@ffice of tfie !Zlttornep @enera 

&ate of &exae 

September 20,199l 

Mr. Dermis R. Jones 

Commissioner 

Texas Department of Mental 

Health and Mental Retardation 

P.O. Box 12668 

Austin Texas 78711-2668 

Opinion No. DM-46 

Re: Whether the Texas nepotism law, 

article 5996a, V.T.C.S., is violated when 

the superintendent of a Texas Departem of Mental Health and Mental. 

Retardation school awards a merit 

salary to his spouse, who is employed at 

the same facility (RQ-110) 

Dear Mr. Jones: 

You ask whether the Texas nepotism law, article 5996a, V.T.C.S., is violated 

when the superintendent of a Texas Department of Mental Health and Mental 

Retardation (MHMR hereinafter) school awards a merit salary ‘increase to his 

spouse, who is employed at the same facility. You inform us of the following facts 

relevant to your question: 

Recently, this facility received accreditation from a nationally 

recognized body due in large part to the efforts of the employees 

of the school. 

In order to recognize those employees who performed 

exceptionally well, the superintendent established a committee 

to evaluate performance and recommend to him persons to 

receive merit salary increases: The superintendent was not a 

member of the committee and had no part in deciding to whom 

the merit salary increases would be awarded. The superintendent’s spouse was recommended for and received a merit salary 

increase. 

We conclude that the nepotism statute has been violated in this situation. 

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Mr. Dennis R. Jones - Page 2 (DM-46) 

The superintendent of a facility of the Texas Department of Mental Health 

and Mental Retardation is an officer within the meaning of the Texas nepotism 

statute and may not employ a person who is related to him within the degree of 

kinship prohibited by article 59%a, V.T.C.S. Attorney General Opinion JM-91 

(1983). There are exceptions to certain aspects of the nepotism law for persons who 

have been continuously employed prior to the election or appointment of the state 

officer who is related to the employee. V.T.C.S. art. 59,96a, 5 l(b), (c); Attorney 

General Gpinion DM-2 (1991). Because we are informed that the superintendent’s 

spouse was employed at the facility at least 30 days before the superintendent was 

appointed, the employment of the superintendent’s spouse in the same facility is 

not a violation of section l(a) of the nepotism statute. See V.T.C.S, art. 5996a, 0 

l(b)(l); Attorney General Gpinions DM-2 (1991); JM-1188 (1990); see also 

Attorney General Opinion JM-636 (1987) (period of continuous service must be at a 

time when the employee’s relative is not an officer with the power to hire and fire 

the employee). To answer your question, we must turn to section l(c) of article 

5996a. 

Subsection (c) of section 1 of article 5996a describes permissible situations 

when an employer may participate in future employment decisions about a relative 

who is allowed to continue working pursuant to subsection (b): 

When a person is allowed to continue in an office, 

position, clerkship, employment, or duty because of [sufficient 

prior continuous service,] . . . the . . . officer. . . who is related to 

such person in the prohibited degree shall not participate in the 

deliberation or voting upon the appointment, reappointment, 

employment, confirmation, reemployment, change in status, 

compensation, or dismissal of such person if such action applies 

on& to such person and is not taken with respect to a bona fide 

clars or category of employees. (Emphasis added.) 

We 6nd that the superintendent must be deemed as a matter of law to have 

participated in the deliberation of the compensation of his spouse. This 

,determination is based on the fact that the superintendent is statutorily empowered 

to fix the salaries of his employees. V.T.C.S. art. 3176. The applicability of the 

nepotism statute turns on whether the superintendent may exercise control of 

employment decisions. See Pena v. Rio Grade Ci&ConrOr Indep. School Dirt., 616 

S.W.2d 658 (Tex. Civ. App.-Bastland 1981, no writ); Attorney General Opinions 

JM-1188 (1990); JM-581(1986). The superintendent can not avoid participation in 

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Mr. Detmis R. Jones - Page 3 (DM-46) 

matters regarding compensation by establishing a committee to recommend 

employees who deserve a salary increase, because the committee’s recommendation 

can not abrogate or limit the superintendent’s exclusive authority granted by statute. 

Hence, the superintendent’s statutory authority to determine the salaries of facility 

employees is the legal equivalent of participation in the compensation of those 

employees within the meaning of section l(c) of article 5996a. 

