OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Eonorablr ?. T. Graham
count ~Attornfty
Car b n County
Zwownsvlllo , Texas
(\
-- al.s Rerponsl-
ntmnt attarteaiordl
Zmployeea -- And
lntsanto ana 8830Tel8.
nt an ottioar whose
ager, and ho shall bo
ioer and head or the ad-
the Qlty goternment.
shall bs ahosoo by ths Comr&s-
e beds of hb rxeautlrr and
not b; a resident of the oitr or State, but
during his tenarr of offloe he shall ratide
within the oity. Eo person eleatrd to msabop
ship on the city Conmission 3hsl1, subsequtmt
ta suah election, be elkible ror appointment
-. -.
382
Honmable F, T. Graham, Page 2
as oitp manger until one year has elapsed
following the expiration of the term Sor whish
he was eleoted.
‘*The City ‘Xsnager shall be appointed for
an Indefinite term but he may be reaored by
a najor1t.r rots oC %he msmbers or the City
CammIssIon on thirty dayz prior notice of
their-,Intention to ruaove him. The aotlon of
the CommIssion Ir. removiag thr Manager shall
be riw. In 0850 of thr absenoe of the Man-
a&or, he may, with the approval o? the Cltty
Commiaalon, designate a qualified adminirtra-
tire offioer or, the alty to perrorm his duties
during his absenae, and absewe &all Inaludo
temporary disability on auoaunt of zioknosz,
or otherwiss.
nrThe City Xanager shall be r.esponzlble to
the City Conmfsslon for the proper adnlnls tra-
tlon of all affalre of the City In his aharge
and to that end, exoept as otherwise ?rovlded
in this oharter, and, subjeot to any provlslons
herein with referenoe to a 3ivll Sewfioe, he
shall have the power to appoint and remove all
offloers and employees In the adalnistratlva
service of the olty, exoept the City Attorney,
who zhall be appointed by the City Commission,
but the &Wager 188~authorize the head of a
department or ofiloe responsible to him to
appoint and remne subordinates In suoh depsrt-
mznt or offloe. A-,poIntments made by or under
the author1 ty of the City tiager shall be on
a basla of exeoutlte and adafnistratlve abll-
ity and or the training and rxperlenoe of suoh
smployees In the work whlah they are to ger-
form; all suoh appointments shall be rithouC
definite term.
*‘Any offlo~r or employee to whom th0 City
xanager, or the head of a department or offloe,
may appoint a sucoessor, may be rtmwved by the
City ‘%nager, ar other appointing offiosr, at
my time, but the deolsion and aotion of the
383
ionorablo F. T. Graham, Page f
Hsnager with referenoe to appointments, a8
well as ranovals, shall be flnal and there
shsll be no appeal thereirom to any other
office, body or oourt whatsoever.
w*NeIther the City ComlssIon, nor any oi
Its oomltteez or numbers, shall direct or
request the appolntzent of any person to or
his removal fros offloe by the City Xsnager
or any of hla subordinates, or Iz any manner
take part In the appointment or removal of
offioera and esployoer In the administrative
senior or the oity. %xoept for the purposes
of inquiry, the Commission and its menbers
shall deal with the adarlmlstratlvs servioe
solely through the City ?&sager end neither
the Commlsslon, nor any memberthereof, shall
give orders to any subordinate of the City
hanager, elther publloly or privately. Any
violat ion of the provisions of this paragraph
by a namber of the Commission shell be a mls-
dezeazor conylotion of which shall Imedlate-
ly forfeit the offloe of the member so aon-
via ted. *
ntSection 21. IKJTIZS OF CITY Y?AGZiX;
RIGETS OF XAXAC?3R MD OTHEROFPICZRS BT COM-
XISSION 'XZETEGS; HEADSOF DXPAR'l%f32~S AND
DIVISIOX3 TZRZOF; ?LXVXSTIGATIO~ 07 CI??Y
'XANAGZR 9Y CITY COXEISSION-- It shall be
the duty of the City ‘Xanager to aot as ohlef
oouservator of the peaae within the olty; to
supervise the edmlnlztratlre affairs of the
altyI to see that the ordlnanoea oi the alty
and laws of the State are enforoedi to make
such recomendatlonz to the CommIszIon aon-
oernlng the affairs of the 0Ity as nay zeen
to him desirable ; to keep the Commission ad-
vised oi the finanoial aondltion and needs
OS the alty; to prepare and submit to the Com-
ulsslon zuch reports as may be required by
that body, and to perform suoh other dutlez
aa may be presarlbed by this Charter.
