                                                 The Attorney                 General of Texas
                                                                     November 10,         1983
     JIM MATTOX
     Attorney General


     Supreme      Court Bulldmg                Gary E. Miller,       M.D.                              Opinion     No.   J&g1
     P. 0. BOX 12548                           CCllllllIisSiOlU?~
     Austin,    TX. 76711. 2548                Texas Department of Mental            Health            Re:     Whether the superintendent
     5121475-2501
                                                  and Mental Retardation                               of a mental health          and mental
     T&x      910,874-,367
     Telecopier      5121475.0266
                                               P. 0. Box 12668                                         retardation        facility     is  an
                                               Austin, Texas    78711                                  officer    subject    to the nepotism
                                                                                                       statute
     714 Jackson.  Suite 700
     Dallas, TX. 75202.4506
                                               Dear Dr.    Miller:
     214,742J3!344

                                                     You have asked whether a superintendent         of a Texas Department of
     4824 Alberta        Ave.,   Suite   160   Mental   Health  and Mental  Retardation      facility     is   an officer     for
     El Paso. TX.        79905.2793            purposes   of the Texas nepotism    statutes.        We believe    that    such a
     91515333484                               person is an officer  within  the meaning of articles         5996a and 5996b,
                                               V.T.C.S.
r-      01 Texas.~Suite          700
     muston,       TX.    77002-3111                 Article     5996a provides,          in part,    that
     713,223.5886
                                                            [noI officer             of       this        State . . .           shall
                                                            appoint     . . . to any office,            position,       clerkship,
     806 Broadway.         Suite 312
     Lubbock,  TX.        79401.3479
                                                            empl~oyment or duty . . . any person related                       within
     8061747-5238                                           the second degree by affinity                or within        the third
                                                            degree       by     consanguinity          to     the     person        so
                                                            appointing      . . .       when     the      salary,        fees,      or
     4309 N. Tenth. Suite 6
                                                            compensation       of such appointee            is to be paid for,
     McAllen,     TX. 76501.1665
     5121682.4547
                                                            directly      or indirectly,          out of or from public
                                                            funds      or    fees    of    oftice     . . .       provided        that
                                                            nothing         herein     , . .       shall          prevent          the
     200 Main Plaza. Suite 400                              appointment       . . . of any person               who shall         have
     San Antonio,  TX. 76205.2797
                                                            been     continuously        employed      in any such office,
     5121225-4191
                                                            position,       clerkship,       employment         or duty        for    a
                                                            period     of two (2) years prior              to the election          or
     An Equal      Opportunity/                             appointment           of      the       officer          or        member
     Affirmative     Action     Employer                    appointing      . . . or to the election              or appointment
                                                            of the officer         or member related           to such employee
                                                            in the prohibited         degree.

                                               Article     5996b    expressly       specifies      certain         officers       to whom the
                                               prohibition      applies,       including      officers           "Of    the     various  state
                                               eleemosynary     institutions."




                                                                               p.   386
Dr. Gary E. Miller         - Page 2      (JM-91)




        The courts of this state have frequently             stated that     the standard
that     determines      status   as an officer,         as    distinguished       from an
employee,      is   “whether    any   sovereign    function     of   the   government      is
conferred     upon the individual        to be exercised       by him for the benefit
of     the   public     largely     independent     of    the    control     of   others.”
(Emphasis in original).           Green V. Stewart,        516 S.W.2d 133. 135 (Tex.
1974); Aldine Independent          School District     v. Standley,       280 S.W.2d 578,
583 (Tex.       1955);    Pena v. Rio Grande City           Consolidated       Independent
School District,        616 S.W.2d 658, 660 (Tex. App. - Eastland                 1981, no
writ).

       The powers and duties          of superintendents    of mental health         and
mental    retardation     facilities     are not functions     mainly   delegated      to
them by the commj,ssioner          and deputy commissioners     of the department,
but are derived       from statutes       such as articles    3175-3177,     V.T.C.S.,
the Texas Mental Health Code, and the Mentally              Retarded     Persons Act.
Article    3176 provides,      in part:

                 The Superintendent   shall  be the administrative
              head of the institution    to which he is appointed.
              He shall have the following   powers:

                  1.  To establish    such rules   and regulations  for
              the government     of the instjtution     in his charge,
              as he deems will      best   promote   the interest   and
              wel~fare of its inmates.

                  2.    Where not otherwise     provided    by law,     to
              appoint      the   subordinate    officers,     teachers,
              attendants,     and other employees,     and to fix their
              salaries.

       Each      superintendent          of    a    facility         is    appointed       by    the
commissioner       with the approval         of the Texas Board of Men~tal Health and
Mental     Retardation         and serves     at the pleasure            of the commissioner.
See V.T.C.S.        art.    5547-202,     52.12.      However,      we believe      that a court
would find that each superintendent                , as the administrative            head of the
institution       to which he I s appointed            and the person with the power to
appoint      the     facility’s       staff     and fix         their     salaries,      exercises
sovereign       functions        of  government       for     the benefit        of    the public
largely      independent          of  the    control       of    others.       Accordingly,        we
concl.ude      that      a superintendent          of     a Mental.        Health     and Mental
Retardation        facility       is subject     to the prohibitions             imposed by the
nepotism statutes.

       We note that this situation        is differcnt     from that presented      in
Pena V. Rio Grande City          Consolidated      Independent    School  District,
supra,    which   held   that  a superintendent        of an independent      school
district    is   not   an officer     within     the meaning     of   the  nepotism
statutes.     Unlike a school    superintendent,      whose duties   are prescribed



                                             p.    387
Dr. Gary E. Nfller       - Page 3      (JM-91)




solely   by the employing     school    board,    the duties    of a superintendent
of a facility     of the Texas Department           of Mental Health        and Mental
Retardation   are prescribed     by statute.       This statute    confers    upon such
a superintendent    sovereign    functions     of government largely       independent
of the control   of others.

       YOU also      ask     whether    the    nepotism      statutes      prohibit       the
employment    of a particular         person     at a mental        health     and mental
retardation    facility.        The person     is paid from publi,c           funds.      The
person     is a brother-in-law        of    the superintendent          and,    therefore,
within    the degree     of affinity     prohibited     by article       5996a.     Because
the person was employed at the facility              for less than two years prior
to the time he became the superintendent’s              brother-in-law,        we conclude
that the two-year       continuous   service    exception     in article     5996a is not
applicable.

      While we believe       that a contract        of employment     that was made
prior    to the prohibited     relationship      would remain valid      for the term
of the contract,      we are advised        that the person      in question   is not
hired on a contractual       basis with the facility.          If the person is a”
employee    who is hired     on a month-to-month        basis,     we believe   a new
contract    would be entered         into    each month and that         the person’s
continued     employment   at the facility         is prohibited.       -See Attorney
General Opinion M-857 (1971).

                                      SUMMARY

                 The superintendent     of a facility    of the Texas
             Department of Mental Health and Mental Retardation
             is a” officer       within   the meaning   of the Texas
             nepotism   statutes    and may not employ a person who
             is related     to him within     the degree   of kinship
             prohibited   by article    5996a, V.T.C.S.




                                                      -J      I M   MATTOX
                                                           Attorney  General   of   Texas

TOM GREEN
First Assistant      Attorney    General

DAVID R. RICHARDS
Executive Assistant       Attorney    General

Prepared    by Nancy,Sutton
Assistant    Attorney  General



                                           p.   388
Dr. Gary E. Ellller   - Poge 4   (JM-91)




AFPROVED:
OPINION COMMITTEE

Rick Gilyin,   Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




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