The Attorney General of Texas
November 10, 1983
JIM MATTOX
Attorney General
Supreme Court Bulldmg Gary E. Miller, M.D. Opinion No. J&g1
P. 0. BOX 12548 CCllllllIisSiOlU?~
Austin, TX. 76711. 2548 Texas Department of Mental Health Re: Whether the superintendent
5121475-2501
and Mental Retardation of a mental health and mental
T&x 910,874-,367
Telecopier 5121475.0266
P. 0. Box 12668 retardation facility is an
Austin, Texas 78711 officer subject to the nepotism
statute
714 Jackson. Suite 700
Dallas, TX. 75202.4506
Dear Dr. Miller:
214,742J3!344
You have asked whether a superintendent of a Texas Department of
4824 Alberta Ave., Suite 160 Mental Health and Mental Retardation facility is an officer for
El Paso. TX. 79905.2793 purposes of the Texas nepotism statutes. We believe that such a
91515333484 person is an officer within the meaning of articles 5996a and 5996b,
V.T.C.S.
r- 01 Texas.~Suite 700
muston, TX. 77002-3111 Article 5996a provides, in part, that
713,223.5886
[noI officer of this State . . . shall
appoint . . . to any office, position, clerkship,
806 Broadway. Suite 312
Lubbock, TX. 79401.3479
empl~oyment or duty . . . any person related within
8061747-5238 the second degree by affinity or within the third
degree by consanguinity to the person so
appointing . . . when the salary, fees, or
4309 N. Tenth. Suite 6
compensation of such appointee is to be paid for,
McAllen, TX. 76501.1665
5121682.4547
directly or indirectly, out of or from public
funds or fees of oftice . . . provided that
nothing herein , . . shall prevent the
200 Main Plaza. Suite 400 appointment . . . of any person who shall have
San Antonio, TX. 76205.2797
been continuously employed in any such office,
5121225-4191
position, clerkship, employment or duty for a
period of two (2) years prior to the election or
An Equal Opportunity/ appointment of the officer or member
Affirmative Action Employer appointing . . . or to the election or appointment
of the officer or member related to such employee
in the prohibited degree.
Article 5996b expressly specifies certain officers to whom the
prohibition applies, including officers "Of the various state
eleemosynary institutions."
p. 386
Dr. Gary E. Miller - Page 2 (JM-91)
The courts of this state have frequently stated that the standard
that determines status as an officer, as distinguished from an
employee, is “whether any sovereign function of the government is
conferred upon the individual to be exercised by him for the benefit
of the public largely independent of the control of others.”
(Emphasis in original). Green V. Stewart, 516 S.W.2d 133. 135 (Tex.
1974); Aldine Independent School District v. Standley, 280 S.W.2d 578,
583 (Tex. 1955); Pena v. Rio Grande City Consolidated Independent
School District, 616 S.W.2d 658, 660 (Tex. App. - Eastland 1981, no
writ).
The powers and duties of superintendents of mental health and
mental retardation facilities are not functions mainly delegated to
them by the commj,ssioner and deputy commissioners of the department,
but are derived from statutes such as articles 3175-3177, V.T.C.S.,
the Texas Mental Health Code, and the Mentally Retarded Persons Act.
Article 3176 provides, in part:
The Superintendent shall be the administrative
head of the institution to which he is appointed.
He shall have the following powers:
1. To establish such rules and regulations for
the government of the instjtution in his charge,
as he deems will best promote the interest and
wel~fare of its inmates.
2. Where not otherwise provided by law, to
appoint the subordinate officers, teachers,
attendants, and other employees, and to fix their
salaries.
Each superintendent of a facility is appointed by the
commissioner with the approval of the Texas Board of Men~tal Health and
Mental Retardation and serves at the pleasure of the commissioner.
See V.T.C.S. art. 5547-202, 52.12. However, we believe that a court
would find that each superintendent , as the administrative head of the
institution to which he I s appointed and the person with the power to
appoint the facility’s staff and fix their salaries, exercises
sovereign functions of government for the benefit of the public
largely independent of the control of others. Accordingly, we
concl.ude that a superintendent of a Mental. Health and Mental
Retardation facility is subject to the prohibitions imposed by the
nepotism statutes.
We note that this situation is differcnt from that presented in
Pena V. Rio Grande City Consolidated Independent School District,
supra, which held that a superintendent of an independent school
district is not an officer within the meaning of the nepotism
statutes. Unlike a school superintendent, whose duties are prescribed
p. 387
Dr. Gary E. Nfller - Page 3 (JM-91)
solely by the employing school board, the duties of a superintendent
of a facility of the Texas Department of Mental Health and Mental
Retardation are prescribed by statute. This statute confers upon such
a superintendent sovereign functions of government largely independent
of the control of others.
YOU also ask whether the nepotism statutes prohibit the
employment of a particular person at a mental health and mental
retardation facility. The person is paid from publi,c funds. The
person is a brother-in-law of the superintendent and, therefore,
within the degree of affinity prohibited by article 5996a. Because
the person was employed at the facility for less than two years prior
to the time he became the superintendent’s brother-in-law, we conclude
that the two-year continuous service exception in article 5996a is not
applicable.
While we believe that a contract of employment that was made
prior to the prohibited relationship would remain valid for the term
of the contract, we are advised that the person in question is not
hired on a contractual basis with the facility. If the person is a”
employee who is hired on a month-to-month basis, we believe a new
contract would be entered into each month and that the person’s
continued employment at the facility is prohibited. -See Attorney
General Opinion M-857 (1971).
SUMMARY
The superintendent of a facility of the Texas
Department of Mental Health and Mental Retardation
is a” officer within the meaning of the Texas
nepotism statutes and may not employ a person who
is related to him within the degree of kinship
prohibited by article 5996a, V.T.C.S.
-J I M MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy,Sutton
Assistant Attorney General
p. 388
Dr. Gary E. Ellller - Poge 4 (JM-91)
AFPROVED:
OPINION COMMITTEE
Rick Gilyin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 389