. 

R-20 

Honorable Clayton Bray, 

County Attorney, Sutton County, 

Sonora, Texas Oplnlon No. V-20 

Re: Whether or not a daughter 

of the Sheriff may 5erve 

as deputy without pay. And 

a related question. 

Dear Sir: 

Yam request for an opinion upon the above titled subject matter 15 as followe: 

“Uill ye advise a8 to whether the Nepotism 

Statute, or any other pizohibltion statute, precludes a shsr;ff,,from making the following appointments: 

“(1) A daughter to be Deputy without pay. 

If she may not be a Deputy without’ 

pay, may she aeeiat in the office’ a8 

a voluntary worker? 

“(2) A huqband of an already appointed Office 

z;yt& #aId husband to be e Deputy with- 

. 

“Obviously, the appointment of a Depltg wLthout pag ’ 

would be to the advantage of the Sheriff a5 it would 

enable him to dlscti%ge the duties of his offloe 

with a min1m.m expense, however, I am quieelcal about the sanctity of the public records of the Sheriff's duties,as a Tax Assessor and Collector, and about the usual authority of a deputy to do all 

things his principal might do,. even though the deputy serves without pay. 

Article 3902 of the Revised Civil Statute5 as far as 

pertinent is au follows: 

“Whenever any district, county OP precinct 

officer shall require the seFvicea of deputies, 

assistants or clerks in the performance of hia 
Hon. Clayton Bray, page 2 v-20 

duties he shall apply to the County Commi.ssfoners 

Court of, his county for authority to appoint such 

deputies, assistants or clerks, stating by sworn 

application the number needed, the position to 

be filled a?$ the amouiWto be paid* Said application shall. be accompanied by.a statement showing 

the probable receipt from fees, cdmmisslons and 

compensation to b’e collected by said office dixring the fiscal year cind the’probable disbursements 

which shall Include all salaries and expenses of 

said office, and said court shall’make Its order 

authorlrilhg the appointment of such deputies, assretants and clerksand fix the compensation to be 

paid them within the llmitatlona herein prescribed 

and determine the number to be appointed as in the 

discretion of said court may be proper; provided 

that in .no case shall the Commfsaioners t Court or 

any member there attempt to influence the appolntment of any person as deputy, assistant or clerk in 

any office. Upon the entry OP such order the officers applying for such asslstahts, deputies or 

clerks shall be authorized tb appoint them; provided that said compensation shall not exceed the maxirrmm amount hereinafter set out. The compensation 

whLch may be’allowed t. the deputies, assistants or 

clerks above named fo ;P the services shall be a reasonable one, not to exceed the following amounts : 

“1 * In countiee having a population of twentgfive thouqand (25,000) or less inhabitants, first 

assistant ‘or ohief deputy not to exceed eighteen 

hundred ($1800) dollars per annum; other assistants, 

deputies or clerks not to ex@eed $i:tm$n hundred 

($1500) dollars per annum each, 

This bracket provision applies to Sutton County. 

A deputy sheriff is a public officer as contradistinguished from a mere employee of the sheriff, and Is charBed 

with the p~rformanoe Of certain governmental functions. The 

office is created by law0 The appointment of such deputy is reg - 

ulated by law, To becolpe a.depixty sheriff;’ therefore, the statutes 

regulating such 6ffice and the manner of fil%fng must be compli6d 

with, The mere vbluntarg’servfcea of one in the sheriff’s offfce, 

Wth or.wlthout gag from any h)oiwoe, “~would not make such volunteer 

a deputy’ sheriff D He would be a stralager to the duties of the 

ehetifff and wouPd not be authorFzecP to perform any of them whatsoever o 

It IE the poliCy of the law to fix’ and allowI;o;~e;M;tion 

adequate to the offfofal services to be performed. 
Hon. Clayton Bray, page 3 v-20 

.: 

contemplated by law that any officer sha2.L hold or exercise any 

plblib offtoe upo.n, any consideration other then that provfd@ by 

the law creatlng+&ls office. 

So emphatically does the law require this that the 

framers of our COnstitutlon have written an official oath to be :. 

taken by the officer solemnly swearing, “that I have not directly ‘I 

or lndlrectlg paid, offered, or promised to pay, contributed, or 

promised to contrlbute any money, or valuable ,thing, or promise3 

any public office or employment, or as a reward for the giving or 

withholding a vote at the election at which I was elected.” 

(Art. XVI, Sec. 1,) 

In State vs. Humphreys, 12 S.W. 99, a quo warrant0 case 

before the Supreme Court,, Justice Gaines, afterwards Chief JustLce, 

oonaidered Mr e Humpbreys t public announcement for oandldates ,for 

county clerk in the following words: “To the voters of Mills 

County: As I have been unable to make such a oanvas as was 

necessary to infdrm, you in person of my views on the question of 

ox-officio services, I beg leave by this method to aay that, if 

elected to the office of county clerk, I will serve for the fees 

of the office, and without ex-officio pay.” 

