                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                               January 17, 2008



The Honorable Eddie Lucio, Jr.                            Opinion No. GA-0595
Chair, Committee on International
  Relations and Trade                                     Re: Applicability of the nepotism statutes,
Texas State Senate                                        Government Code chapter 573, to an individual
Post Office Box 12068                                     employed by the City of Pharr (RQ-0608-GA)
Austin, Texas 78711

Dear Senator Lucio:

        You ask several questions about applying the nepotism statutes, Government Code chapter
573, to the City of Pharr's employment ofa particular individual.! Your questions arise from the
following fact situation, as relayed to you by the city's mayor:

                 [A] member of the city's governing board of commISSIoners
                 recommended to the city manager that a particular woman be hired
                 for a city job. The woman was not at that time married to the
                 commissioner's son, but before being hired by the city gave birth to
                 the child of the commissioner's son. A city department head and the
                 city manager subsequently hired the woman as a clerk and, after the
                 employment began, the woman and the commissioner's son married.

Request Letter, supra note 1, at 1; see also Ryan Holeywell, Questions ofnepotism raised in Pharr,
THE MONITOR (Aug. 16,2007), available at http://www.themonitor.com (last visited Jan. 8,2008).

        You specifically ask:

                        (1) Did the birth of a child whose father is the son of a city
                 commissioner create a relationship by affinity between the
                 commissioner and the child's mother such that employment of the
                 mother by the city violates Chapter 573, Government Code?



         lSee Letter from Honorable Eddie Lucio, Jr., Chair, Committee on International Relations and Trade, Texas
State Senate, to Honorable Greg Abbott, Attorney General ofTexas (July 18,2007) (on file with the Opinion Committee,
also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Eddie Lucio, Jr. - Page 2              (GA-0595)



                        (2) If a relationship subject to Chapter 573, Government
               Code, existed between the commissioner and the woman, did the
               city's initial decision to employ the woman, which was not made by
               the board of commissioners, violate Chapter 573?

                       (3) Does the subsequent marriage of the woman to the
               commissioner's son prohibit the continued employment ofthe woman
               by the city?

                      (4) Does the continuous employment exception to the
               nepotism laws apply if a relationship by affinity is created after· a
               public official takes office?

Request Letter, supra note 1, at 2-3.

        Chapter 573 of the Government Code generally prohibits nepotism by public officials,
including municipal officers. See TEX. GOV'T CODE ANN. §§ 573.001(3), .041 (Vernon 2004).
Under section 573.041, a "public official may not appoint, confirm the appointment of, or vote" to
appoint or confirm the appointment of an individual to a position that is "compensated from public
funds" if "the individual is related to the public official within" the third degree by consanguinity
or within the second degree by affinity. Id. § 573.041(1); see ide § 573.002 (setting out the
degrees of relationship to which chapter 573 applies). Consanguinity refers to relationships by
blood, including adoption, and is calculated by counting the number of generations that separate
two individuals. See ide §§ 573.022, .023(a). Affinity refers to relationships by marriage and is
generally calculated by determining the degree of the underlying consanguine relationship. See ide
§§ 573.024(a), .025(a).

        All of the issues you raise can be resolved by answering your second question: Even
assuming that a relationship by affinity existed between the commissioner and the woman appointed ,
by the city manager, does chapter 573 apply to her employment and retention by the City of Pharr?
See Request Letter, supra note 1, at 2.

        Under a 1981 decision of the court of civil appeals, Pena V. Rio Grande City Consolidated
Independent School District, the nepotism statute applies to officers who have the "exclusive right
and sole legal authority to appoint or employ" personnel under the statute. Pena V. Rio Grande City
Consol. Indep. Sch. Dist., 616 S.W.2d 658,659-60 (Tex. Civ. App.-Eastland.1981, no writ). An
officer with statutory authority to appoint or employ personnel does not avoid the application ofthe
nepotism statute by delegating authority to an officer without such statutory authority. See ide at 660.

