Gerald C. Mann
June 16, 1939.
Hon. E. A. Sutton Opinion No.;O-961
County Auditor
Anderson County Re: Nepotism
Palestine,. Texas
Dear Sir:
Your request for opinion upon the followiug question:
"Can the commlssioners'.court gives an in-
surance agent a part of the county's insurance
business when the mother of one. of the commis-
sioners is the agent's grandmother's sister?"
has been received by this department.
Article 432, Penal Code of Texas, reads as follows:
"Nepotism. 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 ofmember of ,any state,
district, county, city, school district .or other
municipal board, 'or judge of any court, created
by or under authority of any general or special law
of this state, or anymember of the Legislature,
shall appoint, or vote for, or conf~irm the appoint-
ment to any office, position,, clerkship, employment
or duty, of any person,relating 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 public funds or fees of office of any kind or
character whatsoever."
On May 7, 1914, this department heid, in an opinion
written by Hon. C. W. Taylor, Assistant Attorney General of
Texas, that it would not be a violation of the anti-nepotism law
for a sister of the county judge, who is an insurance agent, to
write a policy of insurance for the county. We quote from said
opinion as follows:
, P-3
Hon. E. A. Sutton, page 2 (O-961)
“The department is In receipt of your communl-
cation of recent date, la which you propound the
‘question of whether or rr0.t ‘it would be a violation
of the anti-nepotism law, on the part of the county
judge, for an agent of an insurance company, who
is a sister of the county judge, to renew a policy
that was written before the said county judge was
installed into off ice. Replying to your inquiry,
we beg to advise that in our opinion such a trans-
action could not be held to be a violation of
Article 381, known as the anti-nepotism statute
for the reason that under this phase of the statute
there must have been an appointment to some em-
plogment or duty that the clerk so employed should
‘perform on the part of or on behalf of the ~county,
to be paid therefor by funds of the county. An
insurance agent, In the ordinary transaction of
the insurance business, does not become the agent
of the Insured, but remains the agent of the corn-
pang represented by him or her. Of course, there
are fransactioas.between’ the insured and the agent
of the company whereby the agent of the cqqang
may become the agent of the -Insured, but this
statute -azFfses, for illustration, where the com-
pany represented by the agent for reason declines
the risk offered when the agent agrees with the
insured to procure insurance from a company not
represented by the agent. Under such a state of
facts, the insurance agent becomes the agent of
the insured and a transaction of this kind, In our.
opinion, would be prohibited by the anti-nepotism
law. In a case, however, where the insurance
agent writes a policy for the county in a company
represented by the agent, then the agent is repre-
senting the company and is in no sense the agent of
the county nor is the agent .performing any duty or
accepting employment from the county, but is simply
representing the company as its agent. The fact
that the. policy in quest ion Is a renewal, would. not,
in our opinion, If the original transaction was a
violation of the law, cause a different construc-
tion, for the reason that a renewal of an Insurance
policy Is a separate and distinct transaction, a
new policy being written and a new premium paid;
nor would the fact that the law fixes the premium
cause the rule to be different.. . . . . . . . . You are,
therefore, advised that in our opinion It would not
be a violation of law for a sister of the county
judge, who is an agent of an Insurance company, to
write a policy of insurance for the county.”
Hon. E. A. Sutton, page 3 (O-961)
You are therefore respectfully advised that it Is the
opinion of this department that it would not be a violation of
the nepotism law for the commissioners' court to give an lnsur-
ante agent a part of the county's Insurance business when the
mother of one of the commissioners Is the agent's grandmother's
sister.
Trusting that the foregojng answers your inquiry, we
are
Very truly yours,
ATTORREYGENERALOF TEXAS
By /s/ Wm. J. Fanning
Wm. J. Fanning
Assistant
WJF:AW:hp
APPROVED
APPROVED Opinion
Committee
By RWF
/s/ Gerald C. Mann Chairman
ATTORNEYGEEERALOF TEXAS