### TEE ATTOWNEY GENERAL OF TEXAS

September 30, 1987

HonorableJimmy F. Davis CastroCountyAttorney CastroCounty Courthouse Dimmitt.Texas 79027 Opinion No. J&801

RI=: Whether a county commissioner may hire the son of another county commissioner in a county which has
en officio road commissioners

DearMr. Davis:

You ask whether a county commissionermay hire as a road hand the son of another county commissioner in a county that has adopted the vex officio road commissioner"method for road construction and maintenance. The nepotism statute.article 5996a,V.T.C.S.,prohibits
an officer from appointing,voting for, or confirming the employment of a person related tohim within a prohibiteddegree:

No officer of this Statenor any officer of any district,county, city,precinct, schooldistrict,
or other municipal subdivisionof this State, ngr any officer or member of any State district, county, city. school district or other municipal board, or judge of any court, createdby or under authority of any General or Special Law of this State, nor any member of the Legislature, shall appoint, or vote for, or confirm the appointment to any office, position, clerkship, employmentor 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 compensationor such appointee is to be paid for, directly or indirectly,out of or frompublic funds or fees of officeof any kind or characterwhatsoever.

. . .,

Becausea son is related tohis fatherwithin the firstdegreeof consanguinity,Attorney General Letter Advisory No. 115 (1975), the nepotism statute would bar the commissioners court itself from employing the son of one of the members. You suggest,however, that

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an ex officio road commissioner acts independently of the commissionerscourtwhen he hires road hands and that thereforean ex officioroad commissionerwould not violate thenepotism lawby hiring the son of another county commissioneras a roadhand.

The commissioners court may choose one of several methods for carrying out its responsibility to lay out. repair, and construct public roads and bridges. See art. 6702-1, 613.001 through 3.213, V.T.C.S. Castro County. youxform us, has adopted the method under which each countycommissioneracts as ex officioroad commissionerin his precinct. Art. 6702-1, 113.001 through 3.004,V.T.C.S. Section 3.001 of article 6702-lprovides:

In all counties the members of the conrmissioners court are ex officio road commissioners of their respective precincts and under the direction of the commissioners court have charge of the teams, tools, and machinery belonging to the county and placed in theirhands by the court. They shall superintend the laying out of new roads, themaking or changingof roads, and thebuilding of bridgesunder rules adoptedby the court. (Emphasisadded.)

Section 3.003of article 6702-I sets out thepowers of ex officioroad cosmrissioners:

(4 Subject to authorization by the connnissioners court, each ex officio road commissioner may employ persons for positions in the commissioner'sprecinct paid from the county road and bridge funds. Each ex officio road commissioner may discharge any county employee working in the commissioner's precinct if the employee is paid from county road and bridge funds. Each ex officioroad commissioneralsohas the duties of a supervisor of public roads as providedby Section 2.009of thisAct.
(b)Each county commissioner.when acting as a road commissioner, shall inform himself of the condition of the public roads in his precinct, shall determine what character of work is to be done on the roads, and shall direct themanner of grading, draining, or otherwise improving the roads, which directions shall be followed and obeyed by all road overseers of his precinct. (Emphasisadded.)

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You suggest that section 3.003(a). which authorizes ex office road commissioners to hire road hands "[slubject to authorizationby the commissioners court,"makes the nepotism statute inapplicable to the situation you ask about. A number of Attorney General Opinions
are relevant to your question. Attorney General Letter Advisory No. 115 (1975)determined that a county judge couldhire the daughterof a countycommissioneras his secretarybecause in doing so he would not be acting as a member of the couarissioners court. Attorney General Letter Advisory No. 116 (1975) held that a sheriff could hire the son-in-law of a county commissioner as a jailer because the commissioners court was statutorily prohibited by article 3902, V.T.C.S., from attempting to influence the appointment of a jailer. Because the right to hire the jailer "rests exclusively in the sheriff," the letter advisory stated, the nepotism statute was not applicable. Attorney General Opinion H-697 (1975) concluded that a county departmentunder the county's civil serviceprogram could hire persons related to the county commissioners. Although the requestor stated that the county commission approved the hiring decisions, the opinion pointed out that the commissioners court had no authority to approve or disapprovehiring decisions regardingpositions subject to former article 3902. "Because the commissioners court has no actual power to control and should not undertake to control," the opinion stated, the nepotism statute was inapplicable. Attorney General OpinionR-1210 (1978)consideredwhether a city could give a raise to the daughterof a county commissionerwho was employedby the city as an ambulance supervisor. The ambulance at the heart of the controversywas owned by the county and operated by the city. Under the contractbetween the city and the county, the countyhad no right to control the appointment of the ambulance supervisor. The opinion held that the nepotism statute was inapplicable, saying, "In cases where the commissionerscourt authorizesa positionbut has no control
over the person to be selected, we have said that article 5996a, V.T.C.S., is not violated by the appointment of a commissioner's relative to thatposition."

