. 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 maynot be a Deputy without’ pay, mayshe 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 himto dlscti%ge the duties of his offloe with a min1m.mexpense, however, I amquieelcal 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 OPprecinct 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 numberneeded, 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’ecollected by said office dixring the fiscal year cindthe’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 themwithin the llmitatlona herein prescribed and determine the numberto be appointed as in the discretion of said court maybe proper; provided that in .nocase shall the 

### Commfsaioners t Court or any memberthere attempt to influence the appolntment of any person as deputy, assistant or clerk in any office. Upon the entry OPsuch 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 whLchmaybe’allowed t. the deputies, assistants or clerks above namedfo;Pthe 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 annumeach, This bracket provision applies to Sutton County. Adeputy 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 Theappointment of such deputy is reg- ulated by law, Tobecolpe 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,“~wouldnot makesuch volunteer a deputy’ sheriff D Hewould be a stralager to the duties 

### of the ehetifff andwouPdnot be authorFzecP to perform any of themwhatsoever o It IEthe 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.Lhold 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 SupremeCourt,, Justice Gaines, afterwards Chief JustLce, oonaidered MreHumpbreyst public announcement for oandldates ,for county clerk in the following words: “To the voters of Mills County: As I have been unable to makesuch a oanvas as was necessary to infdrm, you in person of myviews 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, andwithout 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 15unjust to honest aspirants whorely 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 commonpursuits of life, and wllllng to undertake the duties of public service for less sumthan 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 eoonomyI) 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.

‘IHon. Clayton Brag, page 4 v-20

If a prOWee such a8 that madeby canaidate Humph~eys to accept comp6nsatfon at a lesser sumthan that allowed by law is censuFable,“for nsnchgsea%er lpeaaonthe promise of one to ~889’90 without any reslneratlon fs offensfve to the policy of %heState. .~., Throop, a reapeotable authorfty on Public Offfc6pe; has this to 88 0 ‘Every pepson gho 18appofn%ed to any office of ’ this kind public) 1s forbidden to make, and the person whomakea

f’ <+* the appbfntment fs forbidden to receive, any paymen%In respect of the appointment 0 ” (set b52) 0 Again he say; “AnEnglish 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 ‘andperform the duties of hfs offfoe’ wa8 fully cited fn a former chapter.” (Set m452)o Yet again $6 safsin “Aboard Of officers, havfng the power of appointment to an offLoe, oannot reduoe the amount, ffXed by law as %bssalary Of the office, or makea binding eon- %??a&, with the pemon agpofntW to till it, to perform its ilutlea at a less aurn0and the acceptamcr of the office bg him, and his dfacharge’ of ‘&he&ta$fesrthereof, 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@Pftyon Public Policy,

“So far haa the Bpoc%rI~ewbfoh prohfbfta anything that migh?!:i fluence the aeleetion of #MALo 0fffoePr ‘from other o6nsideretfons %hm that of ’pw5oma~ merit besaaaamL16, %%a% an electlom secured laga poaomiaeon %hepap%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$18 duty a8 a ~f%fzsn; to blind hfs peroeptfons aBto the sole question he ubOul&con~&W?~ --- ,%hequalffWa%ions of the oaM2dats ---anfl to fir themupon considerations, altoge%her fo46eign to the props exePofee of the highest right knownto free men, the Fight of 8luffrage -- a Light upon whose abaolutsly free andepntz?anapnePl~ elsr~oise depend8 the pe~petuitg of O~Prepublican: fnatf%ut;fon& a E~wever lauudable fte object, ft fe demo~a$LzAngfn ftar taadlenefep,, and utterly aubve~slve of the plafneat dfe%a%ss of pnbUc policy0

Wewill ilwthe~ say8 however, there Is no law of nepotf em OPother whateoever %ha%would forbfd a’she~iff to have another, pepson in his offfae w%o$ratuLtatsPy pe~fo%susmanual OPefePfea1 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 seta 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, wewill 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, andwhere, 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 wemay be sure to cover every phase of the question raised by your in- ” quirg, wenowdiscuss the features of nepotism.

Article 432, penal code, reads as follows: “Noofficer 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 memberof 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 memberof 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 memberof any such board, the Legislature, or court of which such psrson 80 appointing or so voting, maybe a member, whenthe 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 OPany kind OPcharacter whatsoever.”

Discussing our questions seriatim, webeg to advise the Nepotism Statute woud no%prevent a sheriff ’s appointing his 9 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 x p CBD he e it involves DayA tw I? 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 womanwhois already an office deputy as we have”shown above, could no%be appointed deputy without pay, but there is no rsason whyhe 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 OSseleotion of plbllc servants.

Weknow of no court declaion OPtext 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.” TRewrl%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 noway presented OPconsideped a Wethink the opinion should be ov,erruled, and it is here overruled insofar as i% announcea %hedoctrine that the sheriff mayfn alagevent bargafn with 0 depltg to accept the office for any consideration o%beFthan the compensation therefor as fixed by law,

These considerations, we think, compel a negative answer to all of your inquiries involving ln any waythe question of the right to appoint an deputy sheriff without compensation, regardless of any consi ieration 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 Wapdlowhne, 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.lyperform non-official, manual, or clerical sewices for him, but such gpatuitoua services are VoluntaPg a~clthe agreement thepefor binds no one, and Imposes no duties upon the daugh%er;nos llabflltles on ithefather or the county. (3) T%ehusband of a appointed deputg, maynot lawfully be appointad eputy 8herlff without pay. . .

. ,’

‘I

t

I 0 ’

.(4) 8uch hubian& of a depm%Tmay 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 ByBUBChairman