Case Information
*1 OFFICE OF THE AlTORNEY GENERAL OF TEXAS AUSTIN
Eonorablr ?. T. Graham (\
count ~Attornfty Car b n County
Zwownsvlllo , Texas
-- al.s Rerponsl- ntmnt atta rteaiordl Zmployeea -- And lntsanto ana 8830Tel8. nt an ottioar whose ager, and ho shall bo ioer and head or the ad- the Qlty goternment.
shall bs ahosoo by ths Comr&s- e beds of hb and rxeautlrr not b; a resident of the oitr or State, but during his tenarr of offloe he shall ratide oity. Eo person eleatrd to msabop within ship on the city Conmission 3hsl1, subsequtmt ta suah election, be elkible ror appointment -. -. *2 382 Honmable F, T. Graham, Page 2
as oitp manger until one year has elapsed following the expiration of the term Sor whish he was eleoted.
‘*The City ‘Xsnager shall be appointed for an Indefinite term but he may be reaored by a najor1t.r rots oC %he msmbers or the City CammIssIon on thirty dayz prior notice of
their-,Intention to ruaove him. The aotlon of the CommIs sion Ir. removiag thr Manager shall be riw. In 0850 of thr absenoe of the Man- a&or, he may, with the approval o? the Cltty Commiaalon, designate a qualified adminirtra- tire offioer or, the alty to perrorm his duties during his absenae, and absewe &all Inaludo temporary disability or otherwiss. on auoaunt of zioknosz,
nrThe City Xanager shall be r.esponzlble to the City Conmf sslon for the proper adnlnls tra- tlon of all affalre of the City In his aharge and to that end, exoept as otherwise ?rovlded in this oharter, and, subjeot to any provlslons herein with referenoe to a 3ivll Sewfioe, he shall have the power to appoint and remove all offloers employees In the adalnistratlva service of the olty, exoept the City Attorney, who zhall be appointed by the City Commission, but the &Wager 188~ authorize head of a department or ofiloe responsible him to appoint and remne subordinates In suoh depsrt- A-,poIntments made by or under mznt or offloe.
the author1 ty of the City tiager shall be on a basla of exeoutlte and adafnistratlve abll- and or the training and rxperlenoe of suoh ity smployees In the work whlah they are to ger- form; all suoh appointments shall be rithouC definite term.
*‘Any offlo~r employee to whom th0 City xanager, or the head of a department or offloe, may appoint a sucoessor, may be rtmwved by the City ‘%nager, ar other appointing offiosr, at my time, but the deolsion and aotion of the
383 ionorablo F. T. Graham, Page f
Hsnager with referenoe to appointments, a8 well as ranovals, shall be flnal and there
shsll be no appeal thereirom to any other
office, body or oourt whatsoever.
w*NeIther the City ComlssIon, nor any oi Its oomltteez numbers, shall direct or request the appolntzent of any person to or his removal fros offloe by the City Xsnager Iz any manner or any of hla subordinates, take part In the appointment or removal of offioera and esployoer In the administrative senior or the oity. %xoept for purposes of inquiry, the Commission and its menbers shall deal with the adarlmlstratlvs servioe
solely through the City ?&sager end neither the Commlsslon, nor any member thereof, shall give orders to any subordinate of the City
hanager, elther publloly or privately. Any violat ion of the provisions of this paragraph by a namber of the Commission shell be a mls- dezeazor conylotion of which shall Imedlate- ly forfeit the offloe of the member so aon- via ted. *
ntSection 21. IKJTIZS OF CITY Y?AGZiX; RIGETS OF XAXAC?3R MD OTHER OFPICZRS BT COM- XISSION 'XZETEGS; HEADS OF DXPAR'l%f32~S AND DIVISIOX3 TZRZOF; ?LXVXSTIGATIO~ 07 CI??Y
'XANAGZR 9Y CITY COXEISSION --
It shall be the duty of the City ‘Xanager to aot as ohlef oouservator of the peaae within the olty; to supervise the edmlnlztratlre affairs of the altyI see that the ordlnanoea oi the alty laws of the State are enforoedi to make such recomendatlonz to the CommIszIon aon- oernlng the affairs of the 0Ity as nay zeen to him desirable ; to keep the Commission ad- vised oi the finanoial aondltion and needs
OS the alty; to prepare and submit to the Com- ulsslon zuch reports as may be required by that body, and to perform suoh other dutlez aa may be presarlbed by this Charter.
