Mr. Kenneth W. Littlefield               Opinion     NO.   JM-1175
Commissioner
Texas Department   of Banking            Re:   Whether the Department    of
2601 N. Lamar Boulevard                  Banking may     hire the son of a
Austin, Texas    70705-4294              member of the Finance     Commis-
                                         sion    (RQ-1999)

Dear   Mr.    Littlefield:

      You ask whether the Banking Department  may hire the son
of a member of the Finance Commission   as a hearings   officer.
We assume from your letter that the position    in question    is
a classified  position.

      The applicability       of   the   nepotism    statute,     article
599621, V.T.C.S.,    depends 'on whether the Finance          Commission
may exercise   control over       the hiring decision     in   question.
Pena v. Rio    Grande Citv       Consol. Index.     School Dist.,      616
S.W.2d   658    (Tex.    Civ.     APP.   -   Eastland,    1981).       The
relationship   between     the    Finance Commission,      the    Banking
Commissioner,    and   the Banking      Department   is   described     in
part in article 342-201, V.T.C.S.,         which provides:

                 By and with the advice and consent of              the
             Senate, the Finance         Commission,     by at    least
             five (5)     affirmative      votes, shall       elect    a
             Banking Commissioner        who    shall serve at      the
             pleasure    of the Finance Commission,           provided
             that the Banking        Commissioner     first    elected
             shall take office        at the     expiration    of   the
             term    of   office      of   the    present      Banking
             Commissioner.        Saidr
             shall    be     an     emolovee     of     the    Finance
             Commission     and   subiect     to    its   orders    and
             directions.      The    Banking Commissioner         shall
             receive such compensation         as is fixed by       the
             Finance     Commission.         The    salary     of     an
             employee    of   the    Banking Department        in   any
             other exempt       position     may    not   exceed    the
             amount that is $2,000 less than the salary of
             the        Commissioner.             The         Position
             Classification      Act of 1961 (Article         6252-11,
             Vernon's    Texas Civil      Statutes)     applies to     a



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Mr.   Kenneth   W.   Littlefield   - Page   2    (JM-1175)




          position   of the Banking Department           only if it
          is   classified      in   groups     l-10     under      the
          position   classification        plan     in   effect     on
          January    1,    1989,    or    comparable       positions
          under any successor       plan.     The legislature       in
          the General Appropriations          Act may      determine
          the total amount appropriated           to the     Banking
          Department    but may     not   determine     the    number
          or   salaries     of    employees      of    the   Banking
          Department    in exempt positions.           The   Finance
          Commission,    subject to the limits provided             by
          this article,     shall     determine     the number      of
          employees   of the Banking Department            in exempt
          positions      and      the     salaries       of     those
          employees.     The    Banking Department          may    use
          funds appropriated       to it    for any purpose         to
          pay the    salaries determined          by the     Finance
          Commission.      (Emphasis added.)

The statement     that   the Banking Commissioner          is subject     to
the orders of the Finance Commission           would seem to      indicate
that all    decisions,      including     hiring    decisions,     by    the
Banking    Commissioner      or   subordinate      Banking      Department
employees   are subject to       review by the Finance        Commission.
If that were      so, the    nepotism    statute    would prohibit       the
Banking Department      from hiring     the son of      a member of      the
Finance Commission.        See Pena,      suora.    The   Texas    Supreme
Court, however,     has rejected     such a broad interpretation          of
the   Finance      Commission*s     authority       over    the     Banking
Commissioner.      In Ch emi cal Sank & Trust Co. v. Falkner,            369
S.W.2d 427     ITex.    19631.    the   court    determined      that    the
Banking Commissioner       was
                             I. a    state officer,      rather than      an
employee,     for   purposes     of   article     1733,   V.T.C.S.        In
reaching that decision       the court wrote:

          While   the  statute    does    say   the    Banking
          Commissioner  is an    'employee    of the   Finance
          .Commission and   subject    to   its   orders    and
          directions',  he is far more than an        employee
          of the Finance Commission     because   of the many
          powers and duties given      him directly    by   the
          Legislature  which    are   not   subject    to   the
          control of the Finance Commission.

