                                        The Attorney           General of Texas
                                                          December 22, 1982
MARK WHITE
AttorneyGeneral

                                       Mr. Ernie W. Tullis. Administrator     Opinion No. Mh’-540
Supreme      Court Building            Texas Employment Conxnissio”
P. 0. Box 12546
                                       TEC Building                           Re:   Adoption of nepotism
Austin,    TX. 76711. 2546
5121475-2501
                                       Austin, Texas   78770                  policy by Texas Employment
Telex    9101674.1367                                                         Colmnissio”
Telecopier     5121475.0266
                                       Dear Mr. Tullis:
1607 Main St., Suite 1400
Dallas.   TX. 75201-4709
                                            You advise that the Texas Employment Commission is considering
2141742-6944                           the adoption of a nepotism policy reading:

                                                In keeping with the spirit of the nepotism laws of
4624 Alberta       Ave., Suite   160
                                                Texas, it shall be the policy of this Agency that
El Paso, TX.       79905-2793
9,5/533-3464
                                                no supervisor, administrator, or manager shall
                                                hire, promote, or approve the hiring or promotion
                                                of any person related within the second degree of
1220 Dallas    Ave., Suite 202                  affinity   or    within    the  third  degree   of
Houston,    TX. 77002-6966
                                                consanguinity to the person so hiring, promoting,
713b550.0666
                                                or approving; provided that nothing herein shall
                                                prevent the hiring, promotion, or approval of
606 Broadway.        Suite 312                  hiring or promotion of any person who shall have
Lubbock,     TX.    79401.3479                  been continuously employed in any such position
6061747.5236
                                                for a period of two (2) years prior to the
                                                assumption    of    duties   by   the  supervisor,
4309 N. Tenth.     Suite S                      administrator, or manager to whom the employee is
McAtten.     TX. 76501-1685                     related in the prohibited degree.
5121662.4547

                                            You ask if the commission is empowered by the Texas Unemployment
200 Main Plaza, Suite 400
                                       Compensation Act, article 5221b-1 et seq., V.T.C.S., to adopt and
San Antonio,  TX. 762052797            implement such a policy.
512/225-4191
                                            Article 5221b-9. subsection (a), V.T.C.S., clothes the commission
                                       with power and authority to adopt, amend, or rescind such rules and
 An Equal      Opportunitvl
 Affirmative     Action     Employer   regulations, to employ such persons, and take such other action as it
                                       deems necessary or suitable to administer the act, and empowers it to
                                       determine its own organization and methods of procedure in accordance
                                       with provisions of the act.     Subsection (d) thereof specifically
                                       authorizes the commission to appoint, fix the compensation, and
                                       prescribe the duties and powers of such officers, accountants,
                                       attorneys, experts, and other persons as may be necessary in the
                                       performance of its duties.




                                                                  p. 1959
Mr. Ernie W. Tullis - Page 2   (MW-540)
                                                                         .




     The proposed nepotism policy, in our view, merely prescribes the
duties and limits the powers of those persons to whom the commission
has delegated authority to hire, promote, or approve the hiring or
promotion of other persons. The commission possesses power to adopt
the policy unless it contravenes a policy or law established either by
the constitution or the legislature, or under their authority. -See
Attorney General Opinions H-832 (1976); O-2601 (1940).

     Article 5996a, V.T.C.S., prohibits a" officer of the state or a
local officer from appointing, voting to appoint, or confirming any
person to "any office, position, clerkship, employment or duty" if the
person is related to him in a prohibited degree. An exception is made
if the person shall have been continuously employed in that position,
employment or duty for a period of two years prior to the election or
appointment of the person who makes the appointment. Other provisions
define the class of "officers" against whom the statutory prohibition
operates, article 5996b, prohibit evasion by trading, article 5996c.
forbid approval of accounts or draws for i"eligible persons, article
5996d, and make violations a misdemeanor i"volvi"g official
misconduct, article 5996f.

     The nepotism statutes address conduct by "officer[s] of this
State." V.T.C.S. art. 5996a. Specifically within the meaning of the
term are "head[s] of departments of the State government," but persons
who occupy positions of lesser responsibility are not specifically
included.   V.T.C.S. art. 5996b.     Cf. Pena v. Rio Grand= City
Consolidated Independent School Distrfct. 616 S.W.2d 658 (Tex. Civ.
A"". - Eastland 1981. no writ) (school suoerintendent). Not all the
persons to whom the ~commissio" has delegated responsibility and who
would be affected by the proposed policy of the commission sre
"officers" within the meaning of the statutes prohibiting nepotism.
But that fact does not linlt the authority of the board to institute a
policy of broader prohibitory application, in our opinion, if it
determines that the adoption of such a policy is necessary for the
good administration of the Unemployment Compensation Act.

     The commission has been invested with power to take such actions
as it deems necessary or suitable to administer the Unemployment
Compensation Act. V.T.C.S. art. 52'21b-9(a). In our opinion. the
legislature did not intend by the enactment of the nepotism statutes
to occupy the field or prevent the adoption by state agencies of a
c0*s1stent but more far-reaching policy regarding favoritism.
Although the proposed policy may be violated by a person to whom the
nepotism statutes are inapplicable, the policy is not for that reason
inconsistent with the statutes. As we interpret the policy, i,t does
not purport to permit anything the statutes forbid, nor does it
prohibit anything the statutes expressly allow. See Tulles v. State,
284 S.W.2d 715 (Tex. Grim. App. 1955). Cf. State v. Jackson, 376
S.W.2d 341 (Tex. 1964); Martinez v. Texas~ployment    Commission, 570




                               p. 1960
_   ‘.




         Mr. Ernie W. Tullis - Page 3    (MW-540)




         S.W.2d 28 (Tex. Civ. App. - Corpus Christ1 1978,              no     writ)
         (administrative acts nullifying legislative action).

              It is our opinion that the Texas Employment Commission may adopt
         the proposed policy if it chooses to do so, and will not thereby put
         itself into conflict with any expressed or implied legislative
         limitation on its power. See generally 2 Tex. Jur. III Administrative
         Law
         -   912, at 202.

                                        SUMMARY

                      The Texas Employment Commission may adopt an
                   anti-favoritism policy of broader reach than the
                   present nepotism statutes.




                                                  MARK      WHITE
                                                  Attorney General of Texas

         JOHN W. FAINTER, JR.
         First Assistant Attorney General

         RICHARD E. GRAY III
         Executive Assistant Attorney General

         Prepared by Bruce Youngblood
         Assistant Attorney General

         APPROVED:
         OPINION COMMITTEE

         Susan L. Garrison, Chairman
         Jon Bible
         Rick Gilpin
         Patricia Hinojosa
         Laura Martin
         Jim Moellinger
         Bruce Youngblood




                                            p. 1961
