OFFICE OF THE AlTORNEY GENERAL OF TEXAS 

AUSTIN 

Eonorablr ?. T. Graham 

count ~Attornfty 

Car b n County 

Zwownsvlllo , Texas 

(\ 

-- al.s Rerponslntmnt atta rteaiordl 

Zmployeea -- And 

lntsanto ana 8830Tel8. 

nt an ottioar whose 

ager, and ho shall bo 

ioer and head or the adthe Qlty goternment. 

shall bs ahosoo by ths Comr&se beds of hb rxeautlrr and 

not b; a resident of the oitr or State, but 

during his tenarr of offloe he shall ratide 

within the oity. Eo person 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 Sor whish 

he was eleoted. 

‘*The City ‘Xsnager shall be appointed for 

an Indefinite term but he may be reaored by 

a najor1t.r rots oC %he msmbers or the City 

CammIssIon on thirty dayz prior notice of 

their-,Intention to ruaove him. The aotlon of 

the CommIs sion Ir. removiag thr Manager shall 

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, and absewe &all Inaludo 

temporary disability on auoaunt of zioknosz, 

or otherwiss. 

nrThe City Xanager shall be r.esponzlble to 

the City Conmf sslon for the proper adnlnls tratlon of all affalre of the City In his aharge 

and to that end, exoept as otherwise ?rovlded 

in this oharter, and, subjeot to any provlslons 

herein with referenoe to a 3ivll Sewfioe, he 

shall have the power to appoint and remove all 

offloers and employees In the adalnistratlva 

service of the olty, exoept the City Attorney, 

who zhall 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 depsrtmznt or offloe. A-,poIntments made by or under 

the author1 ty of the City tiager shall be on 

a basla of exeoutlte and adafnistratlve abllity and or the training and rxperlenoe of suoh 

smployees In the work whlah they are to gerform; all suoh appointments shall be rithouC 

definite term. 

*‘Any offlo~r or employee to whom th0 City 

xanager, or the head of a department or offloe, 

may appoint a sucoessor, may be 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 and there 

shsll be no appeal 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 any of hla subordinates, or Iz any manner 

take part In the appointment or removal of 

offioera and esployoer In the administrative 

senior or the oity. %xoept for the purposes 

of inquiry, the Commission and its 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 a namber of the Commission shell be a mlsdezeazor conylotion of which shall Imedlately forfeit the offloe of the member so aonvia ted. * 

ntSection 21. IKJTIZS OF CITY Y?AGZiX; 

RIGETS OF XAXAC?3R MD OTHER OFPICZRS BT COMXISSION 'XZETEGS; HEADS OF DXPAR'l%f32~S AND 

DIVISIOX3 TZRZOF; ?LXVXSTIGATIO~ 07 CI??Y 

'XANAGZR 9Y CITY COXEISSION -- 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 him desirable ; to keep the Commission advised oi the finanoial aondltion and needs 

OS the alty; to prepare and submit to the Comulsslon zuch reports as may be required by 

that body, and to perform suoh other dutlez 

aa may be presarlbed by this Charter. 

"*The City Esnager shall be entitled to a 

seat in all Commlzzion meetings, abut &all 
lonorable F. T. Graham, Pago 4 

hare 00 rote therein. On rote of the CommIssion, the heads of all departments ,and suoh 

other oifloers of the City as sny be Ueslgnated by vote therefor, shall also be entitled 

to seats In the Commission meeting, but shall 

hare no vats therein. Ths &ager zhall haps 

the right to take part In ths dizoussion of 

all aatters coming before the CommIssIon meeting, 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 mho are 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 Xanager 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 pertinent Charter provisions of the City of Rrownsvllle whloh are hereinabove quoted, has nothing 

whatever to do with ths hiring or firing of si ty 

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 by Artisle 

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 ntunes and 

aalarl55, and oontlnued to pan them fron oity 

ftmds. 

“The City &mager has advised M that he sod 

the said City Commissioner have bssn threatened 

with charges of nspotisn and he has appribed me 

of ths faots and has 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 any violation of 

the nepotI5m laws of the Stat5 of Texae, aavising 

me that he and zuzh Comzlssloner desire to oomply 

with the provisions of thz various Penal Statutes 

and ir they have in the past ~iolatad suah Statutes, they desire to know in what respeots, in 

order that they may osase to so vlolate them in 

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 or member of any 

;tate, aistrlot, oounty, olty sohool distrlot 

or other mnlolpal board, or 3 udge oi any 

court, oreated by or under authority of any 

general or speolal la* or this State, or sny 

member of 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 ao voting, or to an7 other member of an7 

zuoh board, the Legislature, or court of whlah 

such parson 50 appointing or voting nay be 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 Code provides: 

"'The fnhlbltlons set forth ln this law 

shall apply to and lnolude the '?overnor, Llsutenant Governor, Speaker or the House or 8epresentatltes, Railroad Commlssloners, head of 

departments of the State govsznaent, judges 

and wmbers or any and all Boards and oourte 

established by or under the authorltg of any 

general or speoial law oi this State, menbers 

or thfi Legislature, 5apor8, ooamlsslon8rs, reoordsra, aldermen and members of sohool boar&r 

ot inoorporated oltlea and towns, pub110 sohool 

trustees, orfloers and manbers or boarda or 

managers or the State %lrerelty and or Its 

severeA branohea, and of the various State eduoatlonal lnstltutlons and of the various State 

eleenosynary institutions, and 0r the genitentiarioe; Thfs enumeration shall not be held 

to sxolude from the operation and erreot or 

thla law any person included within its general 

pmvlslons.' 