"*The City Esnager shall be entitled to a
seat in all Commlzzion meetings, abut &all
lonorable F. T. Graham, Pago 4
hare 00 rote therein. On rote of the CommIs-
sion, the heads of all departments ,and suoh
other oifloers of the City as sny be Ueslg-
nated by vote therefor, shall also be entitled
to seats In the Commission meeting, but shall
hare no vats therein. Ths &ager zhall haps
the right to take part In ths dizoussion of
all aatters coming before the CommIssIon meet-
ing, and the heads Of all departments and
other orfiaers shsll be entitled to take part
In all disousaions of the Commlsslon relating
to their rsspeatlve department5 and orriae5.
. . ..* ?
‘The Olty Esnager has employed as oIty employees
person8 mho are related to one of the City CommIs-
zionzrs within the degree of relationship prchiblted
by Artids 432 of the Penal Code of the Retised
Statutes of Texas, 1925.
*Subsequent to the employment by the City Xan-
ager of persona related within the prohibited de-
gree to one of the City Commizsionars, the City
Commission, (at one at its meetings in whlah ths
Commissioner so related to zuch olty mployees,
took part and voted) voted to raise the salerlee
of zll alty aployeez, lnoludlng the partlaular
amployees so related to said City Ccmtnlzsloner.
Y!he City Comabsi~n, as 1 oonstrue the per-
tinent Charter provisions of the City of Rrowns-
vllle whloh are hereinabove quoted, has nothing
whatever to do with ths hiring or firing of si ty
amployess other than the City ?tiagsr himself and
the City Attorney; the City ComIssIon doss, how-
ever, have power to presorlbe salaries to be paid
to the tariouz employees hired br the City ha&or.
“The City &nager, kaosl~ the enployees In
question were related to one of the City Commis-
zloners within the degree prohibited by Artisle
432 of ths Penal Cods Revised Statutes, 1925,
aontlnued to keep sash 5mploYees on ths Oitr
:’ 385
onorable y. T, Graham, Pag5 5
payroll snd oontinued to approve the monthly pay-
roll whloh oarrled suoh snployzesl ntunes and
aalarl55, and oontlnued to pan them fron oity
ftmds.
“The City &mager has advised M that he sod
the said City Commissioner have bssn threatened
with charges of nspotisn and he has appribed me
of ths faots and has requszted an opinion of sm
as County Attorney as to whether or not, under
the faots hereinabove set out, he and the Comais-
sloner involved are guilty of any violation of
the nepotI5m laws of the Stat5 of Texae, aavising
me that he and zuzh Comzlssloner desire to oomply
with the provisions of thz various Penal Statutes
and ir they have in the past ~iolatad suah Stat-
utes, they desire to know in what respeots, in
order that they may osase to so vlolate them in
the future.
WArtIolz 432 of the Penal Code, Revised Stat-
utes, 1925, provldesr
nlNo ofrioer of this State or any orfioer
of zny dlstriat, oountp, aity, pi5oinot, zohool
dlstrlat, or other muuloipal subdivision of
this Stats, or any offloer or member of any
;tate, aistrlot, oounty, olty sohool distrlot
or other mnlolpal board, or 3udge oi any
court, oreated by or under authority of any
general or speolal la* or this State, or sny
member of tbs Legislature, shall appoint, or
vote for, or oonfirm the appointment to any
0rri00, po5itIon, ole*5hIp, employmmt or
duty, of any person related within the aeoozd
drgree by affinity or within the third degree
by oonsanguiaity to the person so appointing
or ao voting, or to an7 other member of an7
zuoh board, the Legislature, or court of whlah
such parson 50 appointing or voting nay be a
neaber, whaz the zalary, fees, or oompansation
or suah appointee is to be pald for, dlreotly
or Indlreatly, out of or from publla funds or
fee5 of offioe or my kind or oharactzr ??hatzo-
ever.’
