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OFFICE OF THE All-ORNEY GENERAL OF TEXAS
AUSTIN
Honti@ls Roger Thurmondw- ___.-..^- ___- -....-
Dletrlot Attorney .. .. i
Del Rio, 'Sexes (j...;,;::i.. \ i ..,I..I6
Dear Q'. Thurmondr
+irtlole$~ 49 and 43S,Y Vcrnon~s mnototo4 Penal Oo40,
19e5, read~:as fciil~s~
"Art. 4%. Ho omoar of tkde stat. or any
offloor of any Uibtridt ;j~oOUnty Oltg prOOlnOt,
school dlstrlot, or qthor munio~pel su841~101on
of thlo Xate, or nny.offioer or nouber of any
!3tatc ( Clotrlct, ccunty, oit!:, nohool district
or otkcr muniolpal bonr4, cr ju4@ of an:. OVUrt,
*oCow"uIc*
noMd+-AGeLbY .~,~~~n,.n~~~~~~~~s."~~~~~~ oQL, r..,.rm
1.15
Honorable Roger Thurnmond, Po8e 2
apeolal law of this Xste, or sny maabor OS
the Ls~isloturo, ahall a3gotnt, or vote ror,
or ooMti the appolntnant to any offloe,
pos$tion; olerkshlp, enployxont or 4uty, of
any person related within the seoond degree
of~afflnltp or wlthln the third degree by oon-
asn@nlty to the psrnon so appointing or so
vdtln8, or to any other nember of any suoh
board, the Legislature, or oourt of wNoh
suoh person so appolntlng or votlne may be
a'msmbsr, when tho salary fees, or oanpsn-
sation of suoh appointee is to be paid for,
Clreotly or lndlrootly, out of or fraq >ubllo
tunda or fess of ofrloo of any klnd or
ohartioter whatsoever&.!@
"Art. 433. The inhlbltlona set forth in
this law shall apply to and lnoludo the Governor,
Lieutansnt Governor, Speaker of the Houss of
Representatives, Railroad Commissionsr~,
-head of the departcmnts of the State govornmont,
judges an4 members of any and all Boards an4
oourts establlshlng by or under the authority
of any general r speoia1.ls.w of this State,
memimre of the e, glslature, mayors, oommiS-
slonars, reooFders, alderzen and members of
sohool boards of lnoorporated oltSe8 and
towns, pub110 sohodl trustees, offioers and
nstnbers cf boards of managers of the Stats
TJnXoerslty and of its several bra.?ohes, an&
of the varlous.State eduo&tlonal in8$:tutions,
and of.the various State elleemosynary insti-
tutions, an4 of the gonltentlaries. This
enumeration shall not bs held to exclude frrap
the operotlon ond effeot of this lan any per-
son lriqluded wlthln its general prQplsions.*
From these 'articles it 1s olcar that an sttOrneY WY
not bs appolctod Clty.Attornoy by tho City Conmlsslon (oom-
posed of two oatidd~ners and $he mayor) if he 1s roloted
to the nayor wl'tiln thq$sooond de.goe of affinity or the
third 4emee by ooz~~$~ih~t'~. ~000s ths prohibited do&ree
of relotlonshlR e'xist? ,
In Tyler Tap “R~llkoad~.Co, Cr DOu&3sP vB* ~ol%Oll, _
1 A:;?. Ct. of Appeals, SOO. 533, 534, 535, tho nothods of
oailput1ny. ~!-.a
deuces of oonsanplnlty were stated by the
oourt as folloi~sr
. .
Honorable Roger Thurmond, Page 3
“In oomputlag the degree of lineal oon-
88ngulnlty exlstlng between two pnrsons, every
generation in the’ direct oourse of relatlon-
dip between the two partlee makes a aegroe,
en4 the ~16 la the same by the 01~11 and
oommon law. The mode OS oomputlng dsgrees of
, oollatersl oonsangulnlty at the oommonand by
the. onnon law la to alsoover the oomnon nn-
oestor, to begin with him to reokon dew -
warda, and the degree the two persons 97or the
“more remote of them, 1s dlstant rrom the an-
oestor, la the degree of kindred subslating
between them. For instanoe, two brothers
are telated to eaoh other in the first degree
beoause iron the father eaoh one of them Is
one degree.. An unole and nephew are related
to eaoh other in the seoond degree, hsoause
the nephew la two degrees distant tram the
oomnm anoestor, and the unole la extended to
the remotest degree o? colleteral relatlonshlp.w
The wife of the mapor and the wife of the attor-
ney whose appointment la antioipated nre flrSt oo;lslns, and
.?irst~ oouslns are related by consanguinity in the seoond
dagr~s. Tyler Tap Railroad Cb. vs. Overtoh, 1 App. C. C.,
See..;-533; Opinion O-791; aee also Dunoan vs. State, 103
Cr. R. 293, 280 9. 1. 216. -However, if thq mayor an4
the ‘attorney are related in any degree, It ~1s by anrrlage
or afflnltp. Degrees of afrinlty are oomputed fn the same
’way am those of consan&ulnlty. That la to say, the re-
’ lations o? the wife stand in the same degree o? affinity
to the Q~sband as they are related to the .i?e by con-
sanguinity. 2 Cori Jur. seounaum 99i2; I! Cor. Jur. 379;
Kelly vs. Neely, &2~Ark. 657, 56 Am. D. 288; Paddook ~6.