aArtlole 434 or suoh Penal Code provides; 

**No officer or other person lnoluded within 

any provision of this laa shall appoint or vote 

ror appolntnent or ror ootiir5ation or appointinent to any suah offloe, position, clerkship, 

employu?ent or 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 any suoh pub110 funda or r8023 0r 0rri00, 

and who is related by affinity within the seoond 

degree or by oonsenguinity within the third degree to any such 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 any suoh 

orfloe, position or olerkshlp, enployment or 

duty of any person whomsoever related within 
Eonorab18 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 who advises or agr88d to the 

oommi6sion or au OffSnSS and who IS present 

-hen the same Is 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 COmaiSSlOn at one of its 

meetings undertook to raise all ealeriae of all 

City EZlp1OySSs (at whloh l!BStl~ Of the City Com- 

~Isslon the Co~zmlssioner in qU8StiOn partioipated 

fad voted) and anaumliq that exoept ror these 

facts there is no oollueion or trading as oontemplated by Artlole 434 of the ?enal Code, I respeotfully request your opinion on the r011cn0b qUSStions: 

"1. Is the City Counlssloner ivho Is related 

xzithln the prohibited dSgr88 to eap107eea Of the 

city hired by the City Lknager, @1ty of nepo-, 

tisrn under our .3tetutes? 

792, Is the city &nager or the City 0r 3rownoY1118, Under the raots &Yen, guilty 0r nepotism 

under our StntUtSS by virtU6 Or the provisions 

OS Arti 69 of the Pena Cod.? 

“3. Doea the iaOt that the City ~05lUllSSlOtlSr 

In question portlolpated in and voted at a meating or the City Comrnisslon, in which salearies 

or all city 817lp1Oy8S2-i were rafeed, lnoludlng 

thO88 who had been hired by the city &tiager 

and who were related to Suoh Conudss~oner wlthln the prohibited degree, render hin &uflty Of 

iISpOtk3I under the provlslons or Art1018 432 0r 

the Teas1 Cade taken 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 a member of the oomr,faeioaera* 

court by another oounty oifloer as a deputy is not in violation of the nepotism lau and that the fact that the oonmlaaionera* court sets the number Of deputies to be appofd8d 

i1083 not amount to a ooniirmatlon or the appointaent. 

On i?SblWiry 9, 1932, this department held, in an 

opinion by &norable 8. 0. Xatera, Aasiataut Attormy ~8a8ral, 

that it 310s not a violation or the nepotism law for a tax ooll.eot0r to appoint es his assistant or deguty a son of a oounty 

cmmlssloner arter the oomdaaioner+q oourt had authorized 

the appolntnent of juoh deputy in aoaordanoe with Artlole 302, 

ixSYi38d 01~11 Statutes 0r Texea. 

On 'Xsroh 2, 1935, this department held in an oplnlon 

by Honorable C. Y. Kennedy, Assistant Attorney General, that 

ii deputy sherlrr lnho Is 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 Or Texas, or the allowanoe 

of his salary by the co.3mfasionera' oourt Ooneti tute e Viola- 

.tlon of suoh nepotism law beoause the oommissionera~ oourt 

did not appoint or vote r0r or oonrlrm the appointment or such 

::SpUty shrsrlti. 

On .:S?tSmber 21, 1935, this depati8nt held in an 

~~plnloa by Flonorable Joe J. Alaup, Assistant AttOm8y General, 

:hat a parsor. related to the oounty judge in the prohibited 

38gr88 LSS~ serve as deputy clerk arid the fact that the a&ssionera’ oourt sets the m&or Of deputies to be appointed 

50~ not ank3unt to a osnfirmatlon. 

This dSg8Xt;lent held on Deoember 29, 1936, in an 

opinion by flonorable ?ll~lam CsoCraw, Attorney General of Texas, 

that the appointment or an unole of one Of the members of the 

comIssionera* oourt aa assistant dlatriot attorney was not 

e violation of the nepotlsP law of the State of Texas. 

On July 6, 1937, this department held In an opinion 

by Zonoreble J. El. Droedhurst, Assistant AttOr!ley General 

that appointnent or a relative 0r a member or the wmniaa i onera’ 00urt by another oouuty 0rrio8r as a deputy waa not 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 a daughter 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 a sister of the County Judge. We 

quote rr0n said opinion aa r0il0wSr 

Wnder the provisions OS Artlale 3902, gevisea 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 no authority to attempt to designate Fohom the oi’fioer shall 

appoint and is spsoifioallg forbidden to do so by 

this article. The comsti8sioners7 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 a violation 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. You are 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 a violation OS the nepotism law for the sherifftax asssssor-oolleotor to appoint as his deputy a brother-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 and doea not name or 

xmrlrm the a pointee 

i! 

It would not 3 e a violation OS the 

lepotism law or a county attorney to appoint as his assistIII t a first oousin of the ‘oounty judge. 
. .: 

Lionorable Fe T. Graham, J’age 10 

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 and under the oharter provisions quoted In your letter the oitp employees and orfioers 

(with the eroeption of the olty manager and oity attorney) 

are appointed, hired, employed and removed by the oity manager--the oity oommission neither appoints, oonfirms nor reaoves saoh employees and officers--In faot the oity oommIssIon 

is prohibited by Seotion P of the oity’s oharter from taking 

any part In the appointment or rcuoval of such officers and 

anployees, with sever4 and appropriate 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.