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TRIG ATIVRNICY GECNERAI.
AURTIN. TlZXAR 76711
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JOUN l.. UlLL I
A1MRIIEY OICNILPAL
May 18, 1977
The Honorable John C. Knorpp Opinion No. H-992
Donley County Attorney
P. 0. Drawer 3 Re: Appointment of county
Clarendon, Texas 79226 commissioner's wife as
deputy tax assessor-
collector for the county.'
Dear Mr. Knorpp:
You advise that in Donley County the commissioners
court sets and approves the monthly salaries of all officials,
including that of the deputy tax assessor-collector. The
Sheriff-Tax Assessor-Collector of the county, who hires and
fires his own deputies, has hired the wife of a county com-
missioner as deputy tax assessor-collector. You observe
that the commissioner would normally have a community
property interest in his wife's county salary, and then
'ask:
May the Sheriff-Tax Assessor-Collector appoint
as deputy tax assessor-collector the wife of
one of the County Commissioners?
If your answer is in the affirmative, will
a written agreement as to the salary of
the deputy as being the wife's and the
husband having no interest in it.suffice?
In discussing the nepotism statute, we said in Attorney
General Opinion H-697 (1975):
Article 5996a generally provides that no
officer of a county or member of a county
board or court may appoint, vote for, or
confirm the appointment to any office or
position compensated by publiefunds of any
person related to the person so appointing
or so voting or to another member of the
board or court within the second degree by
P. 4121
. .
The Honorable John C. Knorpp - page 2 (H-993)
affinity or the third degree of consanguinity.
See Letter Advisory No. 67 (1973). County
-
commissioners are included. V.T.C.S., art.
5996b.
This provision is not violated, however,
if a relative of a member of a governing body
is hired for a position authorized by that
body, when the governing body does not exercise
control over the person to be selected. See
Attorney General Letter Advisory No. 79 (T473)
and authorities cited therein.
Where the nepotism statute is applicable, the wife of
an officer to whom the prohibition applies is considered
to be related to him within the second degree of affinity.
Attorney General Opinions V-785 (1949); V-359 (1947); O-4973
(1942); O-31 (1939); Attorney General Letters Advisory Nos.
79 (1974); 68 (1973). But here, absent "trading" or some
other illegal evasion of the law, article 5996a would not
apply. -See V.T.C.S. art. 5996c.
The commissioners court of a county and its members are
statutorily prohibited from attempting to influence the
appointment of any person as a deputy, assistant or clerk
in another office. V.T.C.S. art. 3902; Attorney General
Opinion H-697 (1975)
(Tex. Civ. App. __ ,,,tEdw $i~'~~~:$i. 66T~;~m2~ef:~er
the commissioners court nor individual commissioners'can
legally prevent the sheriff from hiring the wife of a
commissioner if she is otherwise eligible for the position,
and article 5996a would not apply. Attorney General Letter
Advisory Nos. 116, 115 (1975).
The community property interest of a commissioner in
the county-paid salary of his wife was not addressed as an
issue in any of the opinions cited above, however.
Article 2340, V.T.C.S., reads:
Before entering upon the duties of their
office, the county judge and each commissioner
shall take the official oath, and shall also
take a written oath that he wiii-nn
--
- indirectly lnc'restedin
directly or - G
P. 4122
. .
.
The Honorable John C. Knorpp - page 3 (H-993)
'contract with, or claim against, the county
in which he resnes, except such Grants
as may issue to him as fees of office . . . .
(Emphasis added).
In Attorney General Opinion H-624 (1975), we decided
that article 2340 prohibited a county from entering a contract
with a farmer's cooperative in which a commissioner owned a
small share, saying:
While the interest involved here appears
so negligible as to be insignificant, the
controlling statute is cast in absolute
terms and the public policy of the matter
is clear: members of a commissioners court
must avoid all situations which result in
their personal pecuniary gain at the expense
of the county. __
See Attorney General Opinion
H-329 (1974).
The salary earned by a spouse during marriage is community
property. Family Code 9 5.01. Thus, the husband in this
case would normally have a community interest in his wife's
salary. Although married couples may convert community
property into separate property if they comply with the
relevant constitutional and statutory provisions, Hille
Hilley, 342 S.W.Zd 565 (Tex. 1961), we do not belida?the
husband may in this manner free himself of all interest in
his wife's salary. See -, Family Code 5s 3.59; 4.02; 5.22
(a) (2); 5.42; 5.61; Attorney General Opinions II-329 (1974);
WW-1406 (1962). Thus, whether the wife's salary remains com-
munity property or becomes separate property, the husband has
a direct or indirect interest in it, in violation of his oath
under article 2340.
We believe the wife may continue to serve if she renounces
her salary, thereby preventing her husband from having an
interest in her salary claim against the county. See Attorney
General Opinions H-329 (1974) and H-6 (1973). If hechooses
to resign from the commissioners court, she may thereafter
serve as deputy tax assessor-collector and receive her
salary. If the husband remains on the commissioners court
and his wife claims salary from the county,,his interest in
that claim will cause him to violate his article 2340 oath and
P. 4123
- .
The Honorable John C. Knorpp - page 4 15-993)
render her employment contract null and void as against public
policy. Bexar County v. Wentworth, 378 S.W.Zd 126 (Tex. Civ.
APP. -- San Antonio 19=, writ ref'd n.r.e.1; Starr Count
Guerra, 297 S.W.Zd 379 (Tex. Civ. App. -- San Antonio
--l&,%0
writ)t Attorney General Opinion,H-624 (1975).
SUMMARY
The nepotism statute does not bar a county
from employing as deputy tax assessor-
collector the wife of one of its county
commissioners, where the commissioners have
no control of'the hiring or firing of such
deputies. The husband has an interest in his
wife's salary claim against the county, which
causes him to violate the oath required by
article 2340, V.T.C.S., and renders her
employment contract null and void.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
Opinion Committee
P. 4124