’ .-

Honorable F. M Law

President. Board ofDirectors Agricultural &Mechanical College of Texas College Station, Texas
Dear Sir: Opinion No. Cl-5810 Re: Validity under Nepotism Statute (Art. 432. Penal Code) of Ch. 3. Sec. 2of Rules and Regulations ofA. &M. College.
We acknowledge receipt ofyour letter of January 14, 1944, enclosing copy of Chapter 3. Section 2 of the Rules and Regulations ofA. & M. College, recently adopted by the Board of Directors. The enclosure reads as follows: “Chapter III, Section 2. Appointment ofRelatives.
“Whenever anappointment is made either ona full-time or a part-time basis, it shall be made solely with regard to ability and fitness ofthe appointee subject to Penal Code 1925. Articles 432, 433, 434, 435, 437, and the Revised Civil Statutes of 1925, Article 5996, and amendments thereto, and any other applicable law. Relatives of any person inanywise connected with their employment or supervision shall not be employed by the College. Relative in the following paragraphs is defined as a person related within the second degree ofaffinity and third degree dfconsanguinity, according tocommon law. According to common law, the first degree ofconsanguinity would be father, son or,brother; the second degree grandfather. grandson, uncle, first cousin or nephew; the third degree great-grandfather, great-grandson, great-uncle, great-uncle’s son, second cousin, son offirst cousin, son ofnephew or brother’s grandson. Degrees ofaffinity are computed in the same manner.

“a. No relative ofa member ofthe Board of Directors, President, Vice-president, Presidential assistants, Deans, Directors, Business Manager, or Heads of Departments ofthe College will be considered for appointment, except that such relatives will be considered for reappointment when the original appointment was antecedent to passage ofthe pertinent statute in question. or to assuming a position listed above, or to membership onthe Board of Direct-Hon. F. h4. Law - Page 2 (o-5810)

“b. NOperson shall be initially appointed even temporarily when a relative onthe College Staff must act in some official capacity onthe appointment.

“c. Relationship brought about by marriage after appointment is no bar to continuance ofemployment, but no person shall be initially appointed whose husband or wife is employed by the College.

“d. Relationship shall not bar appointment to an honorary non-remuneration position.”

Your question is as follows:
“Will your Department kindly advise ifthis chapter as written is legal in every respect and, ifyou find that it is not legal in every respect. will you kindly advise us in what respects it is not legal?”

The Statute involved is Article 432. Vernon’s Annotated Penal Code, which reads as follows:
“No officer ofthis State or any officer ofany district, county, city, precinct, school district, or other municipal subdivision ofthis State, or any officer or member of any State, District, county, city, school district or other municipal board, orjudge ofany court, created by or under authority ofany general or special law ofthis State, or any member ofthe Legislature; shall appoint, or vote for, or confirm the appointment toany office, position, clerkship, employment or duty, ofany person related within the second degree by affinity or within the third degree by consanguinity to the person so appointing or so voting, or toany other member ofany such board, the Legislatures. or court ofwhich such person so appointing or voting may be a member., when~the salary, fees, or compensation of such appointee is to be paid for, directly or indirectly, out of or from public funds or fees of office ofany kind or character whatsoever.”

Article 433, Vernon’s Annotated Penal Code extends the provisions ofthe above article to “officers and members ofboards of managers ofthe State University and of its several branches.”
IIIpassing onyour resolution. we make a distinction between declarations of policy and statements of law. Your regulation in **some** respects is broader than the nepotism statute above quoted, and to that extent it is a declaration of policy. There is nothing legally objectionable to such declarations ofpolicy onbehalf ofyour Board of Directors.Hon. F. M. Law - Page 3 (o-5810)

The last sentence of the first paragraph of Section 2 copied above should be eliminated and the following paragraph substituted in lieu of it: “According to common law. the first degree of

. consanguinity would be father, mother, sister, brother, daughter or son; the second degree, uncle, aunt, niece, nephew, grandson, granddaughter, grandfather, grandmother and first cousin; the third degree great-uncle, great-aunt, great-niece, great-nephew, great-grandson, great-granddaughter, great-grandfather, great-grandmother and second cousin. Degrees ofaffinity are computed inthe same manner.”

Subsection (a) of Section 2is a declaration of policy and is not legally objectionable except in so far as itauthorizes reappointments ofpersons related in the prohibited degree to members ofthe Board of Directors, We suggest that the exception inthis paragraph be amended by inserting after the word “relatives” the following: “other than those who are related to any members ofthe Board ofDirectors within either ofthe degrees named inArticle 432 ofthe Penal Code.”
The same provision, just quoted, should be inserted after theword “employment” in subsection (c).
When the prohibited relationship first **comes** into existence after the contract of employment has been entered into, the existing contract is not affected but any reappointments or new contracts thereafter are prohibited. See our Opinion No. O-1408, a copy ofwhich is attached.
There is nothing inthe Appropriation Bill for Educational Institutions for the biennium which ends August 31. 1945, which prohibits the employment of both husband andwife. A. &M. College is not affected by Section 21 ofthe Departmental Appropriations Bill which prohibits the employment ofboth husband andwife in act and the Soil Conservation Board.“’ “those departments named inthis See Opinion No. O-5536, approvx August 21, 1943. copy ofwhich is attached hereto. Trusting that the foregoing answers your inquiry, we are Approved FEB 25. 1944
/s/ Grover Sellers Attorney General of Texas Yours very truly
ATTORNEYGENERALOF TEXAS
/s/ Fagan Dickson BY Fagan Dickson Assistant
FD:BT/cm APPROVED OPINION COMMITTEE By /s/ BWB Charrman