The Attorney General of Texas 

December 15, 1980 

Honorable John W. LaGrone 

Hutchinson County Attorney 

Opinion No. MN-286 

Hutchinson County Courthouse 

Borger, Texas 79007 

Re: Whether the wife of an adult 

probation officer may be employed 

as a clerk in the probation department 

Dear Mr. LaGrone: 

You have asked whether the nepotism law prevents the wife of the 

chief probation officer from working as a clerk in the probation department. 

Article 5996a, V.T.C.S., provides in pertinent part: 

A person 

No officer of this State nor any officer of any 

district, county. . . of this State. .~. created by or 

under authority of any General or Special Law of this 

State. . ; shall appoint, or vote for, or confirm the 

appointment to any office, position, clerkshi& 

employment or duty, of any person related within the 

second degree by affinity or within the third degree 

by consanguinity to the parson so appointing or so 

voting, or to any other member of any such board, the 

Legislature, or court of which such person so 

appointing or voting may be a member, when the 

salary, fees, or compensation of such appointee is to 

be paid for, directly or indirectly, out of or from 

public funds. . . . (Emphasis added). 

who has been employed for two years continuously prior to the 

time his relative attains the power to appoint him may continue in his 

employment. V.T.C.S. art. 5996a; see ‘Attorney General Opinion M-671 

m7ox 

- 

Article 42.12 of the Code of Criminal Procedure makes the following 

provision for staffing the probation office: 

Where more than done probation officer is required, 

the judge or judges shall appoint a chief adult 

probation officer or director, who, with their 

approval, shall appoint a sufficient number of 

assistants and other employees to carry on the 

professional, clerical, and other work of the court. 

p. 912 
John W. LaGrone - Page Two f&V-286) 

Sec. 10(b). This provision was enacted in 1965 and the language has not been changed. 

Acts 1965, 59th Leg., ch. 722, at 493. In our opinion, it gives the chief adult probation 

officer a joint power with the district judge to appoint assistants and clerical 

personneL In Letter Advisory No. 156 (1978), this office considered a similar statute 

authorizing the trustees of a junior college to hire persons recommended by the college 

president. It determined that article 5996a prohibited the president from recommendhg that his relative be hired. Cqmpare Attorney General Opinion MW-56 

(G.9;iizt question whether school supermtendent exercised delegated power to 

. See also Letter Advisory No. 152 (1976). Article 5996a prevents the 

employment of the chief adult probation officer’s wife in the probation office unless 

she served two years in her position prior to her husband’s appointment to that office. 

By judicial order effective September 1973, the husband was appointed adult 

probation officer. He had previously served as assistant adult probation officer. The 

judge issued orders alsO effective September 1, 1973, appointing the wife as clerk of 

the adult ptobation department and naming a successor in the position of assistant. No 

violation of the nepotism law is found in the initial appointments. These were made by 

the judge, who was not related to any of the appointees. 

It has been sqgested that there was no chief adult probation officer until 

September 1979, when a judicial order setting salaries refers to the husband as “Chief 

Adult Probation Officer.” However, we believe that as of 1973 the husband was in fact 

the chief adult probation officer. Section 10(b) states that there shall be a chief adult 

probation officer when more than one ~probation officer is required. There was an 

assistant probation officer in 1973, and we believe that the adult probation officer 

occupied the position of chief even though he did not use the formal title. The statutd 

gave hhn the powers of the chief whether or not he exercised them. Governmental 

powers must be exercised by ,the officer designated by law and may not be delegated to 

others. oody M 373 S.W. 2d 793 (Tex. Civ. App. - Austin 

1963, writ repd n.r.e.1. Thus, as of September l, 1973, the person designated as adult 

probation officer had power to appoint clerks in the department, stiject to the judge’s 

approvaL 

The adult probation officer did not initially appoint his wife ss clerk in the 

department. If the wife were employed on a yearly contract, she could serve out the 

year. At that time, the nepotism law would bar the chief probation officer from 

renewing her contract. If she were employed on a month-to-month basis, where in 

effect a new contract is made each month, she would continue to serve for one month. 

See Attorney General Opinions M-857 (1971); G-1406 (1939); Letter Advisory No. 70 

(1973). If her employment was at will, she could not be retained after her husband’s 

appointment as chief in 1973. Although the nepotism statute would not necessarily 

require him to discharge his wife immediately, dependhtg on the term of her initial 

employment, it would prohibit any act resulting in her further employment or 

improvement of position. Letter Advisory No. 70 (1973). 

p. 913 
John W. LaGrone - Page Three (NW-286) 

SUMMARY 

Article 5996a, V.T.C.S., prohibits the chief adult probation 

officer appointed under section IO(b) of article 42.12 of the Code 

of Criminal Procedure from taking any action to renew or 

extend his wife’s employment as clerk in the probation 

department. 

Attorney General of Texas 

JOHNS W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Rxecutive Assistant Attorney General 

Prepared~ by Susan Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Acting Chairman 

Rick Gilpin 

Nancy Lynch 

Bruce Youngblood 

p. 914