                  TRI~~:ATTORNE-YGEJUERAL
                           OFTEXAS
                           AUSTIN 11.TEXAS
PRICE  DANIEL
ATTORNEYGENERAL
                              March 14, 1949    '

        Hon. D. D. Williams          opinion NO. V-785
        County Attorney
        ThrockmortonCounty           Re: The legality of employ-
        Throckmorton,Texas               ing the wife of a county
                                         commissioneras the coun-
                                         ty home demonstration
                                         agent.
        Dear Sir:
                  You request an opinion from the Attorney Gen-
        eral upon the above subjeot matter.
                 .Your fact situation, briefly stated is that
        the present County Home DemonstrationAgent for Throok-
        morton County has held that position since 1947. At
        the January term, 1949, the Commissioners*Court made
        the following order:
                   "It ,isordered by the Commissioners*
              Court of ThroolanortonCounty that the sum
              of Eleven Hundred and Forty Dollars ($l,l-
              40.00) be appropriatedan8 the same is
              hereby appropriatedout of the funds of
              the county to be used as a part of salary
              of a Home DemonstrationAgent, to be as-
              signed to work in this county by the ex-
              tension service of the Agricultural and
              Meohanioal College of Texas. . . .*
                  The lady holdingsthis position is now engaged
        to marry one of the County Commissioners. Upon this.
        fact basis you submit the following questions:
                   "1. Will the marriage of the Home
              DemonstrationAgent and the County Commis-
              sioner of ThrookmortonCounty cause her to
              become ineligibleto hold her pbsition im-
              mediately upon marriage under the 'Nepo-
              tism' Statute,,Art.432 of the Penal Code
              of Texas?
                   "2. If such marriage does not cause
              her to become ineligiblbduring the year,
              1949, will it render her ineligible for sub-
              sequent years while her future husband is
'Hon.D. D. Williams - Page 2    (V-785)


      County Commissionerof Throokmortoncounty,
      Texas."
          Article 432 of the Penal Code of Teus - the
Nepotism Statute - is in part as followsr
           "No offloor of this St&o or any of*
      ficer of any. . , oounty, ,i'.judge l'f
      Ony court, . , ,shall~OppOint,or vote ror,
      er ~oonflrm the a ointment to any efrloe;
      position, clerksRPp, employment or duty, of
      any person related within the sesond degree
      by oirinity or within the third dogror by
      consanguinityto the person'80 ap@ntlng
      or se voting, or to any other aember of any
      lr h board, . , ,oroourt oreahioh suah psr-~
      801~80 .appointingor ntlrg nay be o member,
      when the salary f,oes or laponsation Of
      suoh a point00 1s to {O pOfa ror aireotly
      or lnaEreotly outof or rrom p&o      runas
      or roe0 or od1o.o or any kind or ohoroator
      whatdOOvOrl.~
           Artiole 433 or the Codo dorlaros:
           "No ofrioor lr other prrson inOiuaOd
      within the ttilrdprocoding art1010 (432)
      rhall approvo any looount or (row or 'auth-
      srlzi the dkawing of any *arrant or order to
      pey any salary   ree or.~oompensation or, snoh
      lnoligibleof&Or or person,~knowing hlmta,
      be so lnellglblor"
          We shall first gofioo a quostion.,ofkinship
under the Nopotisn‘Statutenot hitherto deeidea by any ~'~
eotirt ln'this State so rar as 179are ldrised that is,
whethor tho husband and wife are related in the prohi-,
bited a0grOO or thr Statuto.
           Wo'ossu&~of cour8o) t&t ths Comm%srlonor
 and the Agont ore not ,relatadby oensanguinity (blood).
hit romaln,sonly to oonsider whether they.are related
by   lrriaity (m0rriOgOI.
          Under the rule in this Stato'a wirets blood
relotivos are the husband's affinity relafivor.,~.
                                                 Dpoa      .'
the marriage 0r your County Caarissloner~and iFtiE?-
stration Agent the bload  rolatlvos of the
beoora tho l f&ity rolatiros of the Sari88"f:onor. Tkt
Ron. D. D,,Williams - Page 3   (v-783)


is to say, her father, mother, brother, sister, son,
end daughtes would be related to him by~affinitywith-
in the first degrso, and her grandfather,grandmother,
uncle, aunt, first oousin, nephew, nleoo, grandson,
and granddaughterwould be related to the Commissioner
by affinity within the seoond do&roe,
           Under the letter of tti.rule obtaining in
this State as to kinship by affinity, it is obvious that
a man's wife would not be related to him at all for it
is only "her kin by consanguinityor blood" that beoomes
her husband's kin by affinity. However, when the statute
of Nepotism is construed aocording to its purpose and in-
tention, it is obvious it should.be construed to apply to
the relation of husband and wife, for such relation is
closer than the forbidden relations of her blood kin above
enumerated. The evil seught to be remedied wouldbe in-'
finitely mare obvious if anoffiesr were to appoint his
wife than if he were'to~appointher brother, sister, fath-
er, unale, nioos or.oousin. We need not to determine
whether the Ponal.Statute (A&:437, P.C-.)would be ap-
plied for a violation of the statute, beoause,Article432
in EtrriTSLStiVOterms for.bidssueh employment,which is
therefore unUufu1, whether the same be punishable orimi-
nally or not,
          It has been held in former opinions that; under
the Nepotism ntatutes, a husband aoald not so appoint his
wife. Opinion V-3S9; OpilItiOll
                              0-3X.
          We now consider whether or not a demonstration
agent holds a nposltionvwith the oounty forbidden by the
Nepotism Statute.
         Article 164 of the Revised Civil Statutes is
the authority for our cooperativedemonstrationwork in
agricultureand home economics, It rsaas:
         "The Commissioder~sCourt of any oounty
    of this State is authorized to establish and'
    oonauot eo-operativedemonstrationwork in
    agriculture and home eoonomlos in oo-opera-
    tion with the Agrioulturaland Mechanical
    College of Texas, upon such terms and oonai-
    tione as may be agreed upon by the Gommiseion-
    ers' Court and the agents of the Agrioultural
    an~dYeohanicai Uollege of Texasi and may sm-
    ploy such means, and may appropriate'and 8x-
    pend such sums of money as may be neoessary to
Hon. D. D. Williams   -   Page 4   (V-785)


