## THE L~TI-ORNEY GENERAL OF-XAS AUSTIN. TEXAS **78711**

April 18, 1972

Hon. Rayford Price Speaker, State of Texas House ofRepresentatives Austin, Texas

Dear Sir: Opinion No. **M-1120** Rez. Whether the nepotism statutes prohibit a member of one house of the Legislature from employing aperson on his staff who isnot related tohim but is related within the second degree of affinity or the third degree of consanguinity to amember of the other house of the Legislature, and a related question. You have presented the following two questions to this office for an official opinion:

"(1) Do the nepotism statutes prohibit amember of one house of the legislature from employing aperson onhis staffwho isnot related to him but is related within the third degree of affinity or the second degree of consanguinity to amember of the other house of the legislature? "(2) Do the nepotism statutes prohibit the Speaker of the House ofRepresentatives, who is authorized by House Rules to appoint employees of the House ofRepresentatives, from appointing aperson as an employee Of the House who isnot related to anymember of the House but isrelated within one of the degrees mentioned above to a State Senator?M -5454-Hon. Rayford Price, page 2 (M-1120)

Article 432 of the Penal Code of Texas prohibits employment or appointment ofpersons related within the second degree by affinity orwithin the third degree by consanguinity. This opinion, of course, will be restricted to these respective degrees of relationship.

This Article prohibits the appointment by II

. . 0anymember of the Legislature, . . . of anyperson related . . .to any other member of.. .the Legislature . . .when the . . . compensation of such appointee is tobe paid for, ; . .out of or from public funds. . .- It ispatent thatyour first question must be answered in the.affirmative. The statute clearly prohibits amember of one.House of the Legislature from hiring arelative (within the restricted degrees of relationship) of amember of either House of the Legislature when such employee is tobe paid from public funds. Article 433 of the Penal Code expressly provides that "members of the Legislature" are subject to the inhibitions ofArticle 432.

The office of Speaker of the House ofRepresentatives derives fromArticle III, Section 9 of the Texas Constitution, which reads, inpertinent part, as follows:

II

. 0 .The House ofRepresentatives shall, when it first assembles, organize temporarily, and thereupon proceed to the election of a Speaker from its own members; and each House shall choose its other officers." The Speaker of the House ofRepresentatives is a member of the House ofRepresentatives when elected, and he does not lose his status as amember of the House ofRepresentatives after becoming elected Speaker. As amember of the House ofRepresentatives the Speaker isprohibited by Article 432 from appointing a relative of a State Senator as an employee of the House ofRepresentatives. Article 433 declares that "The inhibitions set forth in this law -5455-. .

Hon. Rayford Price, page 3 (M-1120)

shall apply to and include the . . .Speaker of the House ofRepresentatives."

We therefore answer your second question in the affirmative, sincewe are convinced by a study of the legislative history of the nepotism laws that Article 432 is fully applicable to themembers of the Legislature and the Speaker of the House. SUMMARY

Article 432 and 433, Vernon's Penal Code, prohibit amember of one House of the Legislature from hiring arelative of amember of the other House of the Legislature when such relationship iswithin the second degree by affinity orwithin the third degree by consanguinity. The Speaker of the House ofRepresentatives isa member of the House ofRepresentatives and is governed by Articles 432 and 433.

C.MARTIN orney General'of Texas Prepared by Robert W. Gauss Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman

-5456-Hon. Rayford Price, page 4 (M-1120)

Lonny Zwiener Sam. L. Jones, Jr. John Grace J. C. Davis SAMUEL D. McDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLAWHITE First Assistant

-5457-