              TEE     ATTOWNEY    GENERAL
                         OF TEXAS

                           September 30, 1987




Honorable Jimmy F. Davis            Opinion No.   J&801
Castro County Attorney
Castro County Courthouse            RI=: Whether a county commissioner
Dimmitt. Texas 79027                may hire the son of another county
                                    commissioner in a county which has
                                    en officio road commissioners

Dear Mr. Davis:

     You ask whether a county commissioner may hire as a road hand
the son of another county commissioner in a county that has adopted
the vex officio road commissioner" method for road construction and
maintenance. The nepotism statute. article 5996a, V.T.C.S., prohibits
an officer from appointing, voting for, or confirming the employment
of a person related to him within a prohibited degree:

            No officer of this State nor any officer of any
         district, county, city, precinct, school district,
         or other municipal subdivision of this State, ngr
         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 or 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. . . .,

     Because a son is related to his father within the first degree of
consanguinity, Attorney General Letter Advisory No. 115 (1975), the
nepotism statute would bar the commissioners court itself from
employing the son of one of the members. You suggest, however, that




                                 p. 3786
Eonorable Jimmy F. Davis - Page 2   (JM-801)




an ex officio road commissioner acts independently of              the
commissioners court when he hires road hands and that therefore an ex
officio road commissioner would not violate the nepotism law by hiring
the son of another county commissioner as a road hand.

     The commissioners court may choose one of several methods for
carrying out its responsibility to lay out. repair, and construct
public roads and bridges. See art. 6702-1, 613.001 through 3.213,
V.T.C.S. Castro County. youxform     us, has adopted the method under
which each county commissioner acts as ex officio road commissioner in
his precinct. Art. 6702-1, 113.001 through 3.004, V.T.C.S. Section
3.001 of article 6702-l provides:

                 In all counties the members of the
         conrmissioners court    are    ex   officio   road
         commissioners of their respective precincts and
         under the direction of the commissioners court
         have charge of the teams, tools, and machinery
         belonging to the county and placed in their hands
         by the court. They shall superintend the laying
         out of new roads, the making or changing of roads,
         and the building of bridges under rules adopted by
         the court. (Emphasis added.)

Section 3.003 of article 6702-I sets out the powers of ex officio road
cosmrissioners:

            (4    Subject    to   authorization   by   the
         connnissioners court,   each    ex  officio  road
         commissioner may employ persons for positions in
         the commissioner's precinct paid from the county
         road and bridge funds.      Each ex officio road
         commissioner may discharge any county employee
         working in the commissioner's precinct if the
         employee is paid from county road and bridge
         funds. Each ex officio road commissioner also has
         the duties of a supervisor of public roads as
         provided by Section 2.009 of this Act.

             (b) Each county commissioner. when acting as a
          road commissioner, shall inform himself of the
          condition of the public roads in his precinct,
          shall determine what character of work is to be
          done on the roads, and shall direct the manner of
          grading, draining, or otherwise improving the
          roads, which directions shall be followed and
          obeyed by all road overseers of his precinct.
          (Emphasis added.)




                              p. 3787
Honorable JinanyF. Davis - Page 3 (~~-801)




     You suggest that section 3.003(a). which authorizes ex office
road commissioners to hire road hands "[slubject to authorization by
the commissioners court," makes the nepotism statute inapplicable to
the situation you ask about. A number of Attorney General Opinions
are relevant to your question. Attorney General Letter Advisory No.
115 (1975) determined that a county judge could hire the daughter of a
county commissioner as his secretary because in doing so he would not
be acting as a member of the couarissionerscourt. Attorney General
Letter Advisory No. 116 (1975) held that a sheriff could hire the
son-in-law of a county commissioner as a jailer because the
commissioners court was statutorily prohibited by article 3902,
V.T.C.S., from attempting to influence the appointment of a jailer.
Because the right to hire the jailer "rests exclusively in the
sheriff," the letter advisory stated, the nepotism statute was not
applicable. Attorney General Opinion H-697 (1975) concluded that a
county department under the county's civil service program could hire
persons related to the county commissioners. Although the requestor
stated that the county commission approved the hiring decisions, the
opinion pointed out that the commissioners court had no authority to
approve or disapprove hiring decisions regarding positions subject to
former article 3902. "Because the commissioners court has no actual
power to control and should not undertake to control," the opinion
stated, the nepotism statute was inapplicable. Attorney General
Opinion R-1210 (1978) considered whether a city could give a raise to
the daughter of a county commissioner who was employed by the city as
an ambulance supervisor.      The ambulance at the heart of the
controversy was owned by the county and operated by the city. Under
the contract between the city and the county, the county had no right
to control the appointment of the ambulance supervisor. The opinion
held that the nepotism statute was inapplicable, saying, "In cases
where the commissioners court authorizes a position but has no control
over the person to be selected, we have said that article 5996a,
V.T.C.S., is not violated by the appointment of a commissioner's
relative to that position."

