HonorableDavid T. Garcia Brooks CountyAttorney P. 0. Box 557 Falfurrias,Texas 78355 OpinionNo.JM-581

Re: Constitutionalityof article 5996a. V.T.C.S., the nepotism statute

Dear Mr. Garcia:

You ask several quesi:ionsabout the nepotism statute, article 5996a,V.T.C.S.,which provides:

No officer of t:hisState nor any officer of any district, county, city, precinct, school district,
or other municip;x:l subdivision of this State, nor any officer or ,member of any State district, county, city, school district or other municipal board, or judge of any court, created by or under authority of any General or Special Law of this State, nor any member of the Legislature, shall appoint, or vote for, or confirm the appointmentto any office, position, clerkship, employment or duty. of' any ptzrsonrelated within the second degree by affiniEr or within the third degree by consanguinity to the person so appointing or so voting, or to an:rother member of any such board, the Legislature, or court of which such person so appointing or vcting may be a member, when the salary, fees, or compensation of such appointee is to be paid for, i:Lrectly or indirectly, .outof or from public funds or fees of office of any kind or characterwhatsoever;provided, thatnothingherein contained,nor ir;any other nepotism law contained in any charter or ordinance of any municipal corporation of this State, shall prevent the appointment, vot:Lngfor, or confirmation of any personwho shall havebeen continuouslyemployed in any such office,position, clerkship,employmentor duty for a period of one (1) year prior to the election or appointment of the officer or member appointing,v0tir.gfor, or confirming the appointment, or to the election or appointment of the

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officer or member related to such employee in the prohibited degree., When a person is allowed to continue in an office,position, clerkship,employment, or duty tecause of the operation of the exceptions contaLned in the two foregoing provisions then the Judge, Legislator, officer, or member of the governingbody who is related to such person in the prchibited degree shall not participate in the deliberation or voting upon the appointment, rea;?pointment,employment, confirmation, reemployment,change in status, compensation,
or dismissalof such person, if such action applies only to such person and is not taken with respect to a bona fide class or category of employees. (Emphasisadded).

You first ask whether .article5996a is unconstitutionallyvague because it fails to specifywhether the conraon lawmethod or the civil lawmethod is to be used in adetermining degrees of kinship.

In Bean v. State, 691 S.W.2d 773, 776 (Tex.App. - Eastland 1985, writ ref'd), the court helC,that the provisions of article 5996awere clear and unambiguous and were not unconstitutionally vague. The court in Bean did not addrcissthe failure of article 5996a to specify the appropriatemethod for ~determinlng degrees. After studying that specific issue, however,we find no reason to question theholding in Bean.

Some American jurisdictionsuse the civil lawmethod of determining degrees of kinship,while othersuse the common lawmethod.

Under [the civil law]method the degree of kinship is determinedby countingupward from the intestate to the nearest common ancestor, then downward to the claimant, each generation representing one degree. Computir,gby the rule of the civil law, parents and chil(.renof a deceased are related to him in the first degree; and grandparents, grandchildren,brothers, and sistersof the deceased are related tohim in the second degree.Uncles, aunts, nephews, nieces, and great-grandparents of the deceased are related to him in the third degree. The fourth degree of relationship includes first cousins, great-uncles and great-aunts, and greatgreat-grandparents. The great-great uncles and great-great aunts, the children of a cousin, and the children of 2:great-uncle or great-aunt are related in the fiEthdegree,while the relationship

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of children of second cousins is in the sixth degree.

. . . . Under [the common law or canon law] method the degree of kinsh:.pis determined by counting the number of generations from the nearest common ancestor down to the intestate or to the claimant, taking the longe::of the two lines where they are unequal.

23Am. Jur. 2d Descent and ;istribution, 955.

