           THEATITORNEY               GENERAL
                       OFTEXA~




Honorable Harry Knox, Chairman
State Board of bontrol
Austin, Texas
Dear General Knox:               Opinion O-2$97
                                 Re: AuthorLy of the Board of
                                      Control to apnoint the
                                      wife of the Superinten-
                                      dent of the Alabama and
                                      Coushatti Indian Agency
                                      Livingston to the posi-
                                      tion of office assist-
                                      ant bookkeeper.
     We have your request for any opinion under date
of November 14, 1940, as follows:
          "tinclosedis a letter from honorable
     Clem Fain of Livingston, Texas addressed
     to this Board and suggesting that this
     Board hire Mrs. Corley, wife of the super-
     intendent of the *ndian Reservation, as
     secretary to the superintendent.
         "In view of the facts set out in l*lr.
    Fain's letter and in view of the terms of
    Article 693, Section 3 of the Revised
    Civil Statutes, your valued opinion is
    resnectfully requested as to whether or
    not this Board would have the power tc
    hire &s. Corley as set forth in lvir.Fain's
    letter, without violating the NepotJ',,n
                                           law."
          Item 2 of the current appropriation for the Alabama
and Coushatti Indian Agency Livingston is:
     "Office assistant-hookkeeper, if
      U. S. Salary ceases....0......#900.00n
          We understnad this position to be the one con-
templated in your reference to "secretary to the super-
intendent."
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General Knox - page 2 C-2897


          Article 693, subdivision 2, of the Revised
Civil Statutes, authorized the hoard of Control "to ap-
point all officers and employees of such Institutions
IState eleemosynary institutions) and fix their salar-
ies and wages." lhe Alabama and Coushatti Indian Agency
Livingston is an eleemosynary institution of the State.
          A rider to the current appropriation for the
Agency, Special Laws 46th Leg. p. 306, provides:
         "The expenditure of all money herein
    appropriated for the welfare of the Alabama
    and Coushatti Indians in Polk dounty and
    all employees therefor, shall be under the
    supervision and appointment of the State
    Board of Control.
          You are therefore respectfully advised that it is
the prerogative and duty of the Board of Control to make
the appointment to the position under consideration, and in
doing so, it would not violate the Penal statute against
nepotism if it appointed to that position the wife of the
Superintendent.
          Article 432 of the Penal Code of Texas, defining
nepotism, is as follows:
         "No officer of this State or any officer
    of any district, county, city! precinct,
    school district; or other municipal subdivision
    of this State. or any officer or member OS any
    State, r"strict, county, city, school district
    or other municinal hoard, or judge of any court,
    created by or under authority of any general of
    special law of this State, or any clemberof the
    Eegislature, shall appoint, or vote for, or con-
    firm the appointment to any office, position,
    clerkship, employment or duty, of any person re-
    lated within the second degree by affinity or
    within the third degree by consanguinity to the
    person so appointing or so voting, or to any
    other member of any such board, the Legislature,
    or court of which such person so appointing or
    voting may be a member, when the salary, fees,
    or compensation of such appointee is to be paid
    for directly or indirectly, out of or from nub-
    lit funds or fees of office of any kind or char-
    acter whatsoever."
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     General Knox - page 3 0-2S97


               "bile this Article contemplates "all boards" es-
     tablished by or under the authority of any general or special
     law of this State, such as the Board of Control, (See Article
     433 Penal Code) nevertheless, it would not be violated in the
     appointment by the Board of Control here under consideration,
     unless, of course, Mrs. Corley is related within the prohibit-
     ed degree to some member of your Board.
               It your Board has heretofore made any order author-
     izing the Superintendent of this Agency to appoint the employees
     of such Agency, such order should be rescinded, and the Board
     itself should henceforth actually make such appointments.
               It will be observed the appropriation for this item
     or position is a conditional one, that is, dependent upon the
     ceasing of the U. S. salary therefor. We are not advised
     whether the United States has ceaseu to provide for such sal-
     ary, and we are not therefore passing upon the question of
     the availability of any funds for payment of the office of
     assistant bookkeeper.
               Our conclusions are not in conflict with our Opinion
     No. o-1857, for we had there only the question of the power of
     the Board of Control to remove employees of eleemosynary insti-
     tutions.
               The implications of that opinion as to f.heright of
     the Board to remove such employees as are officers under the
     State are overruled in,,thecase of Harry Knox et al. vs. Dr.
     ii.J. Johnson, 141 S. . (2) 69g.
                                    Very truly yours
                            ATTORNEY GENtiRALOF TEXAS

                            BY               Ocie Speer
                                              Assistant
     OS-MR/pam
     APPROVED NOV 22, 1940
     GERALD C. MANN
     ATTORNEY GENERAL OF TEXAS
     APPROVED OPINION
     BnlB,CHAIRMAN