"*The City Esnager shall be entitled to a seat in all Commlzzion meetings, abut &all
lonorable F. T. Graham, Pago 4
hare 00 rote therein. On rote of the CommIs- sion, the heads of all departments ,and suoh other oifloers of the City as sny be Ueslg- nated by vote therefor, shall also be entitled to seats In the Commission meeting, but shall hare no vats therein. Ths &ager zhall haps the right to take part In ths dizoussion of all aatters coming before the CommIssIon meet- ing, and the heads Of all departments and
other orfiaers shsll be entitled to take part In all disousaions of the Commlsslon relating to their rsspeatlve department5 orriae5. ? . . ..*
‘The Olty Esnager has employed as oIty employees person8 mho are related to one of the City CommIs- zionzrs within the degree of relationship prchiblted by Artids 432 of the Penal Code of the Retised Statutes of Texas, 1925.
*Subsequent to the employment by the City Xan- ager of persona related within the prohibited de- gree to one of the City Commizsionars, the City Commission, (at one at its meetings in whlah ths Commissioner so related to zuch olty mployees, took part and voted) voted to raise salerlee the of zll alty aployeez, lnoludlng the partlaular amployees so related to said City Ccmtnlzsloner.
Y!he City Comabsi~n, as 1 oonstrue the per- tinent Charter provisions of the City of Rrowns- vllle whloh are hereinabove quoted, has nothing whatever to do with ths hiring or firing of si ty amployess other than the City ?tiagsr himself and the City Attorney; City ComIssIon doss, how- ever, have power to presorlbe salaries to be paid to the tariouz employees hired br the City ha&or.
“The City &nager, kaosl~ the enployees In question were related to one of the City Commis- zloners within the degree prohibited by Artisle 432 of ths Penal Cods Revised Statutes, 1925, aontlnued to keep sash 5mploYees on ths Oitr
:’ 385 onorable y. T, Graham, Pag5 5
payroll snd oontinued to approve the monthly pay- roll whloh oarrled suoh snployzesl ntunes and aalarl55, and oontlnued to pan them fron oity ftmds.
“The City &mager has advised M that he sod the said City Commissioner have bssn threatened with charges of nspotisn and he has appribed me of ths faots and has requszted an opinion of sm as County Attorney as to whether or not, under the faots hereinabove set out, he and the Comais- sloner involved are guilty of any violation of the nepotI5m laws of the Stat5 of Texae, aavising me that he and zuzh Comzlssloner desire to oomply with the provisions of thz various Penal Statutes suah Stat- and ir they have in the past ~iolatad they desire to know in what respeots, in utes, order that they may osase to so vlolate them in the future.
WArtIolz 432 of the Penal Code, Revised Stat- utes, 1925, provldesr
nlNo ofrioer of this State or any orfioer of zny dlstriat, oountp, aity, pi5oinot, zohool dlstrlat, or other muuloipal subdivision of this Stats, or any offloer or member of any ;tate, aistrlot, oounty, olty sohool distrlot or other mnlolpal board, or udge oi any 3 oreated by or under authority of any court, general speolal la* or this State, or sny member of tbs Legislature, shall appoint, or vote for, or oonfirm the appointment to any employmmt or 0rri00, po5itIon, ole*5hIp, duty, of any person related within the aeoozd drgree by affinity or within the third degree by oonsanguiaity to the person so appointing or ao voting, or to an7 other member of an7 zuoh board, the Legislature, court of whlah such parson 50 appointing or voting nay be a neaber, whaz the zalary, fees, or oompansation or suah appointee is to be pald for, dlreotly or Indlreatly, out of or from publla funds or fee5 of offioe or my kind or oharactzr ??hatzo- ever.’
