Case Information
*1 QBffice of tiy !Zlttornep Qkneral
6btate of aexas
DAN MORALES March 17,1993 ATTORNEY GmErw. Opinion No. DM-208
Honorable John W. Segrest Criminal District Attorney Re: Whether a person related to a district
McLulMncounty judge within the degree prohibited by the 219 North Sii Street, Suite 200 nepotism statute, V.T.C.S. article 5996a, can Waco, Texas 76701
take employment with a community super- vision and corrections department without causing a violation of the nepotism statute in light of the provisions of article 42.13 1 of the Code of Criminal Procedure (RQ-473) Dear Mr. segrest:
You have asked us to determine whether, in light of the provisions of the Code of Crimind FVocedure article 42.131, the director of a community supervision and cmrections department may hire, without causing a violation of the state nepotism statute, V.T.C.S. article 5996a, a person related to a district judge who sits in the same county as the community supervision and corrections department. Your question is based on the following facts:
1. McLawncountyhasfwrdisbictcourts,...eachofwhich can be considered as “trying uiminal cases” in th[e] judicial diStZiCt;
2. On January 1, 1987, one district judge took office after his election the previous November, and continues to serve to this date;
3 On SeptemLxr 12. 1988, all of the judges appointed [a] . . Director [of the community supervision and correction department in McLennsn County], a position [the same person] holds to this date;
. . . . 5. OnMayl. l99o,theDirectorhiredthermployeeinquestion; 6. The Employee is a nephew of the Judge, being the son of the Judge’s natural brother, and is thus related within the third degree of consanguinity.
Honorable John W. Segrest - Page 2 (~~-208)
We undemtand that you have rewived wntlicting opinio* one from the general counsel oftheTexa,DepartmentofCriminalJusticeandonefrom~attonyrwtrOhs represented McLuman County in civil matters, on whether the directo~‘s hiring of the judge’s nephew constitutes a nepotistic hiring. We wnchxle that the hiring is not llt@StiC.
Section l(a) of the nepotism statute, V.T.C.S. article %%a, states in pert&m palt as fbllowa:
[n]o officer. . . of any. . . rmuricipal subdivision of this State, nor anyofficerormemberofanyStatedistrict,wunty,city,...orother ~~~board,orjudgeofanycourt,cnatedbyorundaauthority of any General or Special Law of this Stat% . . . shall appoint. or vote for, or confirm the appointment to any office, positioq clerkship, employment or duty, of any person reJated...within the third as determined under Article 5996h, Revised degreeby wnsqhity, Statutes, to the person so appointing or so voting. or to any other manbaoflllly~~board,...ofwtrichsuchpasonsoappointing or voting may be a memk, when the salary, fees, or compensation of such appointee is to be paid for, directly or indktiy, out of or fkompublicfimds.. . ofany kind or charactexwhatsoeva.
By its terms, section l(a) applies only to officers or judges who have actual, statutory authority to hire PCfSOMCt. Attomey General Opiion DIM-163 (1992) at 1. A person with such authority does not, even if the person attempts to delegate the authority to another, “abdicate [its] statutory authority or control.” .%e Pena v. Rio Cm& C@Y f3ansd. In&p. Sch. Disl., 616 S.W.Zd 658.660 (Tar Cii. App.-EasUand 1981, no writ); Babcock & Collins, Local Government Luw, 36 SW. L.J. 471, 509 (1982) @mmakiq Penal. Thus, to determine whether a wmmunity supavision and tions departmmt (the departmeat) lavAidly may employ the nephew’ of a district judge who tries crimbml casesintheMmecountyasthedepamnent,wcmustda~hasMuaZ~~~ authority to appoint persod fbr the deparhnmt.
Article 42.13 1 of the Code of Crimi~I Prowdmx perknstotheestabliAmentof wmmunity supervision and corrections departments. The article reads in pertinent part as follows:
Establishment of Departments
Sec. 2. (a) The...districtjudgestqingcrimimdcasesineach judicial district in the state shall establish a community supervision and wrrections department and empky disbicf personnel as mcry be necesxq to conduct presentence investigations and risk *3 Honorable John W. Segrest - Page 3 (Dt+208)
rssessmanq supervise and reh8biuit8te probatioller& enforce the terms and wnditions of probatior& and ata wmmunity wrrections facilities. Both the district judges trying uiminal cases and the judgesofstaMoryw~wurtstryingcriminalcesesthatare~ by a wmnnurity supewision and wrre-ctions department are entitled to participate in the mansganent of the department.
. . . .
