### ATTORNEY GENERAL OFTEXAS GREG ABBOTT

November 12,2003

The Honorable Norman Amett Stonewall County Attorney P.O. Box 367 Aspermont, Texas 79502 Opinion No. GA-0121 Re: Whether the nepotism laws in chapter 573 ofthe Government Code prohibit the sheriffs office from employing an individual who had been continuously employed in the sheriffs office for more than seven years before marrying the sheriff (RQ-0069-GA)
Dear Mr. Arnett: You ask whether the nepotism laws in chapter 573 of the Government Code prohibit the sheriffs office from employing the sheriffs spouse who had been continuously employed by the sheriffs office for more than seven years before marrying the sheriff..’ The sheriff of Stonewall County was first elected for aterm of office beginning January 1, 1989, and has been reelected for terms beginning on January 1 of 1993, 1997, and 2001. See Request Letter, supra note 1, at 1. In November 1992, the sheriff employed an individual as a dispatcher and the individual still holds that position. The individual and the sheriff were married in May 2000. You state that the individual’s position is at-will, subject to the sheriffs sole discretion.2 Section 573.041 ofthe Government Code states the general prohibition against nepotism as follows: A public official may not appoint, confn-m the appointment of, or

vote for the appointment or confirmation of the appointment of an individual to aposition that istobe directly orindirectly compensated from public funds or fees of office if: (1) the individual is related to the public official within a degree described by Section 573.002; or

‘See Letter from Honorable Norman Amett, Stonewall County Attorney, to Honorable Greg Abbott, Texas Attorney General (June 19,2003) (on file with Opinion Committee) [hereinafter Request Letter].

2Telephone Conversation with Honorable Norman Amett, Stonewall County Attorney (Oct. 1,2003).The Honorable Norman Amett - Page 2 (GA-0121)

(2) the public official holds the appointment or confirmation authority as a member of a state or local board, the legislature, or a court and the individual isrelated to another member of that board, legislature, or court within adegree described by Section 573.002. TEX.GOV’TCODEANN.9573.041 (Vernon 1994). Section 573.062 ofthe code makes anexception for individuals who have been employed under certain circumstances:

(a) A nepotism prohibition prescribed by Section 573.041

. . .does not apply to an appointment, confirmation ofan appointment, orvote for an appointment or contirrnation of an appointment of an individual to aposition if: (1) the individual is employed in the position immediately before the election or appointment ofthe public official to whom the individual isrelated in aprohibited degree; and (2) that prior employment ofthe individual is continuous for at least:

. . .

(C) one year, if the public official is elected at the general election for state and county officers. (b)If,under Subsection (a), an individual continues in aposition, the public official towhom the individual isrelated in aprohibited degree may not participate in any deliberation orvoting on the appointment, reappointment, confirmation of the appointment or reappointment, employment, reemployment, change in status, compensation, or dismissal ofthe individual ifthat action applies only tothe individual and isnot taken regarding abona fide class orcategory ofemployees. Id. 8573.062. As you note, the circumstances of the sheriff and his spouse come within the general nepotism prohibition in section 573.041. See Request Letter, supra note 1,at 2. A county sheriff is a public official subject to the nepotism laws. See TEX.GOV’T CODEANN. 8573.001(3)(A) (Vernon 1994) (defining “public official” asincluding acounty officer); seegeneraZZyCain v.State, 855 S.W.2d 714 (Tex. Crim. App. 1993) (en bane) (upholding conviction of sheriff for violating nepotism laws). The sheriff has the sole authority to employ and terminate all employees of the sheriffs office. See Abbott v. Pollock, 946 S.W.2d 513, 516-17 (Tex. App.-Austin 1997, writ denied) (holding that sheriff, not commissioners court, has sole authority over employment and termination decisions concerning sheriffs office personnel; employees serve at the sheriffsThe Honorable Norman Amett - Page 3 (GA-0121)

discretion); Tex. Att’y Gen. Op. No. GA-0037 (2003) at 3-4 (commissioners court has authority to setbudget and number of employees in the sheriffs office, but may not interfere with the sheriffs authority to select assistants). A husband and wife are related to each other within the degree of affinity proscribed by the nepotism statutes. See TEX.GOV’TCODEANN. §§573.002 (Vernon 1994 & Supp. 2004) (chapter 573 applies to relationships within the second degree by affinity), 573.024(a)( 1)(married individuals arerelated by affinity), 573.025(a) (husband and wife arerelated inthe first degree by affinity). An individual’s employment that begins free from any nepotism may become unlawful when arelationship arises inthe course ofemployment that the nepotism statutes forbid. See Tex. Att’y Gen. Op. Nos. V-785 (1949), O-408 (1939); Tex. Att’y Gen. LO-93-l 14, LO-89-53. When such arelationship arises in the case of an at-will employee, it ispresumed that apublic official makes a new decision each month to retain the employee, which would violate the nepotism prohibition. See Tex. Att’y Gen. Op. No. MW-286 (1980) at 2; Tex. Att’y Gen. LO-93-l 14, at 1. Thus, section 573.041 would prohibit the sheriffs spouse from further employment in the sheriffs office after the marriage unless she qualifies for an exception to the nepotism prohibition, specifically the continuous employment exception under article 573.062(a). Section 573.062 is intended to exempt experienced public employees from the nepotism prohibition who “have ayear ofprior service free ofanepotism relationship.” Tex. Att’y Gen. Op. No. JM-636 (1987) at4.3 The exclusion in section 573.062 has two criteria: (1)the individual must be employed immediately prior to the election or appointment ofthe public official who has hiring authority; and (2) that employment must be continuous for the time the statute specifies for the relevant office, in this case, one year. See TEX.GOV’T CODEANN. 0 573.062(a)(1)-(2) (Vernon 1994). The individual must have been continuously “employed inthe position immediately before the election or appointment ofthe public official to whom the individual isrelated.” Id. 8573.062 (a)(l). The plain language of the statute does not distinguish between apublic official’s initial election or appointment and any subsequent election or appointment. On facts analogous to those you describe, this office has determined that a deputy who became the sheriffs brother-in-law had satisfied the statutory exemption and could continue to serve asthe sheriffs deputy. See Tex. Att’y Gen. LO-93-l 14. Inthat opinion, asheriff had been elected to terms of office beginning on January 1 of 1985, 1989, and 1993. See id. at 2. The sheriff appointed an individual as deputy sheriff in 1988 and married the deputy’s sister in 1993. See id.