We next consider whether the superintendent’s’ participation in the 

compensation of his spouse applied only to his spouse and was not taken with 

respect to a bona fide class or category of employees. An officeholder may 

participate in decisions about the compensation of his relative without violating 

section l(c) of the nepotism statute if the compensation is provided to at least one 

other employee and given with respect to a bona fide class or category of employees. 

See, e.g., Attorney General opinion MW-135 (1980). We are informed that the 

spouse is one of four state school employees who were awarded a merit salary 

increase in recognition of their contribution to the accreditation effort. Thus, we 

consider whether the superintendent’s award of a merit salary increase to employees 

who “performed exceptionally well” in the accreditation effort is an “action taken 

with respect to a bona fide class or category of employees.” 

The question of what constitutes an action taken ‘with respect to a bona fide 

class or category of employees” was considered in Attorney General Opinion JM1188, which determined that-a sheriff could not promote his son and daughter even 

though they had sufficient prior continuous service to retain their jobs in the sheriffs 

office after their father became sheriff. (The son was promoted from deputy sheriff 

to sergeant, and the daughter was promoted from jailer to deputy sheriff.) That 

opinion states, “We do not think that the language regarding actions taken with 

respect to a bona fide category of employees was intended to give an offkeholder’s 

relatives the benefit of expectations created by custom or common practice.” Thus, 

we see that custom or common practice cannot be the basis for deciding whether the 

merit salary increase was taken with respect to a bona fide category of employees. 

The Committee on State Affairs bill analysis of Senate Bill 599 (committee 

substitute), the 1985 bill that added section l(c) of article 5996a, states that the bill 

addresses the problem that an employer (who falls within an exception to the 

nepotism statute under section (b) and (c) because of continuous prior service) “is 

not precluded from participating in future employment decisions concerning his 

relative, such as promotions and raises.” In other words, with the addition of section 

l(c) to the nepotism statute, when an employee of a relative continues his 

P. 233 
Mr. Dennis R. Jones - Page 4 (DM-46) 

employment because of sufkient prior service, he need not be denied a promotion 

or raise if he is a member of a bona fide class or category to which such promotion 

or raise applies. The bill analysis gives one example of a decision appling to a bona 

fide class or category of employees - “an across-the-board rak for all employees.” 

An award is granted to only a select few employees. The question for consideration 

becomes what standard is used in the officeholder’s action with respect to the bona 

fide class or category which received the award. 

We think that “action taken with respect to a bona fide category of 

employees” means that an officeholder’s action must be based on objective criteria, 

which do not allow for the preference or discretion of the officeholder. An example 

of such an -action would be a decision to give a cost-of-living increase to all 

employees, Attorney General Opinion JM-1188 (1990), or an automatic salary 

increase or promotion based, for example, on years of service or level of education. 

We are now concerned with a salary increase awarded for “those who performed 

exceptionaLly well” after a MHMR school received national accreditation. Thus, in 

this case, the performance of an employee, as evaluated by the officeholder, 

determines his inclusion in the category of employees who received an award. We 

must determine whether the evaluation of the employees who became award 

recipients involved the subjectivity of the office holder. 

Any decision to give a salary increase based on a performance evaluation 

contains an element of subjectivity. We find that because the decision to give a 

merit salary increase to recognize those who performed exceptionally well in the 

accreditation effort involved an evaluation of the employees’ performance, a process 

which can never have all subjective factors eliminated, it was not “action taken with 

respect to a bona fide class or category of employees.” As determined above, the 

superintendent “participated” in this evaluation; consequently, in spite of the fact 

that the recipients of that award were determined by a committee of which the 

superintendent was not a member, the superintendent is in violation of section l(c) 

of the nepotism statute. 

SUMMARY 

The nepotism law, article 5996a, V.T.C.S., is violated when 

the superintendent of a Texas Department of Mental Health 

Mental Retardation school awards a merit salary increase to his 

spouse, who is employed at the same facility. 

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Mr. Dennis R. Jones - Page 5 (DM-46) 

DAN MORALES 

Attorney General of Texas 

‘WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

RENEAHIcK!j 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

~. Chair, Opinion Committee 

Prepared by Kay H. Guajardo 

Assistant Attorney Generai 

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