DepuWent Diir Sec. 4. The. . . judges shag appoint a department director. i’k akZ3artmenl director shall emplv a suficient number of ofjkers and other employees IO pe@m the professional and clerical work of the kprtment. [Emphasis added.]
Obviously, the emphasized portions of sections 2 and 4 are inwnsistent: section 2 rewires the district judges to employ the personnel newssary to perform all of the tasks a department is to petikm, while section 4 rewires the judges only to appoint a department director, who, in Turk is rewired to employ all other newssary personnel.
We exam&J a similar statute in Attorney General Opiion DM-79 (1992). Jn that opinion, we were asked to determine whether the Brazes County Juvenile Board has the authody to hire employees of the Braws County Juvenile Probation Departmaa at& the juvenile board has employed a chiefjuvenile probation officer. Attorney General Opinion DM-79 at 1. Section 152.0007(l) of the Human Resources Code, which de&es the. duties of the juvenile board, rewires a juvenile board to “employ personnel to wnduct probation services, including a chief probation 05cer Md, if more than one officer is neceswy, as&ant officers.” On the other hand, section 152.0008(a) of the. Humsn Itemmes Code. provides that the chiefjuvenile probation officer “mq appoint wwssaty personnel with ihe qpraval of he hard’ (Emphasis added.) AdditionaUy, section 152.0271(e) of the Human Resources Code provides that “[t]he chiefjuvenile probation officer may set the salaries 8nd aUowanccs of juvenile probation persowel with the qnprcnwI of Ihe &I&..” (Emphasis added.) Given the applicable provisions of the Human Resources Code, the requestor was uncertain as to whether the board or the chief probation officer is rewired to employ other members of the d-t, or if that duty may vary at the juvenile board’s discretion. Id. at 2.
We determined that section lS2.0008(a) delegates to the chiefjuvenile probation officer the authority to hire assistant juvenile probation officers and other employees subject to the juvenile board’s approval. Id. Thus, while the juvenile board’s authority with respect to hiring personnel is limited to approving or rejecting the chief juvenile probation officefs hiring decisions, it retains the actual authority for hiring personnel. Id. at 2-3. Section 152.0007(1), which rewires a juvenile board to “employ” personnel, rewires a juvenile board only to compensate, not to hire, personnel. Id. at 3. These *4 Honorable John W. Segrest - Page 4 (DM-208)
detenniwtions, together with the juvenile board’8 role under a predecessor at8tute,ledus to wnchde that the juvenile board, not the chief juvenile prob8tion offices, was the appointing authody for purpnses of section 152.0008(b) of the Human Rewurws Code, which empowers the “appointing authotity’ to tamiaatejuvenile probation officers. Id. at 4.
Article 42.131 of tha Code of Ctiminal Pro&me difFhilltWOSiglli6C8Ilt ~~mthe~o~oftheHumanResourcesCodethatwew~daedinAttorney &nerd Opinion DM-79. Fhst, article 42.13 1, section 4 requires a department director to employ 05cers and amployws as newssary to perform the de’s profbssional and clerical work, whereas section, 152.0008(a) merely authorizea the chief juvenile probation officer to hire asktant juvenile probation officers and other employees. Second, article 42.13 1. section 4 does not explicitly reserve to the district judges the pownr to approve the departmmt directofs employment decisions, whereas section 152.0008(a) requires the juveade board to approve (or, implicitly, to reject) the chief juvenile probation officer’s rppo-.
The legislature added article 42.131 to the Code of Ctiminal Pwwdure in 1989. See Acts 1989, 71st Leg., ch. 785, 8 3.02, at 3483-86. House Bii 2335, the bii that proposed adding article 42.13 1, made many changes in the structure of the crimiwl justice systematthe~~locallmlsinane$orttolllleviateprisonudjailovacrowding.
See Sen8te Comm. on Criminal Justice, Bii Analysis, C.S.HB. 2335. 71st Leg. (1989); Attorney General Opiion JM-1185 (1990) at 1-3. Notably, while Housa Bii 2335 added article 42.131 to providn for the nstablishment of departmeDts itrcp&dsection100f &sting article 42.12 of the Code of Criminal Pm&urn, which had ptwided for the establkhment oflocal probation departments. See Acts 1989,716 Leg., ch. 785,5§ 3.02. 4.17, at 3483, 3519-21; Attorney Gcncral Opinion JM-1131 (1989) at 2. Both the predecessor local probation departments and the current wnununi@ supnrkion and wrrections departments were or are designed generally to wtrespond gengraphicagy to judicial districts. See Code Ctim. Proc. art. 42.12, 5 lo(a) (repealed by Acts 1989, 71st Log., ch. 785. 54.17, at 3519-21); id. art. 42.131, 52(a); Attorney General Opinion JM-1131 at 2.
