# The Attorney General of Texas December 15, 1980

HonorableJohnW. LaGrone HutchinsonCountyAttorney OpinionNo. MN-286 HutchinsonCountyCourthouse Borger, Texas 79007 Re: Whetherthe 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 probationdepartment. 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& employmentor duty, of any person related withinthe 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 42.12of the Code of Criminal Procedure makes the following provision for staffing the probation office:

Where more thandone 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.

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Sec. 10(b). This provision was enacted in 1965and the languagehas not been changed. Acts 1965,59th Leg., ch. 722, at 493. In our opinion, it gives the chief adultprobation 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 authorizingthe trustees of ajunior college to hire personsrecommendedby 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 twoyears in her position prior to her husband’s appointmentto that office. By judicial order effective September 1973, the husbandwas appointed adult probation officer. He hadpreviouslyserved as assistantadult probation officer. The judge issued orders alsOeffective September 1, 1973,appointingthe wife as clerk of the adult ptobation departmentandnaminga successor in the position of assistant. No violation of the nepotismlaw is found in the initial appointments. These were madeby thejudge, who wasnot related to any of the appointees. It has been sqgested that there was no chief adult probation officer until September 1979,when ajudicial order setting salaries refers to the husband as “Chief Adult Probation Officer.” However, we believe that as of 1973 the husband

wasin fact the chief adult probation officer. Section 10(b)states that there shall be a chief adult probation officer when more than one ~probationofficer is required. There was an assistant probation officer in 1973, and we believe that the adult probation officer occupied the position of chief even thoughhe did not use the formal title. The statutd gave hhn the powers of the chief whether or not he exercised them. Governmental powers mustbe exercised by ,theofficer designatedby law and maynot be delegated to others. M oody 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 thejudge’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 wouldcontinue 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, dependhtgon the term of her initial employment, it would prohibit any act resulting in her further employment or improvementof position. Letter Advisory No. 70 (1973).

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SUMMARY Article 5996a, V.T.C.S., prohibits the chief adult probation officer appointedundersection IO(b) of article 42.12of 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 RICHARDE. GRAY III Rxecutive AssistantAttorney General Prepared~

by SusanGarrison Assistant Attorney General APPROVED: OPINIONCOMMITTEE SusanL. Garrison,Acting Chairman Rick Gilpin Nancy Lynch Bruce Youngblood

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