The right to control.whether exercised or not. was found to be the decisive factor in several instances in which this office found the nepotism statute to be applicable. Attorney General Opinion JM-581 (1986) considered whether a county librarian could hire an assistant who was related to a county commissioner in a prohibited degree. Because a county librarian has authority to appoint and dismiss library employees only with the approval of the commissioner court, the opinion concluded that the joint control exercisedby the zssion and' the county librarian was sufficient to make the nepotism statuteapplicable. JM-581 specificallystated that the fact that the commissioners court does not use its statutory authority to exercisecontrolover the appointmentof county libraryemployeesdoes not abrogate or limit that authority. Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658 (Tex. Civ.

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APP. - Eastland 1981, no writ). JM-581 relied on Attorney General Letter Advisory No. 156 (1978). which considered whether a junior college district could hire someone related to the president of the college within a prohibited degree. The letter advisory stated that the nepotism statute is not violated if the public officer "cannot exerciseany control"over thehiring of someonerelated tohim within the prohibited degree. Because the board of trustees of a junior college was authorized to hire employees upon the president's recoaunendation,

the letter advisory concluded, the president and the board exercised joint control over hiring and that joint control was sufficienttomake thenepotism statuteapplicable.

Those opinions make clear that the key to your question is whether the commissioners court can exercise control over an ex officio road commissioner'sdecisionto hire a relative of one of the commissioners as a road hand. To say that the nepotism statute is inapplicableto the situationyou ask about,we would have to say that section 3.003(a) of article 6702-Imeans that once the commissioners court authorizesa position to be filled, it can exerciseno approval
or confirmation authority over an ex officio road commissioner's decision about whom to hire to fill that position. We do not interpretsection 3.003(a) in thatway.

The statutes governing ex officio road commissioners have provided since their enactment that ex officio road commissionersact "under the direction of the commissioners court." Acts 1901, 27th Leg., ch. 114. at 277. The provision in section 3.003(a) that allows
ex officio road commissioners to hire road hands was added in 1981. Acts 1981, 67th Leg., ch. 691 at 2584. The 1981 amendment took the place of the following language: "Said [commissioners] court may employ any hands and teams on the public roads under such regulations and for suchprices as theymay deembest." Acts 1901, 27thLeg., ch. 114, at 277 (previously codified at V.T.C.S. art. 6762). Under the prior provision the court had no authority to delegate the hiring of road hands to the ex officio road commissioners. See Guerra v. Rodriguez. 239 S.W.2d 915, 920 (Tex.Civ. App. - San An=10 1951,no writ) (hiring of road hand is not ministerial act and may not be delegated by commissioners court absent statutory authority). The 1981 amendment was obviously intended to increase the power of 'ex officio road commissioners to hire and fire road hands. We do not believe,however, that it was intended to create an exception to the generalrule that the commissionerscourthas general supervisionover ex officioroad commissioners.

The 1981 amendment was necessary to allow ex officio road commissioners to make hiring decisions at all. See Guerra v. Rodriguez. 230 S.W.2d 915, 920 (Tex.Civ. App. - SanAntonio 1951.no writ). See also Bill Analysis to S.B. No. 1242, 67th Leg., prepared for Committee on Intergovernmental Affairs (stating that 1981

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amendment "empowers the commissioners to hire, fire and supervise, when necessary. those employees that would be paid from county road and bridge funds." Nothing in the statutory language or the legislativehistory indicates that the 1981 amendmentwas intended to prevent the commissioners court from exercising supervision over the hiring decisions of each individualroad commissioner. See generally V.T.C.S. art. 6702-1, 53.101(b)(2) (actsof road commissioneremployed by commissioners court are "subject to the control, supervision, orders, and approval of the cbssaissioners court"); 03.102(b)(4) (road superintendents shall hire teams "as directed by the commissioners court"). We think the legislaturewould expresslystate any intent to exclude the commissioners court as a whole from exercising any authority in a matter of countybusiness. See Tex. Const. art.V, P18 (commissionerscourt shall exercisepower andjurisdiction over county business). Therefore, we conclude that the commissioners court has authority to approve or disapprove the hiring decisions of an ex officio road commissioner. Consequently, the nepotism statute prohibits an ex officio road commissioner from hiring the son of another county commissioneras a road hand.

SUMMARY

Article 5996a, V.T.C.S.. the nepotism statute, prohibits an ex officio road commissioner from hiring the son of another countycommissioneras a roadhand.

Very trulyyours 

# J /b

Lx JIM MATTOX AttorneyGeneral of Texas

MARY KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorneyGeneral

RICKGILPIN Chairman,Opinion Committee
Preparedby SarahWoelk AssistantAttorneyGeneral

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