ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 17, 2008

The Honorable Eddie Lucio, Jr.

Chair, Committee on International

Relations and Trade

Texas State Senate

Post Office Box 12068

Austin, Texas 78711

Dear Senator Lucio:

Opinion No. GA-0595

Re: Applicability of the nepotism statutes,

Government Code chapter 573, to an individual

employed by the City ofPharr (RQ-0608-GA)

You ask several questions about applying the nepotism statutes, Government Code chapter

573, to the City of Pharr's employment ofa particular individual.! Your questions arise from the

following fact situation, as relayed to you by the city's mayor:

[A] member of the city's governing board of commISSIoners

recommended to the city manager that a particular woman be hired

for a city job. The woman was not at that time married to the

commissioner's son, but before being hired by the city gave birth to

the child ofthe commissioner's son. A city department head and the

city manager subsequently hired the woman as a clerk and, after the

employment began, the woman and the commissioner's son married.

Request Letter, supra note 1, at 1; see also Ryan Holeywell, Questions ofnepotism raised in Pharr,

THE MONITOR (Aug. 16,2007), available at http://www.themonitor.com (last visited Jan. 8,2008).

You specifically ask:

(1) Did the birth of a child whose father is the son of a city

commissioner create a relationship by affinity between the

commissioner and the child's mother such that employment of the

mother by the city violates Chapter 573, Government Code?

lSee Letter from Honorable Eddie Lucio, Jr., Chair, Committee on International Relations and Trade, Texas

State Senate, to Honorable Greg Abbott, Attorney General ofTexas (July 18,2007) (on file with the Opinion Committee,

also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Eddie Lucio, Jr. - Page 2 (GA-0595)

(2) If a relationship subject to Chapter 573, Government

Code, existed between the commissioner and the woman, did the

city's initial decision to employ the woman, which was not made by

the board of commissioners, violate Chapter 573?

(3) Does the subsequent marriage of the woman to the

commissioner's son prohibitthe continued employment ofthe woman

by the city?

(4) Does the continuous employment exception to the

nepotism laws apply if a relationship by affinity is created after· a

public official takes office?

Request Letter, supra note 1, at 2-3.

Chapter 573 of the Government Code generally prohibits nepotism by public officials,

including municipal officers. See TEX. GOV'T CODE ANN. §§ 573.001(3), .041 (Vernon 2004).

Under section 573.041, a "public official may not appoint, confirm the appointment of, or vote" to

appoint or confirm the appointment ofan individual to a position that is "compensated from public

funds" if "the individual is related to the public official within" the third degree by consanguinity

or within the second degree by affinity. Id. § 573.041(1); see ide § 573.002 (setting out the

degrees of relationship to which chapter 573 applies). Consanguinity refers to relationships by

blood, including adoption, and is calculated by counting the number of generations that separate

two individuals. See ide §§ 573.022, .023(a). Affinity refers to relationships by marriage and is

generally calculated by determining the degree ofthe underlying consanguine relationship. See ide

§§ 573.024(a), .025(a).

All of the issues you raise can be resolved by answering your second question: Even

assuming that a relationship by affinity existed between the commissioner and the woman appointed ,

by the city manager, does chapter 573 apply to her employment and retention by the City ofPharr?

See Request Letter, supra note 1, at 2.

Under a 1981 decision ofthe court of civil appeals, Pena V. Rio Grande City Consolidated

Independent School District, the nepotism statute applies to officers who have the "exclusive right

and sole legal authority to appoint or employ" personnel under the statute. Pena V. Rio Grande City

Consol. Indep. Sch. Dist., 616 S.W.2d 658,659-60 (Tex. Civ. App.-Eastland.1981, no writ). An

officer with statutory authority to appoint or employ personnel does not avoid the application ofthe

nepotism statute by delegating authority to an officer withoutsuch statutory authority. See ide at 660.

