The Attorney General of Texas 

M MATTOX 

ttorney General 

December 14, 1984 

qreme Court Building 

0. Box 12548 

Jstin. TX. 78711-2548 

1214752501 

,,ex 910/674-1367 

dcopier 51214750266 

Honorable Abelardo Garza 

Duval County Attorney 

P. 0. Drawer H 

San Diego, Texas 78384 

Opinion No. .JM-254 

Re: Whether the salary of an 

investigator employed by a county 

attorney and related to a county 

commissioner may be increased 

‘4 .lackson. Suite 700 

allas. TX. 75202.4506 

.41742-6944 

Dear Mr. Garra: 

You employ an investigator who is a first cousin of a Duval 

County commissioner. You would like the coraaissioners court to grant 

324 Alberta Ave.. Suile 160 the investigator a salary increase and, for this reason, ask whether 

Paso. TX. 799052793 the commissioners court would violate the nepotism statute, article 

151533.3464 5996a. V.T.C.S.. if it approved the increase. 

101 Texas. Suite 700 

ousbm, TX. 77002.3111 

131223-5666 

36 Broadway, Suite 312 

“bbOCk. TX. 79401.3479 

x1747.5238 

Jo9 N: Tenth. Suite S 

IcAllen, TX. 78501-1685 

121662-4547 

30 Main Plaza. Suite 400 

an Antonio. TX. 78205-2767 

121225~4191 

Article 3328, V.T.C.S.. governs the employment of assistants, 

investigators, and other personnel by county attorneys. See art. 

332a. §l (“prosecuting attorney” to include Tounty 

attorney”). The county attorney 

f;fned 

employ such assistant 

prosecuting attorneys, investigators, secretaries, and other office 

personnel” as are necessary to operate his office. Id. 12. He is to 

set the salaries of his investigators and other personnel subject to 

the approval of the commissioners court. Id. 55. Article 3902, 

V.T.C.S.. prohibits the commissioners couF from attempting to 

influence the county attorney’s choice of employees. See Renfro V. 

Shro shire, 566 S.W.Zd 688 (Tex. Civ. App. - Eastland 1978,wrlt ref’d 

‘beeper v. Stewart, 66 S.W.2d 812 (Tex. Civ. App. - Eastland 

1933, writ ref’d). 

Article 5996a. V.T.C.S.; provides that no member of the 

commissioners court 

” Equal OpPortunltYl 

ffirmative~Action Employer 

shall appoint, or vote for. or confirm the 

appointment to any office, position, clerkship. 

employment or duty, of any person related within 

the second degree by affinity or within the third , 

degree by consanguinity to the person so appointing or so voting, or to any other member of any 

such board . . . or court of which 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 

p. 1131 
Honorable Abelardo Garra - Page 2 (JM-254) 

from public funds or fees of office of any kind or 

character whatsoever. . . . 

The commissioners court authorizes the position of investigator 

and has approval power over the county attorney’s salary recommendations but has no control over the person who is appointed to that 

position. Under such circumstances, this office has determined that 

the action of the commissioners court does not come within the 

nepotism statute. See Attorney General Opinions H-697 (1975); O-4895 

(1942); O-1954 (194n O-480 (1939); Letter Advisory Nos. 116 (1975); 

70 (1973). Nor does the court's action in approving a salary increase 

for the county attorney's investigator violate article 5996a. V.T.C.S. 

Attorney General Opinion H-1210 (1978). See Attorney General Opinion 

O-1849 (1940). The commissioners court caxt require that the salary 

be paid to a particular person. Thus, the commissioners court would 

not violate the nepotism law by approving a salary increase for the 

position of county attorney's investigator, even though the individual 

who serves as investigator is related to a commissioner within the 

prohibited degree. 

SUMMARY 

The commissioners court would not violate 

article 5996a. V.T.C.S., by approving a salary 

increase for the position of county attorney's 

investigator, even though a first cousin of a 

commissioner holds that position. Article 3902, 

V.T.C.S.. bars the cosasissioners court from 

influencing the selection of a person for that 

position. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

D. 1132 
Honorable Abelardo Garza - Page 3 (JM-254) 

APPROVED: 

OPINION COMHITTEE 

Rick Gilpin. Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

Bruce Youngblood 

p. 1133