               THE    ATTORNEY         GENERAL
                          OF   TEXAS




Honorable Terry M. Brown          OpiniOn   NO.   JM-1188
Criminal District Attorney
Polk County                       Re: Whether promotions of the
P. 0. Box 1717                    son and daughter of a sheriff
Livingston, Texas 77351           violate   the nepotism statute,
                                  article 5996a, V.T.C.S.
                                  (RQ-2018)
Dear Mr.    Brown:

     You ask for an interpretation of section l(c) of the
Texas nepotism law, article 5996a, V.T.C.S.  You state that
the son and daughter of the current Polk County Sheriff were
both employed by the sheriff's office at the time their
father took office.   Both had sufficient prior continuous
service to retain their positions. See V.T.C.S. art. 5996a,
§ l(b). After their father became sheriff, both the son and
daughter received promotions:   the son was promoted     from
deputy sheriff to sergeant (a higher-ranking      deputy, we
assume), and the daughter was promoted from jailer to deputy
sheriff.   You ask    whether  those   promotions   were   in
contravention  of section l(c) of article      5996a, which
provides:

              When a person is allowed to continue in an
           office, position,   clerkship, employment    or
           duty because of [sufficient prior continuous
           service] . . .    the    Judge,     Legislator,
           officer, or member of the governing body who
           is related to such person in the prohibited
           degree   shall    not   participate    *    the
           deliberation or voting upon the appo&ment
           reappointment,    employment,    confirmation:
           reemployment, change in status, compensation,
           or dismissal of such person, if such action
           applies only to such person and is not taken
           with respect to a bona fide class or category
           of employees.

     You first ask whether the promotions       were lawful
because they were made by a deputy sheriff, not the sheriff
himself.  Section  l(c) of article 5996a states that an




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 Honorable Terry M. Brown - Page 2 (Jh-1188)




 officer shall not participate   in the deliberation about or
*voting upon a change in status1 of an employee related to
 him within a prohibited degree.   If the officer in question
 is a member of a board, the related employee could receive a
 promotion or pay raise as long as the related board member
 did not discuss or vote on the promotion or pay raise.     We
 do not    think,    however,   that   the   sheriff   avoided
 ~~participation~~in the decision to promote his children by
 delegating the authority to make the decision to a deputy.2

      A deputy serves at the pleasure of the sheriff.     Local
 Gov't Code § 85.003(c).  Consequently, the acts of a deputy
 are legally the acts of the sheriff. Bev       Woody   4 S.W.
 242 (Tex. 1887); Cortimiolia v.  Mill&E  3z6VS.W.2d  a78    284
 (Tex. Civ. App. - Houston 1959,    no wkit).  The   acts'of   a
 deputy in deputizing another person or in promoting    another
 deputy are the acts of the sheriff. m     Local Gov*t Code §
 85.003(e)(making clear that relationship between sheriff and
 deputy is that of principal and agent). But see Local Gov't
 Code 55 158.001 - 158.015     (larger counties may operate
 sheriff's office under civil service system). Therefore,      a
 deputy cannot lawfully perform an act that the sheriff       is
 prohibited from performing   himself.3    In any case, the



      1. You state that both the son and daughter    received
 pay raises in connection with their promotions.  The salary
 scale for various positions in the sheriff#s office is set
 by the commissioners court. Local Gov't Code ch. 152. It is
 the decision   to promote his     son and daughter     to
 higher-paid  position  that   raises questions   under    th:
 nepotism statute.

      2. You do not ask and we do not consider whether     the
 language of section  l(c) is so vague as to fail to give
 notice of the proscribed   conduct. pavachristou v. Citv of
 Jacksonville, 405 U.S.   156 (1972); m   Bean v. State
 S.W.2d 773 (Tex. App. - El Paso 1985, writ ref'd)    (h&d::;
 Texas nepotism  statute not unconstitutionally vague;    case
 precedes addition of section l(c) to nepotism statute).

      3.   We acknowledge that the language of section   l(c)
 may lead to some curious consequences.     For example,  not
 only does it prohibit an officer from promoting a relative,
 it appears to also prohibit the officer from dismissing    a
 relative. Whether a sheriff may dismiss a relative is not
 the question before us.




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Honorable Terry M. Brown - Page 3 (JM-1188)




applicability of the nepotism statute depends on whether the
sheriff may exercise control over a decision to promote.
Qe   V.                                      0    'St., 616
S.W.2d 658 (Tex. Civ. App. - Eastland 1981).

     The second issue you raise is based on the language of
section l(c) providing that an officeholder may participate
in a decision   that affects a relative if the decision      is
made "with respect to a bona fide class or       category    of
employees."   An example of such a decision would be a
decision to give a cost-of-living raise to all employees     of
the sheriff's    office.   The situation you describe        is
somewhat different.    Viewing the facts in the light most
favorable to the sheriff, it is a situation     in which the
sheriff's son and daughter received promotions     that were
consistent with the custom of the office. We do not think
that the language regarding actions taken with respect to a
bona fide category of employees was intended to give an
officeholder's relatives the benefit of expectations created
by custom or common practice.       Furthermore,     sheriffs'
deputies serve at the pleasure of the sheriff, and their
statutory at-will status cannot be undone by local custom.
&S Batterton v. Texas Gen. Land Ofti,     783 F.2d 1220    (5th
Cir.), cert. denied, 107 S.Ct. 316 (1986) (custom contrary
to state statute that allows removal at will cannot be
source of due process interest).

                        SUMMARY

             A sheriff may not promote his son and
        daughter  even though they had sufficient
        prior continuous service to retain their jobs
        in the sheriffjs office after their father
        became sheriff.




                                   JIM     MATTOX
                                   Attorney General   of Texas

WARYEELLER
First Assistant Attorney General

mu MCCREARY
Executive Assistant Attorney General




                              Pa 6265
Honorable Terry M. Brown - Page 4 (JM-1188)




JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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