We acknowledge receipt of your letter posing the above titled subject-matter, your letter being in full as follows:

"We have a janitor here in the courthouse, who is employed by the Commissioners' Court and has been on this same job for approximately eight (8) years. This man's wife is a half-sister to one of the Commissioners-elect.

"Can this man legally remain on his present job after the first of the year, when the above mentioned Commissioner becomes a member of the county?"

First, we will determine whether or not the employment by the Commissioners' Court of the janitor violates the nepotism of our Penal Code:

"We officer of this state or any officer of any district, county, city, pre-sinot, school district, or other municipal subdivision of this state, or any officer or member 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 any member of the Legislature, shall appoint, or vote for, or confirm the appointment to any office, position, clerkship,

*2 Honorable N. I. Feater - page 2 employment or duty, of any peraon related within the aseond degroe by affinity or within the third degree by omoangainity to the peroon so appointing or so veting, or to any other menher of any oueh board, the leegielature, or court of which oueh peroon so appointing or voting may be a menher, when the salary, fesg, or compenantion of oueh appointeo 18 to be paid for, direotly or in directly, out of or from public funde or fees of office of any kind or oharacter whatsoever." Penal Code, Article 432.

We aneme the janiter 18 not related to the Commiagionor by omoangainity or blood, and the question therefore is to see whether he 18 related to the Commiagioner by affinity.

More then a hendred years ago Texas adopted the Comon Law of England which, together with the constitution and the atatutes of this state, should be the rule of deciaion.

Heither the Omatitation nor the atatute definea the term "affinity", so that the matter is controlled by the Common Law rule. That rule 18 as follows: "000. At oomen law, the term hae been varioualy defined as the connection existing in consequence of marriage between each of the married persons and the kindred of the other; the connection formed by marriage which plecee the huaband in the same degree to the blood relations of the wife as that in which she herself atande tovarde them and gives the wife the same connection with the blood relation of the huaband; the relation contracted by marriage between a huaband and hia wife's kindred and between a wife and her huaband's kindred, in contradictionction from omoangainity, or relation by blood; the relationahip which arisee by marriage between one of the parties and the blood relations of the other; the the which arisee from the marriage between the huaband and the blood relations of the wife, and between the wife and the blood relations of the huaband."

While it 18 not sheen that the Commiagioner has a wife, nevertheless the janiter has one, and relationahip is mutual -that 18, blood relatives of the janitor's wife are the affinity relatives of the janitor himself; the Commiagioner being a blood

*3 relative of the first degree to the wife, therefore, becones related by affinity to the janitor in the first degree. It is true you did not expresely ask this question, but we nevertheless think it not inept.

Answering specifically the question posed by you, it 12 our opinion the janitor may not be continued in his position upon the ineouing of the new Coma: 1 aionera ^[1] Court.

It will be seen from reading Article 432 of the Penal Code the prohibition of kinship between an employer and an appeinting court applies to kinship to "any other member of any such e e e court" of which such related person may be a member. The Coma: 1 acionera ^[1] Court 12 a biennial body, and the ineouing court will be a new court, notwithstanding it may be made up of the same personnel for the most part of the preceding court. This holding is in line with the previous opinions of this department.

In our opinion No. 0-1408, approved September 29, 1929, we hold that where a country hires a truck driver by the month, whe later becomes a son-in-law of a County Commissioner, such relationship came within the purview of Article 432 of the Penal Code, and the auditor should not approve payment for his services. so, also, in our opinion No. 0-6408, approved February 16, 1948, we answered that the fact that Thomas Davis (an employee of the Coma: 1 acionera ^[1] Court) received his appointment and assumed his duties prior to the election of Fred Miller, (a Commissioner kinawam within the prohibited degree) who consequently did not vote to confirm his appointment, did not exempt the situation from the operation of the Hepotiom statute. We there said: "The payment of the salary of the appointee of the Coma: 1 acionera ^[1] Court 12 in violation of the Hepotiom law. The fact that such person re- ceived his appointment and assumed his duties prior to the olection of a County Commissioner who atande in the prohibited degree of relation- ship to him, would not remove his position from the Hepotiom statutes."

Very truly yours ATTOHNEY GENERAL OF TEXABY By Ocic 0 ficeat 08-WR ASFIRTANT