Concerning this the Justice said: “To permit a candldate, in order to influence the voters, to hold out a promise 

that he will serve in case of election for less than the fees ‘or 

salary fixed by law, is to thwart the will of the LegFslature, 

and to defeat the object of the law, It 15 unjust to honest 

aspirants who rely upon their merits for polltlcal preferment, 

and tends to degrade ,the public service by making the offfces not 

the reward of official capacity and honorable conduct, but the 

prey of those \?po, by reason of incapacity to earn a livelihood 

in the common pursuits of life, and wllllng to undertake the 

duties of public service for less sum than the Legislature has” 

detmed an adequate compensation for the work. It puts up the 8 

offices of the State to the lowest bidder, and conduces to lnfluence the voters to lose sight of the personal fitness of the 

respective candidates, and to be governed by consfderatLons of a 

false eoonomy I) It Is gratifying consideration that this practice 

has been of such Infrequent occurrence in our State that the 

Legislature has not felt called upon to pass a etatute In aid of 

the Constltutlon more effectually to r?medy the evF1.” 

The soun&$ubllc policy of the State thus announced ia 

supported by the’&.&tlcels quotations from standard textbook 

wrFtera and judlclal declslons O 

.~ 

While deputy sheriffs are not selected by popular elections, they are nevertheless officers of the State who.are regutred to take the Constltuttonal oath of offlce, and the same 

high standard of policy applies to them as to elective officers. 

‘I 
Hon. Clayton Brag, page 4 v-20 

If a prOWee such a8 that made by canaidate Humph~eys 

to accept comp6nsatfon at a lesser sum than that allowed by law 

is censuFable,“for nsnch gsea%er lpeaaon the promise of one to ~889’90 

without any reslneratlon fs offensfve to the policy of %he State. 

.~., 

Throop, a reapeotable authorfty on Public Offfc6pe; has 

this to 88 0 ‘Every pepson gho 18 appofn%ed to any office of’ 

this kind f public) ’ 1s forbidden to make, and the person who makea 

<+* the appbfntment fs forbidden to receive, any paymen% In respect 

of the appointment 0 ” (set b 52) 0 Again he say; “An English 

case, where, such a bargain, between~ a lIPanfcfpal corporation and 

’ its officer, was decreed in equity to be unlawful, as being 

, against plb$ic polWg, on the ground thert the law would not allow 

any bargain to be made, reepsotfrg an appointment to a public 

office, and also beoause the officer Is considered to require 

them (his fees) sto enable him to uphold the’ dignity ‘and perform 

the duties of hfs offfoe’ wa8 fully cited fn a former chapter.” 

(Set m 452) o Yet again $6 safsin “A board Of officers, havfng the 

power of appointment to an offLoe, oannot reduoe the amount, 

ffXed by law as %bs salary Of the office, or make a binding eon- 

%??a&, with the pemon agpofntW to till it, to perform its ilutlea 

at a less aurn0 and the acceptamcr of the office bg him, and his 

dfacharge’ of ‘&he &ta$fesr thereof, do not oon&f%ute a bintiimg ccn- 

.tract to accept au&i PeduoeiI sum, or a waivep of the statutory 

p~?ovliaioit; but he aan aftePwar"&a enfOrm hii, right %O %h& statutory’aalsPg, bg mandamus, or other appropH.ate legal p~oeeedfng.” 

(Sea. 456) o 

Cf&tek%iooa, &a. eialkm~~ aPath@Pfty on Public Policy, 

“So far haa the Bpoc%rI~e wbfoh prohfbfta anything that migh?!:i 

fluence the aeleetion of #MALo 0fffoePr ‘from other o6nsideretfons %hm that of’pw5oma~ merit besaa aamL16, %%a% an electlom 

secured lag a poaomiae on %he pap% bf a candidate to pepfom %Re 

dutfea of the ofifce to whieh.he eglpfre8, if e%eoted, fop less 

than the legal fees or saPaPy~ fa void. Chn6h p??omfses tend to 

swerve’the voters Pram $18 duty a8 a ~f%fzsn; to blind hfs peroeptfons aB to the sole question he ubOul& con~&W?~ --- ,%he qualffWa%ions of the oaM2dats ---anfl to fir them upon considerations, altoge%her fo46eign to the props exePofee of the highest 

right known to free men, the Fight of 8luffrage -- a Light upon 

whose abaolutsly free and epntz?anapnePl~ elsr~oise depend8 the 

pe~petuitg of O~P republican: fnatf%ut;fon& a E~wever lauudable fte 

object, ft fe demo~a$LzAng fn ftar taadlenefep,, and utterly aubve~slve of the plafneat dfe%a%ss of pnbUc policy0 

We will ilwthe~ say8 however, there Is no law of nepotf em 

OP other whateoever %ha% would forbfd a’she~iff to have another, 

pepson in his offfae w%o $ratuLtatsPy pe~fo%sus manual OP efePfea1 

work no% pertainfng to the official dutfep, of the klherfff 0 SW% 

person would be acting in hfa ‘fncUvfdua% capacity and not in any 

attempted capacity set a deputy or even an employee. Such a Pel- 
Hon. Clagton Bray, Page 5 

ation would no% be contractual or binding on anyone. 