Honorable y. T. Uraham, Page 6
wA.rtlole 433 bf suoh Penal Code provides:
"'The fnhlbltlons set forth ln this law
shall apply to and lnolude the '?overnor, Llsu-
tenant Governor, Speaker or the House or 8epre-
sentatltes, Railroad Commlssloners, head of
departments of the State govsznaent, judges
and wmbers or any and all Boards and oourte
established by or under the authorltg of any
general or speoial law oi this State, menbers
or thfi Legislature, 5apor8, ooamlsslon8rs, re-
oordsra, aldermen and members of sohool boar&r
ot inoorporated oltlea and towns, pub110 sohool
trustees, orfloers and manbers or boarda or
managers or the State %lrerelty and or Its
severeA branohea, and of the various State edu-
oatlonal lnstltutlons and of the various State
eleenosynary institutions, and 0r the geniten-
tiarioe; Thfs enumeration shall not be held
to sxolude from the operation and erreot or
thla law any person included within its general
pmvlslons.'
aArtlole 434 or suoh Penal Code provides;
**No officer or other person lnoluded within
any provision of this laa shall appoint or vote
ror appolntnent or ror ootiir5ation or appoint-
inent to any suah offloe, position, clerkship,
employu?ent or duty of any person whose servloes
are to be rendered under hls dlreotlon or oon-
trol end to be paid tar, dlreotly or lndlreotly
out 0r any suoh pub110 funda or r8023 0r 0rri00,
and who is related by affinity within the seoond
degree or by oonsenguinity within the third de-
gree to any such offloer or person inoluded
wlthfn sny provlslon of this law, in oonsldera-
tlon, in whole or in pert, that suoh other of-
rloer or person haatheretorora appointed, or
voted ror the appointment or for the oonfirf%-
tion of the appointment, or will therearter ap
point or vote tar the appointslent, or for the
oonrlrnatlon of the appolntcaant to any suoh
orfloe, position or olerkshlp, enployment or
duty of any person whomsoever related within
Eonorab18 P. T. Crah6mq Page 7
the seoond degree by afiinity or within the
third degree by oonsangulnlty to suoh offloer
or other person making suoh appointment.'
"Artlole 69 of suoh Penal Code provides:
*'Any person who advises or agr88d to the
oommi6sion or au OffSnSS and who IS present
-hen the same Is oomtnltted is a principal wheth-
er he aid or not in the iuS@ aOt.*
Yhssuxing that exoept for the City &nag&s
having oontinuea to pay the salaries 0r the 8x-
gloyeee related to suoh city Comalssloner, after
suoh City %nager kner of such prohibited relation-
ship end after the City COmaiSSlOn at one of its
meetings undertook to raise all ealeriae of all
City EZlp1OySSs (at whloh l!BStl~ Of the City Com-
~Isslon the Co~zmlssioner in qU8StiOn partioipated
fad voted) and anaumliq that exoept ror these
facts there is no oollueion or trading as oontem-
plated by Artlole 434 of the ?enal Code, I respeot-
fully request your opinion on the r011cn0b qUSS-
tions:
"1. Is the City Counlssloner ivho Is related
xzithln the prohibited dSgr88 to eap107eea Of the
city hired by the City Lknager, @1ty of nepo-,
tisrn under our .3tetutes?
792, Is the city &nager or the City 0r 3rowno-
Y1118, Under the raots &Yen, guilty 0r nepotism
under our StntUtSS by virtU6 Or the provisions
OS Arti 69 of the Pena Cod.?
“3. Doea the iaOt that the City ~05lUllSSlOtlSr
In question portlolpated in and voted at a meat-
ing or the City Comrnisslon, in which salearies
or all city 817lp1Oy8S2-iwere rafeed, lnoludlng
thO88 who had been hired by the city &tiager
and who were related to Suoh Conudss~oner wlth-
ln the prohibited degree, render hin &uflty Of
iISpOtk3I under the provlslons or Art1018 432 0r
the Teas1 Cade taken in ooojunotion with the pro-
visions of Article 434 of the Penal Code?
(1. l . .=
E!onOrable F. T. Graham, Page 8
This departmen6 has repeatedly ruled that the ap-
p0lntmsnt or a relative of a member of the oomr,faeioaera*
court by another oounty oifloer as a deputy is not in viola-
tion of the nepotism lau and that the fact that the oonmla-
aionera* court sets the number Of deputies to be appofd8d
i1083 not amount to a ooniirmatlon or the appointaent.
On i?SblWiry 9, 1932, this department held, in an
opinion by &norable 8. 0. Xatera, Aasiataut Attormy ~8a8ral,
that it 310s not a violation or the nepotism law for a tax ool-
l.eot0r to appoint es his assistant or deguty a son of a oounty
cmmlssloner arter the oomdaaioner+q oourt had authorized
the appolntnent of juoh deputy in aoaordanoe with Artlole 302,
ixSYi38d 01~11 Statutes 0r Texea.