     The right to control. whether exercised or not. was found to be
the decisive factor in several instances in which this office found
the nepotism statute to be applicable. Attorney General Opinion
JM-581 (1986) considered whether a county librarian could hire an
assistant who was related to a county commissioner in a prohibited
degree. Because a county librarian has authority to appoint and
dismiss library employees only with the approval of the commissioner
court, the opinion concluded that the joint control exercised by the
zssion      and' the county librarian was sufficient to make the
nepotism statute applicable. JM-581 specifically stated that the fact
that the commissioners court does not use its statutory authority to
exercise control over the appointment of county library employees does
not abrogate or limit that authority. Pena v. Rio Grande City
Consolidated Independent School District, 616 S.W.2d 658 (Tex. Civ.




                              p. 3788
,



    Honorable Jimmy F. Davis - Page 4 (JM -801)




    APP. - Eastland 1981, no writ). JM-581 relied on Attorney General
    Letter Advisory No. 156 (1978). which considered whether a junior
    college district could hire someone related to the president of the
    college within a prohibited degree. The letter advisory stated that
    the nepotism statute is not violated if the public officer "cannot
    exercise any control" over the hiring of someone related to him within
    the prohibited degree. Because the board of trustees of a junior
    college was authorized to hire employees upon the president's
    recoaunendation,the letter advisory concluded, the president and the
    board exercised joint control over hiring and that joint control was
    sufficient to make the nepotism statute applicable.

         Those opinions make clear that the key to your question is
    whether the commissioners court can exercise control over an ex
    officio road commissioner's decisionto hire a relative of one of the
    commissioners as a road hand. To say that the nepotism statute is
    inapplicable to the situation you ask about, we would have to say that
    section 3.003(a) of article 6702-I means that once the commissioners
    court authorizes a position to be filled, it can exercise no approval
    or confirmation authority over an ex officio road commissioner's
    decision about whom to hire to fill that position. We do not
    interpret section 3.003(a) in that way.

         The statutes governing ex officio road commissioners have
    provided since their enactment that ex officio road commissioners act
    "under the direction of the commissioners court." Acts 1901, 27th
    Leg., ch. 114. at 277. The provision in section 3.003(a) that allows
    ex officio road commissioners to hire road hands was added in 1981.
    Acts 1981, 67th Leg., ch. 691 at 2584. The 1981 amendment took the
    place of the following language: "Said [commissioners] court may
    employ any hands and teams on the public roads under such regulations
    and for such prices as they may deem best." Acts 1901, 27th Leg., ch.
    114, at 277 (previously codified at V.T.C.S. art. 6762). Under the
    prior provision the court had no authority to delegate the hiring of
    road hands to the ex officio road commissioners. See Guerra v.
    Rodriguez. 239 S.W.2d 915, 920 (Tex. Civ. App. - San An=10    1951, no
    writ) (hiring of road hand is not ministerial act and may not be
    delegated by commissioners court absent statutory authority). The
    1981 amendment was obviously intended to increase the power of 'ex
    officio road commissioners to hire and fire road hands. We do not
    believe, however, that it was intended to create an exception to the
    general rule that the commissioners court has general supervision over
    ex officio road commissioners.

         The 1981 amendment was necessary to allow ex officio road
    commissioners to make hiring decisions at all.        See Guerra v.
    Rodriguez. 230 S.W.2d 915, 920 (Tex. Civ. App. - San Antonio 1951. no
    writ). See also Bill Analysis to S.B. No. 1242, 67th Leg., prepared
    for Committee on Intergovernmental Affairs (stating that 1981




                                  p. 3789
Honorable Jimmy F. Davis - Page 5    (JR-801)




amendment "empowers the commissioners to hire, fire and supervise,
when necessary. those employees that would be paid from county road
and bridge funds."     Nothing in the statutory language or the
legislative history indicates that the 1981 amendment was intended to
prevent the commissioners court from exercising supervision over the
hiring decisions of each individual road commissioner. See generally
V.T.C.S. art. 6702-1, 53.101(b)(2) (acts of road commissioner employed
by commissioners court are "subject to the control, supervision,
orders, and approval of the cbssaissionerscourt"); 03.102(b)(4) (road
superintendents shall hire teams "as directed by the commissioners
court"). We think the legislature would expressly state any intent to
exclude the commissioners court as a whole from exercising any
authority in a matter of county business. See Tex. Const. art. V, P18
(commissioners court shall exercise power andjurisdiction over county
business). Therefore, we conclude that the commissioners court has
authority to approve or disapprove the hiring decisions of an ex
officio road commissioner.      Consequently, the nepotism statute
prohibits an ex officio road commissioner from hiring the son of
another county commissioner as a road hand.

                              SUMMARY

            Article 5996a, V.T.C.S.. the nepotism statute,
         prohibits an ex officio road commissioner from
         hiring the son of another county commissioner as a
         road hand.




                                        J /b
                                          Very truly yours


                                               Lx
                                          JIM     MATTOX
                                          Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




                                p. 3790
