**OFFICE OF**  **THE AlTORNEY**  **GENERAL OF**  **TEXAS**
**AUSTIN**

Eonorablr ?. T. Graham count ~Attornfty Car bnCounty Zwownsvlllo
, Texas 

# (\

--al.sRerponslntmnt attarteaiordl Zmployeea -- And lntsanto ana8830Tel8. nt an ottioar whose ager, and hoshall bo ioer andhead or the adthe Qlty goternment. shall bs ahosoo by ths Comr&sebeds of hb rxeautlrr and

not b; aresident of the oitr or State, **but** during his tenarr of offloe heshall **ratide** within the oity. Eoperson eleatrd to msabop ship on the city Conmission 3hsl1, subsequtmt ta suah election, **be** elkible ror appointment

-. -.Honmable F, T. Graham, Page 2 

### 382

as oitp manger until one year has elapsed following the expiration of the term Sorwhish hewaseleoted.

‘*The City ‘Xsnager shall be appointed for an Indefinite termbut hemaybe reaored by anajor1t.r rots oC%hemsmbersor the City CammIssIononthirty dayz prior notice of their-,Intention to ruaove him. Theaotlon of the CommIs

sion Ir.removiag thr Managershall be riw. In 0850 of thr absenoe of the Mana&or, he may, with the approval o? the Cltty Commiaalon, designate a qualified adminirtratire offioer or, the alty to perrorm his duties during his absenae, andabsewe &all Inaludo temporary disability on auoaunt of zioknosz, or otherwiss.
nrTheCity Xanager shall be r.esponzlble to the City Conmf

sslon for the proper adnlnls tratlon of all affalre of the City In his aharge andto that end, exoept as otherwise ?rovlded in this oharter, and, subjeot to anyprovlslons herein with referenoe to a 3ivll Sewfioe, he shall have the power to appoint andremove all offloers and employees In the adalnistratlva service of the olty, exoept the City Attorney, whozhall be appointed by the City Commission, but the &Wager 188~authorize the head of a department or ofiloe responsible to him to appoint and remne subordinates In suoh depsrtmzntor offloe. A-,poIntments madeby or under the author1ty of the City tiager shall be on abasla of exeoutlte andadafnistratlve abllity andor the training andrxperlenoe of suoh smployees In the workwhlahthey are to gerform; all suoh appointments shall be rithouC definite term.

*‘Any offlo~r or employee to whomth0City xanager, or the head of adepartment or offloe, mayappoint a sucoessor, maybe rtmwved by the City 

### ‘%nager, ar other appointing offiosr, at my time, but the deolsion and aotion of the

## 383

ionorablo F. T. Graham, Page f

Hsnager with referenoe to appointments, a8 well as ranovals, shall be flnal andthere shsll be noappeal thereirom to any other office, body or oourt whatsoever.
w*NeIther the City ComlssIon, nor any oi Its oomltteez or numbers, shall direct or request the appolntzent of any person to or his removal fros offloe by the City Xsnager or anyof **hla** subordinates, 

### orIz anymanner take part In the appointment or removal of offioera andesployoer In the administrative senior or the oity. %xoept for the purposes of inquiry, the Commission andits menbers shall deal with the adarlmlstratlvs servioe solely through the City ?&sager end neither the Commlsslon, nor any

### member thereof, shall give orders to any subordinate of the City hanager, elther publloly or privately. Any violat ion of the provisions of this paragraph by anamberof the Commission shell be amlsdezeazor conylotion of which shall Imedlately forfeit the offloe of the memberso aon**via**ted. *
ntSection 21. IKJTIZSOFCITYY?AGZiX; RIGETSOFXAXAC?3R MD OTHER

OFPICZRSBTCOMXISSION'XZETEGS;HEADS OFDXPAR'l%f32~S

AND DIVISIOX3TZRZOF; ?LXVXSTIGATIO~ 07CI??Y 'XANAGZR

9YCITYCOXEISSION -- It shall be the duty of the City ‘Xanager to aot as ohlef oouservator of the peaae within the olty; to supervise the edmlnlztratlre affairs of the altyI to see that the ordlnanoea oi the alty and laws of the State are enforoedi to make such recomendatlonz to the CommIszIon aonoernlng the affairs of the 0Ity as nay zeen to himdesirable ; to keep the Commission advised oi the finanoial aondltion and needs OSthe alty; to prepare and submit to the Comulsslon zuch reports as maybe required by that body, andto perform suoh other dutlez
aamaybe presarlbed by this Charter.
"*The City Esnager shall be entitled to a seat in all Commlzzion meetings, abut&alllonorable F. T. Graham,Pago 4

