Untitled Texas Attorney General Opinion

THEATTORNEYGENERAL OF TEXAS Honorable John C. Marburger County Attorney Fayette County La Grange, Texas Dear Slr: Opinion No. O-6221 Re: Nepotism: (1) first cousins of principals not to be appointed deputy; (2) brother-in-law of County Commlssioner as deputy County Tax Assessor-Collector. Your letter of recent date has been received. You sub- mit the following questions: nl. May the newly elected Tax Assessor- Collector legally appoint as his deputy his first cousin by blood? This blood cousin has been work- ing for the present or outgoing Tax Assessor- Collector for the past 20 years, but is not re- lated to him. "2 . Mny the Tax Assessor-Collector legally appoint as hFs deputy a brother-in-law of one of the members of the Commissioners' Court?" The applicable statute is Article 432, Penal Code. It reads as follows: "No officer of this State or any officer of any district, county, city precinct, school dls- trlct, or other municipal subdivision of this State, or any officer or member of any State, dis- trlct, county, city, school district or other Irunlcipalboard, or judge of any court, created by or under authority of any general or special law of this State, or any member of the Leglsla- ture, shall appofnt, 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 appolnt- lng or so votlng, or to any other member of any such board, the Legislature, or court of which Hon. John C. Marburger, page 2 o-6221 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." First cousins are related by consanguinity in the second degree. Tyler Tap Railroad Co. v. Overton, 1 App. Ct. of Appeals 267, sec. 535. You are accordingly advised that the newly elected County Tax Assessor-Collector may not legally appoint as his deputy his first cousin. If he does make such appointment he will be amen- able to punishment as prescribed by Article 437, Penal Code, and will be guilty of official misconduct. The fact that the cousin has been working in the office as a deputy of the retiring tax assessor-collector, to whom he is not related, 1s Immaterial. Each two-year term of office is a distinct and new administra- tion within the purview of the statute providing authority for the appointment of deputies. (Art. 902, Vernon's Annotated Civil Statutes of Texas, as amended.7 Your second question Is answered in the affirmative. Reference to Article 432, Penal Code, supra, discloses that the offense consists of appointing voting for, or confirming the appointment of a person relate: within the'prohibited degree of relationship. Article 3902, V.A.C,S. makes provision for a County officer's deputies and prescribes the procedure to be followed. Under the express provisions of that article the Commissioners' Court has no authority to designate the appointee and has no duty to confirm him. The specific question Is answered in full in our Opinion No. O-1954, a copy of which is enclosed. We adhere to the con- clusions therein expressed. Yours very truly ATTORNEY GENERAL OF TEXAS BW:fo:wc By s/Benjamin Woodall Encl. Benjamin Wocdall Assl,stant APPROVZI SEP 23',1944 s/Grover Sellers ATTORNEY GENERAL OF TEXAS Approved Opinion Committee By s/BWB Chairman