Honorable y. T. Uraham, Page 6
wA.rtlole 433 bf suoh Penal Code provides: "'The fnhlbltlons set forth ln this law shall apply to and lnolude the '?overnor, Llsu- tenant Governor, Speaker or the House or 8epre- sentatltes, Railroad Commlssloners, head of departments of the State govsznaent, judges and wmbers or any and all Boards and oourte established by or under the authorltg of any general or speoial law oi this State, menbers or thfi Legislature, 5apor8, ooamlsslon8rs, re- oordsra, aldermen members of sohool boar&r ot inoorporated oltlea and towns, pub110 sohool orfloers and manbers or boarda or trustees, managers or the State %lrerelty and or Its severeA branohea, and of the various State edu- oatlonal lnstltutlons and of various State eleenosynary institutions, and 0r the geniten- tiarioe; Thfs enumeration shall not be held to sxolude from the operation and erreot or thla law any person included within its general pmvlslons.'
aArtlole 434 or suoh Penal Code provides; **No officer or other person lnoluded within any provision of this laa shall appoint or vote ror appolntnent or ror ootiir5ation or appoint- inent to any suah offloe, position, clerkship, employu?ent or duty of any person whose servloes are to be rendered under hls dlreotlon or oon- trol end to be paid tar, dlreotly or lndlreotly out 0r any suoh pub110 funda or r8023 0r 0rri00, and who is related by affinity within the seoond degree by oonsenguinity within the third de- gree to any such offloer or person inoluded wlthfn sny provlslon of this law, in oonsldera- in whole or in pert, that suoh other of- tlon, rloer or person haatheretorora appointed, or voted ror the appointment or for the oonfirf%- tion of the appointment, or will therearter ap point or vote tar the appointslent, or for the oonrlrnatlon of the appolntcaant any suoh orfloe, position olerkshlp, enployment or duty of any person whomsoever related within *7 Eonorab18 P. T. Crah6mq Page 7
the seoond degree by afiinity within the third degree by oonsangulnlty to suoh offloer or other person making suoh appointment.' "Artlole 69 of suoh Penal Code provides: *'Any person who advises or agr88d to the oommi6sion or au OffSnSS who IS present -hen the same Is oomtnltted is a principal wheth- er he aid or not in the iuS@ aOt.* Yhssuxing that exoept for the City &nag&s having oontinuea to pay the salaries 0r the 8x- gloyeee related to suoh city Comalssloner, after suoh City %nager kner of such prohibited relation- ship end after the City COmaiSSlOn at one of its meetings undertook to raise all ealeriae of all City EZlp1OySSs (at whloh l!BStl~ Of the City Com- the Co~zmlssioner in qU8StiOn partioipated ~Isslon fad voted) and anaumliq that exoept ror these facts there is no oollueion or trading as oontem- plated by Artlole 434 of the ?enal Code, I respeot- fully request your opinion on the r011cn0b qUSS- tions:
"1. Is the City Counlssloner ivho Is related xzithln the prohibited dSgr88 to eap107eea Of the city hired by the City Lknager, @1ty of nepo-, tisrn under our .3tetutes?
792, Is the city &nager or the City 0r 3rowno- Y1118, Under the raots &Yen, guilty 0r nepotism under our StntUtSS Or the provisions by virtU6 OS Arti 69 of the Pena Cod.?
“3. Doea the iaOt that the City ~05lUllSSlOtlSr In question portlolpated in and voted at a meat- ing the City Comrnisslon, in which salearies or all city 817lp1Oy8S2-i were rafeed, lnoludlng thO88 who had been hired by the city &tiager and who were related to Suoh Conudss~oner wlth- ln the prohibited degree, render hin &uflty Of iISpOtk3I under the provlslons or Art1018 432 0r the Teas1 Cade taken in ooojunotion with the pro- visions of Article 434 of the Penal Code? (1 . l . .=
E!onOrable F. T. Graham, Page 8
This departmen6 has repeatedly ruled that the ap- p0lntmsnt or a relative of a member of the oomr,faeioaera* court by another oounty oifloer is not in viola- as a deputy tion of the nepotism lau and that the fact that the oonmla- aionera* court sets the number Of deputies to be appofd8d i1083 not amount to a ooniirmatlon or the appointaent.
On i?SblWiry 9, 1932, this department held, in an opinion by &norable 8. 0. Xatera, Aasiataut Attormy ~8a8ral, that it 310s not a violation or the nepotism law for a tax ool- l.eot0r to appoint es his assistant or deguty a son of a oounty cmmlssloner arter the oomdaaioner+q oourt had authorized the appolntnent of juoh deputy in aoaordanoe with Artlole 302, ixSYi38d 01~11 Statutes 0r Texea.
