                                       ATTORNEY GENERAL OF TEXAS
                                                  GREG         ABBOTT




                                                    November      12,2003



The Honorable Norman Amett                                  Opinion No. GA-0121
Stonewall County Attorney
P.O. Box 367                                                Re: Whether the nepotism laws in chapter 573 of the
Aspermont, Texas 79502                                      Government Code prohibit the sheriffs office from
                                                            employing an individual who had been continuously
                                                            employed in the sheriffs office for more than seven
                                                            years before marrying the sheriff (RQ-0069-GA)

Dear Mr. Arnett:

        You ask whether the nepotism laws in chapter 573 of the Government Code prohibit the
sheriffs office from employing the sheriffs spouse who had been continuously employed by the
sheriffs office for more than seven years before marrying the sheriff..’

         The sheriff of Stonewall County was first elected for a term of office beginning January 1,
 1989, and has been reelected for terms beginning on January 1 of 1993, 1997, and 2001. See
Request Letter, supra note 1, at 1. In November 1992, the sheriff employed an individual as a
dispatcher and the individual still holds that position. The individual and the sheriff were married
in May 2000. You state that the individual’s position is at-will, subject to the sheriffs sole
discretion.2

           Section 573.041 of the Government              Code states the general prohibition    against nepotism as
follows:

                    A public official may not appoint, confn-m 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:

                           (1) the individual is related to the public official within a
                    degree described by Section 573.002; or



           ‘See Letter from Honorable Norman Amett, Stonewall County Attorney, to Honorable Greg Abbott, Texas
Attorney   General (June 19,2003) (on file with Opinion Committee) [hereinafter Request Letter].

           2Telephone   Conversation    with Honorable   Norman Amett, Stonewall County Attorney (Oct. 1,2003).
The Honorable Norman Amett              - Page 2          (GA-0121)




                           (2) the public official holds the appointment or confirmation
                  authority as a member of a state or local board, the legislature, or a
                  court and the individual is related to another member of that board,
                  legislature, or court within a degree described by Section 573.002.

TEX. GOV’T CODE ANN. 9 573.041 (Vernon 1994). Section 573.062 of the code makes an exception
for individuals   who have been employed under certain circumstances:

                  (a) A nepotism prohibition prescribed by Section 573.041 . . . does
                  not apply to an appointment, confirmation of an appointment, or vote
                  for an appointment      or contirrnation of an appointment    of an
                  individual to a position if:

                           (1) the individual is employed in the position immediately
                  before the election or appointment of the public official to whom the
                  individual is related in a prohibited degree; and

                              (2) that prior employment    of the individual is continuous   for
                  at least:

                                     .. .


                                  (C) one year, if the public official is elected at the
                  general election for state and county officers.

                  (b) If, under Subsection (a), an individual continues in a position, the
                  public official to whom the individual is related in a prohibited degree
                  may not participate in any deliberation or voting on the appointment,
                  reappointment, confirmation of the appointment or reappointment,
                  employment, reemployment,         change in status, compensation,       or
                  dismissal of the individual if that action applies only to the individual
                  and is not taken regarding a bona fide class or category of employees.

Id. 8 573.062.

         As you note, the circumstances of the sheriff and his spouse come within the general
nepotism prohibition in section 573.041. See Request Letter, supra note 1, at 2. A county sheriff
is a public official subject to the nepotism laws. See TEX. GOV’T CODE ANN. 8 573.001(3)(A)
(Vernon 1994) (defining “public official” as including a county officer); see generaZZy Cain v. State,
855 S.W.2d 714 (Tex. Crim. App. 1993) (en bane) (upholding conviction of sheriff for violating
nepotism laws). The sheriff has the sole authority to employ and terminate all employees of the
sheriffs office. See Abbott v. Pollock, 946 S.W.2d 513, 516-17 (Tex. App.-Austin          1997, writ
denied) (holding that sheriff, not commissioners court, has sole authority over employment and
termination decisions concerning sheriffs office personnel; employees serve at the sheriffs
The Honorable Norman Amett               - Page 3           (GA-0121)




discretion); Tex. Att’y Gen. Op. No. GA-0037 (2003) at 3-4 (commissioners court has authority to
set budget and number of employees in the sheriffs office, but may not interfere with the sheriffs
authority to select assistants). A husband and wife are related to each other within the degree of
affinity proscribed by the nepotism statutes. See TEX. GOV’T CODEANN. §§ 573.002 (Vernon 1994
& Supp. 2004) (chapter 573 applies to relationships within the second degree by affinity),
573.024(a)( 1) (married individuals are related by affinity), 573.025(a) (husband and wife are related
in the first degree by affinity). An individual’s employment that begins free from any nepotism may
become unlawful when a relationship arises in the course of employment that the nepotism statutes
forbid. See Tex. Att’y Gen. Op. Nos. V-785 (1949), O-408 (1939); Tex. Att’y Gen. LO-93-l 14,
LO-89-53. When such a relationship arises in the case of an at-will employee, it is presumed that
a public official makes a new decision each month to retain the employee, which would violate
the nepotism prohibition.       See Tex. Att’y Gen. Op. No. MW-286 (1980) at 2; Tex. Att’y Gen.
LO-93-l 14, at 1. Thus, section 573.041 would prohibit the sheriffs spouse from further
employment in the sheriffs office after the marriage unless she qualifies for an exception to the
nepotism prohibition, specifically the continuous employment exception under article 573.062(a).