Citing Pena and attorney general opinions premised upon Pena, this office stated in 2004 that

a home-rule municipality's governing board avoided the application of section 573.041 to board

members' relatives ifthe board had, by charter, delegated "full and final appointing authority" and

had not "reserve[d] any authority to the governing body." Tex. Att'y Gen. Opt No. GA-0226 (2004)

at 3. Thus, for example, the nepotism statutes did not apply to a city manager's hiring ofindividuals
The Honorable Eddie Lucio, Jr. - Page 3 (GA-0595)

related to city commissioners where the home-rule municipality's charter delegated to the city

manager sole power to appoint and remove all officers and employees in the administrative service

ofthe city (with the exception ofthe city attorney) and expressly prohibited the city commission

from taking any part in the appointments. See id.; see also Tex. Att'y Gen. Ope No. 0-5274 (1943)

at 1-3, 10.

The City of Pharr is a home-rule municipality. See TEXAS ALMANAC (2006-2007) at 453,

461; TEXAS MUNICIPAL LEAGUE, TEXAS CITY OFFICIALS DIRECTORY AND BUYER'S GUIDE

(2005-2006) at 100. According to your letter, the city charter deemsthe citymanager to be the city's

"chiefadministrative and executive officer" and provides the city manager with exclusive power to

appoint city employees below the department-head level:

[The city manager] shall appoint, subject to consultation with

the Board ofCommissioners, all department heads, and without such

consultation all City employees and appointive administrative officers

provided for by or under this Charter, except as otherwise provided

by law, this Charter or personnel rules adopted pursuant to this

charter ....2

Request Letter, supra note 1, at 1 (quoting Pharr City Charter art. IV, § 1(a), (b)(2)) (footnote added).

As you describe it, "the Pharr city charter grants the city managerthe authority to hire city employees

below the level of department head without the approval or involvement of the board of

commissioners." Request Letter, supra note 1, at 3. You further explain that, under the City of

Pharr's charter, the board ofcommissioners does not appoint, confirm, or vote to appoint or confirm

any employees otherthan department heads. See ide Because this office ordinarily does not construe

city charters, this opinion is premised on your characterization ofit. See Tex. Att'y Gen. Ope No.

GA-0529 (2007) at 1.

The city manager hired the woman about whom you ask to fill a clerk's position, and your

letter indicates that the clerk's position is not a department head's position. See Request Letter,

supra note 1, at 1, 3. Consequently, the city charter, as you describe it, required the city manager to

appoint the clerk without the board of commissioners' approval or involvement.3 See ide at 3.

Whether in fact the city charter delegates to the city manager "full and final appointing

authority" and does not "reserve any authority to the governing body" is generally a question for the

appropriate municipal officials to answer. Tex. Att'y Gen. Op.No. GA-0226 (2004) at 3. In these

circumstances, however, and assuming that you accurately characterize the City ofPharr's charter,

2We assume that no other provision ofthe city charter or any city personnel rules abrogate the city manager's

appointing authority under article IV, section 1(b)(2) ofthe Pharr City Charter.

JYour letter suggests that "[a] city department head and the city manager" hired the woman. Request Letter,

supra note 1, at 1. The department head's role in the hiring is irrelevant to the nepotism analysis, assuming that the

department head exercises no delegated authority in the hiring process under the city charter.
The Honorable Eddie Lucio, Jr. - Page 4 (GA-0595)

chapter 573 does not apply to the city manager's hiring of an individual who is related to a city

commissioner to a position below the department-head leve1.4

Because this conclusion resolvesthe situation, we need not answer yourremaining questions.

4We assume for purposes of this opinion that the commissioner's daughter-in-law is not related to the city

manager within the third degree by consanguinity or within the second degree by affmity. See TEX. GOV'T CODE ANN.

§ 573.002 (Vernon 2004).
The Honorable Eddie Lucio, Jr. - Page 5 (GA-0595)

SUMMARY

The charter of the City of Pharr, a home-rule municipality,

delegates to the city manager the power to appoint individuals to

positions below the department-head level without consulting the

municipal governing board. Ifthe charter provides the city manager

with full and final appointing authority to appoint individuals to such

positions and reserves no authority for the city's governing body in

these appointments, the city manager may appoint an individual who

is related to a city commissioner, but who is not related to the city

manager, without contravening the nepotism statutes, Government

Code chapter 573.

Very truly yours,

KENT C. SULLIVAN

First Assistant Attorney General

ANDREW WEBER

Deputy Attorney General·for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Kymberly K. Oltrogge

Assistant Attorney General, Opinion Committee