v-20 

Further, we will say there Is nothing iti the law which 

would prevent a sheriff from appointing the husband of a woman 

whop wa% already appointed an office deputy, merely~ because of that 

tielationship, and where, of course, such husband was sppointed 

as regular deptles are appointed, 

“‘without pay. 

and not as a voluntatiy worker 

Thus far we have dealt particularly with the ques%idn 

of a deputy sheriff serving without pay. In order that we may 

be sure to cover every phase of the question raised by your in- ” 

quirg, we now discuss the features of nepotism. 

Article 432, penal code, reads as follows: “No officer 

of this State or any officer of any district, county, city, precinct; school district, or other m.Niicipal subdivision of this 

State, or any officer or member of any Sta%e, district, county, 

city;school distr$c% or other mnicipal board, or judge of any 

‘cixart, areated by or under authority of any general or special 

law of this State, or any member of the Legislature, shall appoint, 

or vote for, or confirm the appointment to any office, positton, 

clerkship, employment or duty, of any peraon 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, the Legislature, or court of which 

such psrson 80 appointing or so voting, may be a member, when the 

salary, feea or compensation of such appointee is to be paid for 

directly or indirectly, out of or from public funds or fees of 

office OP any kind OP character whatsoever.” 

Discussing our questions seriatim, we beg to advise the 

Nepotism Statute wou 9 d no% prevent a sheriff’s appointing his 

daughter to be deputy without pay (if any person cculd be appointed 

depaty without pay) since aa ia seen from the Nepotism Statute ‘, 

above quoted, ;%lis not applicable p x CBD tw he I? e it involves DayA 

ment Out of ~1 1 c funds as comnenaation. There is no statute, 

whether fiepotiam or other, that would prevent the sheriff’s permltting a voluntary worker in his office, to do clerical or other 

unoffiaial work. The husband of a woman who is already an office 

deputy as we have”shown above, could no% be appointed deputy without pay, but there is no rsason why he might not be appointed a 

deputy in the statutory method unless, of course, he is related 

to the sheriff within the prohiblted degree above quoted. 

These authorities IAPB Old, but the sound principle of 

mblic policy there announced is itself old and well-grounded in 

any Democratic system OS seleotion of plbllc servants. 

We know of no court declaion OP text writer announcing 

any contrary rule. 
Hon. Clayton BPEI~, p&e 6 v-20 

There is an opinion by this department, however, No. 

o-1896. which oontaina this language: “Thus we advise thst the 

sheriff has authority, with the approval of the commissioners’ 

Court, to appoln% an additional deputy to serve without any compensation.” TRe wrl%eP of that opinion cites no authority for 

the holding; and indeed such statemen% was not a% all necessary 

to a complete answer to the only queatlon propounded to him ,for 

an opinion Q His dfscussfon of the pertinent statzltes ~involv.&?l 

! in the request shows ths$ %he,language above quoted was not responsive o The question ‘of public policy waa In no way presented 

OP cons ideped a We think the opinion should be ov,erruled, and it 

is here overruled insofar as i% announcea %he doctrine that the 

sheriff may fn alag event bargafn with 0 depltg to accept the 

office for any consideration o%beF than the compensation therefor 

as fixed by law, 

These considerations, we think, compel a negative answer 

to all of your inquiries involving ln any way the question of 

the right to appoint an deputy sheriff without compensation, 

regardless of any consi i eration of the Statute of Nepotism0 

This concluglion Fe in line with the opinion by this Department of date April 26, 1932, written by Assistant Attorney 

General Scott Qainea, to Honorable Wapdlow hne, County Attorney 

of Shelby Counfg. 

SUrnRY : (1) The public policy of this State 

forblds the appointment of a depatg sheriff to serve 

without pay. 

(2) A sheriff’s daughter mery~%awful.ly perform 

non-official, manual, or clerical sewices for him, 

but such gpatuitoua services are VoluntaPg a~cl the 

agreement thepefor binds no one, and Imposes no duties upon the daugh%er ;nos llabflltles on ithe father 

or the county. 

(3) T%e husband of a appointed deputg, may not lawfully be appointad eputy 8herlff 

without pay. 

. . 

. ,’ 

‘I 

t 

I 

0’ 

.(4) 8uch hubian& of a depm%T may lawfully be 

appointed depr%y in; the statutory manner of such 

appofritment Q 

.: 
Hon. Clayton Brag, page 7 V-20 

Very truly yours 

ATTORNEYG~ERALOFTEXAS 

By s/Ocie Spear 

Ocle Speer 

Assistant 

gS/JMc/jrb/wc 

APPROVED FEB. 

s/Price Daniel 

4, 1947 

ATTORNEY GENERAL 

Approved Opinton Committee 

By BUB Chairman