                                      The Attorney General of Texas
                                                            December        14,   1984
 M MATTOX
ttorney General


qreme      Court Building
                                     Honorable  Abelardo Garza                              Opinion     No. .JM-254
  0. Box 12548                       Duval County Attorney
Jstin. TX. 78711-2548                P. 0. Drawer H                                          Re:    Whether    the    salary   of   an
1214752501                           San Diego,  Texas    78384                              investigator     employed by a county
,,ex 910/674-1367
                                                                                             attorney     and related     to a county
dcopier      51214750266
                                                                                             commissioner     may be increased

‘4 .lackson.  Suite 700              Dear Mr. Garra:
 allas. TX. 75202.4506
.41742-6944
                                           You employ an investigator        who is a first      cousin    of a Duval
                                     County commissioner.      You would like the coraaissioners       court to grant
324 Alberta    Ave..   Suile   160   the investigator    a salary   increase   and, for this reason,       ask whether
 Paso. TX. 799052793                 the commissioners    court   would violate     the nepotism    statute,   article
151533.3464                          5996a. V.T.C.S..   if it approved     the increase.

101 Texas.    Suite 700
                                             Article      3328,     V.T.C.S..        governs    the employment          of assistants,
ousbm,     TX. 77002.3111             investigators,         and other        personnel      by county       attorneys.          See art.
131223-5666                           332a.      §l     (“prosecuting           attorney”      f;fned        to      include Tounty
                                      attorney”).          The      county        attorney               employ       such      assistant
                                      prosecuting       attorneys,       investigators,         secretaries,        and other       office
36 Broadway,     Suite 312
                                      personnel”      as are necessary           to operate     his office.        Id. 12.       He is to
“bbOCk. TX.     79401.3479
x1747.5238                            set the salaries          of his investigators           and other personnel            subject      to
                                      the approval         of    the commissioners           court.      Id.    55.      Article      3902,
                                      V.T.C.S..       prohibits        the     commissioners        couF       from      attempting        to
Jo9 N: Tenth. Suite S
                                      influence      the county       attorney’s        choice    of employees.           See Renfro       V.
IcAllen,  TX. 78501-1685
121662-4547
                                      Shro shire,      566 S.W.Zd 688 (Tex. Civ. App. - Eastland                      1978,wrlt       ref’d
                                     ‘beeper                  v. Stewart,         66 S.W.2d 812 (Tex.         Civ. App. - Eastland
                                      1933, writ ref’d).
30 Main Plaza. Suite 400
an Antonio.  TX. 78205-2767
                                          Article         5996a.      V.T.C.S.;          provides      that     no    member      of     the
121225~4191
                                     commissioners        court

 ” Equal OpPortunltYl                               shall    appoint,       or    vote     for.     or     confirm      the
 ffirmative~Action    Employer                      appointment       to any office,          position,       clerkship.
                                                    employment or duty,          of any person          related    within
                                                    the second degree by affinity                or within     the third            ,
                                                    degree by consanguinity            to the person so appoint-
                                                    ing or so voting,          or to any other member of any
                                                    such board . . . 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




                                                                       p.    1131
Honorable    Abelardo     Garra    - Page 2    (JM-254)




             from public   funds or fees of            office   of   any kind        or
             character   whatsoever.  . . .

       The commissioners        court   authorizes       the position      of investigator
and has approval        power over the county attorney’s               salary    recommenda-
tions     but has no control         over the person         who is appointed         to that
position.       Under such circumstances,           this office      has determined       that
the action        of   the   commissioners       court     does    not   come    within     the
nepotism     statute.      See Attorney     General Opinions        H-697 (1975);       O-4895
(1942);     O-1954 (194n       O-480 (1939);        Letter    Advisory    Nos. 116 (1975);
70 (1973).       Nor does the court's        action    in approving      a salary    increase
for the county attorney's          investigator      violate    article     5996a. V.T.C.S.
Attorney     General Opinion H-1210 (1978).               See Attorney      General Opinion
O-1849 (1940).        The commissioners       court caxt         require    that the salary
be paid to a particular           person.     Thus, the commissioners            court would
not violate       the nepotism      law by approving         a salary     increase    for the
position     of county attorney's        investigator,       even though the individual
who serves       as investigator       is related       to a commissioner         within    the
prohibited      degree.

                                        SUMMARY

                  The    commissioners         court     would    not    violate
              article     5996a.     V.T.C.S.,      by approving       a salary
              increase      for   the position        of   county    attorney's
              investigator,        even    though     a first     cousin     of a
              commissioner       holds   that position.         Article     3902,
              V.T.C.S..       bars     the     cosasissioners      court      from
              influencing       the selection        of a person       for    that
              position.




                                                       JIM      MATTOX
                                                       Attorney  General        of        Texas

 TOM GREEN
 First Assistant        Attorney   General

 DAVID R. RICHARDS
 Executive Assistant        Attorney    General

 RICK GILPIN
 Chairman, Opinion        Committee

 Prepared    by Susan L. Garrison
 Assistant    Attorney General




                                             D. 1132
Honorable   Abelardo   Garza   - Page 3    (JM-254)




APPROVED:
OPINION COMHITTEE

Rick Gilpin.    Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer   Riggs
Nancy Sutton
Bruce Youngblood




                                     p.   1133
