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         Honorable    F. M Law
         President.   Board of Directors
         Agricultural    & Mechanical  College      of Texas
         College Station, Texas

         Dear   Sir:                                Opinion No. Cl-5810
                                                    Re:    Validity under Nepotism Stat-
                                                          ute (Art. 432. Penal Code) of
                                                          Ch. 3. Sec. 2 of Rules and Regu-
                                                           lations of A. & M. College.

                            We acknowledge   receipt of your letter of January 14, 1944,
         enclosing   copy of Chapter 3. Section 2 of the Rules and Regulations    of A. &
         M. College,   recently adopted by the Board of Directors.     The enclosure
         reads as follows:

                             “Chapter    III, Section   2.   Appointment   of Relatives.

                              “Whenever     an appointment is made either on a
                  full-time    or a part-time    basis, it shall be made solely
                  with regard to ability and fitness of the appointee subject
                  to Penal Code 1925. Articles         432, 433, 434, 435, 437, and
                  the Revised Civil Statutes of 1925, Article            5996, and amend-
                  ments thereto, and any other applicable             law. Relatives     of
                  any person in anywise connected with their employment                  or
                  supervision     shall not be employed by the College.            Relative
                  in the following paragraphs        is defined as a person related
                  within the second degree of affinity and third degree df con-
                  sanguinity,    according    to common law. According           to common
                  law, the first degree of consanguinity         would be father, son
                  or,brother;    the second degree grandfather.           grandson,   uncle,
                  first cousin or nephew; the third degree great-grandfather,
                  great-grandson,       great-uncle,    great-uncle’s     son, second cous-
                  in, son of first cousin, son of nephew or brother’s             grandson.
                  Degrees     of affinity are computed in the same manner.

                             “a. No relative of a member of the Board of Di-
                  rectors,   President,  Vice-president,    Presidential  assistants,
                  Deans, Directors,     Business   Manager,   or Heads of Depart-
                  ments of the College will be considered       for appointment,
                  except that such relatives     will be considered   for reappoint-
                  ment when the original appointment was antecedent to pass-
                  age of the pertinent statute in question.     or to assuming    a po-
                  sition listed above, or to membership       on the Board of Direct-
Hon. F. h4. Law - Page 2 (o-5810)




                   “b. NO person shall be initially appointed even
         temporarily   when a relative on the College Staff must act
         in some official capacity on the appointment.

                   “c. Relationship  brought about by marriage             after
         appointment is no bar to continuance of employment,              but
         no person shall be initially appointed whose husband             or wife
         is employed by the College.

                    “d. Relationship    shall not bar appointment         to an
         honorary    non-remuneration     position.”

                    Your question   is as follows:

                   “Will your Department      kindly advise if this chap-
        ter as written is legal in every     respect and, if you find that
        it is not legal in every respect.    will you kindly advise us in
        what respects    it is not legal?”

                    The Statute involved   is Article   432.   Vernon’s     Annotated
Penal   Code,   which reads as follows:

                   “No officer of this State or any officer of any dis-
         trict, county, city, precinct,    school district,  or other muni-
         cipal subdivision    of this State, or any officer or member 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 any
         member of the Legislature;       shall appoint, or vote for, or
         confirm the appointment to any office, position, clerkship,
         employment     or duty, of any person related 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 mem-
         ber of any such board, the Legislatures.       or court of which such
         person so appointing or voting may be a member., when~the sal-
         ary, fees, or compensation      of such appointee is to be paid for,
         directly or indirectly,    out of or from public funds or fees of of-
         fice of any kind or character      whatsoever.”

                  Article 433, Vernon’s Annotated Penal Code extends the
provisions  of the above article to “officers  and members    of boards of man-
agers of the State University   and of its several branches.”

                   III passing on your resolution.   we make a distinction be-
tween declarations     of policy and statements   of law. Your regulation in
some respects    is broader than the nepotism statute above quoted, and to
that extent it is a declaration   of policy.  There is nothing legally objec-
tionable to such declarations     of policy on behalf of your Board of Directors.
Hon. F. M. Law - Page           3 (o-5810)




                   The last sentence         of the first paragraph of Section 2
copied above should be eliminated            and the following paragraph substi-
tuted in lieu of it:

                       “According    to common law. the first degree of                    .
           consanguinity     would be father, mother, sister,        brother,
           daughter or son; the second degree, uncle, aunt, niece,
           nephew, grandson,       granddaughter,     grandfather,    grand-
           mother and first cousin; the third degree great-uncle,
           great-aunt,    great-niece,    great-nephew,     great-grandson,
           great-granddaughter,        great-grandfather,     great-grand-
           mother and second cousin.          Degrees   of affinity are com-
           puted in the same manner.”

                  Subsection   (a) of Section 2 is a declaration   of policy and
is not legally objectionable   except in so far as it authorizes    reappoint-
ments of persons    related in the prohibited degree to members        of the Board
of Directors,   We suggest that the exception in this paragraph be amended
by inserting after the word “relatives”      the following:  “other than those who
are related to any members      of the Board of Directors    within either of the
degrees   named in Article   432 of the Penal Code.”

                    The same provision,        just quoted,      should      be inserted       after
the word     “employment”  in subsection        (c).

                  When the prohibited relationship   first comes into exist-
ence after the contract of employment    has been entered into, the existing
contract is not affected but any reappointments    or new contracts  thereaf-
ter are prohibited.   See our Opinion No. O-1408, a copy of which is attached.

                  There is nothing in the Appropriation    Bill for Educational
Institutions for the biennium which ends August 31. 1945, which prohibits
the employment    of both husband and wife.  A. & M. College is not affected
by Section 21 of the Departmental   Appropriations    Bill which prohibits the
employment    of both husband and wife in “those departments      named in this
act and the Soil Conservation   Board.“’ See Opinion No. O-5536, approvx
August 21, 1943. copy of which is attached hereto.

                     Trusting    that the foregoing    answers        your    inquiry,   we are

Approved     FEB   25.   1944                Yours    very    truly

/s/  Grover Sellers                          ATTORNEYGENERALOF                      TEXAS
Attorney General of Texas
                                             /s/   Fagan     Dickson
                                             BY               Fagan Dickson
                                                                    Assistant

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                                                     By   /s/ BWB
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