3The opinion discerned the legislature’s intent from the emergency clause of the 1949 amendment that added the exception, which provides in part: The fact that numerous employees of the State and its agencies and subdivisions whose services are valuable to the State are required to give up such employment because members oftheir family may be, from time totime, elected to offices in this State under whom such employees hold their employment, and the fact that persons who have continuously served the State prior to the election to some office ofarelative should not be discharged forthat reason alone, and the fact that the purpose of the nepotism law was not to oust such persons from legitimate employment by the State, create an emergency . . .. Tex. Att’y Gen. Op. No. JM-636 (1987) at3 (quoting Act ofApr. 28,1949,51st Leg., R.S., ch. 126,§ 3,1949 Tex. Gen. Laws 227,227).The Honorable Norman Arnett - Page 4 (GA-0121)

at l-2. This office observed that “‘under the nepotism statute, prior continuous service is the time served before the board member’s election, not the time served before the marriage.“’ Id. at 2 (quoting Tex. Att’y Gen. Op. No. DM-132 (1992) at 4). The opinion concluded that the deputy qualified for the continuing employment exception because “the deputy had served more than four years prior to the sheriffs election to the term of office beginning January 1, 1993.” Id. As you describe the circumstances of your present inquiry, the individual here had been employed for more than five years when the sheriff of Stonewall County began his 1997 tern-r. See Request Letter, supra note 1,at 1. The sheriff and the individual were not related by affinity until they married in 2000. See id. The individual had been continuously employed for longer than the requisite period immediately prior to the sheriffs election for the 1997 term. Consistent with our opinion in Letter Opinion 93-l 14, we conclude that the sheriffs spouse satisfied the continuing employment exception to the nepotism laws in section 573.062(a). You are concerned that Letter Opinion 95-070 would support a different conclusion. See Tex. Att’y Gen. LO-95-070. In that opinion, we concluded that the spouse ofthe Midland County attorney could not continue her employment in the county attorney’s office. However, the facts involved in that opinion are distinguishable. In Letter Opinion 95-070, the county attorney had served consecutive four-year terms of office beginning January 1, 1985. See id. at 1.4 The county attorney employed anindividual inMay 1993, and they married in 1995. See id. The individual was not employed until after the 1992 election andtherefore could not have been continuously employed before the county attorney’s election. See TEX. GOV’T CODE ANN.9573.062(a)( 1)(Vernon 1994). The opinion determined that the individual could not continue employment after the marriage because the individual was not employed “immediately prior to the election.” Tex. Att’y Gen. LO-95-070, at 3. You are specifically concerned by the statement in Letter Opinion 95-070, that the “prior continuous employment exception is only available ifthe employee has completed the applicable period of prior continuous service during atime when the relative was not an employer with the power tohire orto fire the employee.” Id. However, under the circumstances asyou describe them, the individual had worked for the Stonewall County sheriffs office for several years prior to the sheriffs election in 1996, thereby satisfying the continuous employment exception before any relationship within the general nepotism prohibition existed. Although we conclude that the sheriffs spouse has qualified for the exception in section 573.062(a) and may remain inher current employment, we note that the sheriff “may not participate in any deliberation orvoting onthe appointment, reappointment,

...change in status, compensation, or dismissal ofthe individual ifthat action applies only to the individual and is not taken regarding abona fide class or category ofemployees.” TEX. GOV’T CODE ANN. 5573.062(b) (Vernon 1994). See generally Cain v. State, 855 S.W.2d 714 (Tex. Crim. App. 1993) (en bane) (upholding conviction of sheriff under nepotism law for giving raises to his son and daughter against void-forvagueness challenge).

4Although the opinion does not so state, the county attorney would have been reelected for terms beginning January 1of 1989 and 1993. See TEX.CONST.art. V, 521(county attorney’s term of office is four years).The Honorable Norman Amett - Page 5 (GA-0121)

SUMMARY The employment ofthe sheriffs spouse inthe sheriffs office after their marriage does not violate the nepotism laws in chapter 573 ofthe Government Code when the individual has held that position continuously for five years before the sheriff was reelected and for more than seven years before they married. Very truly yours,

BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S.FULLER Chair, Opinion Committee William A. Hill Assistant Attorney General, Opinion Committee