## THEATTORNEYGENERAL

OF TEXAS

Honorable John C. Marburger CountyAttorney Fayette County La Grange, Texas

Dear Slr: OpinionNo. O-6221 Re: Nepotism: (1) first cousins of principalsnot to be appointed deputy; (2)brother-in-law of County Commlssioneras deputy County Tax Assessor-Collector.

Your letter of recentdate has been received. You submit the following questions:

nl. May the newly elected Tax AssessorCollector legally appoint as his deputy his first cousin by blood? This blood cousin has been working for the present or outgoingTax AssessorCollector for the past 20 years, but is not related to him.

"2

. Mny the Tax Assessor-Collectorlegally appoint as hFs deputy a brother-in-law of one of the members of the Commissioners'Court?"

The applicable statute is Article 432, Penal Code. It reads as follows:

"No officer of this State or any officer of any district, county, city precinct, schooldlstrlct, or othermunicipal subdivision of this State, or any officer or member of any State, distrlct, county, city, schooldistrict or other Irunlcipal

board, or judge of any court, created by or under authority of any general or special law of this State, or any member of the Leglslature, shall appofnt, or vote for, or confirm the appointment to any office,position, clerkship, employment or duty, of any person relatedwithin the seconddegree by affinity orwithin the third degree by consanguinity to the person so appolntlng or so votlng, or to any othermember of any such board, the Legislature, or court of whichHon. John C. Marburger,page 2 o-6221

such person so appointing or voting may be a member, when the 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 characterwhatsoever."

First cousins are related by consanguinity in the seconddegree. Tyler Tap Railroad Co. v. Overton, 1 App. Ct. of Appeals 267, sec. 535.

You are accordinglyadvised that the newly electedCounty Tax Assessor-Collectormay not legallyappoint as hisdeputy his first cousin. If he does make such appointmenthe will be amenable to punishment as prescribedby Article 437, Penal Code, and will be guilty of officialmisconduct. The fact that the cousin has been working in the officeas a deputy of the retiring tax assessor-collector,to whom he is not related, 1s Immaterial. Each two-year term of office is a distinct and new administrationwithin the purview of the statuteproviding authority for the appointment of deputies. (Art. 902,Vernon'sAnnotated Civil Statutes of Texas, as amended.7

Your second question Is answered in the affirmative. Reference to Article 432, Penal Code, supra,discloses that the offense consists of appointing voting for, or confirming the appointment of a person relate:within the' prohibiteddegree of relationship. Article 3902,V.A.C,S. makes provision for a County officer'sdeputies and prescribes the procedure to be followed. Under the expressprovisions of that article the Commissioners'Court has no authority to designate the appointee and has no duty to confirm him.

The specificquestion Is answered in full in our Opinion No. O-1954, a copy ofwhich is enclosed. We adhere to the conclusions therein expressed.

Yours very truly ATTORNEY GENERAL OF TEXAS

BW:fo:wc Encl.

APPROVZI SEP 23',1944 s/GroverSellers ATTORNEY GENERAL OF TEXAS By s/BenjaminWoodall Benjamin Wocdall Assl,stant

Approved Opinion CommitteeBy s/BWB Chairman