**hare** 00 rote therein. Onrote of the CommIssion, the heads of all departments ,andsuoh other oifloers of the City as sny be Ueslgnated byvote therefor, shall also be entitled to seats In the Commission meeting, but shall hare novats therein. Ths &ager zhall haps the right to take part In ths dizoussion of all **aatters** coming before the CommIssIonmeeting, and the heads Of all departments and other orfiaers shsll be entitled to take part In all disousaions of the Commlsslon relating to their rsspeatlve department5 **and** orriae5.

. . ..* ?

‘The Olty Esnager has employed as oIty employees person8 mhoare related to one of the City CommIszionzrs within the degree of relationship prchiblted by **Artids 432**  **of the**  Penal Code of the **Retised Statutes**  **of** Texas, 1925. *Subsequent to the employment by the City Xan**ager** of persona related within the prohibited degree to one of the City Commizsionars, the City Commission, (at one at its meetings in whlah ths Commissioner so related to zuch olty mployees, took part and **voted)** voted to raise the salerlee of zll alty aployeez, lnoludlng the partlaular amployees so related to said City Ccmtnlzsloner.
Y!he City Comabsi~n, as 1 oonstrue the **per** tinent Charter provisions of the City of Rrownsvllle whloh are hereinabove quoted, has nothing **whatever** to dowith ths hiring or firing of sity amployess other than the City ?tiagsr himself and the City Attorney; the City ComIssIon doss, however, have power to presorlbe salaries to be paid to the tariouz employees hired br the City ha&or.

“The City &nager, kaosl~ the enployees In question were related to one of the City Commiszloners within the degree prohibited byArtisle 432 of ths Penal **Cods** Revised **Statutes, 1925,**  aontlnued to keep sash 5mploYees on ths Oitr

### :’ 385

onorable y. T, Graham, Pag5 5

payroll snd oontinued to approve the monthly payroll whloh oarrled suoh snployzesl ntunesand aalarl55, and oontlnued to panthemfron oity ftmds.

“The City &mager has advised M that he sod the said City Commissioner have bssn threatened with charges of nspotisn and hehas appribed me of ths faots andhas requszted an opinion of sm as County Attorney as to whether or not, **under** the faots hereinabove set **out,** he and the Comaissloner involved are guilty of anyviolation of the nepotI5m laws of the Stat5 of Texae, aavising methat he and zuzh Comzlssloner desire to oomply with the provisions of thz various Penal **Statutes** and ir they have in the past ~iolatad suah Stat**utes,** they desire to knowin what respeots, in order that they mayosase to so vlolate themin the future.
WArtIolz 432 of the Penal Code, Revised Statutes, 1925, provldesr
nlNo ofrioer of this State or any **orfioer** of zny dlstriat, oountp, aity, pi5oinot, zohool dlstrlat, or other muuloipal subdivision of this Stats, or any offloer ormember of any ;tate, aistrlot, oounty, olty sohool distrlot or other mnlolpal board, or **udge oi**  **any 3**  court, oreated 

### byor under authority of any general 

### or speolal la* or this State, or sny memberof tbs Legislature, shall appoint, or vote for, or oonfirm the appointment to any 0rri00, po5itIon, ole*5hIp, employmmt 

### or duty, of any person related within the aeoozd drgree by affinity or within the third degree by oonsanguiaity to the person so appointing 

### or aovoting, or to an7 other member of an7 zuoh board, the Legislature, or court of whlah such parson 50appointing or voting naybe a neaber, whaz the zalary, fees, or oompansation or suah appointee is to be pald for, dlreotly or Indlreatly, **out** of or from publla funds or fee5 of offioe or my kind or oharactzr ??hatzoever.’Honorable y. T. Uraham, Page 6

wA.rtlole 433 bf suoh Penal Codeprovides:
"'The fnhlbltlons set forth ln this law shall apply to and lnolude the '?overnor, Llsutenant Governor, Speaker or the Houseor 8epresentatltes, Railroad Commlssloners, head of departments of the State govsznaent, judges andwmbers or anyand all Boards andoourte established by or under the authorltg of any general or speoial law oi this State, menbers

