July 8, 1987
Honorable Michael S. Line Opinion No. JM-741
Scurry County Attorney
Courthouse He: Authority of a commissioners
Snyder, Texas 79549 court to appoint as county clerk an
individual who is first cousin of a
county commissioner
Dear Mr. Line:
You ask whether the commissioners court may appoint a first
cousin of a county commissioner to fill an unexpired term as county
clerk. The minutes of the commissioners court reflect that the
appointment was for "acting county clerk until the next general
election." You state that the commissioner who is related to the
appointee abstained from voting on the appointment. Information
furnished by you also reflects that the appointee has served the past
ten years as chief deputy county clerk.
Prior to the appointment of a county clerk, the chief deputy may
carry out the clerk's duties. If an individual is appointed "acting"
county clerk, however, she acts, for all purposes, in the capacity of
county clerk.
Article 5996a. V.T.C.S., provides:
No officer of this State nor any officer of any
district, county, city, precinct, school district,
or other municipal subdivision of this State, nor
any officer or member of any State district,
county, city, school district or other municipal
board, or judge of any court, created by or under
authority of any General or Special Law of this
State, nor any member of the Legislature, shall
appoint, or vote for, or confirm the appointment
to any office, position, clerkship, employment or
duty, of any person 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 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
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Honorable Michael S. Line - Page 2 (m-741)
from public funds or fees of office of any kind or
character whatsoever; provided, that nothing
herein contained, nor in any other nepotism law
contained in any charter or ordinance of any
municipal corporation of this State, shall prevent
the appointment. voting for, or confirmation of
any person who shall have been continuously
employed in any such office, position, clerkship,
employment or duty for a period of one (1) year
prior to the election or appointment of the
officer or member appointing, voting for, or
confirming the appointment. or to the election or
appointment of the officer or member related to
such employee in the prohibited degree. . . .
We believe that Attorney General Opinion X4-253 (1984) addresses
the questions you have raised. It states:
First cousins are related within the second degree
by consanguinity. See Attorney General Opinions
O-6221 (1944); o-46701942).
The county tax assessor-collector holds an
elective office. Tex. Const. art. VIII, 5514, 16,
16a; Tax Code 56.21. Thus, ordinarily the tax
assessor-collector would be elected by the people
and not appointed by the commissioners court. The
court, however, is statutorily authorized to fill
a vacancy in this office until the next general
election. V.T.C.S. art. 2355.
Article 5996a, V.T.C.S., bars the commissioners
court from appointing the first cousin of a com-
missioner to any office or employment. Attorney
General Opinions O-5452 (1943); O-4987 (1942); see
also Attorney General Opinion O-4670 (1942). The
statute Prevents any member of the commissioners
court from voting for
any person related within the second
degree by affinity . . . to the person so
appointing or so voting, or to any other
member of any such board. . . . (Emphasis
added).
V.T.C.S. art. 5996a. Thus, none of the comis-
sioners may vote to appoint the first cousin of a
commissioner to the vacant office of tax assessor-
collector. -See Attorney General Opinion O-3016
(1941). -,
p. 3449
i
Honorable Michael S. Line - Page 3 (JM-741)
You raise the exception to article 5996a,
V.T.C.S., for a person employed by a governing
board for two years continuously prior to the
election of his relative to that board and suggest
it may apply in this case. It is irrelevant to
the problem before us. The tax assessor-collector
appoints his deputies; the commissioners court
cannot control or influence his selection of
individuals for that post. V.T.C.S. art. 3902;
Attorney General Opinions H-993 (1977); H-697
(1975); O-6221 (1944). The deputy tax assessor
was never appointed by the commissioners court.
She therefore does not come within the two-year
proviso of article 5996a, V.T.C.S.
Article 5996a prohibits the commissioners court from appointing
the first cousin of a commissioner to any office or employment. Such
factors as the related commissioner abstaining from voting on the
appointment or the appointee holding the position of chief deputy in
the office in which the vacancy occurred fail to bring the appointment
within the exception contained in article 5996a.
We have reviewed Senate Bill No. 933 passed by both the Senate
and House in the regular session of the Seventieth Legislature which
has recently concluded. This bill would amend certain provisions of
article 5996a, but, it would not affect the validity of Attorney
General Opinion JM-253 (1984) or the conclusion we have reached
herein. We note that until there is a valid appointment, the formerly
elected county clerk continues to hold the office pursuant to article
1617, V.T.C.S., notwithstanding her resignation.
SUMMARY
The county commissioners court may not
appoint the first cousin of a county commissioner
to fill an unexpired term as acting county clerk.
Attorney General of Texas
WARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
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Honorable Michael S. Line - Page 4 (JM-741)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3451
Untitled Texas Attorney General Opinion
Combined Opinion