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                                    TRIG          ATIVRNICY            GECNERAI.

                                                  AURTIN.    TlZXAR    76711
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         JOUN     l..     UlLL                                                                      I
       A1MRIIEY         OICNILPAL
                                                        May 18, 1977



                   The Honorable John C. Knorpp                         Opinion     No.     H-992
                   Donley County Attorney
                   P. 0. Drawer 3                                       Re: Appointment of county
                   Clarendon, Texas 79226                               commissioner's wife as
                                                                        deputy tax assessor-
                                                                        collector for the county.'
                   Dear Mr. Knorpp:
                        You advise that in Donley County the commissioners
                   court sets and approves the monthly salaries of all officials,
                   including that of the deputy tax assessor-collector. The
                   Sheriff-Tax Assessor-Collector of the county, who hires and
                   fires his own deputies, has hired the wife of a county com-
                   missioner as deputy tax assessor-collector. You observe
                   that the commissioner would normally have a community
                   property interest in his wife's county salary, and then
                  'ask:
                                        May the Sheriff-Tax Assessor-Collector appoint
                                        as deputy tax assessor-collector the wife of
                                        one of the County Commissioners?
                                        If your answer is in the affirmative, will
                                        a written agreement as to the salary of
                                        the deputy as being the wife's and the
                                        husband having no interest in it.suffice?

                        In discussing the nepotism statute, we said in Attorney
                   General Opinion H-697 (1975):
                                           Article 5996a generally provides that no
                                        officer of a county or member of a county
                                        board or court may appoint, vote for, or
                                        confirm the appointment to any office or
                                        position compensated by publiefunds of any
                                        person related to the person so appointing
                                        or so voting or to another member of the
                                        board or court within the second degree by




                                                            P. 4121
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      The Honorable John C. Knorpp - page 2 (H-993)


                affinity or the third degree of consanguinity.
                See Letter Advisory No. 67 (1973). County
                -
                commissioners are included. V.T.C.S., art.
                5996b.
                   This provision is not violated, however,
                if a relative of a member of a governing body
                is hired for a position authorized by that
                body, when the governing body does not exercise
                control over the person to be selected. See
                Attorney General Letter Advisory No. 79 (T473)
                and authorities cited therein.

           Where the nepotism statute is applicable, the wife of
      an officer to whom the prohibition applies is considered
      to be related to him within the second degree of affinity.
      Attorney General Opinions V-785 (1949); V-359 (1947); O-4973
      (1942); O-31 (1939); Attorney General Letters Advisory Nos.
      79 (1974); 68 (1973). But here, absent "trading" or some
      other illegal evasion of the law, article 5996a would not
      apply. -See V.T.C.S. art. 5996c.
            The commissioners court of a county and its members are
      statutorily prohibited from attempting to influence the
      appointment of any person as a deputy, assistant or clerk
      in another office. V.T.C.S. art. 3902; Attorney General
      Opinion H-697 (1975)
       (Tex. Civ. App. __ ,,,tEdw        $i~'~~~:$i. 66T~;~m2~ef:~er
      the commissioners court nor individual commissioners'can
      legally prevent the sheriff from hiring the wife of a
      commissioner if she is otherwise eligible for the position,
      and article 5996a would not apply. Attorney General Letter
      Advisory Nos. 116, 115 (1975).

           The community property interest of a commissioner in
      the county-paid salary of his wife was not addressed as an
      issue in any of the opinions cited above, however.
           Article 2340, V.T.C.S., reads:
                Before entering upon the duties of their
                office, the county judge and each commissioner
                shall take the official oath, and shall also
                take a written oath that he wiii-nn
                --
                         - indirectly lnc'restedin
                directly or                       - G




                              P. 4122
    .   .

.

            The Honorable John C. Knorpp - page 3 (H-993)


                     'contract with, or claim against, the county
                      in which he resnes, except such Grants
                      as may issue to him as fees of office . . . .
            (Emphasis added).

                 In Attorney General Opinion H-624 (1975), we decided
            that article 2340 prohibited a county from entering a contract
            with a farmer's cooperative in which a commissioner owned a
            small share, saying:
                        While the interest involved here appears
                      so negligible as to be insignificant, the
                      controlling statute is cast in absolute
                      terms and the public policy of the matter
                      is clear: members of a commissioners court
                      must avoid all situations which result in
                      their personal pecuniary gain at the expense
                      of the county. __
                                      See Attorney General Opinion
                      H-329 (1974).
                  The salary earned by a spouse during marriage is community
            property. Family Code 9 5.01. Thus, the husband in this
            case would normally have a community interest in his wife's
            salary. Although married couples may convert community
            property into separate property if they comply with the
            relevant constitutional and statutory provisions, Hille
            Hilley, 342 S.W.Zd 565 (Tex. 1961), we do not belida?the
            husband may in this manner free himself of all interest in
            his wife's salary. See -,       Family Code 5s 3.59; 4.02; 5.22
            (a) (2); 5.42; 5.61; Attorney General  Opinions II-329 (1974);
            WW-1406 (1962). Thus,   whether  the wife's salary remains com-
            munity property or becomes separate property, the husband has
            a direct or indirect interest in it, in violation of his oath
            under article 2340.
                 We believe the wife may continue to serve if she renounces
            her salary, thereby preventing her husband from having an
            interest in her salary claim against the county. See Attorney
            General Opinions H-329 (1974) and H-6 (1973). If hechooses
            to resign from the commissioners court, she may thereafter
            serve as deputy tax assessor-collector and receive her
            salary. If the husband remains on the commissioners court
            and his wife claims salary from the county,,his interest in
            that claim will cause him to violate his article 2340 oath and




                                     P. 4123
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        The Honorable John C. Knorpp - page 4 15-993)


        render her employment contract null and void as against public
        policy. Bexar County v. Wentworth, 378 S.W.Zd 126 (Tex. Civ.
        APP. -- San Antonio 19=, writ ref'd n.r.e.1; Starr Count
        Guerra, 297 S.W.Zd 379 (Tex. Civ. App. -- San Antonio
                                                            --l&,%0
        writ)t Attorney General Opinion,H-624 (1975).

                                SUMMARY

                    The nepotism statute does not bar a county
                    from employing as deputy tax assessor-
                    collector the wife of one of its county
                    commissioners, where the commissioners have
                    no control of'the hiring or firing of such
                    deputies. The husband has an interest in his
                    wife's salary claim against the county, which
                    causes him to violate the oath required by
                    article 2340, V.T.C.S., and renders her
                    employment contract null and void.

                                          Very truly yours,



                                          Attorney General of Texas

        APPROVED:



        DAVID M. KENDALL, First Assistant




        Opinion Committee




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