In 1878 a Texas Cour,:held that the common law method was the propermethod for computlne, degrees of kinship under Texas law. Tyler Tap R.,R. Co. & Douglas v. Overton, 1 White & W. 267 (Tex. Ct. .App. 1878): Since then this officehas consistently applied the common lawmethod in answeringquestionsabout the nepotism statute.Attorney General Opinions O-791 (1939); O-2523 (1940); o-3016, O-3996 (1941); O-4670, O-4987 (1942); O-5452 (1943); O-6307, O-6337 (1945); V-785 (1949); LA-67 (1973); JM-I!53 (1984). See also Jackson v. Maypearl Independent School District, 392 S.W.2d 892 (Tex. Civ. App. - Waco 1965,no writ).
Furthermore, it iswell-establishedthat the common lawmethod is the proper method for computing degrees of kinship under other Texas statutes. See Warner v. Rice, 541 S.W.2d 896, 898 (Tex. Civ. App. - Eastland 19% no writ) cgest statute); Whitworth v. Bynum. 679 S.W.2d 608 (Tex.App. - Houston [lstDist.] 1984,no writ) (computing affinity relationshipsunder guest statute); see also Fry v. Tucker, 202 S.W.2d 218 (Tex. 194;')(disqualification of judges); Smith v. Bates, 27 S.W. 1044 (Tex. Civ. App. 1894, no writ) (disqualification of jurors).

A statutemust be readwith reference to other laws. McBride v. Clayton, 166 S.W.2d 125, 128 (Tex. 1942) (meaningof statute is tobe

1. Tyler relied on the rule that the common law of England is the law of Texas exceptwt.ereit has been changedby constitution or statute. The issuemay not have been as clear-cut as Tyler suggests because the so-called "common law" rule of computing degrees of kinship is actually the ecclesiastical or canon-law ru$e, and it is not clear that thismethod bec,une part of the common law of England. See 26A C.J.S. Descent and Distribution 622, at 562; D. Robertson,% Succession (1836). Nonetheless, Tyler established the "cormnonla7 rule as the Texas rule.

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determined with reference to common law, other statutes, and court decisions). We know of no case holding that a statute is unconstitutionally vague because one must turn to other laws in order to know the precisemeaning of the statute in question. See generallyVillage of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982)and Brockertv. Skornicka, 711 F.2d 1376, 1381 (7thCir. 1983) (it is relevant to v&eness inquiry that persons affected have ability to seek clarification of law in order to plan behavior). Therefore, we find no reason to question the holding in Bean that article 5996a is clear and unambiguous and not unconstitutionally vague.

Your second question iswhether it is a violation of thenepotism statute for a first cousin of the mother of the county judge to be hired as a county library employee. A first cousin of the mother of the county judge is relatei.to the county judge in the third degree of consanguinity, so the relationship is in a degree prohibited by the nepotism statute. Therefo1.e article 5996aprohibits the employment in question if the commission~!rs court -- of which the county judge is a member -- appoints, votes for, or confirms the appointment of an employee of the county libr,ary.

The commissioners cou::tappoints the county librarian. V.T.C.S. art. 1683. The countv lib,carian has authority to auuoint and dismiss

__ library employees with the approval of the commissioners court. V.T.C.S. art. 1685. In rSF'l56(1978) this office consideredwhether the nepotism law prohibited a junior .collegedistrict from hiring relatives of the collegepresident. That opinion stated:

The Board of Trustees of a junior college is authorized to hire faculty and other employees upon the prerfident's recommendation. Art. 130.082(d), Educ. Code. Thus the president and the board exercise joint control over the selection of employers and faculty. We believe this control is sufficienttomake thenepotism statute applicable to the employmentof persons related to the president. !le,e Letter AdvisoryNo. 152 (1978) (chief of ---

police had influence over retaining probationary employee); Letter Advisory No. 148 (1977) (university may not employ niece of regent). Similarly, the joint control exercisedby the county librarianand the commissioners court is cx~fficientto make the nepotism statute applicable to the employmentby a county library of persons related to the county judge or anothermember of the commissionerscourt.

You tell us, however, that the commissionerscourthas authorized the county librarian to enploy personnel without the approval of the 4

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conrmissionerscourt. The fact that the court does not use its statutoryauthority to exercise control over the appointmentof county library employees does not .abrogateor limit the authority. Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658 (Tex. Civ. App. - Eastrand 1981, no writ). Thus, the employment by the county library of a first cousin of the county judge is prohibitedby article 5996a. LA-148 (1977).

SUMMARY

The nepotism statute, article 5996a. V.T.C.S., is not unconstitutionally vague. The nepotism statute prohibits the county library from employing someone related to a county judgewithin
a prohibited .degreeof consanguinity.

I Very/trulyyours;lA& 

# U-//v’

.. JIM MATTOX Attorney General of Texas

JACK HIGHTOWER First AssistantAttorney General

MARY KELLER ExecutiveAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee
Prepared by SarahWoelk AssistantAttorney General

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