&&   at 430.    The court gave no examples       of powers and duties
of the Banking     Commissioner     not subject     to control of     the
Finance Commission.       Because    we find no     instance   in which
the legislature     stated    explicitly   that a power or duty        of
the Banking Commissioner       was not    subject to the control       of
the Finance Commission,        we must conclude      that the    Supreme
Court found     that limitation      on the    power of    the   Finance
Commission   to   be    implicit    in   certain    statutes    granting


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'Mr. Kenneth   W. Littlefield     - Page   3    (JM-1175)




specific powers     to   or   imposing   specific     duties    on   the
Banking Commissioner.       To answer your question,      then, it    is
necessary   to   determine    whether   hiring    decisions     of   the
Banking Commissioner     or   his subordinate   Banking     Department
employees    are   subject    to   the  control    of   the     Finance
Commission.

      The only statute other than article 342-201 that      deals
in any detail    with employees   of the Banking Department     is
article  342-213, V.T.C.S.,   which provides:

             1.    The    Banking    Commissioner     or     his
         designee   shall develop an intraagency         career
         ladder program,     one   part of   which shall      be
         the intraagency     posting of all nonentry      level
         positions    for   at least    10 days   before     any
         public posting.

             2.    The    Banking      Commissioner      or    his
         designee    shall    develop    a system     of    annual
         performance     evaluations     based on     measurable
         job    tasks.     All     merit    pay   for     Banking
         Department    employees     must    be based     on    the
         system established       under this section.

              3:    The Banking Commissioner        shall prepare
          and    maintain    a     written     plan   to     assure
          implementation       of     a    program     of     equal
          employment    opportunity     whereby all      personnel
          transactions    are made without regard to race,
          color, disability,         sex,   religion,     age,    or
         .national origin.        The plans shall include:

             (1) a comprehensive     analysis    of all    the
         agency's work   force    by   race,    sex,   ethnic
         origin, class   of   position,     and   salary    or
         wage:

             (2) plans    for   recruitment,         evaluation,
         selection,  appointment,    training,        promotion,
         and other personnel   policies:

             (3) steps reasonably   designed  to  overcome
         any identified  underutilization    of minorities
         and women in the agency's work force; and

             (4) objectives    and  goals, timetables     for
         the achievement    of the objectives   and   goals,
         and assignments    of   responsibility  for   their
         achievement.




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Mr.   Kenneth   W. Littlefield      - Page    4     (JM-1175)




              The   plans     shall    be    filed    with     the
          Governo??s     office    within    60   days    of   the
          effective   date of this      Act, cover an      annual
          period, and     be   updated at     least    annually.
          Progress   reports    shall be     submitted    to   the
          Governor*s    office within 30 days of        November
          1 and April 1 of each year and shall            include
          the steps     the agency     has taken    within     the
          reporting    period      to   comply     with      these
          requirements.

      Reading those provisions         with -mica1        Bank in mind, we
conclude   that the conferral        of such authority      on the Banking
Commissioner     with    respect     to personnel      matters     indicates
that the     Finance Commission's         role    in regard     to    Banking
Department    personnel    matters    is limited to those powers           and
duties    that    are    specifically        imposed     on   the     Finance
Commission.     See    aenerally     V.T.C.S.     art. 342-201       (Finance
Commission    shall determine        number and      salaries   of ,Banking
Department     employees      in     exempt    positions);      &       arts.
342-202,    342-203,   342-204       (Finance      Commission       to     set
salaries   for certain     Banking Department       positions):     Attorney
General    Opinion     JM-254      (fact   that    commissioners        court
authorizes    positions    and approves       salaries    of employees      of
county attorney       does    not    prohibit     county    attorney      from
hiring relative      of county commissioner;-;‘since          commissioner-s
court    has   no    control     over    persons     appointed     to     fill
positions).

       Because  we   conclude    that  hiring    decisions           of   the
 Banking Commissioner    are not subject    to the control           of   the
.Finance Commission,   we   conclude that    the nepotism            statute
 does not prohibit   the Banking Department     from hiring          the son
 of a member of the Finance Commission.

                                SUMMARY


                The  nepotism     statute,   article  5996a,
          V.T.C.S.,   does    not    prevent   the   Banking
          Department  from hiring the son of a member of
          the Finance Commission.

                                            Very
                                              truly        Y     ,

                                            Ll b
                                             JIM
                                                  /L-h
                                                      MATTOX
                                             Attorney  General   of Texas

WARYKELLER
First Assistant      Attorney     General


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Mr.   Xenneth   W. Littlefield    - Page    5   (JM-1175)




JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney       General

.RENEA HICKS
Special Assistant     Attorney    General

RICK GILPIN
Chairman,  Opinion    Committee

Prepared by Sarah Woelk
Assistant Attorney General




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