     effeotivelyestablishand carry on such dem-
     onstrationwork in agricultureand home eoo-
     nomios in their respective counties."
          While the demonstrationwork,is a cooperative
plan by which the respective counties of thenState may
utilize its benefits,nevertheless,it is perfectly ob-
vious that the county availing itself of such plan ne-
cessarilymakes such accepted denonstratorits own agent
and employee,.The language "may employ such means, and
may appropriateand ex end such sums of money as mey be
necessary te effectivefy establish and carry on such
demonstrationwork in agrioultureand home eoonomic$ in
their respective counties,* is the ambit of their povre~.
It can make no difference that the A & M supplies the
demonstratorsfor such oounty.S8Tvioe, By this legisla-
tive plan the State enoourages the training of demonstra-
tion agents by OUT own Agriculturaland Mechanical Col-
lege and assures competent agents throughout the State.
No reason is'discerniblewhy.the employment df the demon-
stration agent does not oome within the employment.prac-
tioe condemned by the statute.
          Opinion Nd, O-4372 by a former Attorne'yGenera&,
cited by you in your brief, does not involve any $uestion
of nepotism. It merely affirms the authority of the'Com-
missioners' Court of~a county to make continuousannual.
appropriationsfor compensatingthe agent. Nor is~the re-
lation of the county to the demonstratiodagent analogous
to the relation between thencounty and an elective offi-
cer of the county or a precinct, as you suggest, for'in
the case of an eleotive officer the 'countyhas no control-
ling discretionwhatever as to the seleoting or the oom-
pensation of suoh,offioer,whereas, in the present case it
had.
          This brings us to the question of whether or not
your situation is controlledby the fact that the demon-
stration agent was.the employee of.the,~oountyprior to her
marriage to tpe county commissioner. The ca@e of Fairless
v. The Cameron County Water ImprovementDistriot No. 1, 25
S. W. (2a) 651 is informative. It is there said:
          "Blakeley,a member of the Board of
    Directors of the Water ImprovementDistriot,
    was the husband of a sister of appellant
    when he was employed in ~1928,an'dhad been
    ~a director of such a,istriot&ring four
    years before that time. The employment of
Ffon.D. D. Wllliame - Page 5   (V-785)


     appellant was a plain violation of the Nepo-
     tism Law, and he ha8 no oauae to oomplein
     beoause of his disoharge by the board or dl-
     reotors, who, upon learning that they were
     aoting oontrary to law, promptly disohergsd
     him and relieved themselvesof any ohergo of
     wlliul dieobrdienoeto the law. They oould,
     end perhaps should, have refused to pay him
     anything for the month af February in the
     firet part of whioh he was diecharged.”
          This offloa In Opinion MO. O-1408 oited and
quoted the Pairless-Oameronoaae in au port of’Its hold-
ing that where an employee upon a montf:ly basis beoam8
lnellglblefor the appointmentunder Article 432, employ-
ment after the ‘firstOS tha auooeedinglnonthwould have
been in direot violation or the Penal Cods. The opinion
cite8 an earlier  opinion, No. O-361, where the employment
was ude et a time when the relationshipdid not exist;
thrrefore the employment at the time was legal, and the
ooatraot ror ita term (aohool dletriot eupsrlntendent )    *
wea not mde rold.
          It was held during the preamt admlnistration
that the eleotion of a,truatee to a board or sohool trua-
tees, who is related to a teaoher of such gohool holding
a valid existing oontraot with the board, does not make
void euoh oontraot under Artiole 432 of the Penal Code,
(OpinionNo. V-184)                              ,

          Upon these oonsiderations,~you are advised that
the oontraot by whloh the County employed the Domonstra-
tion Agent is not *de void by her superveningmarriage
to one of the ooavaiseioner8;but upon the terrlnationof
the period ror whioh she was employed she would be lneli-
gible ror re-employment if her husband is one of the oom-
mislioner9.
          We heve answered your queetions In this mennar
beoauae we are unable to determine from your statement
whether the agent’8 employmentwag for a year or ~~~eraly
by the month, terminable at the end of any month by either
party. The appropriationby the oourt or a sum surrioient
to compensate the agent for a year does not nsoeeaarily
ehow that there was an employment for any definite t&m.
.




    Hon. D. D. Williams - Page 0   (V-785)




             The employment by a county of a County
        DemonstrationAgent in cooperationwith the
        A&M College oomes within the provision of
        Article 432, Penal Code, forbiddingnepo-
        tism. For such employee to marry a member
        of the Commissioners*Court,wouldnot oper-
        ate to make void the existing contract be-
        tween the Agent and the county, but it would
        remain valid to the end of the term of em-
        ployment. Fairless v. Cameron County I&
        provement Distriot, 25 S. W. (26) 651; Attor-
        ney General's OpinionNo. V-184.
                                    Yours very truly,
                               'ATTORNEYGBMRALOF   TEXAS




    0S:wb                           Assistant