or thfi Legislature, 5apor8, ooamlsslon8rs, reoordsra, aldermen and membersof sohool boar&r ot inoorporated oltlea andtowns, pub110sohool **trustees,** orfloers and manbersor boarda or managers or the State %lrerelty andor Its **severeA** branohea, **and of**  **the various**  State eduoatlonal lnstltutlons **and of**  the **various** State eleenosynary institutions, and0r the genitentiarioe; Thfs enumeration shall not be held to sxolude from the operation anderreot or thla law anyperson included within its general pmvlslons.'
aArtlole 434 or suoh Penal Codeprovides;
**Noofficer or other person lnoluded within anyprovision of this laa shall appoint or vote ror appolntnent or ror ootiir5ation or appoint**inent** to any suahoffloe, position, clerkship, employu?entor **duty of**  **any person**  whose servloes
are to **be** rendered under hls dlreotlon or oontrol end to be paid tar, dlreotly or lndlreotly out 0r anysuoh pub110funda or r80230r 0rri00, andwhois related by affinity within the seoond degree 

### orby oonsenguinity within the third de**gree** to anysuch offloer or person inoluded wlthfn sny provlslon of **this** law, in oonslderatlon, in whole or in pert, that suoh other ofrloer or person haatheretorora appointed, or voted ror the appointment or for the oonfirf%- tion of the appointment, or will therearter ap point or vote tar the appointslent, or for the oonrlrnatlon of the appolntcaant to anysuoh orfloe, position or olerkshlp, enployment or duty of anyperson whomsoever related withinEonorab18 P. T. **Crah6mq** Page 7

the seoond degree by **afiinity or**  within the third degree by oonsangulnlty to suoh offloer
or other person making suoh appointment.'
"Artlole 69 of suoh Penal Code provides: *'Any person whoadvises or agr88d to the oommi6sion or au OffSnSS **and** who **IS** present -hen the sameIs oomtnltted is a principal whether he aid or not in the iuS@ aOt.* Yhssuxing that exoept for the City &nag&s having oontinuea to pay the salaries 0r the 8xgloyeee related to suoh city Comalssloner, after suoh City %nager kner of such prohibited relationship end after the City COmaiSSlOnat one of its meetings undertook to raise all ealeriae of all City EZlp1OySSs(at whloh l!BStl~ Ofthe City Com- ~Isslon the Co~zmlssioner in qU8StiOn partioipated
**fad** voted) andanaumliq that exoept ror these facts there is no oollueion or trading as oontemplated byArtlole 434 of the ?enal **Code,** I respeotfully request your opinion on the r011cn0b qUSStions:
"1. Is the City Counlssloner ivhoIs related xzithln the prohibited dSgr88 to eap107eea Ofthe city hired by the City Lknager, @1ty of nepo-, tisrnunder our .3tetutes?

**792,** Is the **city** &nager or the City 0r **3rowno** Y1118, Underthe raots &Yen, guilty 0r nepotism under **our StntUtSS**  **by virtU6**  **Or** the provisions OSArti 69 of the Pena Cod.?

“3. Doea the iaOt that the City ~05lUllSSlOtlSr In question portlolpated in and voted at ameating or the City Comrnisslon, in which salearies or all city 817lp1Oy8S2-i were rafeed, lnoludlng thO88whohadbeen hired by the city **&tiager** andwhowere related to SuohConudss~oner wlthln the prohibited degree, render hin &uflty Of iISpOtk3I under the provlslons or Art1018 432 0r the Teas1 Cadetaken in ooojunotion with the provisions of Article 434 of the Penal Code? (1 . l . .=E!onOrable **F.** T. **Graham,** Page 8

This departmen6 has repeatedly **ruled** that the app0lntmsnt or a relative of amember of the oomr,faeioaera* court by another oounty oifloer as a deputy is not in violation of the nepotism lau andthat the fact that the oonmlaaionera* court sets the numberOfdeputies to be appofd8d i1083not amountto a ooniirmatlon or the appointaent.

Oni?SblWiry 

### 9,1932, this department held, in an opinion by &norable 8. 0. Xatera, Aasiataut Attormy ~8a8ral, that it 310snot a violation or the nepotism law for atax ooll.eot0r to appoint es his assistant or deguty ason of a oounty cmmlssloner arter the oomdaaioner+q oourt hadauthorized the appolntnent of juoh deputy in aoaordanoe with Artlole 302, ixSYi38d 01~11 Statutes 0r Texea.