Wells 2 Barb. Ch. (N. Y.) 331; 333; Waterhouse vs. Martin,
Peok fTenn. 1 374; ,309; Chlnn vs. atate, 47 Oh. St. 575,
579, 26 N. If. 986,:,1% L R. A. 830; State vs. Hooper,
37 Pao. (24.1 52, 6+,5140 Xsns. 481. This dootrlne 1s
puallfle4 to the sxtet& that blood relatlona or the husband
and the blood’rekatlonq o? the wife are nbt relate4 to eaoh
other by affinity. ~iRespectivo consanguinei do ndt become
relate4 by afrinity. This 1.8 the undoubted weight 0r
authorl ty and the Tsxsa rule. I:. 2 Cor. Jur. 378 and oases
oited in the notes; State vs. Wall, 41 Fla. 463, 466, 26
Honorable Ro er Thurmond, Page 4
so. 1020, 79 Am. St. Rep. 195, 49 &. R. A. 548; Kelly vs.
Neely, 12 Ark. 057,.660, 56 Am. D. 2SS; Johnson vs.
Richardson, 52 Tex. 481; William ve. Foster, (Clv. App.)
233 9. W. 120; Farmpre Natl. Bank vs. Wallaoe, (Civ. App.)
863 9. w. 1105. The mayor's wife then 1s related to the
attorney in the eeoond degree by affinity. Is the Mayor
also bo related?
According to the great weight of authority in
ihlr bountry, relationship by affinity does not include
parsons related to the spouse simply by affinity. The
dootrlne 1s expressed in the phrase affinis mel, afflnis,
pdon eet &hi aiflnls; or stated in another wayi the afflnes
OS the wife are not those of the husband, nor are the
afflnes OS the hueband those of the wife. 2. C. J. 379;
2 C.-J. Seoundum, 992; Bliss vs. Caille Brothers Co.,
149 Nioh. 601, 608, 113 N. We 317, 12 Ann. Cas. 513;
wdrae..vs. Livingston, 5 Mart. (La;) 292, 295; Waterhouse
vs. Nartln, Tech. (Term.) 374, 389; Chlnn VS. State, 47
Ohlo St. 575, 26 N. E. 986, 11 L. R. A. 630; Kirby YB.
Stat@, 89 Ala. 63, 8 So. 110; Oneal vs. State, 47 Ca.
229; Duapree vs. Duepree, 45 Ga. 415; Tegarden vs. Phll-
lips, 14 Ind. App. 27, 42 N. E. 547; Chase vs. Jennings,
3S yS.'44; Blgelow vs. Sprague, 140 bfabacs.425, 5 N. X.
144; Bigbe vs. Leonard, 1 Den. (N. Y.) 186; Eggleston vs.
Smlley, 17 Johns (N. Y. ) 133; Rank vs. Shewey, 4 Watt
(Pa.) 218; Moses vs. State, 11 Hunch. '(Term.) 232; Rector
~6. Drury, 4 Chandl. (Wis.) 24. The rule 1s said to be
basedton the proposltlsn that the relation of the husband
gtd the wife is one of affinity. Bliss ~8. Call16 Bros.
., 149 Yich. 601, 608, 113 N. W. ~3l7, 12 Ann. Cas. 513;
State vs. W&ill, 41 Fla. 463, 466, 26 So. lQ20, 79 Am.
St. Rep. 195, 49 L. R. A. 540.
'?n the other hand, there 1s a strong minority
view firmly entrenched in the jurisdictions in whldh it 1s
applied, which,cpposed to the *majority view 1s based on
tha reasoning that.the relr:tion between the husband and
the wife is no% one'of affinity, but that they should be
m&rded in l&w as ohe..person. Hence, the arflnem of one
aPouae are th'e affl&eii of the othes. State vs. wall, 41
=a. 463, 4bb., 20 Sb'. 1020, 79 Am. St. Rep. lQ5, 49 L. R. A.
%; Kelly vs. Neely,.f2'@k. 657, 56 Am. D. 288; Foot VS.
krton 1 Hill (N. Y.) ,654; Paddock vs. Wells, 2 Barb. Ch.
(N. Y.1 331; Cain vs. .Ing@am, ,7:$bw. (N. Y.) 470; Charles
vs. John, Y. B. 41 Zdw. III 9.
1.11
Honorable Roger Thurmond, Page 5
We have dlscureed the method of detsralnlng
the prohibitive degree6 of rslatiamhlp under Art.1010
432, Penal Cods, the majorltp and mlnorlty rlewa as to
whether or not one spouse is related to the afflnes of
,ths other, and.the zeasone given in support of these
Vldwa, What la the rule to be applied In Texas?
