                                    The Attorney        General of Texas
                                                    Aul:ust30, 1984
   JIM MATTOX
   Attorney General



   Supreme Court Building         Honorable Gibson D. (Gib) Lewis        Opinion No. JM-195
   P. 0. Box 12548
                                  Speaker of the House!
   Austin, TX. 78711. 2546
   5121475-2501
                                  Texas House of Reprc!$entatives        Re:   Whether article 5996a.
   Telex 9101874-1367             P. 0. Box 2910                         V.T.C.S., the nepotism law,
   Telecopier   5121475.0266      Austin, Texas   78?('5                 is applicable to appointments
                                                                         to the interim State Board of
   714 Jackson, Suite 700
                                                                         Education
   Dallas, TX. 75202.4506
   2141742.6944                   Dear Speaker Lewis:

                                       You request our opinion as to whether article 5996a, V.T.C.S..
   4824 Alberta Ave., Suite 160
                                  the nepotism statute, is applicable to appointments to the interim
   El Paso, TX. 79905.2793
   9151533.3464                   State Board of Edwzltion created by House Bill No. 72. Acts 1983,
                                  68th Leg., 2d C.S.: ch.         , 94. at        (not yet published).
                                  That bill creates :I transitional State Board of Education, whose
‘701        Texas. Suite 700      members are to be ;llBpointedby the governor. upon recommendation of
       .ousto”. TX. 77002~3111
                                  the Legislative Edwation Board. The bill enacts section 11.22(k) of
   7131223.5886
                                  the Education Code t:cprovide that members

   606 Broadway. Suite 312                 shall receive no salary but shall be reimbursed
   Lubbock. TX. 79401.3479                 for all e,:pensesincurred in attending meetings of
   6061747-5236
                                           the board csrincident to any judicial action taken
                                           because oi'appeal from a board order.
   4309 N. Tenth, Suite S
   McAllen. TX. 78501.1685             You ask whethw: article 5996a applies to appointments to the
   512,662.4547                   board. That statute provides, in pertinent part:

   200 Main Plaza, Suite 400                  No off<.c:erof this State nor any officer of any
   San Antonio, TX. 78205.2797             district, county, city, precinct, school district,
   5121225.4191                            or other municipal subdivision of this State, nor
                                           w    officer or member of any State district,
                                           county, ciry, school district or other    municipal
   An Equal Opportunity/
   Affirmative Action Employer
                                           board, or ijudgeof any court, created by or under
                                           authority >f any General or Special Law of this
                                           State, nor any member of the Legislature, shall
                                           appoint, '+: vote for, or confirm the appointment
                                           to any ofFLce, position, clerkship, employment or
                                           duty, of sny person related within the second
                                           degree by affinity or within the third degree by
                                           consanguin:.tyto the person so appointing or so
                                           vlxing, o:: to any other member of any such board,




                                                           p. 857
Honorable Gibscr!D. (Gib) Lwis   - Page 2   (JM-395)




          the Legislature, or court of which such person so
          appointing or votl.rg may be a member, when the
          salary, fees, or wn!pensation of such appofntee j-6
          to be paid for, dirxtly or indirectly, out of or
          from public funds (IIfees of office of any kind or
          character whatsoewz . . . .

Specifically, you inquire whether the reimbursement of expenses to
board members constitutes "salary, fees, or compensation" for purposes
of article 5996a.

     No Texas case has direcl::yaddressed this  question.
                                                          Although one
court has said that the word "'compensation' is broad enough to
include recompense of expen!;I!s,"Tierney v. Van Arsdale, 332 S.W.2d
546, 549 (KY. 1960), the majority of cases from other !urisdictions
which have considered the q;estibn have held that reimbursement for
expenses is not embraced within the meaning of the term. In Manning
v. Sims, 213 S.W.2d 577 (Ky. :948). for example; the court said that

          the allowance of :xasonable expenses'incurred in
          the discharge of the official duties of an office
          is neither salary, compensation nor an emolument
          of the office . .   .

213 S.W.2d at 580. In *x,rman v. Williams,,415 P.2d 597         (Okle.
1966), the Supreme Court of Oklahoma declared: ‘

          office and traveling expenses iuctirredby rcembers
          of the Legislative Council are expenses of the
          performance of clifjcial duties and are not
          compensation, salnr:ror emoluments . . . .

415 P.2d at 602. And in Happe v. State, 469 P.2d 909 (Wash. 1970),
the court said that

          the word 'compensation' . . . does not embrace nor
          include appropriats reimbursement for expenses
          incurred . . . .

469 P.2d at 912. ---
                  See Whitehc'adv. Julian, 476 S.W.2d 844 (Tex. 1972)
(expense allowance paid tcs city mayor does not make position a
"lucrative" office within meaning of art. III, P19, Tex. Const.,
making the holder of a l.ucrative office ineligible for state
legislature).

     In our opinion, the telal"compensation" as used in article 5996a
should not be construed to include statutory reimbursement for
expenses incurred in attendj,r,g
                               meetings of the interin:State Board of
Education. Thus, since no "salary, fees or compensation" wjll be paid




                                     p. 858
Honorable Gibson D. (Gib) Lew:.s- Page 3    (JM-195)




to members of the board, article 5996a has no application to appoint-
ments thcl-eto.

                             _:iUMM"RY

              Article 5996a, V.T.C.S., the nepotism law, is
          not applicable tc appointments to the interim
          State Board of Edw;~tion created by House Bill No.
          72,   Acts 1983, Sj.xty-eighthLegislature, Second
          Called Session, chapter             , section 4, St
                  , since the rlembers thereof do not receive
          "compensation," I!lli only       reimbursement  for
          expenses incurred.




                                         Attorney General of Texas

TOM GREEN
First AssistaritP.ttorneyGem.:al

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMNITTIX

Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moell.inger
Nancy Sutton




                                   p. 859
