TRI~~:ATTORNE-YGEJUERAL 

OFTEXAS 

PRICE DANIEL 

ATTORNEY GENERAL 

AUSTIN 11. TEXAS 

March 14, 1949 ' 

Hon. D. D. Williams 

County Attorney 

Throckmorton County 

Throckmorton, Texas 

Dear Sir: 

opinion NO. V-785 

Re: The legality of employing the wife of a county 

commissioner as the county home demonstration 

agent. 

You request an opinion from the Attorney General upon the above subjeot matter. 

.Your fact situation, briefly stated is that 

the present County Home Demonstration Agent for Throokmorton County has held that position since 1947. At 

the January term, 1949, the Commissioners* Court made 

the following order: 

"It ,is ordered by the Commissioners* 

Court of Throolanorton County that the sum 

of Eleven Hundred and Forty Dollars ($l,l40.00) be appropriated an8 the same is 

hereby appropriated out of the funds of 

the county to be used as a part of salary 

of a Home Demonstration Agent, to be assigned to work in this county by the extension service of the Agricultural and 

Meohanioal College of Texas. . . .* 

The lady holdings this position is now engaged 

to marry one of the County Commissioners. Upon this. 

fact basis you submit the following questions: 

"1. Will the marriage of the Home 

Demonstration Agent and the County Commissioner of Throokmorton County cause her to 

become ineligible to hold her pbsition immediately upon marriage under the 'Nepotism' Statute, ,Art. 432 of the Penal Code 

of Texas? 

"2. If such marriage does not cause 

her to become ineligiblb during the year, 

1949, will it render her ineligible for subsequent years while her future husband is 
'Hon. D. D. Williams - Page 2 (V-785) 

County Commissioner of Throokmorton 

Texas." 

county, 

Article 432 of the Penal Code of Teus - the 

Nepotism Statute - is in part as followsr 

"No offloor of this St&o or any of* 

ficer of any. . , oounty, ,i '. judge l 'f 

Ony court, . , ,shall~OppOint, or vote ror, 

er ~oonflrm the a 

RP 

ointment to any efrloe; 

position, clerks p, employment or duty, of 

any person related within the sesond degree 

by oirinity or within the third dogror by 

consanguinity to the person'80 ap@ntlng 

or se voting, or to any other aember of any 

l r h board , . , ,or oourt ore ahioh suah psr-~ 

801~ 80 .appointing or ntlrg nay be o member, 

when the salary f,oes or l aponsation Of 

suoh a point00 1s to {O pOfa ror aireotly 

or lna E reotly outof or rrom p&o runas 

or roe0 or od1o.o or any kind or ohoroator 

whatdOOvOrl.~ 

Artiole 433 or the Codo dorlaros: 

"No ofrioor l r other prrson inOiuaOd 

within the ttilrd procoding art1010 (432) 

rhall approvo any l ooount or (row or 'authsrlzi the dkawing of any *arrant or order to 

pey any salary ree or.~oompensation or, snoh 

lnoligible of&Or or person,~ knowing hlmta, 

be so lnellglblor" 

We shall first gofioo a quostion.,of kinship 

under the Nopotisn‘Statute not hitherto deeidea by any ~'~ 

eotirt ln'this State so rar as 179 are l drised that is, 

whethor tho husband and wife are related in the prohi-, 

bited a0grOO or thr Statuto. 

Wo'ossu&~of cour8o) t&t ths Comm%srlonor 

and the Agont ore not ,relatad by oensanguinity (blood). 

hit romaln,s only to oonsider whether they.are related 

by l rriaity (m0rriOgOI. 

Under the rule in this Stato'a wirets blood 

relotivos are the husband's affinity relafivor.,~. Dpoa .' 

the marriage 0r your County Caarissloner~ and 

stration Agent the bload rolatlvos of the 

iFtiE?- 

beoora tho l f&ity rolatiros of the Sari88 "f: onor. Tkt 
Ron. D. D,, Williams - Page 3 (v-783) 

is to say, her father, mother, brother, sister, son, 

end daughtes would be related to him by~affinity within the first degrso, and her grandfather, grandmother, 

uncle, aunt, first oousin, nephew, nleoo, grandson, 

and granddaughter would be related to the Commissioner 

by affinity within the seoond do&roe, 

Under the letter of tti.rule obtaining in 

this State as to kinship by affinity, it is obvious that 

a man's wife would not be related to him at all for it 

is only "her kin by consanguinity or blood" that beoomes 

her husband's kin by affinity. However, when the statute 

of Nepotism is construed aocording to its purpose and intention, it is obvious it should.be construed to apply to 

the relation of husband and wife, for such relation is 

closer than the forbidden relations of her blood kin above 

enumerated. The evil seught to be remedied wouldbe in-' 

finitely mare obvious if anoffiesr were to appoint his 

wife than if he were'to~appoint her brother, sister, father, unale, nioos or.oousin. We need not to determine 

whether the Ponal.Statute (A&:437, P.C-.) would be applied for a violation of the statute, beoause,Article 432 

in EtrriTSLStiVO terms for.bids sueh employment, which is 

therefore unUufu1, whether the same be punishable oriminally or not, 

It has been held in former opinions that; under 

the Nepotism ntatutes, a husband aoald not so appoint his 

wife. Opinion V-3S9; OpilItiOll 0-3X. 

We now consider whether or not a demonstration 

agent holds a nposltionv with the oounty forbidden by the 

Nepotism Statute. 

Article 164 of the Revised Civil Statutes is 

the authority for our cooperative demonstration work in 

agriculture and home economics, It rsaas: 

"The Commissioder~s Court of any oounty 

of this State is authorized to establish and' 

oonauot eo-operative demonstration work in 

agriculture and home eoonomlos in oo-operation with the Agrioultural and Mechanical 

College of Texas, upon such terms and oonaitione as may be agreed upon by the Gommiseioners' Court and the agents of the Agrioultural 

an~d Yeohanicai Uollege of Texasi and may smploy such means, and may appropriate' and 8xpend such sums of money as may be neoessary to 
Hon. D. D. Williams - Page 4 (V-785) 

effeotively establish and carry on such demonstration work in agriculture and home eoonomios in their respective counties." 

While the demonstration work,is a cooperative 

plan by which the respective counties of then State may 

utilize its benefits, nevertheless, it is perfectly obvious that the county availing itself of such plan necessarily makes such accepted denonstrator its own agent 

and employee,. The language 

may appropriate and 

"may employ such means, and 

ex end such sums of money as mey be 

necessary te effective fy establish and carry on such 

demonstration work in agrioulture and home eoonomic$ in 

their respective counties, * is the ambit of their povre~. 

It can make no difference that the A & M supplies the 

demonstrators for such oounty.S8Tvioe, By this legislative plan the State enoourages the training of demonstration agents by OUT own Agricultural and Mechanical College and assures competent agents throughout the State. 

No reason is'discernible why.the employment df the demonstration agent does not oome within the employment.practioe condemned by the statute. 

Opinion Nd, O-4372 by a former Attorne'y Genera&, 

cited by you in your brief, does not involve any $uestion 

of nepotism. It merely affirms the authority of the'Commissioners' Court of~a county to make continuous annual. 

appropriations for compensating the agent. Nor is~the relation of the county to the demonstratiod agent analogous 

to the relation between then county and an elective officer of the county or a precinct, as you suggest, for'in 

the case of an eleotive officer the 'county has no controlling discretion whatever as to the seleoting or the oompensation of suoh,offioer, whereas, in the present case it 

had. 

This brings us to the question of whether or not 

your situation is controlled by the fact that the demonstration agent was.the employee of.the,~oounty prior to her 

marriage to tpe county commissioner. The ca@e of Fairless 

v. The Cameron County Water Improvement Distriot No. 1, 25 

S. W. (2a) 651 is informative. It is there said: 

"Blakeley, a member of the Board of 

Directors of the Water Improvement Distriot, 

was the husband of a sister of appellant 

when he was employed in ~1928, an'd had been 

~a director of such a,istriot &ring four 

years before that time. The employment of 
Ffon. D. D. Wllliame - Page 5 (V-785) 

appellant was a plain violation of the Nepotism Law, and he ha8 no oauae to oomplein 

beoause of his disoharge by the board or dlreotors, who, upon learning that they were 

aoting oontrary to law, promptly disohergsd 

him and relieved themselves of any ohergo of 

wlliul dieobrdienoe to the law. They oould, 

end perhaps should, have refused to pay him 

anything for the month af February in the 

firet part of whioh he was diecharged.” 

This offloa In Opinion MO. O-1408 oited and 

quoted the Pairless-Oameron oaae in au port 

ing that where an employee upon a mont f: 

of’ Its holdly basis beoam8 

lnellglble for the appointment under Article 432, employment after the ‘first OS tha auooeeding lnonth would have 

been in direot violation or the Penal Cods. The opinion 

cite8 an earlier opinion, No. O-361, where the employment 

was ude et a time when the relationship did not exist; 

thrrefore the employment at the time was legal, and the 

ooatraot ror ita term (aohool dletriot eupsrlntendent )* 

wea not mde rold. 

It was held during the preamt admlnistration 

that the eleotion of a,truatee to a board or sohool truatees, who is related to a teaoher of such gohool holding 

a valid existing oontraot with the board, does not make 

void euoh oontraot under Artiole 432 of the Penal Code, 

(Opinion No. V-184) , 

Upon these oonsiderations,~ you are advised that 

the oontraot by whloh the County employed the Domonstration Agent is not *de void by her supervening marriage 

to one of the ooavaiseioner8; but upon the terrlnation of 

the period ror whioh she was employed she would be lneligible ror re-employment if her husband is one of the oommislioner 9. 

We heve answered your queetions In this mennar 

beoauae we are unable to determine from your statement 

whether the agent’8 employment wag for a year or ~~~eraly 

by the month, terminable at the end of any month by either 

party. The appropriation by the oourt or a sum surrioient 

to compensate the agent for a year does not nsoeeaarily 

ehow that there was an employment for any definite t&m. 
. 

Hon. D. D. Williams - Page 0 (V-785) 

The employment by a county of a County 

Demonstration Agent in cooperation with the 

A&M College oomes within the provision of 

Article 432, Penal Code, forbidding nepotism. For such employee to marry a member 

of the Commissioners* Court,would not operate to make void the existing contract between the Agent and the county, but it would 

remain valid to the end of the term of employment. Fairless v. Cameron County I& 

provement Distriot, 25 S. W. (26) 651; Attorney General's Opinion No. V-184. 

Yours very truly, 

0S:wb 

'ATTORNEY GBMRALOF TEXAS 

Assistant