The Attorney General of Texas
May 24, 1979
.RK WHITE
orney General
Honorable K. L. Carnley Opinion No. KW-23
Caldwell County Attorney
Caldwell County Courthouse Re: Whether a long-time county
Lockhart, Texas 70644 employee who was dismissed
shortly before his wife took office
as a county. commissioner may be
rehired.
Deer Ms. Cernley:
You have .a$ced three questions relating to the application of the
nepotism laws to a situation in Caldwell County. You advise that an
individual had been employed by the county for more than 17 years. The
employee% wife was elected county commissioner for precinct two at the
election held on November 7, 1979. Gn November 28, 1979, the outgoing
precinct two commissioner discharged the employee. You indicate ~that the
discharge was arguably without good cause, but there has been no @Ii&l
determination or reinstatement.
Your first question is:
L May the new commissioner rehire her husband
in his old position if the firing was without good
cause?
The Nepotism Statute, article 59964 V.T.C.S., provides in part:
No officer . . . of any.. . county,. . . shall appoint,
or vote for, or confirm the appointment . . . 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 . . . 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 or fees of office of any kind or character
whatsoever; provided, that nothing herein con-
tained, . . . shall prevent the appointment, voting for,
p. 69
I.
ii~~raole K. L. Carnleg - Page Two (KW-23 1
or confirmation of any person who shall have been continuously
employed in any such office, position, clerkship, employment or
duty for a period of two (2) years prior to the election or
appointment of the officer or member appointing, voting for, or
confirming the appointment, orto the election or appointment of
the officer or member related to such employee in the prohibited
degree.
The discharge of an employee terminates a period of continuous employment for
purposes of the Nepotism,Statute. Letter Advisory No. lSl(1978). Thus, before November
28 the individual had been continucusly employed for a period of more than two years, but
after November 28 the continuous employment was broken and he no longer met the
requirements of the proviso in the statute. It has been suggested that the two year period
is measured from the day on which the election was held, and that the employee therefore
was continuously employed for two years prior to hi wife’s election and thus satisfied the
statutory proviso. We need not decide whether a post-election break in employment would
be a bar to continued employment, since Attorney General Opinions V-B42 (1951)and
M-862 (197B demonstrate that the facts in this case constitute a pre-election break.
Attorney General Opinion V-ll42 indicated:
We have concluded that the ~ord~election’as used in the above Act
should be construed to mean the time of taking office, . . . It is to
be noted that the tact uses ‘the wads ‘election or appointment,’ and
clearly the Legislature intended the critical date from which the
twoyear period was to be computed should be the same in the case
of either an appointed official or an elected official, or it would
have used language different from that found here. The caption to
House Bill 509 so provides, because it is there stated the.provisions
of [article 59964 V.T.C.S.] &all not apply to persons holding
positions for two years prior to the time an officer or board
member related to them takes office.’
(Emphasis in original).
Thus, the individual may not be rehired, since he had not been continuously employed
by the county for a period of two years prior to the time his wife took office on
January I, 1979. See also Attorney General Opinion Ii-992 (1977).
Your second end third questions are:
2. What liability would the Commissioners Court have, if any, if
she rehires her husband?
3. If she attempts to rehire her husband must the County
Auditor put him on the payroll and if he does, what liability
would be have?
P? 70
., r
. -
Honorable K. L. Carnley - Page Three. (Mw-23)
Article 59964 V.T.C.S., provides:
No officer or other person included within [article 5996a1 shall
approve any account or draw or authorize the drawing of any
warrant or order to pay any salary, fee or compensation of such
inellglble officer or person knowing him to be so ineligible.
Article SSSSf,V.T.C.S., provides:
Whoever violates any provision of [article 5996a-5996el shall be
guilty of a misdemeanor involving official misconduct, and shall be
fined not less than one hundred, nor more than one thousand
dollars.
Thus, a commissioner who votes for or confirms the appointment of the ineligible
employee or who approves an account or authorizes the drawing of a warrant to pay his
salary would be liable to be convicted of a misdemeanor involving official misconduct. A
county auditor who approves the account or drew or authorized the drawing of a warrant
to Pay the individual would also be liable to conviction.
SUMMARY
A long-time county employee who was discharged between hll
wife’s election to the commissioners court and her teking office,
may not be reemployed.
MARK WHITE
Attorney General of Texas
JOHNW. FAINTER,JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Asslstant Attorney General
Prepared by C. Robert Heath
Assistant Attorney General
APPROVED:
OPXNION
COMMlTTRE
C. Robert Heath, Chairman
David B. Brooks
p. 71
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Honorable K. L. Camley - Page Four (MW-23)
Walter Davis
Susan Garrison
RiclcGilpin
William G Reid
Bruce Youngblaod