          .

                                                                          R-20




Honorable Clayton Bray,
County Attorney, Sutton County,
Sonora, Texas                                  Oplnlon No. V-20
                                               Re:    Whether or not a daughter
                                                      of the Sheriff may 5erve
                                                      as deputy without        pay.   And
                                                      a related    question.
Dear Sir:
              Yam       request   for   an opinion   upon the above titled        sub-
ject    matter       15 as followe:
              “Uill ye advise a8 to whether the Nepotism
       Statute,    or any other pizohibltion statute, pre-
       cludes a shsr;ff,,from   making the following  appoint-
       ments:
              “(1)       A daughter  to be Deputy without pay.
                         If she may not be a Deputy without’
                         pay, may she aeeiat in the office’ a8
                         a voluntary worker?
              “(2)      A huqband of an already appointed Office
                        z;yt&    #aId husband to be e Deputy with-
                               .
        “Obviously,   the appointment of a Depltg wLthout pag                    ’
       would be to the advantage of the Sheriff      a5 it would
       enable him to dlscti%ge the duties of his offloe
       with a min1m.m expense, however, I am quieelcal      a-
       bout the sanctity    of the public records of the Sher-
       iff's  duties,as   a Tax Assessor and Collector,   and a-
       bout the usual authority     of a deputy to do all
       things his principal     might do,. even though the dep-
       uty serves without pay.
              Article      3902 of the Revised       Civil   Statute5   as far as
pertinent      is au follows:
               “Whenever any district, county OP precinct
       officer    shall require the seFvicea of deputies,
       assistants    or clerks in the performance of hia
Hon. Clayton Bray, page 2                v-20


    duties he shall apply to the County Commi.ssfoners
    Court of, his county for authority         to appoint such
    deputies,    assistants    or clerks,   stating by sworn
    application     the number needed, the position        to
    be filled    a?$ the amouiWto be paid* Said appli-
    cation shall. be accompanied by.a statement showing
    the probable receipt       from fees, cdmmisslons and
    compensation to b’e collected        by said office    dixr-
    ing the fiscal      year cind the’probable    disbursements
    which shall Include all salaries         and expenses of
    said office,     and said court shall’make Its order
    authorlrilhg the appointment of such deputies,            as-
    sretants and clerksand fix the compensation to be
    paid them within the llmitatlona         herein prescribed
    and determine the number to be appointed as in the
    discretion    of said court may be proper; provided
    that in .no case shall the Commfsaioners t Court or
    any member there attempt to influence          the appolnt-
    ment of any person as deputy, assistant           or clerk in
    any office.      Upon the entry OP such order the offi-
    cers applying for such asslstahts,          deputies    or
    clerks shall be authorized tb appoint them; provid-
    ed that said compensation shall not exceed the max-
    irrmmamount hereinafter       set out.     The compensation
    whLch may be’allowed      t. the deputies,     assistants     or
    clerks above named fo ;P the services        shall be a rea-
    sonable one, not to exceed the following           amounts :
           “1 * In countiee having a population of twentg-
    five thouqand (25,000) or less inhabitants,    first
    assistant ‘or ohief deputy not to exceed eighteen
    hundred ($1800) dollars   per annum; other assistants,
    deputies or clerks not to ex@eed $i:tm$n hundred
    ($1500) dollars   per annum each,
           This bracket   provision    applies   to Sutton County.
           A deputy sheriff    is a public officer   as contra-
distinguished    from a mere employee of the sheriff,       and Is charBed
with the p~rformanoe Of certain governmental functions.           The
office   is created by law0 The appointment of such deputy is reg -
ulated by law,      To becolpe a.depixty sheriff;’ therefore,   the statutes
regulating    such 6ffice   and the manner of fil%fng must be compli6d
with,    The mere vbluntarg’servfcea     of one in the sheriff’s    offfce,
Wth or.wlthout      gag from any h)oiwoe, “~would not make such volunteer
a deputy’ sheriff D He would be a stralager to the duties of the
ehetifff and wouPd not be authorFzecP to perform any of them what-
soever o
           It IE the poliCy   of the law to fix’ and allowI;o;~e;M;tion
adequate   to the offfofal    services to be performed.
Hon. Clayton Bray, page 3                 v-20
                                     .:


