Honorable W. G. Woods, Jr.       Opinion No. C- 1%
County Attorney
Liberty, Texas                   Re:   Whether or not It Is a
                                       violation of the Nepotism
                                       Law for a county hospital
                                       to employ a person as an
                                       office clerk when the
                                       superintendent of said
                                       hospital is the daughter
Dear Mr. Woods:                        of said employee.
         This office is in receipt of your request for an
opinion concerning the following question:
              "Whether or not it Is a violation of
         the Nepotism Law for a county hospital to
         employ a person as an office clerk when
         the superintendent of said hospital is the
         daughter of said employee."
         The following statutes are pertinent to the question
asked this office:
         Article 4480, Vernon's Civil Statutes, states in
part as follows:
             "The board of managers shall elect from
        among its members a president, and one or more
        vice-presidents and a secretary and a treasurer.
        It shall appoint a superintendent of the hospital
        who shall hold office at the pleasure of said
        board. S id superintendent shall    t be a mem-
        ber of thz board and shall be a q%lfied    prac-
        titioner of med.iGine,or be specially trained for
        work of such character." (Emphasis added)
         Article 4485, Vernon's Civil Statutes, states in
part as follows:
              "The superintendent shall be the chief
         executive officer of the hospital, but=1
         at all times be subJect to the by-laws, rules
         and regulations thereof, and to the powers of
         the board of managers. . . .
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Honorable W. G. Woods, Jr.   page 2   (c-169 )




         Article 432, Vernon's Penal Code, provides:
             "No officer of this State nor any officer
        of any district, county, city, precinct, school
        district, or other municipal subdivision of this
        State, nor 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, nor any member of the Legisl-
        lature, shall appoint, or vote for, or confirm
        the appointment to any office, position, clerk-
        ship, 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 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; pro-
        vided, that nothing herein contained, nor in
        any other nepotism law contained in any charter
        or ordinance of any municipal corporation of this
        State, shall prevent the appointment, voting for,
        or confirmation of any person who shall have been
        continuously employed in any such office, position,
        clerkship, employment or duty for a period of two
        (2) years prior to the election or appointment of
        the officer or member appointing, voting for, or
        confirming the appointment, or to the election or
        appointment of the officer or member related to
        such employee in the prohibited degree."




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Honorable W. G. Woods, Jr?.,page 3   (c-169)


         It is apparent from a reading of Article 432, the
Nepotism Statute, that in order for,said Statute to apply to
a superintendent of a county hospital it must be decided
whether a county superintendent Is an officer as set out
within said Statute.
         Many definitions of "public officer" are to be
found in the reported cases, but they are substantially of
the ssme import. In the case of Kinney v. Zimpleman, 36 Tex.
554, (1871) the definition of a public office is said to be
'a right to exercise a public function or employment and take
the fees and emoluments belonging to it." In Johnson v. Smith,
112 Tex. 222, 246 S.W. 1012 (1922), public office was defined~
as "a public station or employment conferred by the appoint-
ment of government." In Kimbrough v. Barnett, 93 Tex. 301,
55 S.W. 120 (1900), the Court defined a public office as
"the right, authority and duty created and conferred by law
by it, for a given period, either fixed by law or enduring
at the pleasure of the creating power, an individual is ln-
vested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the
public." In Banner v. Belsterling, 1% S.W. 571 (Tex.Civ.App.
1911) it was held that "a public office is something different
from a public contract and that officers hold their positions
by election or appointment and not by contract."
          In the case of Knox v. Johnson, 141,S.W.2d 698 (Tex.
Clv.App. 19&C, error ref.) the court held that a superintendent
of a state hospital was a "public officer" of the State of
.Texas within the meaning of Section 7 of Article KV of the
Constitution of Texas.
         Room a reading of Article 4480, Vernon's Civil
Statutes, the Board of Managers a olnts a superintendent
of the hospital who holds this oFi3k-z   the pleasure of
the Board. In Article 4485, Vernon's Civil Statutes, the
superintendent is made the chief executive officer of the
hospital but Is subject to '&e powers of th B    d of Managers.
This Article gives the superintendent the pbeso    appoint
such resident officers and employees and prescribe their duties
with the consent of the Board. He may discharge such officers
and employees without consent of the Board. Article 4485 of
Vernon's Civil Statutes requires the superintendent to file
a bond for the faithful performance of his d.uties.
         This office can find no direct authority holding
a superintendent of a county hospital to be a 'public officer"
within the nepotism statute. It Is the opinion of this office
that as a practical matter since the superintendent is the

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    Honorable W. G. Woods, Jr., page 4    (C-169)


    chief executive officer and~does all the hiring and firing of
    the hospital employees, he should be subject to the nepotism
    statute.
             Therefore, it Is the opinion of this office that a
    superintendent of a county hospital Is a public officer with-
    in the meaning of the Nepotism Statute and cannot appoint,
    vote for, or confirm the appointment to any office, position,
    clerkship, employment or duty of any person related to him
    within the second degree~by affinity or within the third de-
    gree by consanguinity, unless such person has been continuous-
    ly employed~in such office, position, clerkship, employment
    or duty for a period of two years prior to the appointment
    of the superintendent.


                           SUMMARY
                 The superintendent of a county hospital
                 Is an officer as defined in Article 43'2,
                 Vernon's Penal Code, the Nepotism Statute,
                 and is thereby subject to said Statute.
                                     Very truly yours,
                                     WAGGONER CARR
                                     Attorney General

                                     By isa         w
                                         Bill Morse, Jr.
                                         Assistant
    APPROVED:
    OPINION COMMITTEE
    W. V. Geppert, Chairman
    Howard Fend~er
    Pat Bailey
    J. C. Davis
    APPROVED FOR THE ATTORNEY GENERAL
    BY: Stanton Stone




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