      OFFICE   OF THE AlTORNEY      GENERAL   OF TEXAS

                           AUSTIN




Eonorablr ?. T. Graham
count ~Attornfty
Car b n County
Zwownsvlllo , Texas
                                               (\




                                          -- al.s Rerponsl-
                                       ntmnt attarteaiordl
                                     Zmployeea -- And
                                    lntsanto  ana 8830Tel8.
                                    nt an ottioar   whose
                                ager, and ho shall bo
                                ioer and head or the ad-
                                the Qlty goternment.
                         shall bs ahosoo by ths Comr&s-
                         e beds    of hb rxeautlrr    and




       not b; a resident of the oitr or State, but
       during his tenarr of offloe  he shall ratide
       within the oity.  Eo person  eleatrd  to msabop
       ship on the city Conmission 3hsl1, subsequtmt
       ta suah election, be elkible    ror appointment



                                                       -.   -.
                                                               382


Honmable   F, T. Graham, Page 2



       as oitp manger   until one year has elapsed
       following  the expiration of the term Sor whish
       he was eleoted.

           ‘*The City ‘Xsnager shall be appointed for
       an Indefinite      term but he may be reaored by
       a najor1t.r    rots oC %he msmbers or the City
       CammIssIon on thirty dayz prior notice of
       their-,Intention      to ruaove him. The aotlon of
       the CommIssion Ir. removiag thr Manager shall
       be riw.        In 0850 of thr absenoe of the Man-
       a&or, he may, with the approval o? the Cltty
       Commiaalon, designate a qualified        adminirtra-
       tire offioer      or, the alty to perrorm his duties
       during his absenae, and absewe &all          Inaludo
       temporary disability       on auoaunt of zioknosz,
       or otherwiss.
            nrThe City Xanager shall be r.esponzlble     to
       the City Conmfsslon for the proper adnlnls tra-
       tlon of all affalre     of the City In his aharge
       and to that end, exoept as otherwise ?rovlded
       in this oharter,   and, subjeot to any provlslons
       herein with referenoe     to a 3ivll Sewfioe, he
       shall have the power to appoint and remove all
       offloers   and employees In the adalnistratlva
       service of the olty, exoept the City Attorney,
       who zhall be appointed by the City Commission,
       but the &Wager 188~authorize the head of a
       department or ofiloe     responsible   to him to
       appoint and remne subordinates        In suoh depsrt-
       mznt or offloe.     A-,poIntments made by or under
       the author1 ty of the City tiager       shall be on
       a basla of exeoutlte     and adafnistratlve   abll-
       ity   and or the training and rxperlenoe of suoh
       smployees In the work whlah they are to ger-
       form; all suoh appointments shall be rithouC
       definite   term.
           *‘Any offlo~r or employee to whom th0 City
       xanager, or the head of a department or offloe,
       may appoint a sucoessor,  may be rtmwved by the
       City ‘%nager, ar other appointing offiosr,  at
       my time, but the deolsion and aotion of the
                                                                383



ionorablo   F. T. Graham, Page f



        Hsnager with referenoe   to appointments, a8
        well as ranovals,  shall be flnal and there
        shsll be no appeal thereirom to any other
        office, body or oourt whatsoever.

             w*NeIther the City ComlssIon,      nor any oi
        Its oomltteez      or numbers, shall direct     or
        request the appolntzent     of any person to or
        his removal fros offloe     by the City Xsnager
        or any of hla subordinates,      or Iz any manner
        take part In the appointment or removal of
        offioera    and esployoer In the administrative
        senior     or the oity.   %xoept for the purposes
        of inquiry,    the Commission and its menbers
        shall deal with the adarlmlstratlvs      servioe
        solely through the City ?&sager end neither
        the Commlsslon, nor any memberthereof,          shall
        give orders to any subordinate of the City
        hanager, elther publloly     or privately.     Any
        violat ion of the provisions    of this paragraph
        by a namber of the Commission shell be a mls-
        dezeazor     conylotion  of which shall Imedlate-
        ly forfeit    the offloe  of the member so aon-
        via ted. *

