-’

. 

## TRIG ATIVRNICY 

## GECNERAI.

AURTIN. **TlZXAR** 76711

, - JOUN l.. UlLL !a----- I A1MRIIEY OICNILPAL May 18, 1977

The Honorable John C. Knorpp Donley County Attorney P. 0. Drawer 3 Clarendon, Texas 79226 Opinion **No.** H-992 Re: Appointment of county commissioner's wife as deputy tax assessorcollector for the county.' Dear Mr. Knorpp: You advise that in Donley County the commissioners court sets and approves themonthly salaries of all officials, including that of thedeputy tax assessor-collector. The Sheriff-Tax Assessor-Collector of the county, who hires and fires his own deputies, has hired thewife of a county commissioner as deputy tax assessor-collector. You observe that the commissioner would normally have a community property interest inhis wife's county salary, and then 'ask: **May** the Sheriff-Tax Assessor-Collector appoint

as deputy tax assessor-collector thewife of one of theCounty Commissioners? If your answer is in the affirmative, will awritten agreement as to the salary of the deputy as being thewife's and the husband having no interest in it.suffice?
Indiscussing thenepotism statute, we said inAttorney General Opinion H-697 (1975):

Article 5996agenerally provides that no officer of a county ormember of a county board or courtmay appoint, vote for,or confirm the appointment to any office or position compensated by publiefunds of any person related to theperson so appointing or sovoting or to another member of the board or court within the second degree by

P. 4121. .
The Honorable John C. Knorpp - page 2 (H-993)

affinity or the third degree of consanguinity. See LetterAdvisory **No.** 67 (1973). County - commissioners are included. V.T.C.S., art. 5996b. This provision is not violated, however, if a relative of amember of a governing body is hired for aposition authorized by that body, when thegoverning body does not exercise control over theperson tobe selected. See Attorney General Letter Advisory **No.** 79 (T473) and authorities cited therein. Where thenepotism statute is applicable, thewife of an officer towhom theprohibition applies is considered to be related tohim within the second degree of affinity. Attorney General Opinions V-785 (1949);V-359 (1947);O-4973 (1942);O-31 (1939);Attorney General Letters Advisory Nos. 79 (1974); 68 (1973). But here, absent "trading" or some other illegal evasion of the law, article 5996awould not apply. SeeV.T.C.S. art. 5996c.

- The commissioners court of a county and itsmembers are statutorily prohibited from attempting to influence the appointment of any person as a deputy, assistant or clerk in another office. V.T.C.S. art. 3902;Attorney General Opinion H-697 (1975) (Tex.Civ. App. __ ,,,tEdw $i~'~~~:$i. 66T~;~m2~ef:~er the commissioners court nor individual commissioners'can legally prevent the sheriff from hiring thewife of a commissioner if she isotherwise eligible for theposition, and article 5996awould not apply. Attorney General Letter Advisory **Nos.** 116, 115 (1975). The community property interest of a commissioner in the county-paid salary of his wife was not addressed as an issue in any of the opinions cited above, however. Article 2340,V.T.C.S., reads: Before entering upon theduties of their office, the county judge and each commissioner shall take the official oath, and shall also take a written oath thathewiii-nn -- directly or indirectly

- lnc'restedin G -

P. 4122. .

. The Honorable John C. Knorpp -page 3 (H-993)

'contract with, or claim against, the county inwhich he resnes, except suchGrants asmay issue to him as fees of office

. . . . (Emphasisadded).
InAttorney General Opinion H-624 (1975),we decided that article 2340prohibited a county from entering a contract with a farmer's cooperative inwhich a commissioner owned a small share, saying:

While the interest involved here appears so negligible as tobe insignificant, the controlling statute is cast in absolute terms and thepublic policy of thematter is clear: members of a commissioners court must avoid all situations which result in their personal pecuniary gain at theexpense of the county. SeeAttorney General Opinion

__ H-329 (1974). The salary earned by a spouse duringmarriage is community property. Family Code 9 5.01. Thus, the husband in this case would normally have a community interest in his wife's salary. Although married couples may convert community property into separate property if they complywith the relevant constitutional and statutory provisions, Hille Hilley, 342 S.W.Zd 565 (Tex.1961), we do notbelida?the husband may in thismanner free himself of all interest in his wife's salary. (a)(2);5.42; See -, Family Code 5s 3.59; 4.02; 5.22

5.61;Attorney General Opinions II-329(1974); WW-1406 (1962). Thus, whether thewife's salary remains community property or becomes separate property, the husband has a direct or indirect interest in it, inviolation of his oath under article 2340. We believe the wife may continue to serve if she renounces her salary, thereby preventing her husband fromhaving an interest inher salary claim against the county. See Attorney General Opinions H-329 (1974)and H-6 (1973). Ifhechooses to resign from the commissioners court, shemay thereafter serve as deputy tax assessor-collector and receive her salary. If the husband remains on the commissioners court and his wife claims salary from the county,,his interest in that claim will cause him toviolate his article 2340 oath and

P. 4123- .
The Honorable John C. Knorpp -page 4 15-993)

render her employment contract null and void as against public policy. Bexar County v. Wentworth, 378 S.W.Zd 126 (Tex.Civ. APP. -- San Antonio 19=, writ ref'd n.r.e.1; Starr Count Guerra, 297 S.W.Zd 379 (Tex.Civ. App. -- SanAntonio **--l&,%0** writ)t Attorney General Opinion,H-624 (1975). SUMMARY The nepotism statute does not bar a county from employing as deputy tax assessorcollector the wife of one of its county commissioners, where the commissioners have no control of'the hiring or firingof such deputies. The husband has an interest inhis wife's salary claim against the county,which causes him toviolate the oath requiredby article 2340,V.T.C.S., and rendersher employment contract null and void. Very trulyyours,

APPROVED: Attorney General of Texas

DAVID M. KENDALL, First Assistant

Opinion Committee

P. 4124