, 

October 8, 1971 

Ronarable Preston Smith 

Governor of Texas 

State Capitol 

Austin, Texas 78711 

Opinion No. M-971 

Re: Effect of State’s nepotism 

law (Articles 432 and 435, 

V.P.C.) on employments by 

Dear Werner With: 

regional councils of government . 

Yout request reads in part a8 folIowr: 

“The Governor, as the State’s chief 

$ “’ 

Zanning officer, has the responsibility 

or administering State financial assistance to the verious regirsael councils of 

governments in Texas. By stats law, this 

office also prerider techmical assistance 

to these regional counc~ils as necessary. 

In thir regard, I am hereby requesting youi 

WEftten OpiaiOm CWcsrmimg a point e§ law 

which has recently arisen in one sf there 

Ngional ceuucils. 

“Specifically, what effect, if any, 

does the State’s nepotism statute have in 

.regard to re 

4 

ional 

If the nepot 

ceuncils of governments? 

am law is applicable, are there 

points WI&h may ,be wwmerated as general 

uidelines for ,regional councils to follow 

f o insure .‘, that they are not in violation?” 

Arttcle 433, Vernou’s Penal Code, provides in part: 

“No officer of this State nor any 

officer of aay district, county, city, precinct, sclwaal district, OF other municipal 

oubdlvision of this State, nor any officer 

er member of any State district, county, 

ciQ-9 school district or other municipal 

board, or judge of any court, created by or 

-4746- 
Honorable Preston Smith, page 2 (M-971) 

under authority of any General 01 Special 

Law of this State, nor any member of the 

Legislature, shall appoint, or vote for, or 

confirm the appointment to any office, position, clerkship, em loyment or duty, of any 

person related with P n the second degrees by 

affinity or within the third degree by consanguinity to the person so ap ointing or 

so voting, or to any other mtm 1 er of any 

such board, the Legislature, or court of which 

such erson so a pointing or voting may be 

a mea 1 er, when t R e 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 of any kind or character whatsoever; . . .‘I. 

Article 435, Vernon’s Penal Code, provides: 

“No officer or other person included 

within then third preceding article shall 

a prove any account or draw or authorize 

t R e drawing of any warrant or order to pay 

any salary, fee or compensation of such 

ineligibl,e officer or parson, kpowing him 

to be so ineligible.” 

It thus appears that Article 432 proNbits any 

officer of any subdivision of the State from appo.inting, 

votin for or confirming the appointment to any office, 

posit f on, clerkship, e 

7 

loyment or duty, of any person 

related within the proh bitive degree when the salary, 

fee or compensation is to be paid for directly or indkrectly out of gr from public funds of any kind or character. 

The regional councils of governmsnt,ars created 

pursuant to the provisions of Article lOlln, Vernon’s Civil 

Statutes, and are governed by,a.regional,planning commission., 

Section 4 of Article 1Ollm specific,ally states, .‘a re,gional 

pl;~~t;ommissi~n shall be a polite1 subdivision of’ 

. It is therefore our opinion that the provisions of A&iey432 and 435, Vernon’s Penal Code, are applicable to the smpioyees of a regional planning commission. 

-4747 - 

. ~. ,, ,/’ 
, 

Ibnorabla Preston 

< 

!%ith, page J (M-971) 

Section 6 of Article lOllm, supra. provides: 

“Sec. 6. (a) A Regional Planning Commission is authorized to apply for, contract 

for, receive and expend for its purposes any 

funds or grants from any participating govarnmental unit or from the State of Texas, federal 

government, or any other source. 

*l(b) The Commission shall have no p;;;r 

to levy any character of tax whatever. 

participating governmental units may appropriate funds to the Commission for the cost 

and l xpenses required in the performance of 

its purp0sas.e 

Articles 432 and 43s do not rohibit the payment 

by a participating govornmantal unit o e a rant payable 

to a regional plrnniag commission. Thaso rticlos would, 

however, prohibit the payment of any salary, fee or corn-- 

pensatian to a parson related within the prohibitive 

degree by eithor tho rogional planning cammission or govommental unit. 

Tho wtim laws of this State (Articles 

432 and 435, V.P.C.l ) ro 

73 

licablo to rogianal 

planning caissions and t ir amployeos. These 

Articles do not prohibit payments of grants by 

governmental units to a ro ional planning corn- . 

missicm, but the do 

sems related rit h ii 

rohi it l yments to perin t a prohib % P tive dograa af 

a salary, foe or compoasation whether suck paymont is made by a gevormmental unit or the 

rogional plannimg commission. 

Prepared by John Reeves 

Assistant Attorney Ganoral 

-474& 
. . - 

Honorablo Proston Smith, pago 4 (Y-971) 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Malcolm Quick 

Sally' Phillips 

Dick Chote 

Harriet Burke 

SAM MCDANIEL 

Acting Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

I.‘. 

. 

-47499 

.