             ntSection 21. IKJTIZS OF CITY Y?AGZiX;
        RIGETS OF XAXAC?3R   MD OTHEROFPICZRS BT COM-
        XISSION 'XZETEGS; HEADSOF DXPAR'l%f32~S       AND
        DIVISIOX3 TZRZOF; ?LXVXSTIGATIO~       07 CI??Y
        'XANAGZR   9Y CITY COXEISSION--     It shall be
         the duty of the City ‘Xanager to aot as ohlef
         oouservator   of the peaae within the olty; to
         supervise the edmlnlztratlre    affairs   of the
         altyI to see that the ordlnanoea oi the alty
        and laws of the State are enforoedi       to make
         such recomendatlonz    to the CommIszIon aon-
         oernlng the affairs   of the 0Ity as nay zeen
         to him desirable ; to keep the Commission ad-
         vised oi the finanoial   aondltion    and needs
         OS the alty; to prepare and submit to the Com-
        ulsslon zuch reports as may be required by
         that body, and to perform suoh other dutlez
         aa may be presarlbed by this Charter.
            "*The City Esnager shall be entitled to a
        seat in all Commlzzion meetings, abut &all
lonorable   F. T. Graham, Pago 4



        hare 00 rote therein.     On rote of the CommIs-
       sion,   the heads of all departments     ,and suoh
       other oifloers    of the City as sny be Ueslg-
       nated by vote therefor,      shall also be entitled
       to seats In the Commission meeting, but shall
       hare no vats therein.      Ths &ager     zhall haps
       the right to take part In ths dizoussion        of
       all aatters coming before the CommIssIon meet-
       ing, and the heads Of all departments and
       other orfiaers   shsll be entitled     to take part
       In all disousaions     of the Commlsslon relating
       to their rsspeatlve     department5 and orriae5.
       . . ..*     ?

           ‘The Olty Esnager has employed as oIty employees
     person8 mho are related   to one of the City CommIs-
     zionzrs within the degree of relationship   prchiblted
     by Artids   432 of the Penal Code of the Retised
     Statutes  of Texas, 1925.

           *Subsequent to the employment by the City Xan-
     ager  of persona related within the prohibited     de-
     gree to one of the City Commizsionars, the City
     Commission, (at one at its meetings in whlah ths
     Commissioner so related to zuch olty mployees,
     took part and voted) voted to raise the salerlee
     of zll alty aployeez,     lnoludlng the partlaular
     amployees so related    to said City Ccmtnlzsloner.

           Y!he City Comabsi~n,   as 1 oonstrue the per-
     tinent Charter provisions   of the City of Rrowns-
     vllle whloh are hereinabove quoted, has nothing
     whatever to do with ths hiring   or firing   of si ty
     amployess other than the City ?tiagsr     himself and
     the City Attorney; the City ComIssIon      doss, how-
     ever, have power to presorlbe   salaries   to be paid
     to the tariouz employees hired br the City ha&or.
           “The City &nager,  kaosl~   the enployees In
     question were related to one of the City Commis-
     zloners within the degree prohibited   by Artisle
     432 of ths Penal Cods Revised Statutes,     1925,
     aontlnued to keep sash 5mploYees on ths Oitr
                                                                     :’   385


onorable   y.   T, Graham, Pag5 5



    payroll   snd oontinued to approve the monthly pay-
    roll whloh oarrled suoh snployzesl   ntunes and
    aalarl55,   and oontlnued to pan them fron oity
    ftmds.
            “The City &mager has advised M that he sod
    the said City Commissioner have bssn threatened
    with charges of nspotisn and he has appribed me
    of ths faots and has requszted an opinion of sm
    as County Attorney as to whether or not, under
    the faots hereinabove    set out, he and the Comais-
    sloner involved are guilty of any violation      of
    the nepotI5m laws of the Stat5 of Texae, aavising
    me that    he and zuzh Comzlssloner desire to oomply
    with the provisions    of thz various Penal Statutes
    and ir they have in the past ~iolatad     suah Stat-
    utes,    they desire to know in what respeots,   in
    order that they may osase to so vlolate      them in
    the future.

