Hon. A. J. (Jack)Hartel Opinion No. PI- **671** County Attorney Liberty County Courthouse Re: **Whether a**  **aothcr May**  **h** Liberty, Texas promoted to tax asscssorcollector of a s.chooldistrict when her **son** is **a member**  **of** the **board** of such district without violating Article 132, Vernon's Penal Dear Mr. **liartel:** Code.

Tour recent letter to-this office requesting an opinion concerning the referencedmatter states, in part, as follows: "The Hardin Independent School District ha8 had in its continuous employ, **Mrs.** A. E. **Cessna,** for the past six (6)years as Assistant Tax Assessor-Collector. This past April (1970) Mrs. Cessna’s son was elected to serve **on** the Board of Education of the Hardin Independent School District

. . . 'The Hardin Independent School District would like to promote Mrs. Cessna to the'job of Tax **Assessor-Collector**

**. .**  **.** "The question has been raised by a taxpayer in the Hardin Independent School District as to whether thiswould be a violation of Article 432 of the Penal Code, pertaining to **nepotimn**
. . . *

. . . . "I would appreciateyour opinion as to whether the above-mentioned fact situation would constitute a violation of Article 132 of the Penal Code

. . ."lion. **A.** J. (Jack)Hartel, page 3 (M-671)

hold their employment, or to officewhich might give rise but for this amendatoryAct to a conflict with the nepotism laws of this State or some municipal corportition; **the** fact that persons who have continuously served in public office and employment in this State prior to the election to some office of a relative should **not** be discharged for that reason alone: and the fact that the purpose of the nepotism lawwas not to oust such persons frcm legitimateemployment in this State, create an emergencyand an imperative public necessity that the Constitutional Rule requiring all bills to be read on three revere1 days in each House be and the mama is hereby suspendedt and this **Act** shall takeeffect and be in force froa and after its passage:and it is so enacted." Acts 52nd Leg. R.S. 1951, ch. 97, p. 159.
It is clear that **the** party involved in the instant fact situationmay remain in her position as AssistantTax Assessor-Collector,despite the fact that her son is on the schoolboard, by virtue of the underscoredprovisionsof the Article.

What is at issue here is whether **her** promotion to a higher position, within the same office, would be allowable as **being** within the language of the Article relating to "such office, position, clerkship, employment or duty.'

The statement of legislativepurposequoted in Section 3 of the Act, supra, evidences that the,underscored provisions of the Article were added to prevent a person's losinghis job solely because a relativewithin,theprohibited degree had been elected to another public position.

It is our opinion that **the** Legislature intended by the underscored language of the Article, supra,only **that a**  personwould not lose his job if a relativewere elected to an office within the Article's purview. We cannot conclude **that the**  Legislature, in view of the spirit of the **other** provisions of the Article, intended that a relativeof such &n officeholder could be promoted to & positionwhereby his financial remunerationwould be enhanced.

In view of **the** foregoing, your question is answered in the affirmative.
-x03-Hon. A. 3. (Jack)Hartel,page 2 (M-671)

Article 432,Vernon's Penal **Codi,** provides dad**follows:**
'No officerof this State **nor** any officer **of** any district county, city, precinct, school district, or any other municipal subdivision of this State, **nor** 4ny officer or member of any **State** district, county, city, school district or other municipalboard, or judge **of** any court, created by or under authority of any General or Special;Law of this State, nor any member **of** the &egislature, shall appoint, or vote for, or confirm the appointmentof any office, position, clerkship, employmentor duty, of any person ,,related

within the second degree by affinity or ~within the thirddegree by consanguinity to the .personso appointing**or** so voting, or to any other member of any such board, the Legislature, or court of which such person so appointing or ,votingmay 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

appointing,voting for, or confirming,the anpointment, or to the election or appointment Of the officer or member related to such employee In the prohibiteddegree." (Emphasisadded.) Section 3 of the Act amending Article 432, supra, to include the above underscoredprwisionr therein, atates that the reasons the Articlewas so amended were as follows:

*The **fact** that numerous employees of the State and its agencies and subdivisionswhose services are valuable to the State are .required to give up suchemployment because **members** of their familymay be; from time to~timc,elected to **office** in this State, under whom such employees

**-3LOL-**

### Hon. **A.** 

### J. (Jack)**Hartel,** Page **4** 

### (M-671)

**Pursuant to**  

### Article**432, Vernon** **’ 8**  

### Penal Code,amother,currentlyemployedas assistant .tax assessor-collector **of** a schooldirtrict, ruy not **be promoted**  

### to thepositionof 

### tax assessorPrepared by 

### AustinC. Bray,Jr. AssistantAttorney 

### General
APPROVED: 

### OPINIONCOMJUTTEE
Kerns 

### Taylor,Chairman W. E.Allen,Co-Chairman John Grace Bob Flowers **Bob** 

### Lattimore ArthurSsndlin I4EADEF. GRIFFIN Staff 

### LegalAssistant
ALIRE WALKER ExecutiveAssistant NOLA WHITE First 

### Assistant

-3204.