# TheAttorney GeneralofTexas

MMATTOX 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. DrawerH SanDiego, Texas 78384 Opinion No..JM-254
Re: Whether the salary of an investigator employed byacounty attorney and related to acounty commissioner maybe increased

‘4.lackson. Suite 700 allas. TX. 75202.4506 .41742-6944 DearMr. Garra:
You employ an investigator who is a first cousin of a Duval County commissioner. Youwould like the coraaissioners court to grant 324Alberta Ave.. Suile 160 the investigator asalary 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.

101Texas. Suite 700 ousbm, TX. 77002.3111 131223-5666

36Broadway, Suite 312 “bbOCk. TX. 79401.3479 x1747.5238

Jo9N:Tenth. Suite S IcAllen, TX. 78501-1685 121662-4547

30Main Plaza. Suite 400 anAntonio. 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. Heis 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, 566S.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 memberof any such board

. . . or court of which such person so appointing or voting maybe a member, when the salary, fees, or compensation of such appointee is to be paid for, directly or indirectly, out of or

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from public funds or fees of office of anykind or character whatsoever.

. . . The commissioners court authorizes the position of investigator andhas 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. SeeAttorney General Opinions H-697 (1975); O-4895 (1942); O-1954 (194n O-480 (1939); Letter Advisory Nos. 116 (1975); 70 (1973). Nordoes the court's action in approving asalary increase for the county attorney's investigator violate article 5996a. V.T.C.S. Attorney General Opinion H-1210 (1978). SeeAttorney General Opinion O-1849 (1940). Thecommissioners court caxt require that the salary be paid to aparticular 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
TOMGREEN First Assistant Attorney General
DAVIDR. RICHARDS Executive Assistant Attorney General
RICKGILPIN Chairman, Opinion Committee Prepared bySusan L. Garrison Assistant Attorney General

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

APPROVED: OPINIONCOMHITTEE
Rick Gilpin. Chairman Colin Carl Susan Garrison TonyGuillory JimMoellinger Jennifer Riggs NancySutton Bruce Youngblood

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