### The Honorable Ori T. White Pecos County Attorney 103 West Callaghan Fort Stockton, Texas 79735
Dear Mr. White: 

## KEN PAXTON ATTORNEY GENERAL OF TEXAS



### December 4, 2015
OpinionNo. KP-0045 Re: Whether nepotism laws prohibit a county hospital from employing a county judge's spouse (RQ-0030-KP)'

You ask whether "the State's nepotism laws" prohibit the superintendent of the Pecos County Memorial Hospital (the "Hospital") from employing the county judge's spouse. 1 

### The state'sprohibition on nepotism for apublic official is in section 573.041 ofthe Government Code, which provides, in pertinentpart, that [a] public official may not appoint, confirm the appointment of, or vote for the appointment or confirmation ofthe appointment of an individual to a position that is to be directly or indirectly' compensated from public funds or fees ofoffice if: (1) the individual is related to the public official within a degree described by Section 573.002. TEX. Gov'T CODE§ 573.041.2 

### A county judge is a public official. TEX. CONST. art. V, § 15 (establishing the office ofcountyjudge); TEX. Gov'T CODE§ 573.001(3)(A) (defining a "public official" for purposes ofnepotism to include a county official). A husband and wife are related to each other in the first degree by affinity. Id.§ 573.025(a). Thus, a countyjudge Clearly may not appoint his or her spouse to a position·paid with public funds without violating the nepotism statute. By its terms, however, the nepotism prohibition applies only to a public official with statutory appointment or confirmation authority over the position in question. See Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 659-60 (Tex. Civ. App.-Eastland 1981, no writ) (noting that apersonwith such authority does not, even iftheperson attempts to delegate the authorityto another, "abrogate or limit" the person's statutory authority or control); Tex. Att'y Gen. Op. No. DM-163 (1992) at 1. Thus, to determine whether the employment about which you

1 See Letterfrom Honorable Ori T. White, Pecos Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1, 4 (June 18, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

2See also TEX. Gov'T CODE§ 573.002 (providing that applicable degrees ofrelationship are those "within the third degree by consanguinity or within the second degree by affinity").The Honorable Ori T. White

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ask is permissible, we consider whether the countyjudge has actual, statutory authority to hire a personto the position currently occupiedby thejudge's.spouse. Countyhospitals are governedby chapter263 ofthe Health and Safety Code. Seegenerally TEX. HEALTH & SAFETY CODE§§ 263.0001-.102. The general management and control ofthe hospital, "including
... its officers and employees" belongs to the hospital's board ofmanagers (the "Board"), an appointed group ofcounty residents.3 Id.§ 263.046(a)(2). The Board appoints a superintendent to be "the chiefexecutive officer ofthe hospital."4 Id. § 263.072(a). He or she "has general supervisionand control of
...the internal affairs ofthehospital, including discipline." Id. § 263.074(a)(3). The superintendent also "determine[s] the duties of
... employees ofthe hospital" and may discharge them for cause "at [his or her] discretion." Id. § 263.076(b)-(c); see also id. § 263.074(b) (requiring the superintendent to "enforce the bylaws and rules adopted by the [Board] for the government, discipline, and management ofthe hospital and its employees and patients"). With regard to hiring staff, "resident officers and employees considered proper and necessary by the superintendent for the efficient performance ofthe hospital's business" shall be appointed by the superintendent "[w]iththe consent ofthe [Board]." Id. § 263.076(a). Thus, the superintendent holds the power to appoint hospital employees, as does the Board because it must "consent" to any such appointment. See id. § 263.076(a). Neither the commissioners court nor the countyjudge, however, holds such authority. 5 Because the countyjudge has no authority to hire Hospital employees, the nepotism statute does not prohibit the Hospital superintendent from employing the county judge's spouse. 6 See Tex. Att'y Gen. Op. No. GA-0595 (2008) at 5 (similarly concluding that where a city charter reserves no authority to the city commissioners to appoint employees below department-head level, the nepotism prohibition does notprevent a city manager from appointing a relative ofa city commissionerto such a position). Your second question is whetherthe countyjudgecouldtake any particular steps "to avoid

... a potential nepotism violation[,]" such as abstaining from voting on Hospital salary matters. Request Letter at 5. As we have concluded, the appointment by the superintendent ofthe county judge's spouse does notpresent a nepotism problem; therefore, we need not address its avoidance.

