TEE ATTOWNEY GENERAL 

OF TEXAS 

September 30, 1987 

Honorable Jimmy F. Davis 

Castro County Attorney 

Castro County 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 

Dear Mr. Davis: 

You ask whether a county commissioner may 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 to him within a prohibited degree: 

No officer of this State nor any officer of any 

district, county, city, precinct, school district, 

or other municipal subdivision of this State, ngr 

any officer or member of any State district, 

county, city. school district or other municipal 

board, or judge of any court, created by 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, 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 or 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. . . ., 

Because a son is related to his father within the first degree of 

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 

p. 3786 
Eonorable Jimmy F. Davis - Page 2 (JM-801) 

an ex officio road commissioner acts independently of the 

commissioners court when he hires road hands and that therefore an ex 

officio road commissioner would not violate the nepotism law by hiring 

the son of another county commissioner as a road hand. 

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 county commissioner acts as ex officio road commissioner in 

his precinct. Art. 6702-1, 113.001 through 3.004, V.T.C.S. Section 

3.001 of article 6702-l provides: 

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 their hands 

by the court. They shall superintend the laying 

out of new roads, the making or changing of roads, 

and the building of bridges under rules adopted by 

the court. (Emphasis added.) 

Section 3.003 of article 6702-I sets out the powers of ex officio road 

cosmrissioners: 

(4 Subject to authorization by the 

connnissioners court, each ex officio road 

commissioner may employ persons for positions in 

the commissioner's precinct 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 officio road commissioner also has 

the duties of a supervisor of public roads as 

provided by Section 2.009 of this Act. 

(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 the manner of 

grading, draining, or otherwise improving the 

roads, which directions shall be followed and 

obeyed by all road overseers of his precinct. 

(Emphasis added.) 

p. 3787 
Honorable Jinany F. Davis - Page 3 (~~-801) 

You suggest that section 3.003(a). which authorizes ex office 

road commissioners to hire road hands "[slubject to authorization by 

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 could hire the daughter of a 

county commissioner as his secretary because 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 department under the county's civil service program 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 disapprove hiring decisions regarding positions 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 

Opinion R-1210 (1978) considered whether a city could give a raise to 

the daughter of a county commissioner who was employed by the city as 

an ambulance supervisor. The ambulance at the heart of the 

controversy was owned by the county and operated by the city. Under 

the contract between the city and the county, the county had no right 

to control the appointment of the ambulance supervisor. The opinion 

held that the nepotism statute was inapplicable, saying, "In cases 

where the commissioners court authorizes a position but 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 that position." 

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 exercised by the 

zssion and' the county librarian was sufficient to make the 

nepotism statute applicable. JM-581 specifically stated that the fact 

that the commissioners court does not use its statutory authority to 

exercise control over the appointment of county library employees does 

not abrogate or limit that authority. Pena v. Rio Grande City 

Consolidated Independent School District, 616 S.W.2d 658 (Tex. Civ. 

p. 3788 
, 

Honorable Jimmy F. Davis - Page 4 (JM -801) 

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 

exercise any control" over the hiring of someone related to him 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 

sufficient to make the nepotism statute applicable. 

Those opinions make clear that the key to your question is 

whether the commissioners court can exercise control over an ex 

officio road commissioner's decisionto hire a relative of one of the 

commissioners as a road hand. To say that the nepotism statute is 

inapplicable to the situation you ask about, we would have to say that 

section 3.003(a) of article 6702-I means that once the commissioners 

court authorizes a position to be filled, it can exercise no approval 

or confirmation authority over an ex officio road commissioner's 

decision about whom to hire to fill that position. We do not 

interpret section 3.003(a) in that way. 

The statutes governing ex officio road commissioners have 

provided since their enactment that ex officio road commissioners act 

"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 such prices as they may deem best." Acts 1901, 27th Leg., 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 

general rule that the commissioners court has general supervision over 

ex officio road 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. - San Antonio 1951. no 

writ). See also Bill Analysis to S.B. No. 1242, 67th Leg., prepared 

for Committee on Intergovernmental Affairs (stating that 1981 

p. 3789 
Honorable Jimmy F. Davis - Page 5 (JR-801) 

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 

legislative history indicates that the 1981 amendment was intended to 

prevent the commissioners court from exercising supervision over the 

hiring decisions of each individual road commissioner. See generally 

V.T.C.S. art. 6702-1, 53.101(b)(2) (acts of road commissioner employed 

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 legislature would expressly state any intent to 

exclude the commissioners court as a whole from exercising any 

authority in a matter of county business. See Tex. Const. art. V, P18 

(commissioners court shall exercise power 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 commissioner as 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 county commissioner as a 

road hand. 

Very truly yours J Lx /b 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 3790