JIM MATTOX Attorney General
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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas Aul:ust30, 1984

HonorableGibsonD. (Gib)Lewis Speaker of theHouse! TexasHouse of Reprc!$entatives P. 0. Box 2910 Austin, Texas 78?('5 OpinionNo. JM-195 Re: Whether article 5996a. V.T.C.S., the nepotism law, is applicable to appointments to the interim State Board of Education Dear SpeakerLewis: You request our opinion as to whether article 5996a, V.T.C.S.. the nepotism statute, is applicable to appointments to the interim State Board of Edwzltion created by House Bill No. 72. Acts 1983, 68th Leg., 2d C.S.: ch. , 94. at (not yet published). That bill creates :Itransitional State Board of Education, whose members are to be ;llBpointed by the governor. upon recommendation of the Legislative Edwation Board. The bill enacts section 11.22(k)of the EducationCode t:c provide thatmembers shall receive no salary but shall be reimbursed for all e,:penses

incurred in attendingmeetings of theboard csrincidentto any judicial action taken because oi'

appeal froma board order. You ask whethw: article 5996a applies to appointments to the board. That statuteprovides, in pertinentpart:

No off<.c:er

of this Statenor any officer of any district, county, city,precinct, schooldistrict, or other municipal subdivisionof this State,nor w officer or member of any State district, county, ciry, school district or other municipal board, or ijudgeof any court, createdby or under authority >f any General or Special Law of this State, nor any member of the Legislature, shall appoint, '+:vote for, or confirm the appointment to any ofFLce, position, clerkship, employment or duty, of sny person related within the second degree by affinity or within the third degree by consanguin:.tyto the person so appointing or so vlxing, o::to any other member of any such board,

p. 857Honorable Gibscr! D. (Gib)Lwis - Page 2 (JM-395)

the Legislature, or court of which such person so appointing or votl.rgmay be a member, when the salary, fees, or wn!pensationof such appofntee **j-6** to be paid for, dirxtly or indirectly,out of **or** frompublic funds (IIfees of office of any kind **or** characterwhatsoewz . . . . Specifically, you inquire whether the reimbursement of boardmembers constitutes "salary, fees, or compensation" of article 5996a. No Texas casehas direcl::y addressed this

question. expenses to forpurposes Although one court has said that the word "'compensation' is broad enough to include recompense of expen!;I!s," Tierney v. Van Arsdale, 332 S.W.2d 546, 549 (KY. 1960), the majority of cases from other !urisdictions which have considered the q;estibn have held that reimbursement for expenses is not embracedwithin the meaning of the term. In Manning v. Sims, 213 S.W.2d 577 (Ky. :948). for example; the court said that

the allowance of :xasonable expenses'incurred in the discharge of the official duties of an office is neither salary, compensation nor an emolument of the office . . . 213 S.W.2d at 580. In *x,rman v. Williams,,415 P.2d 597 (Okle. 1966),the SupremeCourt of Oklahomadeclared: ‘

office and traveling expenses iuctirred by rcembers of the Legislative Council are expenses of the performance of clifjcial duties and are not compensation,salnr:r or emoluments . . . . 415 P.2d at 602. And in Happe v. State, 469 P.2d 909 (Wash. 1970), the court said that

theword 'compensation' . . .doesnot embracenor include appropriats reimbursement for expenses incurred . . . . 469 P.2d at 912. See Whitehc'ad v. Julian, 476 S.W.2d 844 (Tex. 1972) --- (expense allowance paid tcscity mayor does not make position a "lucrative" office within meaning of art. III, P19, Tex. Const., making the holder of a l.ucrativeoffice ineligible for state legislature). In our opinion, the telal"compensation"as used in article 5996a should not be construed to include statutory reimbursement for expenses incurred in attendj,r,g meetings of the interin: State Board of Education. Thus, sinceno "salary, fees or compensation"wjll be paid

p. 858HonorableGibson D. (Gib)Lew:.s- Page 3 (JM-195)

to members of the board, article 5996a has no application to appointments thcl-eto. _:iUMM"RY

Article 5996a, V.T.C.S., the nepotism law, is not applicable tc appointments to the interim StateBoard of Edw;~tioncreatedby House Bill No. 72, Acts 1983, Sj.xty-eighthLegislature, Second Called Session, chapter , section 4, St

, since the rlembersthereof do not receive "compensation," I!lli only reimbursement for expenses incurred.

Attorney General of Texas TOM GREEN FirstAssistarit

P.ttorney

Gem.:al DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby Rick Gilpin AssistantAttorneyGeneral APPROVED: OPINION COMNITTIX Rick Gilpin, Chairman David Brooks Colin Carl SusanGarrison Jim Moell.inger Nancy Sutton

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