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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 432and435, V.P.C.) on employments by Dear Werner With: regional councils of government
. Yout request reads in part a8folIowr:

“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. Bystats law, this office also prerider techmical assistance to these regional counc~ils as necessary. In thir regard, I amhereby requesting youi WEftten OpiaiOm CWcsrmimg apoint 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 re4ional If the nepot ceuncils of governments?

amlaw is applicable, are there points WI&h may,bewwmerated 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:

“Noofficer of this State nor any officer of aay district, county, city, precinct, sclwaal district, OFother municipal oubdlvision of this State, nor anyofficer er memberof any State district, county, ciQ-9 school district or other municipal board, or judge of anycourt, created by or

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

under authority of any General 01 Special Lawof this State, nor any member of the Legislature, shall appoint, or vote for, or confirm the appointment to any office, position, clerkship, emloyment or duty, of any person related with n P 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 mtmer of any 1 such board, the Legislature, or court of which such erson so a pointing or voting maybe amea er, when t e 1 R 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: “Noofficer or other person included within thenthird preceding article shall aprove any account or draw or authorize t e drawing of any warrant or order to pay R 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** on, f clerkship, e7 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 4of 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.

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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 mayappropriate 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 oe arant 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.

Thowtim laws of this State **(Articles** 432 and 435, V.P.C.) l**ro** 73licablo 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 iirohi it 

## l yments to **per** % P in t 

### a prohib tive dograa af a salary, foe or compoasation whether suck pay**mont**is made by a gevormmental unit or the rogional plannimg commission.

Prepared byJohn Reeves Assistant Attorney Ganoral

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Honorablo Proston Smith, pago 4 (Y-971)

APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman W.E. Allen, Co-Chairman Malcolm Quick Sally' Phillips Dick Chote Harriet Burke SAM MCDANIEL Acting Staff Legal Assistant ALFREDWALKER Executive Assistant NOLAWHITE First Assistant I.‘

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