Gerald   C. Mann



                                       June 16, 1939.


  Hon. E. A. Sutton                    Opinion       No.;O-961
  County Auditor
  Anderson County                      Re:    Nepotism
  Palestine,. Texas

  Dear Sir:

               Your       request   for    opinion      upon the   followiug   question:

                "Can the       commlssioners'.court     gives an in-
         surance agent         a part of the county's      insurance
         business   when       the mother of one. of the commis-
         sioners   is the       agent's   grandmother's    sister?"

  has been    received       by this      department.

                Article      432,   Penal    Code of      Texas,   reads   as follows:

                 "Nepotism.      No officer       of this state or any
         officer    of any district,         county,     city,   precinct,
         school    district     or other municipal          subdivision     of
         this ,state,      or any officer        ofmember      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 anymember of the Legislature,
         shall appoint,        or vote for,       or conf~irm the appoint-
         ment to any office,          position,,     clerkship,     employment
         or duty, of any person,relating                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, when the
         salary,    fees,     or compensation        of such appointee        is
         to be paid for,        directly     or indirectly,        out of or
         from public       funds or fees of office            of any kind or
         character     whatsoever."

              On May 7, 1914, this department heid,     in an opinion
  written  by Hon. C. W. Taylor,    Assistant  Attorney  General of
  Texas, that it would not be a violation      of the anti-nepotism   law
  for a sister   of the county judge, who is an insurance      agent, to
  write a policy    of insurance for the county.     We quote from said
  opinion  as follows:
                                                                                           ,   P-3




Hon.   E. A.     Sutton,     page    2 (O-961)



                “The department          is In receipt          of your communl-
         cation    of recent date,           la which you propound the
       ‘question       of whether or rr0.t ‘it would be a violation
        of the anti-nepotism            law, on the part of the county
         judge,    for an agent of an insurance                   company, who
         is a sister        of the county judge,            to renew a policy
         that was written          before      the said county judge was
         installed       into off ice.        Replying      to your inquiry,
        we beg to advise           that in our opinion              such a trans-
        action     could not be held to be a violation                        of
        Article       381, known as the anti-nepotism                     statute
         for the reason that under this phase of the statute
        there must have been an appointment                       to some em-
        plogment or duty that the clerk                   so employed should
        ‘perform on the part of or on behalf                      of the ~county,
         to be paid therefor           by funds of the county.                   An
         insurance      agent,     In the ordinary          transaction          of
         the insurance        business,       does not become the agent
         of the Insured,         but remains the agent of the corn-
         pang represented          by him or her.           Of course,          there
        are fransactioas.between’               the insured and the agent
         of the company whereby the agent of the cqqang
        may become the agent of the -Insured,                       but this
         statute     -azFfses, for illustration,              where the com-
         pany represented          by the agent for reason declines
         the risk offered          when the agent agrees with the
         insured to procure           insurance       from a company not
         represented        by the agent.          Under such a state of
         facts,    the insurance         agent becomes the agent of
         the insured and a transaction                  of this kind,           In our.
        opinion,       would be prohibited            by the anti-nepotism
        law.      In a case, however,             where the insurance
        agent writes         a policy      for the county in a company
        represented         by the agent,         then the agent is repre-
         senting      the company and is in no sense the agent of
         the county nor is the agent .performing                        any duty or
        accepting        employment from the county,                  but is simply
         representing        the company as its agent.                    The fact
         that the. policy         in quest ion Is a renewal,                 would. not,
         in our opinion,          If the original         transaction           was a
         violation       of the law, cause a different                    construc-
         tion,    for the reason that a renewal of an Insurance
         policy     Is a separate        and distinct         transaction,          a
        new policy        being written         and a new premium paid;
         nor would the fact that the law fixes                        the premium
         cause the rule         to be different..          . . . . . . . . You are,
         therefore,       advised     that in our opinion                It would not
         be a violation         of law for a sister             of the county
         judge,    who is an agent of an Insurance                      company, to
         write a policy         of insurance         for the county.”
Hon.   E. A. Sutton,   page 3 (O-961)



           You are therefore respectfully     advised that it Is the
opinion  of this department that it would not be a violation           of
the nepotism law for the commissioners'      court   to give an lnsur-
ante agent a part of the county's    Insurance     business    when the
mother of one of the commissioners     Is the agent's      grandmother's
sister.

            Trusting   that   the   foregojng           answers     your   inquiry,   we
are

                                      Very      truly      yours,

                                      ATTORREYGENERALOF TEXAS



                                      By /s/       Wm. J. Fanning
                                                    Wm. J. Fanning
                                                         Assistant

WJF:AW:hp
                                                            APPROVED
APPROVED                                                    Opinion
                                                            Committee

                                                            By RWF
/s/ Gerald C. Mann                                           Chairman
ATTORNEYGEEERALOF TEXAS
