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        Hon. C. W. Karisch                  Opinion No. M-710
        County Attorney
        Wailer County Courthouse            Re: Can the wife of the County
        Hempstead,. Texas 77445                 Road Administrator of
                                                Wailer County, which
                                                operates under the Optional
                                                County Road Law (Art. 6716-1,
                                                V.C.S.) be employed in the
                                                Road and Bridge Department
                                                of the County, in view of
                                                Article 433, Vernon's Penal
                                                Code.
        Dear Sir:

             By your recent letter you have asked the following
        question:

                  "Can the wife of the County Road Administra-
             tor of Wailer County be empLoyed in the Road and
             Bridge Department of Waller County?"

             Your letter further states that Wailer County operates
        under the Optional County Road Law of 1947, Article 6716-1,
        Vernon's Civil Statutes.

             Our answer to your question is "yes", the wife of the
        County Road Administrator may be employed in the Road and
        Bridge Department ofiwaller County.

             Article 6716-1, Section 5, reads, in part, as follows:




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        Hon. C. W. Karisch, page 2      (M-710)


                 "If the Commissioners Court is not able to
            employ a licensed professional engineer for any
            reason, then the Commissioners Court is authorized
            to employ a qualified road administrative officer,
            who shall be known as, the County Road Administrator,
            to perform the duties of the County Road Engineer.
            The County Road Administrator shall have had ex-
            perience in road building or maintenance or other
            types of construction work qualifying him to per-
            form the duties imposed upon him, but it shall
            not be necessary that he have had any fixed amount
            of,professional training or experience in engineering
            work. The County Road,Administrator shall perform
            the same duties as are imposed upon the County Road
            Engineer, and all references in other Sections of
            this Act to the 'County Road Engineer shall inolude
            and apply to the County Road Administrator."

             The pertinent part of Article 432, Vernon's Penal Code,
        reads as follows:

                  "No officer of this State nor any officer of
             any district, county, city, precinct, school district,
             or other municipal subdivision of this State, nor
             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, nor
             any member of the Legislature, 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 affinity
             or within the third degree by consanguinity to the
             person so appointing or so voting, or to any other
             member of any such board, the Legislature, or court
             of which such person so appointing or voting may be
             a member, . .."




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        Hon. C. W. Karisch, page 3        (M-710)


             Article 433, Vernon's Penal Code, reads as follows:

                  "The inhibitions set forth in this law shall
             apply to and include the Governor, Lieutenant Governor,
             Speaker of the House of Representatives, Railroad Com-
             missioners, head of departments of the State government,
             judges and members of any and all Boards and courts
             established by or under the authority of any general
             or special law of this State, members of the Legis-
             lature, mayors, commissioners, recorders, aldermen and
             members of school boards of incorporated cities and
             towns, public school trustees, officers and members of
             boards of managers of the State University and of its
             several branches, and of the various State educational
             institutions and of the various State eleemosynary insti-
             tutions, and of the penitentiaries.   This enumeration
             shall not be held to exclude from the operation and
             effect of this law any~person included within its general
             provisions.  Acts 1909, p. 86."

             It is apparent that a County Road Administrator occupies
        the same position that a County Road Engineer occupies, and
        lacks only certain professional training or experience in
        engineering work. Article 6717-1, Sec. 5, supra. However,
        the administrator holds no higher position than the engineer.

             The question of whether a County Road Engineer is a public
        officer was discussed in Dunbar v. Brasoria Countv, et al., 224
        S.W.Zd 738 (Tex.Civ.App. 1949, error ref.) wherein the court
        stated:

                   “From an analysis of said Article 6716-1, it is,
             we think, apparent that the legislature intended in
             enacting the Statute to make the County Road Engineer
             a member of the administrative personnel of the County
             Road Department and not an officer as contemplated in
             Article 16, Section 30 of the Constitution of this State."




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        Hon. C. W. Karisch, page 4       (M-710)


             The Dunbar case was cited in Hill v. Sterrett, 252 S.W.Zd
        766 (Tex.Civ.App. 1952, error ref., n.r.e.).  The court, while
        considering Article 6716-1, stated, in part, as follows:
                   II
                    . . .As relevant to above proposition, the
             following conclusions of law appear to be well settled:
             . . . (7) That sec. 4 of said Road Law, though pur-
             porting to create the office of County Engineer, in-
             vested the incumbent thereof with no discretionary or
             sovereign powers: the sum of his duties being under
             control and supervision of the Commissioners' Court:
             the section on the whole creating an administrative
             position and its occupant an emplovee of the county
             road department."    (Emphasis added.)

             The Dunbar case was further cited with favor in Aldine
        Independent School District v. Standlv, 154 Tex. 547, 280
        S.W.2d 578 (1955).

             In view of the above, it is our opinion that the County
        Road Engineer/Administrator is not a position or "officer"
        within the purview of Articles 432 or 433, Vernon's Penal Code.

                                     SUMMARY

                       The Texas nepotism laws, Articles 432 and
                  433, Vernon's Penal Code, are not applicable
                  to a County Road Engineer/Administrator hired
                  under the authority of Article 6716-1, Vernon's
                  Civil Statutes.

                       The wife of the County Road Administrator of
                  Waller County, which operates under Article 6716-1,
                  Vernon's Civil Statutes, may be employed in the
                  Road and Bridge Department of that County.
                                               ;^I
                                            V&y truly yours,




                                               Attor&y   General of Texas


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Hon. c. W. Karisch, page 5        (M-710)


Prepared by Melvin E. Corlay
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

John Reeves
Arthur Sandlin
Steve Hollahan
Max Hamilton

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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