PRICE DANIEL

ATTORNEY

OENERAL January 

### 15, 1951

Hon. Charles R. Martin County Auditor Harriron coun* **Marshall,** Texas Opinion No. V-1142 Ra: Legality under nepotism statutes 

### of continuing county employment of a brother of a newly elected County Commirrioner under .eubmitted facts. Dear Mr. bdarfin:

You state that for a number of years subsequent to 1932 the Couuty 

### Commissioners Court employed a 

### certainperaonin Precinct No. 2 as an employee in the County Road and Bridge Department. Gn October 21, 1948,the employee’resigned his position with the Road and Bridge Department, and accepted employment in 

### December. 1948,with the **Harrison** County Tarracfn8 Committee, an 

### agency,

authorined by the Commin~ionerr Court under Article 2372. V.C.S. The employee in question served ~continuoualywith the Terracing **Committee from**  

### December, 1948,to June1.1949. whenhereturnedtotheRoadandBridge Department’inPrecinct No. 2. Hir employment in Precinct No. 2 has been continuous rince ae date d hi8 return on June 1,1949.

**At** the last General Election in November, 1950.the brother of the 

### employee in queatioa wag elecbd County Commilrsioner **from one**  **of the**  **County** 

### Precincts atherthanPrecinct No. 2. Ho qualified **and** took office as County Commissioner on Sanuary 1, 1951.

You **amk whether**  the retention of the county employee in question 

## l

ubeequentto January1,1951,will violate the nepotism 

### dab&e (Article 432, V.P.C.).

**Article** 

### 432, Vernon’s Penal Code, as amended **by** House Bill 508, Acts 51rt Leg., R.S. 1949,

### ch. l26, p. 227#provides:



### “Noofficer ofthim Stateor anyofficer ofany district. county, city, precinct, school dirtrict, or other municipal aubdfviaion of thir State, or any of

### ficer or member of **any** State, district, county, city, rchool district or other municipal board, or judgeHon. Charles R. Martin, page 2 (V-1142)

of any court, created by or under authority of any General or Special Law of this State, or 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, when the salary, fees, or compensation of 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 whatsoever; provided, thatnothing herein contained shall prevent the appointment, voting for, or confirmation of any person who shall have been continuously employed in any such of-- fice. position, clerkship, employment or duty for a period of two (2) years prior tothe election or appointment of the officer or member appointing, voting for, or confirming the appointment 

### ofsuch person to such office, position,. clerkship, employment or duty.’ Itwill be observed from the above thatthe retention 

### of the employee in question after January 1, 1951, will violate the nepotism statute unless he comes Within the proviso added by the 1949 amendment.

Certainly the employment 

### ofthe party in question by the Harrison County Terracing Committee made him a county employee. See Article 2372~. V.C.S. Counting such employment, herhas been continuously employed by the county in one capacity or another from December, 1948.to January 1, 1951,a period in excess of twoyears. Suchcontinuous employment is necessary because as we construe the **Act, the**  Legislature intended that theemployment for a period of “two (2) 

### years” be immediately prior to the critical date which brings the **nepotism** law into operation. The language found in the emergency clause of H.B. 508. supra. to the effect that *numerous employees

. . . 

### are required to give up such employment.

. . who have continuously served the State” clearly indicates 

### thatthe proviso was not intended to apply to a pe.rson not employed **at** the time therelated official takes office and **for** two years immediately prior **thereto.** Our conclusion with respect to the meaning of the -two **year** period’ as used in the above statute finds support in~Commonwealth ex rel. Adamn v. Stephens, 345 Pa. 436, 28A.2d 92=, wherein the Court sad:Hon. Charles R. Martin, page 3 (V-1142)

‘The ‘Act.

. . providing for the office

. . . sets 

### forth thefollowing qualification for said office: ‘One 

### person who shall be a competent accountant and an elector of the borough for at least four 

### years prior to his election’

. (CourPs emphasis.]

‘We are called upon to determine what the Legislature meant by thewords ‘four years prior tobis election’

. It is contended on the part of the respondentthat,~we can go back any number ofyears. in order to make up the four year requirement. In other words, that since the respondent was an’elector 

### oftheBorough 

### of Wilkinsburg from 1920to 1925that he has satisfied the requirements of the Act insofar. as it relates tothe four year requirement as an eletitar. “We are of the opinion that when the Legislature provided that the prospective officeholder shall have been ‘an elector of the

### boroughfor at least four 

### years
~.prlOr to his eleCtion’, it meant immadiately prior to his election. Since it is conceded thatthe respondent was not’aa elector for four 

### years immediately prior tohis election, he is not entitled to hold the 

### office of controller **and must**  be ousted therefrom.

. . .v (Emphasis added.). 

### Theonlyfurther question to be determined is what was meant **by the** **worda “** **prior to**  **the**clcctisn **or** appointment of the 

### officer” as used in the~abwe proviso. Ifby the use of the word

‘electionv it was intended thst the two-year period **would** date **from** thetims of the official’s election at the polls, or from the time of tha canvassing ofvotes by the,proper officials, then obvious1y we do not have’here a trvo-~ear,priod of **Coatinuotta rm**  ployment. We have concluded that the word ‘election” as used in theabove **Act** should be construed to **mean** the time 

### of taking office, which in this instance was January 1, 1951. It is to be noted that the **Act uses**  the words “election or appointment.” and clearly the Legislature intended the critical date from which the two-year period was tobe computed should be the same in the case of either an appointed official or an elected official, or it would have used language different from thatfound here. The crption,to House Bill 

### 508so provider, because it is there stated that the provisions of Article 432, Penal Code, shall not apply to permonoholding position8 for two **years** *prior to the **time** an officer or board member related to them **takes** office.”--. .

Hon. Charles R. 

### Martin, page 4 (V-1142)

You are therefore .&vised that the retention of the county employee in question st+sr Sanuaiy ,l, 1951,will not violate thefiep&ism law (Articlh 432, V.P.C.).

**SUMMARY A**  person who was employed by the county at thetime’bis brother first took office as County **Com** missioner,,on January 1,1951,and had been continuously so employed 

### for a peripd of,taroyears immediately prior thereto, m+ be reta&md as a county employee witbout violating tke nepotism’statUt.e (Article, 432. V.P.C., **as** amended, **Acts** 51s$.&eg., R.S. 19t9, ch. **126; .p.**  **227).**

**.** APPROVED: Price Daniel **Attorney** General

CD&b :’ :.
. **Yours very**  **truly,** PRICEDANIEL

. **Attorney** Gea@tal



# &Ldb.S Ckarles D. Matkews First **Assistant**

.