          WArtIolz 432 of the Penal Code, Revised            Stat-
    utes, 1925, provldesr

              nlNo ofrioer    of this State or any orfioer
       of zny dlstriat,        oountp, aity, pi5oinot,      zohool
       dlstrlat,      or other muuloipal subdivision        of
       this Stats,       or any offloer     or member of any
       ;tate,     aistrlot,    oounty, olty      sohool distrlot
       or other mnlolpal         board, or 3udge oi any
       court,     oreated by or under authority         of any
       general or speolal la* or this State, or sny
       member of tbs Legislature,           shall appoint,    or
       vote for, or oonfirm the appointment to any
       0rri00,     po5itIon,    ole*5hIp,     employmmt or
       duty, of any person related within the aeoozd
       drgree by affinity        or within the third degree
       by oonsanguiaity        to the person so appointing
       or ao voting,        or to an7 other member of an7
       zuoh board, the Legislature,           or court of whlah
       such parson 50 appointing           or voting nay be a
       neaber,     whaz the zalary,      fees, or oompansation
       or suah appointee is to be pald for, dlreotly
       or Indlreatly,        out of or from publla funds or
       fee5 of offioe        or my kind or oharactzr ??hatzo-
       ever.’
Honorable   y. T. Uraham, Page 6



            wA.rtlole   433 bf suoh Penal Code provides:

           "'The fnhlbltlons       set forth ln this law
       shall apply to and lnolude the '?overnor, Llsu-
       tenant Governor, Speaker or the House or 8epre-
       sentatltes,    Railroad Commlssloners, head of
       departments of the State govsznaent, judges
       and wmbers or any and all Boards and oourte
       established    by or under the authorltg of any
       general or speoial        law oi this State, menbers
       or thfi Legislature,       5apor8, ooamlsslon8rs,   re-
       oordsra, aldermen and members of sohool boar&r
       ot inoorporated      oltlea    and towns, pub110 sohool
       trustees,   orfloers     and manbers or boarda or
       managers or the State %lrerelty          and or Its
       severeA branohea,       and of the various State edu-
       oatlonal lnstltutlons        and of the various State
       eleenosynary institutions,        and 0r the geniten-
       tiarioe;    Thfs enumeration shall not be held
       to sxolude from the operation and erreot or
       thla law any person included within its general
       pmvlslons.'
            aArtlole    434 or suoh Penal Code provides;
           **No officer     or other person lnoluded within
       any provision      of this laa shall appoint or vote
       ror appolntnent or ror ootiir5ation          or appoint-
       inent to any suah offloe,      position,    clerkship,
       employu?ent or duty of any person whose servloes
       are to be rendered under hls dlreotlon           or oon-
       trol end to be paid tar, dlreotly          or lndlreotly
       out 0r any suoh pub110 funda or r8023 0r 0rri00,
       and who is related by affinity         within the seoond
       degree or by oonsenguinity        within the third de-
       gree to any such offloer       or person inoluded
       wlthfn sny provlslon       of this law, in oonsldera-
       tlon, in whole or in pert, that suoh other of-
       rloer or person haatheretorora         appointed, or
       voted ror the appointment or for the oonfirf%-
       tion of the appointment, or will therearter            ap
       point or vote tar the appointslent, or for the
       oonrlrnatlon     of the appolntcaant to any suoh
       orfloe,   position    or olerkshlp,    enployment or
       duty of any person whomsoever related within
Eonorab18 P. T. Crah6mq Page 7



       the seoond degree by afiinity or within the
       third degree by oonsangulnlty to suoh offloer
       or other person making suoh appointment.'