contemplated by law that any officer         sha2.L hold or exercise any
plblib offtoe upo.n, any consideration       other then that provfd@ by
the law creatlng+&ls   office.
           So emphatically   does the law require this that the
framers of our COnstitutlon     have written an official  oath to be          :.
taken by the officer    solemnly swearing, “that I have not directly           ‘I
or lndlrectlg   paid, offered,   or promised to pay, contributed,   or
promised to contrlbute     any money, or valuable ,thing, or promise3
any public office    or employment, or as a reward for the giving or
withholding a vote at the election     at which I was elected.”
(Art. XVI, Sec. 1,)
            In State vs. Humphreys, 12 S.W. 99, a quo warrant0 case
before    the Supreme Court,, Justice Gaines, afterwards Chief JustLce,
oonaidered Mr e Humpbreys t public announcement for oandldates ,for
county clerk in the following       words:  “To the voters of Mills
County: As I have been unable to make such a oanvas as was
necessary to infdrm, you in person of my views on the question of
ox-officio    services,   I beg leave by this method to aay that, if
elected to the office      of county clerk,  I will serve for the fees
of the office,     and without ex-officio   pay.”
            Concerning this the Justice said:         “To permit a candl-
date, in order to influence       the voters,    to hold out a promise
that he will serve in case of election         for less than the fees ‘or
salary fixed     by law, is to thwart the will of the LegFslature,
and to defeat the object of the law,          It 15 unjust to honest
aspirants who rely upon their merits for polltlcal           preferment,
and tends to degrade ,the public service by making the offfces            not
the reward of official     capacity and honorable conduct, but the
prey of those \?po, by reason of incapacity         to earn a livelihood
in the common pursuits of life,       and wllllng    to undertake the
duties of public service for less sum than the Legislature            has”
detmed an adequate compensation for the work.            It puts up the       8
offices    of the State to the lowest bidder,       and conduces to ln-
fluence the voters to lose sight of the personal fitness            of the
respective    candidates,  and to be governed by consfderatLons        of a
false eoonomy I) It Is gratifying      consideration     that this practice
has been of such Infrequent occurrence         in our State that the
Legislature    has not felt called upon to pass a etatute In aid of
the Constltutlon     more effectually   to r?medy the evF1.”
         The soun&$ubllc     policy of the State thus announced         ia
supported by the’&.&tlcels     quotations from standard textbook
wrFtera and judlclal    declslons O
                                                                              .~
          While deputy sheriffs    are not selected    by popular elec-
tions,  they are nevertheless   officers   of the State who.are re-
gutred to take the Constltuttonal      oath of offlce,   and the same
high standard of policy applies to them as to elective        officers.