On'Xsroh 2, 

### 1935,this department held in anoplnlon byHonorable C. Y. Kennedy, Assistant Attorney General, that ii deputy sherlrr lnhoIs a rimt oousln or onr or the asmbera
or the cOGminsionsrsl court would rid be prohibited from serv- :lm 8s suoh or did his appointmant by the sheriff violate the ~tercs 0r .'.rtlole 

### 432,Penal Code OrTexas, **or** the allowanoe of his salary by the co.3mfasionera' oourt Ooneti**tute e**  Viola- .tlon of suohnepotism lawbeoause the oommissionera~ oourt did not 

### appointorvoter0r 

### oroonrlrm 

### theappointmentor 

### such **::SpUty** shrsrlti.

On.:S?tSmber 21, 

### 1935,this depati8nt held in an ~~plnloa byFlonorable Joe J. Alaup, Assistant AttOm8y General, :hat a parsor. related to the oounty judge in the prohibited 38gr88 LSS~

serve as deputy clerk aridthe fact that the a&ssionera’ oourt sets the m&or Ofdeputies tobe appointed 50~ not ank3untto aosnfirmatlon.

This dSg8Xt;lent held on Deoember 29, 1936, in an opinion byflonorable ?ll~lam CsoCraw,Attorney General of Texas, that the appointment or an unole of one Ofthe membersof the comIssionera* oourt aa assistant dlatriot attorney wasnot eviolation of the nepotlsP law of the State of Texas.

OnJuly 

### 6,1937,this department held In an opinion byZonoreble J. El.Droedhurst, Assistant **AttOr!ley** General that appointnent or a relative 0r amemberor the wmniaa ionera ’ 00urt by another oouuty 0rrio8r as a deputy waanot in violation or the nepotism law.. .

Ffooorable T, T, Cr?ham, Page 9

i3 to Opinion no. O-480 of this department holda that it not a violation or the nepotism law for a District Clerk appoint aa his deputy adaughter of one of the oounty

. . **ammaslonere.**

Opinion No. O-875 or this department holde that it ie not a violation of the nepotism law for a 3istriat Cle* to appoint as his deputy asister of the County Judge. We quote 

### rr0n said opinion aa r0il0wSr

Wnder the provisions OSArtlale 3902, ge

### visea Civil Statutes, the oountp orri0Sr desiring deputies, nakea the applioation outlined in saia artiolo to the oonmisaionera~ court Sor the authority to appolnt suoh deputies. The oommiesioners* oourt grants the authority to appoint to the offioer and sets the salary before the appointment is made. The oonmlssioners’ oourt haa noauthority to attempt to designate Fohom the oi’fioer shall appoint and is spsoifioallg forbidden to do so by this article. Thecomsti8sioners7 oourt does not confirm the apgolntee.
*In answer to your first question, you are respeatSully advised that it is the opinion of this department that it is not aviolation of the nepotism la% for the district clerk to appoint a deputy district olerk aho ie a sister oi the aoting oounty Judge of the oounty. Youare further respeatfully advised that it is the opinion of this department that in such oase the aommission8rs’ aourt does not aOniirm th8 appointment .* Opinion Xo. O-1954 of this departieent holda that 1%is not aviolation OSthe nepotism law for the sherifftax asssssor-oolleotor to appoint as his deputy abrother-lnLaw or a oounty oonnnfssloner.

opinion No. 04330 ot this department holds that dnoe the oonxaiaaionen ( aourt msrsly authorizes the appointnent 0r an assistant aounty attome anddoea not nameor xmrlrm the a pointee

i! It would not 3e a violation OSthe lepotism law or a county attorney to appoint as his assistIII t a first oousin of the‘oounty judge.. .:

Lionorable Fe T. Graham, J’age10

Opinion :!o. O-4720 of this department holds that It Is not a violation of the nepotism law for a Criminal District Attorney to appoint ae hIa assistant ths son of one 0s the aountp oommIseIon4rs 0s the oounty.

Under the facts stated andunder the oharter provisions quoted In your letter the oitp employees andorfioers (with the eroeption of the olty managerandoity attorney)
are appointed, hired, employed andremoved by the oity manager--the oity oommission neither appoints, oonfirms nor reaoves saoh employees andofficers--In faot the oity oommIssIon is prohibited by Seotion P of the oity’s oharter from taking anypart In the appointment or rcuoval of such officers and anployees, with sever4 andappropriate penalties attached thereto.
It is our opinion under the faots stated that each of your questions should be acstjered in the negative, and
are 30 answered.