THEATTORNEY GENERAL

PRICE DANIEL ATTORNEY

GENERAL WY 31, 1949

Hon. TomMoLeroy County Attorney Shelby Codnty Center, Texas

Dear Sir: OpfnionIlO!V-833 He: Applicability of ’ the anti-nepotism rbtetutos to tkmappolntment of a policemm by the City Counoif of 6 @it9 inoorporrted under Title 28, Chaptern 140, V.C.S.
You have requcbe+te& an Irptnlan oD &flouaCLon which, in subkitanoe, is 8~6 follows: Is the City Oooa

2811 porated under Tltll of a city iw~- Chsptsre l-10, Q.i?.;s., prohIbIted by ths uv&upot:iiun p~ovfsiaos of V.P.Ca,from appoiablad; a brother of a mtmberof the c~ouadil bs,the #ffi~ of city polioemad, whowill. 8180 cot as oLtg eoave~cc, anu comptsnaatehllr fW hfs eervldee Erompubala funde of the olty end fees of offioe?
A cl 3 Incorporated tier tW Siwt WkIobapters of title 2 , V.C.S., may provfda bg or6iwrio4 for the ap ointment of its police offloers. 7 art. 99, V.C.S. Aseumlng in the in&ant ease that the citg council has passed such an ordinance, the oounoll may impose upon a policemau the added drXties of city scavenger. (Apt. 1002, V.C.S.) APtfcrle 998 provl@Ies such police officers “shall receive a,salarg or fees of office, or both, as shall ba flxed bs the city council

.” Article 432, VePQC., re@bss

‘I100 0ffPcek of %hSs&ate Or any officer of any district, county, city, reefnot, school dlstrfct ) or other munleipal i? audivision of this State, or any offfee~ of member,0%any State, district, countyj city> school dlstMct or other munfcipal board, or judge 0% sag OoutiP created by or under auP;borlty of %~ygenePa 0~

. .Hon. TomMeLeroy, page 2 iv-8331
speefal Paw0%this State, or any memberof the Legislature, shall appoint, or vote for, or conffrm the appointment to any office, posltlon, clerkship, employment OPduty, of any person related within the second degree by afffnf%g or wfthin &hethird degree by consanguinity to the person so erppoln%fng OFso voting, or to any o&hermemberof any such board, %&he

Legfslatore, or cotit OS which such persOn 80 appoln%ing op voting maybe a member, when%he.salary, Sees, or compensstfon of such s.ppoin%ee is %obe pafd for, directly or fndi%ee%lg, out OSOFfrom publfe funds or Sees of odfiee OSany kl~nd or character whetsoever .* Article 433> V.P,C, 9speei%ieallg provides that the provlsfons of this law (I@%$. 432 ttiough 437, V.P.C.) shall apply to and include mayors, oommissioners, recordden‘s, and aldermen of fnoorporated cltiee and towns.

Articles 435 and 437, V.P,C-, read respeetlvely as follows:

Ar6. 435. “No o%fioer OPother person Ineluded wf%hfn the third pkecedlng &%fole shall approve sny aoooun% OPdraw op author lze the 5sawfng of as-qwarrant OF order tb pay any salary, See or compenee.%lon of such fnellgible of%icer QP” pepsoD, knowing him to be so fnelfgfble.” Art. 437. “Whoeve violates any provlalon of %heffive preceding Ap%foles shs.Pl be guilty of amisdemeanor involving of ’ffelal misconduct, md shall be Slned not less %hm OneHundred nor lhoFe&ham ODeThousand Dollars.” Artlole 5906, V,C.S., fn part, provides:

“WboeveF violates e,nyprovision of the Penal Code relating to nepotism and the fnhlblted acts connected therewith shall be removed from hfs okifeej elerPkshipL employment or duty, as therein provided.

,Hon. TomMcLeroy, page 3 ( ‘J-833)

These and other statutes evidence the meticulous care taken by the Legislature to prohibit public officers of this State, including mayors e,ndeldermen of cfties, from eppolntfng their near relatives to public office or employing them fn any other public capacity, whentheir compensetfon Pato be pald, directly or Indirectly, out of public funds or fees of offlce of eng kind or character whatsoever.

Apolicemen of a city Is a public offfcer. uparte Preston, 72 Tex. Crfm. 77, 161 S.W. 115 (1913); -- Yett v. Coo~lg Tex. 205, 281 S.W. 837 (1926). The mi6itions set forth in Article 432 BDD~Y to mayors end aldermen of cftfes Incorporated under-Tftle $8, Chapters l-10, V.C.S. Brothers are related to eech~ other with the first degree of consanguinity, and, as stated by you, comewithin the prohibited degree of relationship deflzned In Article 432. Thebrother of an alderman, If appointed to the office of city policemenby the city council, wlll.be compensated for his services from public funds end fees of office.

In view of the facts recited and the plain provisions of the statutes cited, it Is the opinion of this office that such en appointment cannot lawfully be made.
SUMMARY ---- The city council of e cltr fncopporeted under Title 28, Chapters l-10, V,C.S., cannot lawfully appoint a brother of en alderman of the city to the office of oitg polioemen and compensate himfor his services from public funds of the city or fees of office of any kind or character whatsoever. Arts. 432-437, V,P.C.; Art. 5906, V.C.S. Very truly yours RPROVEDt

A ATTORNEY 6EfU3AT.OPTEXAS

Assietant

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