                          QBffice of ttJe Bttornep @emcal
                                    %tato of QC;txas
DAN MORALES
 .Al-rORSEY
        GENERAL                        September 9.1992

      Honorable Jesusa Sanchez-Vera              Opinion No. DM-163
      Jim Wells county Attorney
      P. 0. Drawer 2080                          Re: Whether the executive director of a
      Ake,Texas 78333                            municipal housing authority is subject to
                                                 the nepotism statute, V.T.C.S. article
                                                 599f5a (m-282)

      Dear Ms. Sanchez-Vera:

             You ask whether the executive director of a public housing authority is
      subject to the nepotism statute, V.T.C.S. article 5996a We conclude that a person
      holding that position is not.

             Section l(a) of the nepotism statute states in pertinent part as follows:

                    [n]oofficex...ofany...   municipal subdivision of this State,
               nor any officer or member of any State district, county,
               city,... or other municipal board . . . 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 aflkity or witbin tbe third degree by comaquinity, as
               determined under Article 5996h, Revised Statutes, to the person
               so appointing or so ~0% or to any other member of any such
               board, . ..ofwhichsuchpersonM.appointingorvotingmaybea
               member, when the salary, fees. or compensation of such
               appointee is to be paid for, directly or indirectly, out of or from
               public timds or fees of office of any kind or character
               whatsoever.

      V.T.C.S. art 5996a, 0 l(a). By its terms, section l(a) applies only to officers who
      have the authority to hire personnel. Thus, to decide whether the executive director
      of a municipal housing authority is subject to the nepotism sta’ute, and thereby
      precluded from appointing to any position any person related to the executive
      director within the second degree by affinity or within the third degree by



                                             p. 859
Honorable Jesusa Sanchez-Vera - Page 2         04-163)




wnsanguinity, we must examine the municipal ~housingauthority’s (the “authoriv)
enabling act to determine the executive director’s scope of authority.

          Chapter 392 of the Local Government Code creates an authority in each
municipality of the state. Local Gov’t Code 0 392.011(a). An authority is composed
of five commissioners whom the mayor appointed upon receiving notice from the
munidpalitys governing body declaring the need for au authority. Id 0 392.031(a).
The code authorizes the authority to employ a secretary, who shall serve as
executive director of the authority. Id 0 392.038. The code also autborixes the
authority   to employ, on a permanent or temporary basis, technical experts and any
o&heremployees the authority considers necessary. Id

        Chapter 392 does not specify any of the duties or powers an executive
director, or any other employees of the authority, shall have. Rather, the code
requires the authority to determine the qualifications, duties, and compensation of
all persons it employs. Id The authority may delegate to any of its employees those
powers and duties it considers proper to delegate. Id 0 392.051(c).

        Thus, while the executive director of an authority may perform functions the
authority has chosen to delegate to him or her, the code itself confers no duties or
functions on the executive director. Id 4 392051(c); @. Attorney General Opinion
JM-91 (1983) at 2. As to those functions the authority delegates to the executive
director, the authority does not “by such delegation abdicate [its] statutory authority
or control.” See Pena v. ?io Gmnde Ciry ComoL Indep. Sch D&t+,616 S.W.2d 658,
660 (Tex. Civ. App.-Eastland 1981, no writ); Babcock & Collins, Local Govemmti
Low, 36 SW. L.J. 471,509 (1982) (summari&g Pw). Because the legislature has
vested the power to hire in the authority and not in the executive director, the
executive director cannot be subject to the nepotism statute. See genemlly Pena, 616
S.WL?d 658; Babcock & Collins, supm, 36 SW. U. at 509-10; Letter Advisory No.
148 (1977).




                                       p. 860
Honorable Jesusa Sanchez-Vera - Page 3       Ct+163)




             Because an executive director has no statutory authority to
         hire personnel, he or she is not subject to the nepotism statute,
         V.T.CS. article 5996~1.




                                                DAN      MORALES
                                                Attorney General of Texas

WILLsPRYOR
First A&taut Attorney General

MARYKElLER
Depufy Assistant Attorney General

RENEAHICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K Oltrogge
Assistant Attorney General




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