# TheAttorney General ofTexas
November 10, 1983 JIMMATTOX AttorneyGeneral

Supreme Court Bulldmg P.0. BOX12548 Austin, TX. 76711. 2548 5121475-2501 T&x 910,874-,367 Telecopier 5121475.0266

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An Equal Opportunity/ Affirmative Action Employer GaryE.Miller, M.D. CCllllllIisSiOlU?~ Opinion No. J&g1 Texas Department ofMental Health andMental Retardation P. 0. Box 12668 Austin, Texas 78711 Re: Whether the superintendent of amental health and mental retardation facility is an officer subject to the nepotism statute DearDr. Miller: Youhave asked whether asuperintendent of aTexas Department of Mental Health and Mental Retardation facility is an officer for purposes of the Texas nepotism statutes. Webelieve that such a person is anofficer within the meaning of articles 5996a and 5996b, V.T.C.S. Article 5996a provides, inpart, that 

### [noI officer of this State

. . . shall appoint

. . . to any office, position, clerkship, empl~oymentor duty

. . .anyperson related within the second degree by affinity or within the third degree by consanguinity to the person so appointing

. . . 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 oftice

. . . provided that nothing herein , . . shall prevent the appointment

. . . of any person who shall have been continuously employed in any such office, position, clerkship, employment or duty for a period of two (2) years prior to the election or appointment of the officer or member appointing

. . . or to the election or appointment of the officer or memberrelated to such employee in the prohibited degree. Article 5996b expressly specifies certain officers to whom the prohibition applies, including officers "Of the various state eleemosynary institutions."

p. 386Dr. GaryE.Miller - Page 2 (JM-91)

Thecourts of this state have frequently stated that the standard that determines status as an officer, as distinguished from an employee, is “whether any sovereign function of the government is conferred upon the individual to be exercised byhimfor the benefit of the public largely independent of the control of others.” (Emphasis in original). Green V. Stewart, 516 S.W.2d 133. 135 (Tex. 1974); Aldine Independent School District v. Standley, 280S.W.2d 578, 583 (Tex. 1955); Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658, 660 (Tex. App. - Eastland 1981, no writ).The powers and duties of superintendents of mental health and mental retardation facilities are not functions mainly delegated to them by the commj,ssioner and deputy commissioners of the department, but are derived from statutes such as articles 3175-3177, V.T.C.S., the Texas Mental Health Code, and the Mentally Retarded Persons Act. Article 3176provides, in part:

The Superintendent shall be the administrative head of the institution towhich he is appointed. Heshall have the following powers: 1. Toestablish such rules andregulations for the government of the instjtution in his charge, as he deems will best promote the interest and wel~fare of its inmates. 2. Where not otherwise provided by law, to appoint the subordinate officers, teachers, attendants, andother employees, andto fix their salaries. Each superintendent of a facility is appointed by the commissioner with the approval of the Texas Board ofMen~talHealth and Mental Retardation and serves at the pleasure of the commissioner. SeeV.T.C.S. art. 5547-202, 52.12. However, webelieve that acourt would find that each superintendent ,as the administrative head of the institution towhich heIsappointed andthe person with the power to appoint the facility’s staff and fix their salaries, exercises sovereign functions of government for the benefit of the public largely independent of the control of others. Accordingly, we concl.ude that a superintendent of a Mental. Health and Mental Retardation facility is subject to the prohibitions imposed by the nepotism statutes. Wenote that this situation is differcnt from that presented in Pena V. Rio Grande City Consolidated Independent School District, supra, which held that a superintendent of an independent school district is not an officer within the meaning of the nepotism statutes. Unlike aschool superintendent, whose duties are prescribed

p. 387Dr. GaryE.Nfller - Page 3 (JM-91)

solely by the employing school board, the duties of asuperintendent of a facility of the Texas Department of Mental Health and Mental Retardation are prescribed bystatute. This statute confers upon such asuperintendent sovereign functions of government largely independent of the control of others. YOU also ask whether the nepotism statutes prohibit the employment of a particular person at a mental health and mental retardation facility. The person is paid from publi,c funds. The person is a brother-in-law of the superintendent and, therefore, within the degree of affinity prohibited by article 5996a. Because the person was employed at the facility for less than twoyears prior tothe time hebecame the superintendent’s brother-in-law, weconclude that the two-year continuous service exception in article 5996a is not applicable. While we believe that a contract of employment that was made prior to the prohibited relationship would remain valid for the term of the contract, we are advised that the person in question is not hired on a contractual basis with the facility. If the person is a” employee who is hired on a month-to-month basis, we believe a new contract would be entered into each month and that the person’s continued employment at the facility is prohibited. See Attorney - General Opinion M-857 (1971). SUMMARY

The superintendent of a facility of the Texas Department ofMental Health andMental Retardation is a” officer within the meaning of the Texas nepotism statutes andmaynot employ aperson who is related to him within the degree of kinship prohibited byarticle 5996a, V.T.C.S.

TOMGREEN First Assistant Attorney General DAVIDR. RICHARDS Executive Assistant Attorney General Prepared byNancy,Sutton Assistant Attorney General -J IM MATTOX Attorney General of Texas

p. 388Dr. GaryE.Ellller - Poge 4 (JM-91)

AFPROVED: OPINIONCOMMITTEE Rick Gilyin, Chairman JonBible David Brooks Colin Carl SusanGarrison JimMoellinger NancySutton

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