DAN MORALES

ATTORNEY GmErw. 

## QBffice

of tiy !ZlttornepQkneral 6btateof aexas March 17,1993

HonorableJohnW. Segrest Criminal District Attorney McLulMncounty 219 North Sii Street, Suite200 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 nepotismstatute, V.T.C.S. article 5996a, can take employment with a community supervision and corrections department without causinga violationof the nepotism statute in light of the provisions of article 42.131 of the Code of Criminal

Procedure (RQ-473)

You have asked us to determinewhether, in light of the provisionsof the Code of Crimind FVocedure article 42.131, the director of a community supervision and cmrections departmentmay hire, without causinga violationof the state nepotism statute, V.T.C.S. article 5996a, a person related to a districtjudge who sits in the same county as the community supervision and corrections department. Your question is based on the followingfacts:

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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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.
. . rmuricipalsubdivision of this State, nor anyofficerormemberofanyStatedistrict,wunty,city,...orother ~~~board,orjudgeofanycourt,cnatedbyorundaauthority of any Generalor SpecialLaw of this Stat%

. . . shallappoint. or vote for, or confirm the appointment to any office, positioq clerkship, employment or duty, of any person reJated...within the third degreeby

wnsqhity, asdeterminedunder 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.Zd658.660 (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) lavAidlymay employ the nephew’ of a districtjudge 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: Establishment of Departments
Sec. 2. (a) The...districtjudgestqingcrimimdcasesineach judicial district in the state shall establish a community supervision and wrrections department and empky disbicfpersonnel as mcry be necesxq to conduct presentence investigations and risk

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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-ctionsdepartment are entitled to participatein the mansganent ofthe department.

. . . . DepuWent Diir
Sec. 4. The.

. .judges shag appoint a departmentdirector. i’k akZ3artmenl

directorshall emplv a suficient numberofofjkers and otheremployees

IO pe@m the

professionalandclerical workofthe kprtment. [Emphasis

added.] Obviously,the emphasized portionsof sections2 and 4 are inwnsistent: section 2 rewires the district judges to employ the personnel newssary to perform all of the tasks a departmentis to petikm, while section4 rewires thejudges only to appoint a department director, who, in Turkis rewired to employall other newssary personnel.

We exam&J a similarstatute in Attorney GeneralOpiion DM-79 (1992). Jnthat opinion, we were asked to determinewhether the Brazes County JuvenileBoard has the authody to hire employeesof the Braws County JuvenileProbation Departmaa at& the juvenile board has employeda 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.providesthat the chiefjuvenile probation officer “mq appoint wwssaty personnelwith 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 aUowanccsof juvenile probation persowel with the qnprcnwI ofIhe &I&..” (Emphasisadded.) Giventhe 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 membersof the d-t, or if that duty may vary at thejuvenile board’ sdiscretion. Id. at2.

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’ sapproval. Id. Thus, while the juvenile board’ s authority with respect to hiring personnel is limited to approving or rejecting the chiefjuvenile 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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detenniwtions, together with thejuvenile board’8role under a predecessor at8tute,ledus to wnchde that the juvenile board, not the chiefjuvenile 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 probationofficers. Id. at 4.
Article 42.131 of tha Code of Ctiminal Pro&me difFhilltWOSiglli6C8Ilt ~~mthe~o~oftheHumanResourcesCodethatwew~daedinAttorney &nerd OpinionDM-79. Fhst, article 42.13 1, section4 requires a department director to employ 05cers and amployws as newssary to perform the de’ s profbssionaland clericalwork, whereas section,152.0008(a)merely authorizeathe chief juvenile probation officer to hire asktant juvenile probation officers and other employees. Second, article 42.13 1. section 4 does not explicitlyreserve to the districtjudges the pownr to approve the departmmt directofs employmentdecisions,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 CtiminalPwwdure in 1989. See Acts 1989, 71st Leg., ch. 785, 8 3.02, at 3483-86. House Bii 2335, the bii that proposed adding article42.13 1, made many changesin the structure of the crimiwljustice systematthe~~locallmlsinane$orttolllleviateprisonudjailovacrowding. See Sen8te Comm. on CriminalJustice, Bii Analysis, C.S.HB. 2335. 71st Leg. (1989); Attorney General Opiion JM-1185 (1990) at 1-3. Notably, whileHousa Bii 2335 added article 42.131 to providn for the nstablishmentof 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 establisha 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 misdemeanorand felony probation.

. . .

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(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 Criminal Pro&me, the districtjudges 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 chiefadult probation officeh relections fixemployment. Whilemuchofthehguageofarticle42.131,aections2aad4ofthe Code of CriminalProcAre 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 approvalover 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” personnel

to staEthe localdw 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 fkoma department to pay the salaries of department petxonnel. In our opinion, therefore, article 42.131 uses the term “employ”inwnsktently. We believethat “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 districtjudges, with actual authority to hire 05cers and other employeesnewssary 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 districtjudges.

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### SUMMARY
Article 42.131 bf the Code of CriminalFrodurerequiresthe director of a community supervision 6nd wzrections depattment to hire the officers and other employees wcusary to perfoml the professional and clericalwork of the department. Thejudges 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 Criminalprocedure. 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’ sobligationto hire necessarypersonnel.

Because the judges have no authority to hire or approve the hiring of department persormelother 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 thejudges in thatjudicial district.

DAN MORALES Attorney General of Texas

WlL.LPRYOR Fi hsktant Attorney General

MARYKELLER Deputy Attomey General for Litigation

RBNBAHICKS State Solicitor

MADELEINE B. JOHNSON Chair, Opiion Committee Prepad by Kymberly K. Oltrogge Assistant Attorney General

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