                     ‘I
       Hon. Clayton Brag, page 4             v-20


                 If a prOWee such a8 that made by canaidate Humph~eys
       to accept comp6nsatfon at a lesser sum than that allowed by law
       is censuFable,“for  nsnch gsea%er lpeaaon the promise of one to ~889’90
       without any reslneratlon   fs offensfve  to the policy of %he State.
                                                                         .~.,
                     Throop, a reapeotable  authorfty  on Public Offfc6pe;    has
        this to 88 0 ‘Every pepson gho 18 appofn%ed to any office          of’
        this kind f public)
                       ’       1s forbidden to make, and the person who makea
 <+*    the appbfntment fs forbidden to receive,       any paymen% In respect
        of the appointment 0” (set b 52) 0 Again he say;        “An English
        case, where, such a bargain, between~ a lIPanfcfpal corporation     and
        its officer,     was decreed in equity to be unlawful,    as being
,’     against plb$ic polWg,        on the ground thert the law would not allow
       any bargain to be made, reepsotfrg       an appointment to a public
        office,    and also beoause the officer    Is considered to require
        them (his fees)      sto enable him to uphold the’ dignity ‘and perform
       the duties of hfs offfoe’ wa8 fully cited fn a former chapter.”
        (Set m 452) o Yet again $6 safsin “A board Of officers,        havfng the
       power of appointment to an offLoe,       oannot reduoe the amount,
       ffXed by law as %bs salary Of the office,         or make a binding eon-
        %??a&, with the pemon agpofntW to till         it, to perform its ilutlea
       at a less aurn0 and the acceptamcr of the office        bg him, and his
       dfacharge’ of ‘&he &ta$fesrthereof,    do not oon&f%ute a bintiimg ccn-
       .tract to accept au&i PeduoeiI sum, or a waivep of the statutory
       p~?ovliaioit;   but he aan aftePwar"&a enfOrm hii, right   %O %h& statu-
        tory’aalsPg,     bg mandamus, or other appropH.ate legal p~oeeedfng.”
        (Sea. 456) o
                  Cf&tek%iooa, &a. eialkm~~ aPath@Pfty on Public Policy,
       “So far haa the Bpoc%rI~e wbfoh prohfbfta       anything that migh?!:i
       fluence the aeleetion     of #MALo 0fffoePr ‘from other o6nsidere-
       tfons %hm that of’pw5oma~ merit besaa aamL16, %%a%an electlom
       secured lag a poaomiae on %he pap% bf a candidate to pepfom %Re
       dutfea of the ofifce     to whieh.he eglpfre8, if e%eoted, fop less
       than the legal fees or saPaPy~ fa void.         Chn6hp??omfses tend to
       swerve’the voters Pram $18 duty a8 a ~f%fzsn; to blind hfs peroep-
       tfons aB to the sole question he ubOul& con~&W?~ --- ,%he qualf-
       fWa%ions of the oaM2dats ---anfl         to fir them upon considera-
       tions,  altoge%her fo46eign to the props       exePofee of the highest
       right known to free men, the Fight of 8luffrage -- a Light upon
       whose abaolutsly   free and epntz?anapnePl~elsr~oise depend8 the
       pe~petuitg of O~P republican: fnatf%ut;fon& a E~wever lauudable fte
       object,   ft fe demo~a$LzAng fn ftar taadlenefep,, and utterly     aub-
       ve~slve of the plafneat       dfe%a%ss of pnbUc policy0
                We will ilwthe~ say8 however, there Is no law of nepotf em
       OP other whateoever %ha%would forbfd a’she~iff     to have another,
       pepson in his offfae w%o $ratuLtatsPy pe~fo%sus manual OP efePfea1
       work no% pertainfng  to the official  dutfep, of the klherfff 0 SW%
       person would be acting in hfa ‘fncUvfdua% capacity and not in any
       attempted capacity set a deputy or even an employee.    Such a Pel-
Hon. Clagton Bray, Page 5               v-20


