The Attorney General of Texas
December 22, 1982
MARK WHITE
AttorneyGeneral
Mr. Ernie W. Tullis. Administrator Opinion No. Mh’-540
Supreme Court Building Texas Employment Conxnissio”
P. 0. Box 12546
TEC Building Re: Adoption of nepotism
Austin, TX. 76711. 2546
5121475-2501
Austin, Texas 78770 policy by Texas Employment
Telex 9101674.1367 Colmnissio”
Telecopier 5121475.0266
Dear Mr. Tullis:
1607 Main St., Suite 1400
Dallas. TX. 75201-4709
You advise that the Texas Employment Commission is considering
2141742-6944 the adoption of a nepotism policy reading:
In keeping with the spirit of the nepotism laws of
4624 Alberta Ave., Suite 160
Texas, it shall be the policy of this Agency that
El Paso, TX. 79905-2793
9,5/533-3464
no supervisor, administrator, or manager shall
hire, promote, or approve the hiring or promotion
of any person related within the second degree of
1220 Dallas Ave., Suite 202 affinity or within the third degree of
Houston, TX. 77002-6966
consanguinity to the person so hiring, promoting,
713b550.0666
or approving; provided that nothing herein shall
prevent the hiring, promotion, or approval of
606 Broadway. Suite 312 hiring or promotion of any person who shall have
Lubbock, TX. 79401.3479 been continuously employed in any such position
6061747.5236
for a period of two (2) years prior to the
assumption of duties by the supervisor,
4309 N. Tenth. Suite S administrator, or manager to whom the employee is
McAtten. TX. 76501-1685 related in the prohibited degree.
5121662.4547
You ask if the commission is empowered by the Texas Unemployment
200 Main Plaza, Suite 400
Compensation Act, article 5221b-1 et seq., V.T.C.S., to adopt and
San Antonio, TX. 762052797 implement such a policy.
512/225-4191
Article 5221b-9. subsection (a), V.T.C.S., clothes the commission
with power and authority to adopt, amend, or rescind such rules and
An Equal Opportunitvl
Affirmative Action Employer regulations, to employ such persons, and take such other action as it
deems necessary or suitable to administer the act, and empowers it to
determine its own organization and methods of procedure in accordance
with provisions of the act. Subsection (d) thereof specifically
authorizes the commission to appoint, fix the compensation, and
prescribe the duties and powers of such officers, accountants,
attorneys, experts, and other persons as may be necessary in the
performance of its duties.
p. 1959
Mr. Ernie W. Tullis - Page 2 (MW-540)
.
The proposed nepotism policy, in our view, merely prescribes the
duties and limits the powers of those persons to whom the commission
has delegated authority to hire, promote, or approve the hiring or
promotion of other persons. The commission possesses power to adopt
the policy unless it contravenes a policy or law established either by
the constitution or the legislature, or under their authority. -See
Attorney General Opinions H-832 (1976); O-2601 (1940).
Article 5996a, V.T.C.S., prohibits a" officer of the state or a
local officer from appointing, voting to appoint, or confirming any
person to "any office, position, clerkship, employment or duty" if the
person is related to him in a prohibited degree. An exception is made
if the person shall have been continuously employed in that position,
employment or duty for a period of two years prior to the election or
appointment of the person who makes the appointment. Other provisions
define the class of "officers" against whom the statutory prohibition
operates, article 5996b, prohibit evasion by trading, article 5996c.
forbid approval of accounts or draws for i"eligible persons, article
5996d, and make violations a misdemeanor i"volvi"g official
misconduct, article 5996f.
The nepotism statutes address conduct by "officer[s] of this
State." V.T.C.S. art. 5996a. Specifically within the meaning of the
term are "head[s] of departments of the State government," but persons
who occupy positions of lesser responsibility are not specifically
included. V.T.C.S. art. 5996b. Cf. Pena v. Rio Grand= City
Consolidated Independent School Distrfct. 616 S.W.2d 658 (Tex. Civ.
A"". - Eastland 1981. no writ) (school suoerintendent). Not all the
persons to whom the ~commissio" has delegated responsibility and who
would be affected by the proposed policy of the commission sre
"officers" within the meaning of the statutes prohibiting nepotism.
But that fact does not linlt the authority of the board to institute a
policy of broader prohibitory application, in our opinion, if it
determines that the adoption of such a policy is necessary for the
good administration of the Unemployment Compensation Act.
The commission has been invested with power to take such actions
as it deems necessary or suitable to administer the Unemployment
Compensation Act. V.T.C.S. art. 52'21b-9(a). In our opinion. the
legislature did not intend by the enactment of the nepotism statutes
to occupy the field or prevent the adoption by state agencies of a
c0*s1stent but more far-reaching policy regarding favoritism.
Although the proposed policy may be violated by a person to whom the
nepotism statutes are inapplicable, the policy is not for that reason
inconsistent with the statutes. As we interpret the policy, i,t does
not purport to permit anything the statutes forbid, nor does it
prohibit anything the statutes expressly allow. See Tulles v. State,
284 S.W.2d 715 (Tex. Grim. App. 1955). Cf. State v. Jackson, 376
S.W.2d 341 (Tex. 1964); Martinez v. Texas~ployment Commission, 570
p. 1960
_ ‘.
Mr. Ernie W. Tullis - Page 3 (MW-540)
S.W.2d 28 (Tex. Civ. App. - Corpus Christ1 1978, no writ)
(administrative acts nullifying legislative action).
It is our opinion that the Texas Employment Commission may adopt
the proposed policy if it chooses to do so, and will not thereby put
itself into conflict with any expressed or implied legislative
limitation on its power. See generally 2 Tex. Jur. III Administrative
Law
- 912, at 202.
SUMMARY
The Texas Employment Commission may adopt an
anti-favoritism policy of broader reach than the
present nepotism statutes.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Laura Martin
Jim Moellinger
Bruce Youngblood
p. 1961