                                               KEN PAXTON
                                          ATTORNEY GENERAL OF TEXAS


                                                August 3, 2017



The Honorable James M. Tirey                              Opinion No. KP-0157
Hale County Attorney
500 Broadway, Suite 340                                    Re: Whether relatives of a public official may
Plainview, Texas 79072                                     perform uncompensated work for the official's
                                                           office without violating nepotism laws if the
                                                           relatives receive reimbursement of actual
                                                           expenses or a per diem expense payment
                                                           (RQ-0147-KP)

Dear Mr. Tirey:

       You ask whether the State's nepotism laws prohibit a public official from appointing a
close relative to a volunteer position that provides reimbursement for expenses but no
compensation. 1 Your question arises from the following facts:

                 The Hale County Sheriff must, from time to time, transport female
                 prisoners to other facilities away from the Hale County Jail. The
                 Sheriffs brother ... and the brother's wife, have volunteered to
                 transport female prisoners when the need arises. They would
                 receive no compensation for their time and effort transporting the
                 prisoners, but they would use a vehicle owned by Hale County and
                 receive money to defray their expenses ....

Request Letter at 1. In this scenario, you specifically question whether the relatives' service
without pay but with reimbursement for expenses violates the nepotism prohibition under
Goyemment Code section 573.041. Id.; see TEX. Gov'TCODE § 573.041.

         Section 573.041 of the Government Code provides, in relevant part:

                 A public official may not appoint, confirm the appointment of, or
                 vote for the appointment or confirmation of the appointment of an
                 individual to a position that is to be directly or indirectly
                 compensated from public funds or fees of office if [the individual is
                 related to the public official within the third degree by consanguinity
                 or within the second degree by affinity] ....


         1
          Letter from Honorable James M. Tirey, Hale Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. (Jan. 27,
2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable James M. Tirey - Page 2                       (KP-0157)



TEX. Gov'T CODE § 573.041(1) (emphasis added); see also id. § 573.002 ("Degrees of
Relationship"). As you note, the sheriff is a public official for purposes of the statute, and the
prospective appointees are related to him within a prohibited degree. See Request Letter at 2; TEX.
Gov'T CODE§§ 573.001(3)(A) (defining "public official" for purposes of nepotism laws to
include county officers), .023(c)(2) (providing that siblings are related within the second degree
by consanguinity), .025(a) (providing that if two individuals are related to each other in the second
degree by consanguinity, the spouse of one of the individuals is related to the other individual in
the second degree by affinity). Moreover, this prohibition applies to the sheriff's appointment of
individuals to serve any duty. 2 See TEX. Gov'T CODE § 573.001(2) (defining "position" for
purposes of nepotism laws as any "office, clerkship, employment or duty") (emphasis added).
Thus, section 573.041 prohibits the sheriff from appointing these relatives to any duty
compensated directly or indirectly from public funds.

        At issue, however, is whether reimbursing the sheriffs relatives for expenses incurred
while performing appointed duties constitutes direct or indirect compensation from public funds.
In the absence of a statutory definition, this office previously concluded that in this context the
term "compensation" does not include reimbursement for incurred expenses. Tex. Att'y Gen. Op.
No. JM-195 (1984) at 2 (interpreting statutory predecessor to section 573 .041 ). Thus, a volunteer
who receives reimbursement for actual expenses incurred in the performance of appointed duties
is not directly or indirectly compensated from public funds. See id. (concluding "compensation"
for purposes of nepotism laws does not include reimbursement for expenses incurred in attending
official meetings); Tex. Att'y Gen. L0-96-010 (1996) at 2 (concluding section 573.041
inapplicable to position that receives reimbursement for expenses but no compensation); see also
Tex. Att'y Gen. L0-95-089 (1995) at 3 ("Compensation for services and expense reimbursements
are distinguishable."). Likewise, permitting volunteers to use government-owned vehicles in the
performance of their appointed duties also does not constitute compensation. See Tex. Att'y Gen.
L0-95-089 (1995) at 3 (concluding vehicle "may be compensation or a reimbursement for
expenses, depending on whether the governmental body provides it to benefit the employee or to
carry out a purpose of its own"). Thus, under the factual scenario you describe, the sheriffs
appointment of these relatives would not violate section 573.041. 3




         2
          Subject to civil service protections applicable in some counties, a sheriff as an elected county officer has
authority "to select assistants of his or her own choice." Tex. Att'y Gen. Op. No. GA-0037 (2003) at 3 (quotation
marks omitted); see also Tex. Att'y Gen. Op. No. GA-0254 (2004) at 4.
         3 You additionally ask whether paying the sheriffs relatives a per diem rate, rather than paying for expenses
actually incurred, violates section 573 .041. Request Letter at 1-2. Paying a per diem rate may raise fact issues as to
whether a volunteer is receiving a legitimate reimbursement of expenses or compensation. See Tex. Att'y Gen. Op.
Nos. JM-1266 (1990) at 3 (recognizing that governmental entity may not avoid prohibition on compensating certain
individuals "merely by denominating a ... monthly payment an 'expense allowance' rather than a 'salary"'); MW-21
( 1979) at I ("If a lump-sum is utilized [to reimburse a volunteer for expenses], there will be a factual question as to
whether the sum has a basis in fact and reasonable calculation."). To avoid violating section 573.041, the per diem
rate must reflect the expenses actually incurred by the volunteers in the performances of their official duties. See Tex.
Att'y Gen. Op. No. GA-0449 (2006) at 2 ("[R]eimbursements that exceed actual expenses . . . constitute
'compensation.'").
The Honorable James M. Tirey - Page 3           (KP-0157)



                                     SUMMARY

                      Section 573.041 of the Government Code prohibits a public
              official from appointing certain relatives to positions compensated
              with public funds. The reimbursement of expenses, however, is not
              compensation. Thus, a public official may appoint a close relative
              to a volunteer position that provides reimbursement for incurred
              expenses but no compensation.

                                           Very truly yours,




                                           KEN PAXTON
                                           Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee
