The Attorney General of Texas 

November 10, 1983 

JIM MATTOX 

Attorney General 

Supreme Court Bulldmg 

P. 0. BOX 12548 

Austin, TX. 76711. 2548 

5121475-2501 

T&x 910,874-,367 

Telecopier 5121475.0266 

714 Jackson. Suite 700 

Dallas, TX. 75202.4506 

214,742J3!344 

4824 Alberta Ave., Suite 160 

El Paso. TX. 79905.2793 

91515333484 

r- 01 Texas.~Suite 700 

muston, TX. 77002-3111 

713,223.5886 

806 Broadway. Suite 312 

Lubbock, TX. 79401.3479 

8061747-5238 

4309 N. Tenth. Suite 6 

McAllen, TX. 76501.1665 

5121682.4547 

200 Main Plaza. Suite 400 

San Antonio, TX. 76205.2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Gary E. Miller, M.D. 

CCllllllIisSiOlU?~ 

Opinion No. J&g1 

Texas Department of Mental Health 

and Mental Retardation 

P. 0. Box 12668 

Austin, Texas 78711 

Re: Whether the superintendent 

of a mental health and mental 

retardation facility is an 

officer subject to the nepotism 

statute 

Dear Dr. Miller: 

You have asked whether a superintendent of a Texas Department of 

Mental Health and Mental Retardation facility is an officer for 

purposes of the Texas nepotism statutes. We believe that such a 

person is an officer within the meaning of articles 5996a and 5996b, 

V.T.C.S. 

Article 5996a provides, in part, that 

[noI officer of this State . . . shall 

appoint . . . to any office, position, clerkship, 

empl~oyment or duty . . . any person 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 member related 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. 386 
Dr. Gary E. Miller - Page 2 (JM-91) 

The courts 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 by him for 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, 280 S.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 3176 provides, in part: 

The Superintendent shall be the administrative 

head of the institution to which he is appointed. 

He shall have the following powers: 

1. To establish such rules and regulations 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, and other employees, and to fix their 

salaries. 

Each superintendent of a facility is appointed by the 

commissioner with the approval of the Texas Board of Men~tal Health and 

Mental Retardation and serves at the pleasure of the commissioner. 

See V.T.C.S. art. 5547-202, 52.12. However, we believe that a court 

would find that each superintendent , as the administrative head of the 

institution to which he I s appointed and the 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. 

We note 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 a school superintendent, whose duties are prescribed 

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

solely by the employing school board, the duties of a superintendent 

of a facility of the Texas Department of Mental Health and Mental 

Retardation are prescribed by statute. This statute confers upon such 

a superintendent 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 two years prior 

to the time he became the superintendent’s brother-in-law, we conclude 

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 of Mental Health and Mental Retardation 

is a” officer within the meaning of the Texas 

nepotism statutes and may not employ a person who 

is related to him within the degree of kinship 

prohibited by article 5996a, V.T.C.S. 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Nancy,Sutton 

Assistant Attorney General 

-J I M MATTOX 

Attorney General of Texas 

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

AFPROVED: 

OPINION COMMITTEE 

Rick Gilyin, Chairman 

Jon Bible 

David Brooks 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

p. 389