                       July 8, 1987




Honorable Michael S. Line         Opinion No. JM-741
Scurry County Attorney
Courthouse                        He: Authority of a commissioners
Snyder, Texas   79549             court to appoint as county clerk an
                                  individual who is first cousin of a
                                  county commissioner

Dear Mr. Line:

     You ask whether the commissioners court may appoint a first
cousin of a county commissioner to fill an unexpired term as county
clerk. The minutes of the commissioners court reflect that the
appointment was for "acting county clerk until the next general
election." You state that the commissioner who is related to the
appointee abstained from voting on the appointment. Information
furnished by you also reflects that the appointee has served the past
ten years as chief deputy county clerk.

     Prior to the appointment of a county clerk, the chief deputy may
carry out the clerk's duties. If an individual is appointed "acting"
county clerk, however, she acts, for all purposes, in the capacity of
county clerk.

     Article 5996a. V.T.C.S., 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 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 member 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



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Honorable Michael S. Line - Page 2   (m-741)




         from public funds or fees of office of any kind or
         character whatsoever; provided, 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 one (1) year
         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. . . .

     We believe that Attorney General Opinion X4-253 (1984) addresses
the questions you have raised. It states:

          First cousins are related within the second degree
          by consanguinity. See Attorney General Opinions
          O-6221 (1944); o-46701942).

             The county tax assessor-collector holds an
          elective office. Tex. Const. art. VIII, 5514, 16,
          16a; Tax Code 56.21. Thus, ordinarily the tax
          assessor-collector would be elected by the people
          and not appointed by the commissioners court. The
          court, however, is statutorily authorized to fill
          a vacancy in this office until the next general
          election. V.T.C.S. art. 2355.

             Article 5996a, V.T.C.S., bars the commissioners
          court from appointing the first cousin of a com-
          missioner to any office or employment. Attorney
          General Opinions O-5452 (1943); O-4987 (1942); see
          also Attorney General Opinion O-4670 (1942). The
          statute Prevents any member of the commissioners
          court from voting for

              any person related within the second
              degree by affinity . . . to the person so
              appointing or so voting, or to any other
              member of any such board. . . . (Emphasis
              added).

          V.T.C.S. art. 5996a. Thus, none of the comis-
          sioners may vote to appoint the first cousin of a
          commissioner to the vacant office of tax assessor-
          collector. -See Attorney General Opinion O-3016
          (1941).                                                       -,




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                 You raise the exception to article 5996a,
              V.T.C.S., for a person employed by a governing
              board for two years continuously prior to the
              election of his relative to that board and suggest
              it may apply in this case. It is irrelevant to
              the problem before us. The tax assessor-collector
              appoints his deputies; the commissioners court
              cannot control or influence his selection of
              individuals for that post. V.T.C.S. art. 3902;
              Attorney General Opinions H-993 (1977); H-697
              (1975); O-6221 (1944). The deputy tax assessor
              was never appointed by the commissioners court.
              She therefore does not come within the two-year
              proviso of article 5996a, V.T.C.S.

         Article 5996a prohibits the commissioners court from appointing
    the first cousin of a commissioner to any office or employment. Such
    factors as the related commissioner abstaining from voting on the
    appointment or the appointee holding the position of chief deputy in
    the office in which the vacancy occurred fail to bring the appointment
    within the exception contained in article 5996a.

         We have reviewed Senate Bill No. 933 passed by both the Senate
    and House in the regular session of the Seventieth Legislature which
    has recently concluded. This bill would amend certain provisions of
    article 5996a, but, it would not affect the validity of Attorney
    General Opinion JM-253 (1984) or the conclusion we have reached
    herein. We note that until there is a valid appointment, the formerly
    elected county clerk continues to hold the office pursuant to article
    1617, V.T.C.S., notwithstanding her resignation.

                                 SUMMARY

                   The county commissioners court may not
              appoint the first cousin of a county commissioner
              to fill an unexpired term as acting county clerk.




                                           Attorney General of Texas

    WARY KELLER
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General




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RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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