          "Artlole           69 of   suoh Penal Code provides:

           *'Any person who advises or agr88d to the
       oommi6sion or au OffSnSS and who IS present
       -hen the same Is oomtnltted is a principal wheth-
       er he aid or not in the iuS@     aOt.*
            Yhssuxing that exoept for the City &nag&s
     having oontinuea to pay the salaries     0r the 8x-
     gloyeee related to suoh city Comalssloner,      after
     suoh City %nager kner of such prohibited      relation-
     ship end after the City COmaiSSlOn at one of its
     meetings undertook to raise all ealeriae     of all
     City EZlp1OySSs (at whloh l!BStl~    Of the City Com-
     ~Isslon the Co~zmlssioner in qU8StiOn partioipated
     fad  voted) and anaumliq that exoept ror these
     facts there is no oollueion    or trading as oontem-
     plated by Artlole    434 of the ?enal Code, I respeot-
     fully request your opinion on the r011cn0b       qUSS-
     tions:

           "1.  Is      the City Counlssloner   ivho Is related
       xzithln the      prohibited   dSgr88 to eap107eea Of the
       city hired       by the City Lknager, @1ty      of nepo-,
       tisrn under      our .3tetutes?

          792, Is the city  &nager or the City 0r 3rowno-
       Y1118, Under the raots &Yen, guilty 0r nepotism
       under our StntUtSS  by virtU6 Or the provisions
       OS Arti    69 of the Pena Cod.?
           “3.  Doea the iaOt that the City ~05lUllSSlOtlSr
       In question portlolpated    in and voted at a meat-
       ing or the City Comrnisslon, in which salearies
       or all city 817lp1Oy8S2-iwere rafeed,  lnoludlng
       thO88 who had been hired by the city &tiager
       and who were related to Suoh Conudss~oner wlth-
       ln the prohibited   degree,  render hin &uflty   Of
       iISpOtk3I under the provlslons    or Art1018 432 0r
       the Teas1 Cade taken in ooojunotion     with the pro-
       visions of Article   434 of the Penal Code?
          (1.   l   .   .=
E!onOrable F. T. Graham, Page 8


           This departmen6 has repeatedly    ruled that the ap-
p0lntmsnt or a relative  of a member of the oomr,faeioaera*
court by another oounty oifloer    as a deputy is not in viola-
tion of the nepotism lau and that the fact that the oonmla-
aionera* court sets the number Of deputies to be appofd8d
i1083 not amount to a ooniirmatlon   or the appointaent.
            On i?SblWiry 9, 1932, this department held, in an
opinion by &norable     8. 0. Xatera, Aasiataut Attormy ~8a8ral,
that it 310s not a violation   or the nepotism law for a tax ool-
l.eot0r to appoint es his assistant   or deguty a son of a oounty
cmmlssloner    arter the oomdaaioner+q   oourt had authorized
the appolntnent of juoh deputy in aoaordanoe with Artlole 302,
ixSYi38d 01~11 Statutes   0r Texea.

             On 'Xsroh 2, 1935, this department held in an oplnlon
by Honorable C. Y. Kennedy, Assistant      Attorney General, that
ii deputy sherlrr    lnho Is a rimt oousln or onr or the asmbera
or the cOGminsionsrsl court would rid be prohibited        from serv-
:lm 8s suoh or did his appointmant by the sheriff        violate the
~tercs 0r .'.rtlole  432, Penal Code Or Texas, or the allowanoe
of his salary by the co.3mfasionera'     oourt Ooneti tute e Viola-
.tlon of suoh nepotism law beoause the oommissionera~ oourt
did not appoint or vote r0r or oonrlrm the appointmentor such
::SpUty shrsrlti.