On 'Xsroh 2, 1935, this department held in an oplnlon
by Honorable C. Y. Kennedy, Assistant Attorney General, that
ii deputy sherlrr lnho Is a rimt oousln or onr or the asmbera
or the cOGminsionsrsl court would rid be prohibited from serv-
:lm 8s suoh or did his appointmant by the sheriff violate the
~tercs 0r .'.rtlole 432, Penal Code Or Texas, or the allowanoe
of his salary by the co.3mfasionera' oourt Ooneti tute e Viola-
.tlon of suoh nepotism law beoause the oommissionera~ oourt
did not appoint or vote r0r or oonrlrm the appointmentor such
::SpUty shrsrlti.
On .:S?tSmber 21, 1935, this depati8nt held in an
~~plnloa by Flonorable Joe J. Alaup, Assistant AttOm8y General,
:hat a parsor. related to the oounty judge in the prohibited
38gr88 LSS~serve as deputy clerk arid the fact that the a&s-
sionera’ oourt sets the m&or Of deputies to be appointed
50~ not ank3unt to a osnfirmatlon.
This dSg8Xt;lent held on Deoember 29, 1936, in an
opinion by flonorable ?ll~lam CsoCraw, Attorney General of Texas,
that the appointment or an unole of one Of the members of the
comIssionera* oourt aa assistant dlatriot attorney was not
e violation of the nepotlsP law of the State of Texas.
On July 6, 1937, this department held In an opinion
by Zonoreble J. El. Droedhurst, Assistant AttOr!ley General
that appointnent or a relative 0r a member or the wmniaa i on-
era’ 00urt by another oouuty 0rrio8r as a deputy waa not in
violation or the nepotism law.
. .
Ffooorable T, T, Cr?ham, Page 9
Opinion no. O-480 of this department holda that it
i3 not a violation or the nepotism law for a District Clerk
to appoint
. . aa his deputy a daughter of one of the oounty
ammaslonere.
Opinion No. O-875 or this department holde that it
ie not a violation of the nepotism law for a 3istriat Cle*
to appoint as his deputy a sister of the County Judge. We
quote rr0n said opinion aa r0il0wSr
Wnder the provisions OS Artlale 3902, ge-
visea Civil Statutes, the oountp orri0Sr desiring
deputies, nakea the applioation outlined in saia
artiolo to the oonmisaionera~ court Sor the au-
thority to appolnt suoh deputies. The oommiesion-
ers* oourt grants the authority to appoint to the
offioer and sets the salary before the appointment
is made. The oonmlssioners’ oourt haa no author-
ity to attempt to designate Fohomthe oi’fioer shall
appoint and is spsoifioallg forbidden to do so by
this article. The comsti8sioners7 oourt does not
confirm the apgolntee.
*In answer to your first question, you are
respeatSully advised that it is the opinion of this
department that it is not a violation of the nepo-
tism la% for the district clerk to appoint a deputy
district olerk aho ie a sister oi the aoting oounty
Judge of the oounty. You are further respeatfully
advised that it is the opinion of this department
that in such oase the aommission8rs’ aourt does not
aOniirm th8 appointment .*
Opinion Xo. O-1954 of this departieent holda that
1% is not a violation OS the nepotism law for the sheriff-
tax asssssor-oolleotor to appoint as his deputy a brother-ln-
Law or a oounty oonnnfssloner.
opinion No. 04330 ot this department holds that
dnoe the oonxaiaaionen ( aourt msrsly authorizes the appoint-
nent 0r an assistant aounty attome and doea not name or
xmrlrm the a pointee It would not 3 e a violation OS the
lepotism law i!or a county attorney to appoint as his assist-
IIIt a first oousin of the ‘oounty judge.
. .:
Lionorable Fe T. Graham, J’age 10
Opinion :!o. O-4720 of this department holds that
It Is not a violation of the nepotism law for a Criminal
District Attorney to appoint ae hIa assistant ths son of one
0s the aountp oommIseIon4rs 0s the oounty.
Under the facts stated and under the oharter provi-
sions quoted In your letter the oitp employees and orfioers
(with the eroeption of the olty manager and oity attorney)
are appointed, hired, employed and removed by the oity man-
ager--the oity oommission neither appoints, oonfirms nor re-
aoves saoh employees and officers--In faot the oity oommIssIon
is prohibited by Seotion P of the oity’s oharter from taking
any part In the appointment or rcuoval of such officers and
anployees, with sever4 and appropriate penalties attached
thereto.
It is our opinion under the faots stated that each
of your questions should be acstjered in the negative, and
are 30 answered.