Prior to its rapcal in 1989, section 10 of article 42.12 of the Code of Criminal Procedure provided in pertinent part as follows:
(a) For the purpose of providing adequate probation satvices, the...districtjudgestryingcriminalcasesineachjudicialdistria~ this state shall establish a probation office and employ. in accordance with standads set by the wmmissio~ dislrictpersannel a7 nrqy be ?n?cew to wnduct preswtence inyastigations, supwdsa and rehdditate probation- and enforce the tetms and wnditions of misdemeanor and felony probation. . . .
Honombk John W. Segrest - Page 5 (Dn-208)
(b) Where more than one probation officer is required, the. . . judges shall appoiat a chief adult probation officer or dimctor,who,tid~2heir~shallappointasu5cientmrmba ofasshntsandotheremp~oyeestocmTyotttbeprofe.ssion4 Cklical.MdOthWWO&OfthCCOlUt.
Acts 1989,71st Leg., ch. 785.5 4.17, at 3519 (emphasis added). Under the uow-repeakd article 42.12. K&M 10 of the Code of Criminal Pro&me, the district judges chiy had authority to appoint a chief adult probation officer or dire&q fiuthermom the district judges clearly had authority to approve ail of the chief adult probation officeh relections fixemployment. Whilemuchofthehguageofarticle42.131,aections2aad4ofthe Code of Criminal ProcAre parallels the. language of the nov+repealed article 42.12, section lo(a), (II), article 42.13 1, section 4 does not reserve forthdistrictjudgesany power of approval over the depamneat directoh employment sehtions.
We musf the&m, ckrify the use of the. word “empl~ in sections 2(a) and 4 of article42.131 oftbeCodeofCriminalPro&ure. Eachaectionrequiresapatticulara&y to “employ” personnel to staE the local dw however, section 2(a) obligates the districtjudgestryingcrimiaal~ineachjudicialdishict,while~w4obligrtesthe department director, whom the judges have appointed. We no& that SC&M 6(b) of article42.131 OftheCodeofCrkninalProcedunrequiresthejudi~districts~ncein services fkom a department to pay the salaries of department petxonnel. In our opinion, therefore, article 42.131 uses the term “employ” inwnsktently. We believe that “employ” in the context of section 2(a) refers to the responsibility of the judicial district to wmpensate departmental personnel.~ See Attorney General Opinion DM-79 at 3 (concluding that “employ” in section 152.0007(1) of the Human Rewurws coderefe!rs only to providing wmpematioq not to hiring). on the other hand. “employ” in the context of section 4 refers to the department directoh obligation to hire necesq pasonnel.
As article 42.13 1 provides the department director, not the district judges, with actual authority to hire 05cers and other employees newssary to petform the professional and clerical work of the department, no violation of the nepotism statute occurs if the department director hires a person related within the third degree of wnsa@nity to one of the district judges.
Honorable John W. Segrest - Page 6 @M-208)
SUMMARY Article 42.131 bf the Code of Criminal Frodurerequiresthe director of a community supervision 6nd wzrections depattment to hire the officers and other employees wcusary to perfoml the professional and clerical work of the department. The judges in the judicial district that the commudy supervision and wrrections dep&mentservesappointthedirectorbuthavenohrtherauthority to hire or to approve the directofs hiring of additional department persod. The word %mpioy,” as used in sections 2(a) and 4 of article 42.131 of the Code of Criminal procedure. has two dZfemnt meanings. In the context of section 2(a), “employ” refers to the responsiiity of the judicial district to wmpensate department perso~d. However, in the context of section 4. “etnp~oy” refers to the department director’s obligation to hire necessary personnel. Because the judges have no authority to hire or approve the hiring of department persormel other than the director, no vioiation of the nepotism statute, V.T.C.S. article %%a, section I(a), occurs ifthedepartmmtdirectorhimsapersonmlatedwithinthethird degree of wnsanguinity to one of the judges in that judicial district. DAN MORALES Attorney General of Texas WlL.L PRYOR
Fi hsktant Attorney General
MARYKELLER
Deputy Attomey General for Litigation
RBNBA HICKS
State Solicitor
MADELEINE B. JOHNSON
Chair, Opiion Committee
Prepad by Kymberly K. Oltrogge
Assistant Attorney General