            On .:S?tSmber 21, 1935, this depati8nt   held in an
~~plnloa by Flonorable Joe J.  Alaup, Assistant  AttOm8y  General,
:hat a parsor.   related to the oounty judge in the prohibited
38gr88 LSS~serve as deputy clerk arid the fact that the a&s-
sionera’ oourt sets the m&or Of deputies to be appointed
50~ not ank3unt to a osnfirmatlon.
            This dSg8Xt;lent held on Deoember 29, 1936, in an
opinion by flonorable ?ll~lam CsoCraw, Attorney General of Texas,
that the appointment or an unole of one Of the members of the
comIssionera*    oourt aa assistant  dlatriot attorney was not
e violation   of the nepotlsP law of the State of Texas.
           On July 6, 1937, this department held In an opinion
by Zonoreble J. El. Droedhurst, Assistant  AttOr!ley General
that appointnent or a relative   0r a member or the wmniaa i on-
era’ 00urt by another oouuty 0rrio8r as a deputy waa not in
violation  or the nepotism law.
 .   .




Ffooorable     T, T, Cr?ham, Page 9



             Opinion no. O-480 of this department holda that it
i3   not a violation  or the nepotism law for a District Clerk
to   appoint
      . .     aa his deputy a daughter of one of the oounty
ammaslonere.

           Opinion No. O-875 or this department holde that it
ie not a violation  of the nepotism law for a 3istriat   Cle*
to appoint as his deputy a sister   of the County Judge.   We
quote rr0n said opinion aa r0il0wSr

               Wnder   the provisions    OS Artlale    3902, ge-
         visea Civil   Statutes,   the oountp orri0Sr     desiring
         deputies,   nakea the applioation     outlined   in saia
         artiolo   to the oonmisaionera~ court Sor the au-
         thority   to appolnt suoh deputies.       The oommiesion-
         ers* oourt grants the authority       to appoint to the
         offioer   and sets the salary before the appointment
         is made. The oonmlssioners’        oourt haa no author-
         ity to attempt to designate Fohomthe oi’fioer         shall
         appoint and is spsoifioallg      forbidden    to do so by
         this article.     The comsti8sioners7 oourt does not
         confirm the apgolntee.
                *In answer to your first   question,   you are
         respeatSully    advised that it is the opinion of this
         department that it is not a violation       of the nepo-
         tism la% for the district    clerk to appoint a deputy
         district   olerk aho ie a sister   oi the aoting oounty
         Judge of the oounty.     You are further respeatfully
         advised that it is the opinion of this department
         that in such oase the aommission8rs’ aourt does not
         aOniirm th8 appointment .*

           Opinion Xo. O-1954 of this departieent holda that
1% is not a violation  OS the nepotism law for the sheriff-
tax asssssor-oolleotor  to appoint as his deputy a brother-ln-
Law or a oounty oonnnfssloner.

             opinion No. 04330 ot this department holds that
dnoe the oonxaiaaionen ( aourt msrsly authorizes      the appoint-
nent 0r an assistant    aounty attome     and doea not name or
xmrlrm the a pointee It would not 3 e a violation      OS the
lepotism law i!or a county attorney to appoint as his assist-
IIIt a first   oousin of the ‘oounty judge.
.    .:




    Lionorable Fe T. Graham, J’age 10


              Opinion :!o. O-4720 of this department holds that
    It Is not a violation  of the nepotism law for a Criminal
    District Attorney to appoint ae hIa assistant   ths son of one
    0s the aountp oommIseIon4rs 0s the oounty.

                Under the facts stated and under the oharter provi-
    sions quoted In your letter      the oitp employees and orfioers
    (with the eroeption      of the olty manager and oity attorney)
    are appointed,    hired,   employed and removed by the oity man-
    ager--the   oity oommission neither appoints,     oonfirms nor re-
    aoves saoh employees and officers--In      faot the oity oommIssIon
    is prohibited    by Seotion P of the oity’s     oharter from taking
    any part In the appointment or rcuoval of such officers          and
    anployees, with sever4 and appropriate penalties        attached
    thereto.
              It is our opinion under the faots stated that each
    of your questions should be acstjered in the negative, and
    are 30 answered.