        Citing Pena and attorney general opinions premised upon Pena, this office stated in 2004 that
a home-rule municipality's governing board avoided the application of section 573.041 to board
members' relatives if the board had, by charter, delegated "full and final appointing authority" and
had not "reserve[d] any authority to the governing body." Tex. Att'y Gen. Opt No. GA-0226 (2004)
at 3. Thus, for example, the nepotism statutes did not apply to a city manager's hiring ofindividuals
The Honorable Eddie Lucio, Jr. - Page 3                      (GA-0595)



related to city commissioners where the home-rule municipality's charter delegated to the city
manager sole power to appoint and remove all officers and employees in the administrative service
of the city (with the exception of the city attorney) and expressly prohibited the city commission
from taking any part in the appointments. See id.; see also Tex. Att'y Gen. Ope No. 0-5274 (1943)
at 1-3, 10.

       The City of Pharr is a home-rule municipality. See TEXAS ALMANAC (2006-2007) at 453,
461; TEXAS MUNICIPAL LEAGUE, TEXAS CITY OFFICIALS DIRECTORY AND BUYER'S GUIDE
(2005-2006) at 100. According to your letter, the city charter deems the city manager to be the city's
"chiefadministrative and executive officer" and provides the city manager with exclusive power to
appoint city employees below the department-head level:

                         [The city manager] shall appoint, subject to consultation with
                 the Board of Commissioners, all department heads, and without such
                 consultation all City employees and appointive administrative officers
                 provided for by or under this Charter, except as otherwise provided
                 by law, this Charter or personnel rules adopted pursuant to this
                 charter .... 2

Request Letter, supra note 1, at 1 (quoting Pharr City Charter art. IV, § 1(a), (b)(2)) (footnote added).
As you describe it, "the Pharr city charter grants the city manager the authority to hire city employees
below the level of department head without the approval or involvement of the board of
commissioners." Request Letter, supra note 1, at 3. You further explain that, under the City of
Pharr's charter, the board ofcommissioners does not appoint, confirm, or vote to appoint or confirm
any employees other than department heads. See ide Because this office ordinarily does not construe
city charters, this opinion is premised on your characterization of it. See Tex. Att'y Gen. Ope No.
GA-0529 (2007) at 1.

         The city manager hired the woman about whom you ask to fill a clerk's position, and your
letter indicates that the clerk's position is not a department head's position. See Request Letter,
supra note 1, at 1, 3. Consequently, the city charter, as you describe it, required the city manager to
appoint the clerk without the board of commissioners' approval or involvement. 3 See ide at 3.

        Whether in fact the city charter delegates to the city manager "full and final appointing
authority" and does not "reserve any authority to the governing body" is generally a question for the
appropriate municipal officials to answer. Tex. Att'y Gen. Op.No. GA-0226 (2004) at 3. In these
circumstances, however, and assuming that you accurately characterize the City of Pharr's charter,


         2We assume that no other provision ofthe city charter or any city personnel rules abrogate the city manager's
appointing authority under article IV, section 1(b)(2) of the Pharr City Charter.

        JYour letter suggests that "[a] city department head and the city manager" hired the woman. Request Letter,
supra note 1, at 1. The department head's role in the hiring is irrelevant to the nepotism analysis, assuming that the
department head exercises no delegated authority in the hiring process under the city charter.
The Honorable Eddie Lucio, Jr. - Page 4                    (GA-0595)



chapter 573 does not apply to the city manager's hiring of an individual who is related to a city
commissioner to a position below the department-head leve1. 4

        Because this conclusion resolves the situation, we need not answer your remaining questions.




        4We assume for purposes of this opinion that the commissioner's daughter-in-law is not related to the city
manager within the third degree by consanguinity or within the second degree by affmity. See TEX. GOV'T CODE ANN.
§ 573.002 (Vernon 2004).
The Honorable Eddie Lucio, Jr. - Page 5            (GA-0595)



                                      SUMMARY

                       The charter of the City of Pharr, a home-rule municipality,
              delegates to the city manager the power to appoint individuals to
              positions below the department-head level without consulting the
              municipal governing board. If the charter provides the city manager
              with full and final appointing authority to appoint individuals to such
              positions and reserves no authority for the city's governing body in
              these appointments, the city manager may appoint an individual who
              is related to a city commissioner, but who is not related to the city
              manager, without contravening the nepotism statutes, Government
              Code chapter 573.

                                             Very truly yours,




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General· for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
