DAN MORALES 

ATTORNEY GmErw. 

QBffice of tiy !Zlttornep Qkneral 

6btate of aexas 

March 17,1993 

Honorable John W. Segrest 

Criminal District Attorney 

McLulMncounty 

219 North Sii Street, Suite 200 

Waco, Texas 76701 

Dear Mr. segrest: 

Opinion No. DM-208 

Re: Whether a person related to a district 

judge within the degree prohibited by the 

nepotism statute, V.T.C.S. article 5996a, can 

take employment with a community supervision and corrections department without 

causing a violation of the nepotism statute in 

light of the provisions of article 42.13 1 of 

the Code of Criminal Procedure (RQ-473) 

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 

represented McLuman County in civil matters, on whether the directo~‘s hiring 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 

degreeby wnsqhity, as determined 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 determine whether a wmmunity supavision and tions departmmt 

(the departmeat) lavAidly may employ the nephew’ of a district judge who tries crimbml 

casesintheMmecountyasthedepamnent,wcmustda~hasMuaZ~~~ 

authority to appoint persod fbr the deparhnmt. 

Article 42.13 1 of the Code of Crimi~I Prowdmx perknstotheestabliAmentof 

wmmunity supervision and corrections departments. The article reads in pertinent part as 

follows: 

Establishment of Departments 

Sec. 2. (a) The...districtjudgestqingcrimimdcasesineach 

judicial district in the state shall establish a community supervision 

and wrrections department and empky disbicf personnel as mcry be 

necesxq to conduct presentence investigations and risk 

p. 1093 
Honorable John W. Segrest - Page 3 (Dt+208) 

rssessmanq supervise and reh8biuit8te probatioller& 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 

akZ3artmenl director shall emplv a suficient number of ofjkers and 

other employees IO pe@m the professional and clerical work of the 

kprtment. [Emphasis added.] 

Obviously, the emphasized portions 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 Juvenile Probation 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 

qnprcnwI of Ihe &I&..” (Emphasis added.) Given the applicable provisions 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’s discretion. 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 

p. 1094 
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 “appointing authotity’ 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. . . . 

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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 (emphasis added). Under the uow-repeakd 

article 42.12. K&M 10 of the Code of Criminal Pro&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 employment sehtions. 

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” personnel to staE the local dw however, section 2(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’s obligation 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.L PRYOR 

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