JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austin, TX. 78711. 2546 

5121475-2501 

Telex 9101874-1367 

Telecopier 5121475.0266 

714 Jackson, Suite 700 

Dallas, TX. 75202.4506 

2141742.6944 

4824 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

9151533.3464 

‘701 Texas. Suite 700 

.ousto”. TX. 77002~3111 

7131223.5886 

606 Broadway. Suite 312 

Lubbock. TX. 79401.3479 

6061747-5236 

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McAllen. TX. 78501.1685 

512,662.4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 78205.2797 

5121225.4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

Aul:ust 30, 1984 

Honorable Gibson D. (Gib) Lewis 

Speaker of the House! 

Texas House of Reprc!$entatives 

P. 0. Box 2910 

Austin, Texas 78?('5 

Opinion No. 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 Speaker Lewis: 

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 :I transitional 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 Education Code t:c provide that members 

shall receive no salary but shall be reimbursed 

for all e,:penses incurred in attending meetings of 

the board csr incident to any judicial action taken 

because oi' appeal from a board order. 

You ask whethw: article 5996a applies to appointments to the 

board. That statute provides, in pertinent part: 

No off<.c:er of this State nor any officer of any 

district, county, city, precinct, school district, 

or other municipal subdivision of this State, nor 

w officer or member of any State district, 

county, ciry, school district or other municipal 

board, or ijudge of any court, created by 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:.ty to the person so appointing or so 

vlxing, o:: to any other member of any such board, 

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

the Legislature, or court of which such person so 

appointing or votl.rg may be a member, when the 

salary, fees, or wn!pensation of such appofntee j-6 

to be paid for, dirxtly or indirectly, out of or 

from public funds (II fees of office of any kind or 

character whatsoewz . . . . 

Specifically, you inquire whether the reimbursement of 

board members constitutes "salary, fees, or compensation" 

of article 5996a. 

No Texas case has direcl::y addressed this question. 

expenses to 

for purposes 

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 embraced within 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 Supreme Court of Oklahoma declared: ‘ 

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 

the word 'compensation' . . . does not embrace nor 

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 tcs city mayor does not make position a 

"lucrative" office within meaning of art. III, P19, Tex. Const., 

making the holder of a l.ucrative office 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, since no "salary, fees or compensation" wjll be paid 

p. 858 
Honorable Gibson 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 

State Board of Edw;~tion created by House Bill No. 

72, Acts 1983, Sj.xty-eighth Legislature, Second 

Called Session, chapter , section 4, St 

, since the rlembers thereof do not receive 

"compensation," I!lli only reimbursement for 

expenses incurred. 

Attorney General of Texas 

TOM GREEN 

First Assistarit P.ttorney Gem.:al 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMNITTIX 

Rick Gilpin, Chairman 

David Brooks 

Colin Carl 

Susan Garrison 

Jim Moell.inger 

Nancy Sutton 

p. 859