Case Information
*1 The Attorney General of Texas November 10, 1983 JIM MATTOX
Attorney General
Supreme Austin, P. 0. BOX 12548 T&x 5121475-2501 Telecopier 910,874-,367 TX. 76711. Court Bulldmg 5121475.0266 [2548] Texas Department of Mental Health P. 0. Box 12668 CCllllllIisSiOlU?~ M.D. Gary E. Miller, Austin, Texas and Mental Retardation 78711 Opinion No. J&g1 of a mental health and mental Re: Whether the superintendent officer subject to the nepotism an
statute 714 Jackson. Suite 700 Dallas, TX. 75202.4506 Dear Dr. Miller: 214,742J3!344
You have asked whether a superintendent of a Texas Department of Alberta 4824 El Paso. TX. 79905.2793 [91515333484] Ave., Suite [160] purposes Mental Health and Mental Retardation is an officer within the Texas nepotism the meaning of articles We believe is an officer 5996a and 5996b, such a r- 01 Texas.~Suite 713,223.5886 muston, TX. 77002-3111 [700] V.T.C.S. Article 5996a provides, in part,
[noI officer this State . . . shall . . . to any office, position, clerkship, 806 Broadway. Suite 312 empl~oyment or duty . . . any person related within Lubbock, TX. 79401.3479 the second degree by affinity or within the third 8061747-5238 degree consanguinity so 4309 N. Tenth. Suite 5121682.4547 McAllen, TX. 76501.1665 directly appointing compensation funds or or . . . when fees of such appointee indirectly, oftice out of or . salary, . . provided is to be paid from public fees, for, or
nothing herein , . . shall prevent 200 Main Plaza. Suite 400 appointment . . . of any person who shall have San Antonio, TX. 76205.2797 been continuously employed in any such office, 5121225-4191 position, clerkship, or duty
period of two (2) years prior to the election or appointment officer or member An Equal Opportunity/ Affirmative Action Employer appointing . . . or to the election or appointment
of the officer or member related to such employee in the prohibited degree. 5996b expressly specifies certain officers to whom the
prohibition applies, including officers "Of various state eleemosynary institutions."
Dr. Gary E. Miller
The courts of this state have frequently stated that the standard as distinguished from an determines status as an officer, employee, is “whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.” Green V. Stewart, 516 S.W.2d 133. 135 (Tex. (Emphasis in original). 1974); Aldine Independent School District v. Standley, 280 S.W.2d 578, (Tex. 1955); Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658, 660 (Tex. App. - Eastland 1981, no writ).
The powers and duties of superintendents of mental health and mental facilities are not functions mainly delegated to them by the commj,ssioner and deputy commissioners of the department, but are derived from statutes such as articles 3175-3177, V.T.C.S., the Texas Mental Health Code, and the Mentally Retarded Persons Act. 3176 provides, in part:
The Superintendent shall be the administrative head of the institution to which he is appointed.
He shall have the following powers: 1. To establish such rules and regulations the government of the instjtution in his charge, as he deems will best promote interest and wel~fare of its inmates.
2. Where not otherwise provided by law, appoint subordinate officers, teachers, and other employees, and to fix their attendants, salaries.
Each superintendent of a appointed commissioner with the approval of the Texas Board of Men~tal Health and Mental Retardation and serves at the pleasure of the commissioner. See V.T.C.S. art. 5547-202, 52.12. However, we believe that a court would find that each superintendent , as the administrative head of the institution to which he I s appointed and the person with the power to facility’s staff and fix their salaries, exercises the benefit of the public independent control others. Accordingly, we concl.ude superintendent a Mental. Health and Mental is subject to the prohibitions imposed by the statutes.
We note this situation is differcnt from that presented in Pena V. Rio Grande City Consolidated Independent School District, supra, which held that a superintendent of an school district is not an officer the meaning Unlike a school superintendent, whose duties are prescribed
Dr. Gary E. Nfller
solely by the employing school board, the duties of a superintendent of a facility the Texas Department of Mental Health and Mental are prescribed by statute. This statute confers upon such a superintendent
of the control of others.
YOU also ask whether statutes prohibit of a particular at a mental health and mental The person is paid from publi,c funds. The facility. is a brother-in-law the superintendent and, therefore, within the degree of affinity prohibited by article 5996a. Because the person was employed at the facility less than two years prior to the time he became the superintendent’s brother-in-law, we conclude that the two-year continuous service exception in article 5996a is not applicable.
While we believe that a contract of employment that was made prior to the prohibited relationship would remain valid the term the contract, we are advised the person in question is not hired on a contractual basis with the facility. If the person is a” employee who is hired on a month-to-month basis, we believe a new contract would be entered into each month and that the person’s continued employment at is prohibited. See Attorney - General Opinion M-857 (1971).
SUMMARY The superintendent of a facility the Texas Department of Mental Health and Mental Retardation is a” officer the meaning of the Texas statutes and may not employ a person who related to him within the degree of kinship prohibited by article 5996a, V.T.C.S.
-J I M MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy,Sutton
Assistant Attorney General
Dr. Gary E. Ellller - Poge 4
AFPROVED:
OPINION COMMITTEE
Rick Gilyin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton