Case Information
*1 QBffice of ttJe Bttornep @emcal %tato of QC;txas .Al-rORSEY GENERAL September 9.1992
Honorable Jesusa Sanchez-Vera Opinion No. DM-163 Jim Wells county Attorney
P. 0. Drawer 2080 Re: Whether the executive director of a Ake,Texas 78333 municipal housing authority is subject to
the nepotism statute, V.T.C.S. article 599f5a (m-282) Dear Ms. Sanchez-Vera:
You ask whether the executive director of a public housing authority is subject to the nepotism statute, V.T.C.S. article 5996a We conclude that a person holding that position is not.
Section l(a) of the nepotism statute states in pertinent part as follows: [n]oofficex...ofany... municipal subdivision this State, nor any officer or member of any State district, county, city,... or other municipal board . . . shall appoint, or vote for, or confirm the appointment to any office, position, clerkship, employment or duty, of any person related within the second degree by aflkity or witbin tbe third degree by comaquinity, as determined under Article 5996h, Revised Statutes, to the person so appointing or so ~0% or to any other member of any such board, . ..ofwhichsuchpersonM.appointingorvotingmaybea member, when the salary, fees. or compensation of such appointee is to be paid for, directly or indirectly, out of or from public timds or fees of office of any kind or character whatsoever.
V.T.C.S. art 5996a, 0 l(a). By its terms, section l(a) applies only to officers who have the authority to hire personnel. Thus, to decide whether the executive director of a municipal housing authority is subject to the nepotism sta’ute, and thereby precluded from appointing to any position any person related to the executive director within the second degree by affinity or within the third degree by *2 04-163) wnsanguinity, we must examine the municipal ~housing authority’s (the “authoriv) enabling act to determine the executive director’s scope of authority.
Chapter 392 of the Local Government Code creates an authority in each municipality of the state. Local Gov’t Code 0 392.011(a). An authority is composed of five commissioners whom the mayor appointed upon receiving notice from the munidpalitys governing body declaring the need for au authority. Id 0 392.031(a). The code authorizes the authority to employ a secretary, who shall serve as executive director of the authority. Id 0 392.038. The code also autborixes the to employ, on a permanent or temporary basis, technical experts and any authority o&her employees the authority considers necessary. Id
Chapter 392 does not specify any of the duties or powers an executive director, or any other employees of the authority, shall have. Rather, the code requires the authority to determine the qualifications, duties, and compensation of all persons it employs. Id The authority may delegate to any of its employees those powers and duties it considers proper to delegate. Id 0 392.051(c).
Thus, while the executive director of an authority may perform functions the authority has chosen to delegate to him or her, the code itself confers no duties or functions on the executive director. Id 4 392051(c); @. Attorney General Opinion JM-91 (1983) at 2. As to those functions the authority delegates to the executive director, the authority does not “by such delegation abdicate [its] statutory authority or control.” See Pena v. ?io Gmnde Ciry ComoL Indep. Sch D&t+, 616 S.W.2d 658, 660 (Tex. Civ. App.-Eastland 1981, no writ); Babcock & Collins, Local Govemmti Low, 36 SW. L.J. 471,509 (1982) (su mmari&g Pw). Because the legislature has vested the power to hire in the authority and not in the executive director, the executive director cannot be subject to the nepotism statute. See genemlly Pena, 616 S.WL?d 658; Babcock & Collins, supm, 36 SW. U. at 509-10; Letter Advisory No. 148 (1977). *3 Ct+163)
Because an executive director has no statutory authority to hire personnel, he or she is not subject to the nepotism statute, V.T.CS. article 5996~1.
Attorney General Texas WILLs PRYOR
First A&taut Attorney General
MARYKElLER
Depufy Assistant Attorney General
RENEAHICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Kymberly K Oltrogge
Assistant Attorney General