         Section 573.062 is intended to exempt experienced public employees from the nepotism
prohibition who “have a year of prior service free of a nepotism relationship.” Tex. Att’y Gen. Op.
No. JM-636 (1987) at 4.3 The exclusion in section 573.062 has two criteria: (1) the individual must
be employed immediately prior to the election or appointment of the public official who has hiring
authority; and (2) that employment must be continuous for the time the statute specifies for the
relevant office, in this case, one year. See TEX. GOV’T CODE ANN. 0 573.062(a)(1)-(2) (Vernon
1994). The individual must have been continuously “employed in the position immediately before
the election or appointment of the public official to whom the individual is related.” Id. 8 573.062
(a)(l). The plain language of the statute does not distinguish between a public official’s initial
election or appointment and any subsequent election or appointment.

        On facts analogous to those you describe, this office has determined that a deputy who
became the sheriffs brother-in-law had satisfied the statutory exemption and could continue to serve
as the sheriffs deputy. See Tex. Att’y Gen. LO-93-l 14. In that opinion, a sheriff had been elected
to terms of office beginning on January 1 of 1985, 1989, and 1993. See id. at 2. The sheriff
appointed an individual as deputy sheriff in 1988 and married the deputy’s sister in 1993. See id.


          3The opinion discerned the legislature’s   intent from the emergency   clause of the 1949 amendment   that added
the exception, which provides in part:

                              The fact that numerous employees of the State and its agencies and
                   subdivisions whose services are valuable to the State are required to give up such
                   employment because members of their family may be, from time to time, elected to
                   offices in this State under whom such employees hold their employment, and the
                   fact that persons who have continuously served the State prior to the election to
                   some office of a relative should not be discharged for that reason alone, and the fact
                   that the purpose of the nepotism law was not to oust such persons from legitimate
                   employment by the State, create an emergency . . . .

Tex. Att’y Gen. Op. No. JM-636 (1987) at 3 (quoting Act ofApr. 28,1949,51st        Leg., R.S., ch. 126,§ 3,1949 Tex. Gen.
Laws 227,227).
The Honorable Norman Arnett           - Page 4         (GA-0121)




at l-2. This office observed that “‘under the nepotism statute, prior continuous service is the time
served before the board member’s election, not the time served before the marriage.“’ Id. at 2
(quoting Tex. Att’y Gen. Op. No. DM-132 (1992) at 4). The opinion concluded that the deputy
qualified for the continuing employment exception because “the deputy had served more than four
years prior to the sheriffs election to the term of office beginning January 1, 1993.” Id.


         As you describe the circumstances of your present inquiry, the individual here had been
employed for more than five years when the sheriff of Stonewall County began his 1997 tern-r. See
Request Letter, supra note 1, at 1. The sheriff and the individual were not related by affinity until
they married in 2000. See id. The individual had been continuously employed for longer than the
requisite period immediately prior to the sheriffs election for the 1997 term. Consistent with our
opinion in Letter Opinion 93-l 14, we conclude that the sheriffs spouse satisfied the continuing
employment exception to the nepotism laws in section 573.062(a).

        You are concerned that Letter Opinion 95-070 would support a different conclusion. See
Tex. Att’y Gen. LO-95-070. In that opinion, we concluded that the spouse of the Midland County
attorney could not continue her employment in the county attorney’s office. However, the facts
involved in that opinion are distinguishable.    In Letter Opinion 95-070, the county attorney had
served consecutive four-year terms of office beginning January 1, 1985. See id. at 1 .4 The county
attorney employed an individual in May 1993, and they married in 1995. See id. The individual was
not employed until after the 1992 election and therefore could not have been continuously employed
before the county attorney’s election. See TEX. GOV’T CODE ANN. 9 573.062(a)( 1) (Vernon 1994).
The opinion determined that the individual could not continue employment after the marriage
because the individual was not employed “immediately prior to the election.” Tex. Att’y Gen.
LO-95-070, at 3.

         You are specifically concerned by the statement in Letter Opinion 95-070, that the “prior
continuous employment exception is only available if the employee has completed the applicable
period of prior continuous service during a time when the relative was not an employer with the
power to hire or to fire the employee.” Id. However, under the circumstances as you describe them,
the individual had worked for the Stonewall County sheriffs office for several years prior to the
sheriffs election in 1996, thereby satisfying the continuous employment exception before any
relationship within the general nepotism prohibition existed.

         Although we conclude that the sheriffs spouse has qualified for the exception in section
573.062(a) and may remain in her current employment, we note that the sheriff “may not participate
in any deliberation or voting on the appointment, reappointment, . . . change in status, compensation,
or dismissal of the individual if that action applies only to the individual and is not taken regarding
a bona fide class or category of employees.” TEX. GOV’T CODE ANN. 5 573.062(b) (Vernon 1994).
See generally Cain v. State, 855 S.W.2d 714 (Tex. Crim. App. 1993) (en bane) (upholding
conviction of sheriff under nepotism law for giving raises to his son and daughter against void-for-
vagueness challenge).


        4Although the opinion does not so state, the county attorney would have been reelected for terms beginning
January 1 of 1989 and 1993. See TEX. CONST.art. V, 5 2 1 (county attorney’s term of office is four years).
The Honorable Norman Amett         - Page 5     (GA-0121)




                                        SUMMARY

                        The employment of the sheriffs spouse in the sheriffs office
               after their marriage does not violate the nepotism laws in chapter 573
               of the Government Code when the individual has held that position
               continuously for five years before the sheriff was reelected and for
               more than seven years before they married.

                                              Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
