decisions, whereas section 152.0008(a) requires the
juveade board to approve (or, implicitly, to reject) the chief juvenile probation officer’s
rppo-.
The legislature added article 42.131 to the Code of Ctiminal Pwwdure in 1989.
See Acts 1989, 71st Leg., ch. 785, 8 3.02, at 3483-86. House Bii 2335, the bii that
proposed adding article 42.13 1, made many changes in the structure of the crimiwl justice
systematthe``locallmlsinane$orttolllleviateprisonudjailovacrowding.
See Sen8te Comm. on Criminal Justice, Bii Analysis, C.S.HB. 2335. 71st Leg. (1989);
Attorney General Opiion JM-1185 (1990) at 1-3. Notably, while Housa Bii 2335 added
article 42.131 to providn for the nstablishment of departmeDts itrcp&dsection100f
&sting article 42.12 of the Code of Criminal Pm&urn, which had ptwided for the
establkhment oflocal probation departments. See Acts 1989,716 Leg., ch. 785,5§ 3.02.
4.17, at 3483, 3519-21; Attorney Gcncral Opinion JM-1131 (1989) at 2. Both the
predecessor local probation departments and the current wnununi@ supnrkion and
wrrections departments were or are designed generally to wtrespond gengraphicagy to
judicial districts. See Code Ctim. Proc. art. 42.12, 5 lo(a) (repealed by Acts 1989, 71st
Log., ch. 785. 54.17, at 3519-21); id. art. 42.131, 52(a); Attorney General Opinion
JM-1131 at 2.
Prior to its rapcal in 1989, section 10 of article 42.12 of the Code of Criminal
Procedure provided in pertinent part as follows:
(a) For the purpose of providing adequate probation satvices,
the...districtjudgestryingcriminalcasesineachjudicialdistria~
this state shall establish a probation office and employ. in accordance
with standads set by the wmmissio~ dislrictpersannel a7 nrqy be
?n?cew to wnduct preswtence inyastigations, supwdsa and
rehdditate probation- and enforce the tetms and wnditions of
misdemeanor and felony probation. . . .
p. 1095
Honombk John W. Segrest - Page 5 (Dn-208)
(b) Where more than one probation officer is required,
the. . . judges shall appoiat a chief adult probation officer or
dimctor,who,tid~2heir~shallappointasu5cientmrmba
ofasshntsandotheremp~oyeestocmTyotttbeprofe.ssion4
Cklical.MdOthWWO&OfthCCOlUt.
Acts 1989,71st Leg., ch. 785.5 4.17, at 3519 (emphasisadded). Under the uow-repeakd
article 42.12. K&M 10 of the Code of CriminalPro&me, the district judges chiy had
authority to appoint a chief adult probation officer or dire&q fiuthermom the district
judges clearly had authority to approve ail of the chief adult probation officeh relections
fixemployment. Whilemuchofthehguageofarticle42.131,aections2aad4ofthe
Code of Criminal ProcAre parallels the. language of the nov+repealed article 42.12,
section lo(a), (II), article 42.13 1, section 4 does not reserve forthdistrictjudgesany
power of approval over the depamneat directoh employmentsehtions.
We musf the&m, ckrify the use of the.word “empl~ in sections 2(a) and 4 of
article42.131 oftbeCodeofCriminalPro&ure. Eachaectionrequiresapatticulara&y
to “employ”personnelto staEthe local dw however,section2(a) obligates the
districtjudgestryingcrimiaal~ineachjudicialdishict,while~w4obligrtesthe
department director, whom the judges have appointed. We no& that SC&M 6(b) of
article42.131 OftheCodeofCrkninalProcedunrequiresthejudi~districts~ncein
services fkom a department to pay the salaries of department petxonnel. In our opinion,
therefore, article 42.131 uses the term “employ”inwnsktently. We believe that “employ”
in the context of section 2(a) refers to the responsibility of the judicial district to
wmpensate departmental personnel.~ See Attorney General Opinion DM-79 at 3
(concluding that “employ”in section 152.0007(1) of the Human Rewurws coderefe!rs
only to providing wmpematioq not to hiring). on the other hand. “employ” in the
context of section 4 refers to the department directoh obligation to hire necesq
pasonnel.
As article 42.13 1 provides the department director, not the district judges, with
actual authority to hire 05cers and other employees newssary to petform the professional
and clerical work of the department, no violation of the nepotism statute occurs if the
department director hires a person related within the third degree of wnsa@nity to one
of the district judges.
p. 1096
Honorable John W. Segrest - Page 6 @M-208)
SUMMARY
Article 42.131 bf the Code of Criminal Frodurerequiresthe
director of a community supervision 6nd wzrections depattment to
hire the officers and other employees wcusary to perfoml the
professional and clerical work of the department. The judges in the
judicial district that the commudy supervision and wrrections
dep&mentservesappointthedirectorbuthavenohrtherauthority
to hire or to approve the directofs hiring of additional department
persod. The word %mpioy,” as used in sections 2(a) and 4 of
article 42.131 of the Code of Criminal procedure. has two dZfemnt
meanings. In the context of section 2(a), “employ” refers to the
responsiiity of the judicial district to wmpensate department
perso~d. However, in the context of section 4. “etnp~oy”refers to
the department director’sobligation to hire necessary personnel.
Because the judges have no authority to hire or approve the
hiring of department persormel other than the director, no vioiation
of the nepotism statute, V.T.C.S. article %%a, section I(a), occurs
ifthedepartmmtdirectorhimsapersonmlatedwithinthethird
degree of wnsanguinity to one of the judges in that judicial district.
DAN MORALES
Attorney General of Texas
WlL.LPRYOR
Fi hsktant Attorney General
MARYKELLER
Deputy Attomey General for Litigation
RBNBA HICKS
State Solicitor
MADELEINE B. JOHNSON
Chair, Opiion Committee
Prepad by Kymberly K. Oltrogge
Assistant Attorney General
p. 1097