3"[A]t least six but not more than 12 residents ofthe county" are appointed to the Board to two-year terms by the commissioners court. TEX. HEALTH & SAFETY CODE§ 263.041(a). Once appointed, however, "the [B]oard is not accountable on a day-to-day basis to the commissioners court." Tex. Att'y Gen. L0-97-100, at 1.

4The superintendent is appointed to his or herposition by a hospital's board ofmanagers and "holds office at the pleasure ofthe board." TEX. HEALTH & SAFETY CODE§ 263.071(a).
5You tell us that the commissioners court "usually selects one Commissioner to serve on the board." Request Letter at 2. We caution that this practice may run afoul ofthe self-appointment aspect ofthe common-law doctrine ofincompatibility. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928); Tex. Att'y Gen. Op. No. GA0580 (2007) at2 (concluding thatthe commissioners court cannot appoint one ofits own members to an office over which the commissioners courthas general appointment authority).

6In Letter Opinion L0-89-50, this office concluded that the Tyler County Hospital District is precluded by thenepotism statutefrom employingthewife ofthe countyjudge. Tex. Att'yGen. L0-89-50, at 2-3. Inthat instance, however, the countyjudge was statutorily obligated to serve on the hospital board. Id. at 1. In the present situation, the countyjudge does not serve onthe hospital board.The Honorable Ori T. White

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However, your question appears to address issues regarding potential conflicts of**int~rest** based not on the nepotism prohibition ofchapter 573 but, rather, on the fact ofthe familial relationship ofmarriage. While we do not attempt a comprehensive survey ofall potentially applicable law, you identify two specific facts that merit briefdiscussion. The first is that when the Board certifies "all bills and accounts, including salaries and wages" ofthe hospital, it "transmit[s] them to the. commissioners court" for payment, which the commissioners court makes "inthe same manner that other charges against the county are paid." TEX. HEALTH 

### & SAFETY CODE§ 263.053(b); see also TEX. Loe. Gov'T CODE§ 115.021 (claims against the county are audited and settled by the commissioners court, who "shall direct the paymentofthose accounts"). Presumably, your concernis thatthe countyjudgewould, inessence, be voting for the salary ofhis spouse through this process in contravention ofthe oath a county judge takes that he "will not be interested, directly or indirectly, in a ... claim against the county except: (1) a contract or claim expressly authorized by law; or (2) a warrant issued to thejudge or commissioner as a fee ofoffice." TEX. Loe. Gov'T CODE§ 81.002(a). However, this office has previously concluded that the oath of office taken by countyjudges and commissioners is not violatedby solevirtue ofthe officerhaving a community-propertyinterestina salary claim against the countyheldby a spouse who 

### iS a county employee. See Tex. Att'y Gen. L0-93-008, at 3, Tex. Att'y Gen. Op. No. MW-437 (1982) at 3 (both concluding that a county commissioner does not violate an oath ofoffice onaccount ofa community-property interest inthe salary earned from the county by a spouse). Thus, the mere fact that the countyjudge's wife's salary is among the group ofclaims being presented to the commissioners court for payment does not, by itself, constitute a violation ofthe countyjudge's oath. Second, you note the Health and Safety Code provision that "the county judge of the county in whichthe hospital is located may vote to break a tie vote by the [Board]." TEX. HEALTH & SAFETY CODE§ 263.042(b). You allude to the possibility that the Board could deadlock on a matterconcerningthecountyjudge'swife. RequestLetterat 3-4;see also TEX. HEALTH & SAFETY CODE§ 263.047(a) (providing that the Board "shall determine the salaries ofthe
... employees of the hospital"); Request Letter at 3 (referring to the Hospital's personnel policy, pursuant to which the Board "can hear [employee] grievances and vote to resolve" them). The county judge, however, is merely authorized, and not required, to vote in order to break a tie. To avoid any appearance ofimpropriety, thejudge could abstain from voting to break a tie vote ofthe Board. And because the Board may be composed of "at least six but not more than 12 residents ofthe county," the commissioners court couldprecludethe scenario above from occurringby appointing an odd number ofpersons to the Board. See TEX. HEALTH & SAFETY CODE§ 263.041(a).The Honorable Ori T. White

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### SUMMARY Becausethe countyjudgehas no authorityto hire employees
. ofthe Pecos County Memorial Hospital, the nepotism statute does not prohibit the superintendent ofthe Hospital from. employing the spouse ofthe countyjudge.

CHARLES E. ROY FirstAssistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee BECKY P. CASARES Very truly yours,

KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee