ATTORNEY GENERAL OF TEXAS 

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 of the 

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 a term 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 of the 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 a position that is to be directly or indirectly 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 is related to another member of that board, 

legislature, or court within a degree described by Section 573.002. 

TEX. GOV’T CODE ANN. 9 573.041 (Vernon 1994). Section 573.062 of the code makes an exception 

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 of an appointment, or vote 

for an appointment or contirrnation of an appointment of an 

individual to a position if: 

(1) the individual is employed in the position immediately 

before the election or appointment of the public official to whom the 

individual is related in a prohibited degree; and 

(2) that prior employment of the 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 a position, the 

public official to whom the individual is related in a prohibited degree 

may not participate in any deliberation or voting on the appointment, 

reappointment, confirmation of the appointment or reappointment, 

employment, reemployment, change in status, compensation, or 

dismissal of the individual if that action applies only to the individual 

and is not taken regarding a bona fide class or category of employees. 

Id. 8 573.062. 

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 CODE ANN. 8 573.001(3)(A) 

(Vernon 1994) (defining “public official” as including a county officer); see generaZZy Cain 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 sheriffs 
The 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 

set budget 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’T CODE ANN. §§ 573.002 (Vernon 1994 

& Supp. 2004) (chapter 573 applies to relationships within the second degree by affinity), 

573.024(a)( 1) ( married individuals are related by affinity), 573.025(a) (husband and wife are related 

in the first degree by affinity). An individual’s employment that begins free from any nepotism may 

become unlawful when a relationship arises in the course of employment 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 a relationship arises in the case of an at-will employee, it is presumed that 

a public 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 a year of prior service free of a nepotism relationship.” Tex. Att’y Gen. Op. 

No. JM-636 (1987) at 4.3 The exclusion in section 573.062 has two criteria: (1) the individual must 

be employed immediately prior to the election or appointment of the 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 CODE ANN. 0 573.062(a)(1)-(2) (Vernon 

1994). The individual must have been continuously “employed in the position immediately before 

the election or appointment of the public official to whom the individual is related.” Id. 8 573.062 

(a)(l). The plain language of the statute does not distinguish between a public 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 

as the sheriffs deputy. See Tex. Att’y Gen. LO-93-l 14. In that opinion, a sheriff 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 of their family may be, from time to time, 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 of a relative should not be discharged for that 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) at 3 (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 of the 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 an individual in May 1993, and they married in 1995. See id. The individual was 

not employed until after the 1992 election and therefore could not have been continuously employed 

before the county attorney’s election. See TEX. GOV’T CODE ANN. 9 573.062(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 if the employee has completed the applicable 

period of prior continuous service during a time when the relative was not an employer with the 

power to hire or to fire the employee.” Id. However, under the circumstances as you 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 in her current employment, we note that the sheriff “may not participate 

in any deliberation or voting on the appointment, reappointment, . . . change in status, compensation, 

or dismissal of the individual if that action applies only to the individual and is not taken regarding 

a bona fide class or category of employees.” TEX. GOV’T CODE ANN. 5 573.062(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 1 of 1989 and 1993. See TEX. CONST. art. V, 5 2 1 (county attorney’s term of office is four years). 
The Honorable Norman Amett - Page 5 (GA-0121) 

SUMMARY 

The employment of the sheriffs spouse in the sheriffs office 

after their marriage does not violate the nepotism laws in chapter 573 

of the 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