ation   would no% be contractual     or binding    on anyone.
            Further, we will say there Is nothing iti the law which
would prevent a sheriff     from appointing the husband of a woman
whopwa% already appointed an office      deputy, merely~ because of that
tielationship,   and where, of course, such husband was sppointed
as regular deptles     are appointed,   and not as a voluntatiy worker
“‘without pay.
         Thus far we have dealt particularly    with the ques%idn
of a deputy sheriff  serving without pay.    In order that we may
be sure to cover every phase of the question raised by your in-                 ”
quirg, we now discuss the features of nepotism.
             Article   432, penal code, reads as follows:      “No officer
 of this State or any officer      of any district,    county, city,    pre-
 cinct;   school district,    or other m.Niicipal subdivision    of this
 State, or any officer      or member of any Sta%e, district,     county,
 city;school      distr$c% or other mnicipal     board, or judge of any
‘cixart, areated 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,          positton,
 clerkship,    employment or duty, of any peraon related within the
 second degree by affinity      or within the third degree by consangui-
 nity to the person so appointing or so voting,         or to any other
 member of any such board, the Legislature,         or court of which
 such psrson 80 appointing or so voting, may be a member, when the
 salary, feea or compensation of such appointee is to be paid for
 directly    or indirectly,   out of or from public funds or fees of
 office   OP any kind OP character whatsoever.”
           Discussing    our questions seriatim,     we beg to advise the
Nepotism Statute wou9d no% prevent a sheriff’s         appointing his
daughter to be deputy without pay (if any person cculd be appointed
depaty without pay) since aa ia seen from the Nepotism Statute ‘,
above quoted, ;%lis not applicable      p x CBDtw heI?e it involves DayA
ment Out of ~1 1 c funds as comnenaation.          There is no statute,
whether fiepotiam or other, that would prevent the sheriff’s         per-
mltting a voluntary     worker in his office,     to do clerical  or other
unoffiaial   work.    The husband of a woman who is already an office
deputy as we have”shown above, could no% be appointed deputy with-
out pay, but there is no rsason why he might not be appointed a
deputy in the statutory method unless,        of course, he is related
to the sheriff    within the prohiblted     degree above quoted.
         These authorities  IAPBOld, but the sound principle    of
mblic  policy there announced is itself   old and well-grounded    in
any Democratic system OS seleotion  of plbllc  servants.
          We know of no court      declaion    OP text   writer   announcing
any contrary rule.
    Hon. Clayton BPEI~, p&e        6          v-20



             There is an opinion    by this department, however, No.
    o-1896. which oontaina   this language:   “Thus we advise thst the
    sheriff   has authority, with the approval of the commissioners’
    Court, to appoln% an additional    deputy to serve without any com-
    pensation.”    TRe wrl%eP of that opinion cites no authority for
    the holding; and indeed such statemen% was not a% all necessary             ..
    to a complete answer to the only queatlon propounded to him ,for
    an opinion Q His dfscussfon    of the pertinent  statzltes ~involv.&?l
!   in the request shows ths$ %he,language above quoted was not re-
    sponsive o The question ‘of public policy waa In no way presented
    OP cons ideped a We think the opinion should be ov,erruled, and it
                                                                               . ,’


    is here overruled insofar as i% announcea %he doctrine that the            ‘I

    sheriff  may fn alag event bargafn with 0 depltg to accept the
    office  for any consideration   o%beF than the compensation therefor
                                                                                    t


    as fixed by law,                                                                I




               These considerations,    we think, compel a negative   answer   0’
    to all of your inquiries     involving  ln any way the question of
    the right to appoint an deputy sheriff        without compensation,
    regardless   of any consi i eration of the Statute of Nepotism0
             This concluglion Fe in line with the opinion by this De-
    partment of date April 26, 1932, written by Assistant Attorney
    General Scott Qainea, to Honorable Wapdlow hne,    County Attorney
    of Shelby Counfg.
              SUrnRY : (1)  The public policy of this State
        forblds the appointment of a depatg sheriff  to serve
        without pay.
               (2)    A sheriff’s daughter mery~%awful.ly perform
        non-official,     manual, or clerical   sewices    for him,
        but such gpatuitoua services       are VoluntaPg a~cl the
        agreement thepefor binds no one, and Imposes no du-
        ties upon the daugh%er ;nos llabflltles       on ithe father
        or the county.
              (3) T%e husband of a                      appointed dep-
        utg, may not lawfully be appointad             eputy 8herlff
        without pay.
              .(4)   8uch hubian&      of a depm%T may lawfully       be
        appointed depr%y in; the statutory           manner of such
        appofritment Q




                              .:
Hon. Clayton Brag,   page 7        V-20


                                Very truly   yours
                              ATTORNEYG~ERALOFTEXAS

                                By s/Ocie Spear
                                      Ocle Speer
                                     Assistant
gS/JMc/jrb/wc

APPROVED FEB. 4, 1947
s/Price Daniel
ATTORNEY GENERAL
Approved Opinton Committee
By BUB Chairman
