THEATITORNEY GENERAL
OFTEXA~
Honorable Harry Knox, Chairman
State Board of bontrol
Austin, Texas
Dear General Knox: Opinion O-2$97
Re: AuthorLy of the Board of
Control to apnoint the
wife of the Superinten-
dent of the Alabama and
Coushatti Indian Agency
Livingston to the posi-
tion of office assist-
ant bookkeeper.
We have your request for any opinion under date
of November 14, 1940, as follows:
"tinclosedis a letter from honorable
Clem Fain of Livingston, Texas addressed
to this Board and suggesting that this
Board hire Mrs. Corley, wife of the super-
intendent of the *ndian Reservation, as
secretary to the superintendent.
"In view of the facts set out in l*lr.
Fain's letter and in view of the terms of
Article 693, Section 3 of the Revised
Civil Statutes, your valued opinion is
resnectfully requested as to whether or
not this Board would have the power tc
hire &s. Corley as set forth in lvir.Fain's
letter, without violating the NepotJ',,n
law."
Item 2 of the current appropriation for the Alabama
and Coushatti Indian Agency Livingston is:
"Office assistant-hookkeeper, if
U. S. Salary ceases....0......#900.00n
We understnad this position to be the one con-
templated in your reference to "secretary to the super-
intendent."
- *
General Knox - page 2 C-2897
Article 693, subdivision 2, of the Revised
Civil Statutes, authorized the hoard of Control "to ap-
point all officers and employees of such Institutions
IState eleemosynary institutions) and fix their salar-
ies and wages." lhe Alabama and Coushatti Indian Agency
Livingston is an eleemosynary institution of the State.
A rider to the current appropriation for the
Agency, Special Laws 46th Leg. p. 306, provides:
"The expenditure of all money herein
appropriated for the welfare of the Alabama
and Coushatti Indians in Polk dounty and
all employees therefor, shall be under the
supervision and appointment of the State
Board of Control.
You are therefore respectfully advised that it is
the prerogative and duty of the Board of Control to make
the appointment to the position under consideration, and in
doing so, it would not violate the Penal statute against
nepotism if it appointed to that position the wife of the
Superintendent.
Article 432 of the Penal Code of Texas, defining
nepotism, is as follows:
"No officer of this State or any officer
of any district, county, city! precinct,
school district; or other municipal subdivision
of this State. or any officer or member OS any
State, r"strict, county, city, school district
or other municinal hoard, or judge of any court,
created by or under authority of any general of
special law of this State, or any clemberof the
Eegislature, shall appoint, or vote for, or con-
firm the appointment to any office, position,
clerkship, employment or duty, of any person re-
lated within the second degree by affinity or
within the third degree by consanguinity to the
person so appointing or so voting, or to any
other member of any such board, the Legislature,
or court of which 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 nub-
lit funds or fees of office of any kind or char-
acter whatsoever."
“, -
General Knox - page 3 0-2S97
"bile this Article contemplates "all boards" es-
tablished by or under the authority of any general or special
law of this State, such as the Board of Control, (See Article
433 Penal Code) nevertheless, it would not be violated in the
appointment by the Board of Control here under consideration,
unless, of course, Mrs. Corley is related within the prohibit-
ed degree to some member of your Board.
It your Board has heretofore made any order author-
izing the Superintendent of this Agency to appoint the employees
of such Agency, such order should be rescinded, and the Board
itself should henceforth actually make such appointments.
It will be observed the appropriation for this item
or position is a conditional one, that is, dependent upon the
ceasing of the U. S. salary therefor. We are not advised
whether the United States has ceaseu to provide for such sal-
ary, and we are not therefore passing upon the question of
the availability of any funds for payment of the office of
assistant bookkeeper.
Our conclusions are not in conflict with our Opinion
No. o-1857, for we had there only the question of the power of
the Board of Control to remove employees of eleemosynary insti-
tutions.
The implications of that opinion as to f.heright of
the Board to remove such employees as are officers under the
State are overruled in,,thecase of Harry Knox et al. vs. Dr.
ii.J. Johnson, 141 S. . (2) 69g.
Very truly yours
ATTORNEY GENtiRALOF TEXAS
BY Ocie Speer
Assistant
OS-MR/pam
APPROVED NOV 22, 1940
GERALD C. MANN
ATTORNEY GENERAL OF TEXAS
APPROVED OPINION
BnlB,CHAIRMAN