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 certain peraon in 

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 ~continuoualy with 

the Terracing Committee from December, 1948, to June 1.1949. 

when he returned to the Road and Bridge Department’in Precinct 

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 ather than Precinct 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 ubeequent to January 1,1951, 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: 

“No officer of thim State or any officer of any 

district. county, city, precinct, school dirtrict, or 

other municipal aubdfviaion of thir State, or any officer or member of any State, district, county, city, 

rchool district or other municipal board, or judge 
Hon. 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, 

that nothing 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 to the election or appointment 

of the officer or member appointing, voting for, or confirming the appointment of such person to such office, 

position,. clerkship, employment or duty.’ 

It will be observed from the above that the 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 of the party in question by the 

Harrison County Terracing Committee made him a county employee. 

See Article 2372~. V.C.S. Counting such employment, her has been 

continuously employed by the county in one capacity or another from 

December, 1948. to January 1, 1951, a period in excess of two years. 

Such continuous employment is necessary because as we construe 

the Act, the Legislature intended that the employment 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 that the proviso was not intended to apply to a pe.rson not employed at the time 

the related 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, 28 A.2d 92=, 

wherein the Court sad: 
Hon. Charles R. Martin, page 3 (V-1142) 

‘The ‘Act. . . providing for the office . . . sets 

forth the following 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 the words ‘four years prior 

to bis election’. It is contended on the part of the 

respondentthat,~we can go back any number of years. 

in order to make up the four year requirement. In 

other words, that since the respondent was an’elector 

of the Borough of Wilkinsburg from 1920 to 1925 that 

he has satisfied the requirements of the Act insofar. 

as it relates to the 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 borough for at least four years 

~. prlOr to his eleCtion’, it meant immadiately prior to 

his election. Since it is conceded that the respondent 

was not’aa elector for four years immediately prior 

to his election, he is not entitled to hold the office of 

controller and must be ousted therefrom. . . .v (Emphasis added.). 

The only further 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. If by the use of the word 

‘electionv it was intended thst the two-year period would date 

from the tims of the official’s election at the polls, or from the 

time of tha canvassing of votes by the, proper officials, then obvious1y we do not have’here a trvo-~ear,priod of Coatinuotta rmployment. 

We have concluded that the word ‘election” as used in 

the above 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 to be 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 that found here. The crption,to House Bill 

508 so provider, because it is there stated that the provisions of 

Article 432, Penal Code, shall not apply to permono holding 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 the fiep&ism law (Articlh 432, V.P.C.). 

SUMMARY 

A person who was employed by the county at 

the time’bis brother first took office as County Commissioner,,on January 1,1951, and had been continuously so employed for a peripd of ,taro years 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 

.