On 'Xsroh 2, 1935, this department held in an oplnlon by Honorable C. Y. Kennedy, Assistant Attorney General, that ii deputy sherlrr lnho Is a rimt oousln or onr or asmbera or the cOGminsionsrsl court would rid be prohibited from serv- :lm 8s suoh or did his appointmant by the sheriff violate the ~tercs 0r .'.rtlole 432, Penal Code Or Texas, the allowanoe of his salary by the co.3mfasionera' oourt Ooneti tute e Viola- .tlon of suoh nepotism law beoause the oommissionera~ oourt did not appoint or vote r0r or oonrlrm the appointment such ::SpUty shrsrlti.
On .:S?tSmber 21, 1935, this depati8nt held in an ~~plnloa by Flonorable Joe J. Alaup, Assistant AttOm8y General, :hat a parsor. related the oounty judge in the prohibited 38gr88 LSS~ serve as deputy clerk arid the fact that the a&s- oourt sets the m&or Of deputies to be appointed sionera’ 50~ not ank3unt to a osnfirmatlon.
This dSg8Xt;lent held on Deoember 29, 1936, in an opinion by flonorable ?ll~lam CsoCraw, Attorney General of Texas, that the appointment or an unole of one Of the members of the comIssionera* oourt aa assistant dlatriot attorney was not e violation of the nepotlsP law of the State of Texas.
On July 6, 1937, this department held In an opinion by Zonoreble J. El. Droedhurst, Assistant AttOr!ley General that appointnent or a relative 0r a member or the wmniaa i on- era’ 00urt by another oouuty 0rrio8r as a deputy waa not in violation or the nepotism law.
. .
Ffooorable T, T, Cr?ham, Page 9
Opinion no. O-480 of this department holda that it not a violation the nepotism law for a District Clerk i3 appoint aa his deputy a daughter of one of the oounty to . . ammaslonere.
Opinion No. O-875 or this department holde that it ie not a violation of the nepotism law for a 3istriat Cle* to appoint as his deputy a sister of the County Judge. We quote rr0n said opinion aa r0il0wSr
Wnder the provisions OS Artlale 3902, ge- visea Civil Statutes, the oountp orri0Sr desiring deputies, nakea the applioation outlined in saia artiolo to the oonmisaionera~ court Sor the au- thority to appolnt suoh deputies. The oommiesion- ers* oourt grants the authority offioer to appoint to the
and sets the salary before the appointment is made. The oonmlssioners’ oourt haa no author- ity to attempt to designate Fohom the oi’fioer shall appoint and is spsoifioallg forbidden do so by The comsti8sioners7 oourt does not this article.
confirm the apgolntee.
*In answer to your first question, you are respeatSully advised that it is the opinion of this department that it is not a violation of the nepo- tism la% for the district clerk to appoint a deputy district olerk aho ie a sister oi the aoting oounty Judge of the oounty. You are further respeatfully advised that it is the opinion of this department that in such oase the aommission8rs’ aourt does not aOniirm th8 appointment .*
Opinion Xo. O-1954 of this departieent holda that 1% is not a violation OS the nepotism law for the sheriff- tax asssssor-oolleotor to appoint as his deputy a brother-ln- Law or a oounty oonnnfssloner.
opinion No. 04330 ot this department holds that the oonxaiaaionen ( aourt msrsly authorizes appoint- dnoe and doea not name or nent 0r an assistant aounty attome It would not 3 e a violation OS the the a pointee xmrlrm lepotism III t a first law or a county attorney to appoint as his assist- i!
oousin of the ‘oounty judge.
. .:
Lionorable Fe T. Graham, J’age 10
Opinion :!o. O-4720 of this department holds that It Is not a violation of the nepotism law for a Criminal District Attorney to appoint ae hIa assistant ths son of one 0s the aountp oommIseIon4rs 0s the oounty.
Under the facts stated and under the oharter provi- sions quoted In your letter the oitp employees and orfioers (with the eroeption of the olty manager and oity attorney) are appointed, hired, employed and removed by the oity man- ager--the oity oommission neither appoints, oonfirms nor re- aoves saoh employees and officers--In faot the oity oommIssIon is prohibited by Seotion P of the oity’s oharter from taking any part In the appointment or rcuoval of such officers and anployees, with sever4 and appropriate penalties attached thereto.
It is our opinion under the faots stated that each of your questions should be acstjered in the negative, and are 30 answered.