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                        THE     ATITOEWEY    GENERAL
                                    OF 7rExAs



                                       June 7, 1962

Mr. R. L. Lattimore                         Opinion No. WW-135%
Criminal District Attorney
Hidalgo county                              Re:   Whether the fact situation
Edinburg, Texas                                   presented comes within Arti-
                                                  cle 432 Vernon's Penal Code,
Dear Mr. Lattimore:                               concerning nepotism.
          You have requested an opinion from this office upon
whether the provisions of Article 432, Vernon's Penal Code, are
applicable to the following fact sutiation:
              "On May 4 1961 the Mercedes Independent
         School District and Che City of Mercedes entered
         into a contract for a joint taxing office. In
         the contract there is a clause which states that
         the Board of Trustees of the Mercedes Independent
         School District will have complete control over
         the employees of the joint tax office. Thereaf-
         ter, the Board of Trustees gave authority to the
         Tax Collector, who is also manager of the joint
         tax office, authority to hire additional person-
         nel for the tax office.
              "In July, 1961, the Tax Collector employed
         a woman as secretarial help, who it was subse-
         quently learned is a first cousin of one of the
         members of the Board of Trustees of the Mercedes
         Independent School District.
              Y'his woman's name was never presented to the
         Board for employment and the Board did not vote or
         confirm this appointment as such. The Mercedes
         Independent School District and the City of Merce-
         des share the bills of the joint tax office. The
         Board of Trustees does vote on the approval of
         their share of the bills of the joint tax office,
         a portion of which is the employee's salary."
                        Article 432 provides in part that:
              "No officer of this State nor any officer of
         any district, county, city, .precinct, school dis-
         trict, or other municipal subdivision of this State
         . . . shall appoint, or vote for, or confirm the
                                                         ---




Mr. R. L. Lattimore, page 2       (W-13%)


    appointment to any office, position, clerkship,
    employment or duty, of any person related with-
    in 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 . . . 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; . . .I'
             In addition Article 433, Vernon's Penal Code, provides
that:
          "The inhibitions set forth in this law shall
     apply,,toand include . . . public school trustees,
     . . .
          The provisions of Articles 2780, 2791 and 2792, Ver-
non's Civil Statutes, give to the Board of Trustees of an Inde-
pendent School District broad discretionary powers as to the pub-
lic schools within the district and to certain aspects of the
assessment and collection of taxes for school purposes.
          In the instant case the Boar.dof Trustees has entered
into a contract whereby a joint tax office will be operated by
the independent school district and the City of Mercedes, and
one of the conditions of such contract is that the Board of Trus-
tees will have complete control over the employees of such joint
tax office. While the Board of Trustees has delegated to the in-
dividual acting as assessor and collector of taxes for the inde-
pendent school district the authority to hire personnel for the
operation of such office, such delegation of authority is a dis-
cretionary act by the Board of Trustees and one which could be
withdrawn or modified at any time.
          In the case of Aldine Indenendent SChool District v.
Standlev, 1% Tex. 547, 280 S.W.2d 578 (19551,the Court stated
that:
                  "We think it apparent from a reading of the
        above statutes, that an assessor-collector of taxes
        appointed by a school board is not only not of ecual
        power and privileges with the trustees; but, on the
        Contrary,      is Only an asent or emclovee of such school
        board at its discretion. . . .*I (Emphasis added).
Mr. R. L. Lattimore, page 3   (m/-13%)


          In Attorney General's Opinion No. O-4686 (1942) this
office had before it the question of whether the employment of
a brother of a member of the Commissioners' Court by the Sheriff
was in violation of Article 432. The Commissioners' Court had
or was considering the passage of an order delegating to the
Sheriff the authority to employ the various courthouse employees.
While Attorney General's Opinion NO. O-4686 (1942) recognized
that the Commissioners1 Court could delegate such authority it
further held that:
          "If the Commissioners' Court through the sher-
     iff as its agent employed a brother of one of the
     county commissioners as a janitor or other court-
     house employee, such employment would be a direct
     and flagrant violation of Article 432, V.A.T.P.C."
          Under the facts presented in the instant situation, we
are of the opinion that the employment of an individual who is
a first cousin of a member of the Board of Trustees of che Merce-
des Independent School District, as secretarial help in the joint
tax office of the Mercedes Independent School District and the
City of Mercedes, would be in violation of Article 432. The neces-
sary elements to constitute a violation of Article 432 are all
present. The secretary employed to work in the joint tax office
is related to a member of the Board of Trustees within the prohib-
ited degree; the employment of the secretary related to the member
of the Board of Trustees will necessitate a portion of her compen-
sation being paid from the public funds of the Mercedes Independ-
ent School District; and while the Board of Trustees of the Merce-
des Independent School District have not actually appointed, voted
for, or confirmed such employment by virtue of delegating this
authority to another, this will not prevent there being a viola-
tion of Article 432 in view of the holding in Attorney General's
Opinion No. 0-4686 (1942).
                                 SUMMARY
          Under the facts presented, the employment of a
     secretary by the joint tax office of the Mercedes
     Independent School District and the City of Mercedes
     who is a first cousin of a member of the Board of
     Trustees of the Mercedes Independent School District
                                                      -. _.




Mr. R. L. Lattimore, page 4    (WW-13%)


      -would result in a violation of Article 432, Vernon's
       Penal Code.
                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas




PB:wb                               Assistant

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Robert Patterson
Coleman Gay
W. 0. Shultz
REVIEWED FOR THE ATTORNEY GENERAL
BY:     Leonard Passmore
