                     OFFICE OF THE ATTORNEY   GENERAL
                                   AUSTIN




                                              January 12,

      Hon. John A. Hemilton
      Distriot Attorney                              :'*
      110th Judioial illstrlotai Texas              ,~ /
      Xetedor, Texae                                : ')
                                                         \
      Dear %r. Hamilton:                      ,'---.. '( 1
                                                   -.-,

                              He : &pot ism
                                          --..
                     Your request for an'opinion on the.qu’es-
      tion:                                    i
                      'Vould the,appointraentof the
                wife of the Co::tityand Xetriot Clerk
                of Xotlsy  County, a oouaty offa foe
                basis, having a,popUlation of less
                than twenty thousand, as e deputy
                without pay, by said officer, be a
                violation of the ZTcspotisnstatute,
                a6 set out in Artiale 432 of the Fenal
                Code of Texas?* ;
             ;.
              ..,_              :
      has bsen received by.thii  fMflce.
              ,,?,    :
               ~You.atate"furt&r in your letter that the
      officer is desirous of appointlug his wife as a deputy
    ’ without auy reaunoration whatever, either dkeotly or
      indireotly. You further state that you have been un-
      able to flnd.any,casee where the oourte have passed upon
      the above question.
               ‘This department is not in pO6SeS6iOn of any
      case wherein the Court6 have pa66ed Upon the above quae-
      tion. HoNev6r, this department has ruled upon and has
      written many oplnlons, oonstruine ixtlolc 432 of the
.     Penal Code.
    Bon. John A. Hemilton, Januzry 12, 1939, Page 2

    .
              Artlole 432, Penal Code of Texas, provides
,
    as follows:

                    "No officer of'this State or any
             officer of any dlstrlot, oounty, city,
             preolnot, aohool district, or other muni-
             .oipal subdivision of this State, or any
             officer or member of any State, dlstriot,
             county, city, sohool district or other
             municipal board or judqe of any oourt,
             created   by or under authority of any
             general or 6p6CiaL law of this State,
             or any member of the Legislature, shall
             appoint, or vote for, or oonflrm the
             appointment to any office, poeitlon,
             clerkship, employment or duty, of any
             person related within the second degree
             by sf?'lnityor within the third degree
             by consanguinity to the person so ap-
             pointins or so voting, or to any other
             member of any suoh board, the Legislature,
             or court of vhioh suoh person so appoint-
             ing or voting may be a member, when the
             salary, fees, or oorzpensationof such
             appointee Is to.be paid for, directly
             or indlreotly, out of or from public
             funds or fees of offioe of any kind or
             oharaoter whatsoever. Acts 1909, p. 85,
             Acts 1915, p. 149."
              This department oites the following opinions
    whioh have heretofore been rendered by this department
    and whloh are deemed pertinent to your inquiry, to-wit:

                    (1) "A County Clerk oannot appoint
              his wife as a deputy." Opinion rendered
              July 21, 1927, by IionorabJeEI.Grady
              Chandler, Assistant Artorney C&neral,to
              Tar. Leo Xalloy, County Clerk, Paint Rock,
              Texas.
                   (2)  n Sherlrr nay not appoint son
              as a deputy sherltf thou::hson mnkes no
    Hon. John iz.Liemilton,January 12, 1939, Page 3


              charge for his service6 and is com-
              pensated in no manner, directly or
              IAdIreotly, out of or from publio
              runds or fees of orfloe of any kind
              or obaraoter what6oever.v Opinion
              rendered &ril 26, 1932, by Hononable
              Seott Gaines-,Assistant Attorney GeA-
              eral, to Llr. Xiardlow Lane, County
              Attorney, Center, Texas.

                   (3) "It is not a violation Of
              the Xepotlsm stabute under Artioles
              432 and 433, Penal Code of Texas, for
              thg die of the'sheriff and tax oolleo-
              tor to do clerical work in his office
              without conpensatlon and without being
              appointed a deputy. However, she may
              not sI.~nthe tax and other reOeiptS iA
              tha nsme of her husband." Opinion ren-
              dered Ilarch2, 1932 by Hon. f!ruOB'l:.         Y>,.."....A--I~
              Dryant, First :;ss'Istant   :,ttorAeyGeneral      ?rcr,.
                                                                     , .1
              of 'l'exns,
                        to Eon. Joe ?. slack, COUAty          i e ,..:T
              ILttorney,LIinard, 'i'exns.
                          e
              The three obovc O~~A~CAS have been carefully
    reviewed by this department and are approved by this
    department.
              Therefore, you are respeotfully advised that
    tho appointment by the County end Distriot Clerk of
    Motley County of hi6 wife as a deputy County and DiS-
    trict Clerk of said oounty, striotly without remunera-
    tion, either directly or Indireotly, would be e viola-
    ti& of the Depotlsm statute, as set out in Article
    432 of the Penal Code.
         ,
              you sre further advised, however, that it 1s
    the opinion of this department that it would not be a
    violation of the Napotlsm statute under Mticle 432 end
    433, Penal ,Codeof Texas, for the wife of the County and
    Z)istrIotClerk of :.:otlcy
                             County.to do clcrloel :vorkin
    his offioe without oomponsation or remuneration, either


.
Hon. John A. Hamilton, January 12, 1939, Page 4


dlraotlg or lzdlreotly, and tithout belng$appointed
his deputy, but she would have no authority to Sign
his ame offioiallg to any Instrument.
           Trusting that the above answers your inquiry,
I remain
                           Yours reepeotfully
                       AFOR,XXY cS?iiti 0" TZXAS