In determining the rule la Texar we must be
careful tg dlstlngulsh our oases. We:muut oa8t to ona
&'de those deolslons *bioh speolfloally hold in aootirdanoe
with the great weight of authority in this oountrf t&t
b)ood..+.elat+ons of.the hurrband and blood relationcr of the
w+fe are not related to eaoh other by affinity aa Jopxmon
rs..Rlohardeon, 52 Tex. 481; Wllllams VI). Foster (CRY.
App;) 833 5. W. 120; Fax-mere Natfonal Bank ~6. Wallaoe (Clv.
App.), 263 S. W. 1105. Likewise, we must shelve those
oases holding that in a ault by one spouse which will
enhance or artaot~oomnunlty property, the other rpouae
thou&h not undo a r0mi party is so interested in the
outcome of the suit that her relation within the prohl-
bl@d degree to a judge or juror ~111 dlrq\lalify him,
R&ilway YIS. Terrell, 69 Tex.~b50, 7 8. W. 670; Railway
~6. Home, 69 Ter. 643, 9 8. W. 440.. We must Oaafh~e
otqselrrsa to those oases in whloh the westion of whether
of not one sp~se 1s related to 'the affirma OS th6 other
wae raised or passid upon.
The' first instance we &SYOdlsoovered in whloh
this question was raised was in Us oasa“-of EOUatOn & T.
C. Rys. Co. vs. Tsrrell, deolded by-e&the Supreme Court in
1888 (7 S. 1. 670~). There it appeared that one of the
jurors'and the ~plalntlff had marrlod sisters. Judge Gaines
found it unnece+rarf to pass upon the questlon.but oalled
the attentlon to the ninorlty view when he rtated:
.iqfe a0 n+ pass upon the question whether
the.blalnti'ff~ apd the jurpr were related by
afflnlty 0-r' not'.. The oourt held they were not.
Seemingly upon good authority, a contrary doo-
trlne was exhrisaly deolded by the Supreme Court
of New York. Foo't va';,yorton, 1 Hill 634. . .”
The next lnstaqoe in whloh the question was express-
ly called to the attention of the S.lpreme Court was ldthe
following year, 1889. There is an cplnlon by Ibr. Chief
Justice Stayton in the case of Sohultie VS. YoIaary (11
S. W; 924), it a;l?ears that on a ?revious trial the wives
Ronorable Roger Thurmond, Page 6
or the dletrlot judge at!d one of the defendants, Orynskl,
were slstere. Here again the oourt found it unneoessary
to pass upon the question, but in oblter dlotum said:
"It 1s denied that the plalntlff in the
action the epeoIa1 judge was appointed to try,
was related to the defendant therein, whose
wiie was the sister 0s the a0 0s the dlatrlct
judge, by affinity in any degree; and we have
understood that In euoh case8 no relationship
of that character existed. It do08 not r0um
!from this, however, that the judge was not dfs-
qualified, and it ought not to be held upon
.niere oonjecture that the certlfloete of dIs-
qualification sent to the Covernor was not true.
It may be that the judge end Orynskl were not
related by afflnlty at all, but if the olalra
represented by the matter was one In vhlch
OrynskI was with the representative of his wife
who was so related, or if fhe was a representa-
tive or-the rights ol+limd by himself and hla
wire in oomwnlty rights, or if any judgment
oould be rendered In his favor or against him
would affect the right of his wife t&rough her
comnunlty rights, even to the'ertent of ooets,
then the wIfs of Orynski, within the s.#lrlt
and purpose of the aonetltutlonal p~ovI8lona
to \Qloh we hive referred, VW a party to the
su$t, and.the dlatriot judge dlsquallfled. . ."
Finally, ln.an oplnlon'by Mr.'Chlef Justice Fly
speaking for the San Antonio Court of Clrll Appeals, in the
oase df,Seabrook,.,et al '16. Flrct National Rank of Port
Iavaoa.t (C. C. A. 1914) 171 5. W. Z47. it was directly held
that spouses oi first oouslns are not~relcted at all by
affinity. As authority ror this proposition the oourt
cited Schultze.vs.? McLeary, supra, and the Ohio case of
Chlnn vs.'~State., Y7e:e rellrted to
the Juror i!a;h'~throUi:h t!,e?r xothar. T~o’:+ovu~‘, slnoe the
xor,orobla korer Thuraoad, hip3 0
court of cri.rnlnJh2peslr ha@ r/pa;-•ntly;lacrd the deoitroa
ln tha CtrJ. ell.0~oar on both grouse, wa aemot 8erely
hc oaurt will mtraot the atrtementr
~~suma that"&' side
thoreln 4th r~Cermoa to the alnorlty rule. 5m must there-
fore edvlno th-t, 80 fvirh6 tha pmuntlg raaorctodview oi
the Court 0r Crinlnal xppbola it oonecrned it will bo a
vi0lntlon0S Article8 432-433 or tba i-d Cob* of Tawm
for.the City.cauncL1 0r noI do to oppoLnt ~‘6aity Attomoy
e /reotlal~ ettomap whoao wire le a flrst oar& by eon-
nai&u.lnlty to thb wire or the Earor 0r that city.
ATTORNEY GEKERAL 02 TCCAS