Honorable David T. Garcia 

Brooks County Attorney 

P. 0. Box 557 

Falfurrias, Texas 78355 

Opinion No. JM-581 

Re: Constitutionality of article 

5996a. V.T.C.S., the nepotism 

statute 

Dear Mr. Garcia: 

You ask several quesi:ions about the nepotism statute, article 

5996a, V.T.C.S., which provides: 

No officer of t:his State 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 appointment to 

any office, position, clerkship, employment or 

duty. of' any ptzrson related within the second 

degree by affiniEr or within the third degree by 

consanguinity to the person so appointing or so 

voting, or to an:r other 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, .out of or 

from public funds or fees of office of any kind or 

character whatsoever; provided, that nothing herein 

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:Lng for, or confirmation of any 

person who shall have been continuously employed in 

any such office, position, clerkship, employment or 

duty for a period of one (1) year prior to the 

election or appointment of the officer or member 

appointing, v0tir.g for, or confirming the appointment , or to the election or appointment of the 

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Honorable David T. Garcia - Page 2 (~~-581) 

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 governing body 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 dismissal of 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. 

(Emphasis added). 

You first ask whether .article 5996a is unconstitutionally vague 

because it fails to specify whether the conraon law method or the civil 

law method 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 5996a were 

clear and unambiguous and were not unconstitutionally vague. The 

court in Bean did not addrciss the failure of article 5996a to specify 

the appropriate method for ~determinlng degrees. After studying that 

specific issue, however, we find no reason to question the holding in 

Bean. 

Some American jurisdictions use the civil law method of determining degrees of kinship, while others use the common law method. 

Under [the civil law] method the degree of kinship 

is determined by counting upward from the intestate 

to the nearest common ancestor, then downward to 

the claimant, each generation representing one 

degree. Computir,g by the rule of the civil law, 

parents and chil(.ren of a deceased are related to 

him in the first degree; and grandparents, grandchildren, brothers, and sisters of the deceased are 

related to him 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 fiEth degree, while the relationship 

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Honorable David T. Garcia - Page 3 (JM-581) 

of children of second cousins is in the sixth 

degree. 

. . . . 

Under [the common law or canon law] method the 

degree of kinsh:.p is 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. 

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

In 1878 a Texas Cour,: held that the common law method was the 

proper method 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 office has consistently applied the common 

law method in answering questions about 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 is well-established that the common law method 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 [lst Dist.] 1984, no writ) (computing 

affinity relationships under 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 statute must be read with reference to other laws. McBride v. 

Clayton, 166 S.W.2d 125, 128 (Tex. 1942) (meaning of statute is to be 

1. Tyler relied on the rule that the common law of England is 

the law of Texas except wt.ere it has been changed by constitution or 

statute. The issue may 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 this method 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 "cormnon la7 

rule as the Texas rule. 

p. 2599 
Honorable David T. Garcia - Page 4 (JM-581) 

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 precise meaning of the statute in question. See generally Village 

of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 

498-99 (1982) and Brockert v. Skornicka, 711 F.2d 1376, 1381 (7th Cir. 

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 is whether it is a violation of the nepotism 

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 5996a prohibits 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::t appoints 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 considered whether 

the nepotism law prohibited a junior .college district from hiring 

relatives of the college president. 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 sufficient to make the nepotism statute 

applicable to the employment of persons related to 

the president. !le,e Letter Advisory No. 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 exercised by the county librarian and the 

commissioners court is cx~fficient to make the nepotism statute 

applicable to the employment by a county library of persons related to 

the county judge or another member of the commissioners court. 

You tell us, however, that the commissioners court has authorized 

the county librarian to enploy personnel without the approval of the 

4 

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Honorable David T. Garcia - Page 5 (JM-581) 

conrmissioners court. The fact that the court does not use its 

statutory authority to exercise control over the appointment of county 

library employees does not .abrogate or 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 

prohibited by 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 judge within 

a prohibited .degree of consanguinity. 

I 

Very/truly yours;lA& 

U-//v’ . . 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 2601