Untitled Texas Attorney General Opinion

THEATTORNEY GENERAL PRICE DANIEL ATTORNEYGENERAL WY 31, 1949 Hon. Tom MoLeroy Opfnion IlO! V-833 County Attorney Shelby Codnty He: Applicability of’ the Center, Texas anti-nepotism rbte- tutos to tkm appolnt- ment of a policemm by the City Counoif of 6 @it9 inoorporrted under Title 28, Chap- tern 140, V.C.S. Dear Sir: You have requcbe+te&an Irptnlan oD & flouaCLon which, in subkitanoe, is 8~6follows: Is the City Oooa 11 of a city iw~- porated under Tltll 28 Chsptsre l-10, Q.i?.;s., prohIbIted by ths uv&upot:iiun p~ovfsiaos of V .P .C a ,from appoiablad; a brother of a mtmber of the c~ouadil bs, the #ffi~ of city polioemad, who will. 8180 cot as oLtg eoave~cc, anu comptsnaate hllr fW hfs eervldee Erom pubala funde of the olty end fees of offioe? A cl Incorporated tier tW Siwt WkI obap- ters of title 2 3 , V.C.S., may provfda bg or6iwrio4 for the ap ointment of its police offloers. art. 99, V.C.S. 7 Aseumlng in the in&ant ease that the citg council has passed such an ordinance, the oounoll may impose upon a policemau the added drXties of city scavenger. (Apt. 1002, V.C.S.) APtfcrle 998 provl@Ies such police officers “shall receive a, salarg or fees of office, or both, as shall ba flxed bs the city council .” Article 432, VePQC., re@bss ‘I1000ffPcek of %hSs &ate Or any officer of any district, county, city, reefnot, school dlstrfct ) or other munleipal aui?division of this State, or any offfee~ of member, 0% any State, district, countyj city> school dlstMct or other munfcipal board, or judge 0% sag OoutiP created by or under auP;borlty of %~y genePa 0~ .. Hon. Tom MeLeroy, page 2 iv-8331 speefal Paw 0% this State, or any member of the Legislature, shall appoint, or vote for, or conffrm the appointment to any office, posltlon, clerkship, employment OP duty, of any person related within the second degree by afffnf%g or wfthin &he third degree by consanguinity to the person so erppoln%fng OF so voting, or to any o&her member of any such board, %&heLegfslatore, or cotit OS which such persOn 80 appoln%ing op voting may be a member, when %he .salary, Sees, or compensstfon of such s.ppoin%ee is %o be pafd for, directly or fndi%ee%lg, out OS OF from publfe funds or Sees of odfiee OS any kl~nd or character whetsoever .* Article 433> V.P,C, 9 speei%ieallg provides that the provlsfons of this law (I@%$. 432 ttiough 437, V.P.C.) shall apply to and include mayors, oom- missioners, recordden‘s, and aldermen of fnoorporated cltiee and towns. Articles 435 and 437, V.P,C-, read respee- tlvely as follows: Ar6. 435. “No o%fioer OP other person Ineluded wf%hfn the third pkecedlng &%fole shall approve sny aoooun% OP draw op author lze the 5sawfng of as-q warrant OF order tb pay any salary, See or compenee.%lon of such fnellgible of%icer QP”pepsoD, knowing him to be so fnelfgfble.” Art. 437. “Whoeve violates any pro- vlalon of %he ffive preceding Ap%foles shs.Pl be guilty of a misdemeanor involving of’ffelal misconduct, md shall be Slned not less %hm One Hundred nor lhoFe &hamODe Thousand Dollars.” Artlole 5906, V,C.S., fn part, provides: “WboeveF violates e,ny provision of the Penal Code relating to nepotism and the fn- hlblted acts connected therewith shall be removed from hfs okifeej elerPkshipL employ- ment or duty, as therein provided. , Hon. Tom McLeroy, page 3 (‘J-833) These and other statutes evidence the meti- culous care taken by the Legislature to prohibit pub- lic officers of this State, including mayors e,nd el- dermen of cfties, from eppolntfng their near relatives to public office or employing them fn any other public capacity, when their compensetfon Pa to be pald, direct- ly or Indirectly, out of public funds or fees of offlce of eng kind or character whatsoever. A policemen of a city Is a public offfcer. uparte-- Preston, 72 Tex. Crfm. 77, 161 S.W. 115 (1913); Yett v. Coo~lg Tex. 205, 281 S.W. 837 (1926). The mi6itions set forth in Article 432 BDD~Yto mayors end aldermen of cftfes Incorporated under-Tftle $8, Chapters l-10, V.C.S. Brothers are related to eech~ other with the first degree of consanguinity, and, as stated by you, come within the prohibited degree of relationship deflzned In Article 432. The brother of an alderman, If appointed to the office of city police- men by the city council, wlll.be compensated for his services from public funds end fees of office. In view of the facts recited and the plain provisions of the statutes cited, it Is the opinion of this office that such en appointment cannot law- fully be made. SUMMARY ---- The city council of e cltr fncoppor- eted under Title 28, Chapters l-10, V,C.S., cannot lawfully appoint a brother of en alderman of the city to the office of oitg polioemen and compensate him for his ser- vices from public funds of the city or fees of office of any kind or character whatso- ever. Arts. 432-437, V,P.C.; Art. 5906, V.C.S. Very truly yours RPROVEDt ATTORNEY 6EfU3AT.OP TEXAS A Assietant BNB:amm