                            ATTORNEY GENERAL                  OF TEXAS
                                        GREG       ABBOTT




                                            March 27,2006



The Honorable Richard Slack                         Opinion No. GA-041 9
Reeves County Attorney
Post Office Box 825                                 Re: Whether the nepotism statute is applicable to
Pecos, Texas 79772                                  the employment of a sheriffs relative by a private
                                                    company that operates a county detention center
                                                    (RQ-0404-GA)

Dear Mr. Slack:

         Your predecessor asked whether, the nepotism statute is applicable to the employment of a
sheriffs relative by a private company that operates a county detention center.’ He informed us that
the Reeves County Detention Center (“detention center”) is a “prison facility tinder-private
management by the GE0 Group, Inc. in compliance with section 35 1.103 of the Local Government
Code.” Request Letter, supra note 1, at 1. According to his request letter, the detention center is
located “apart from and is completely separate from the County Jail that is managed by the Sheriff.”
Id. Information provided with the request letter indicates that the sheriff signed the management
contract with the GE0 Group and that the contract grants “authority to hire and terminate
employees” at the detention center to the GE0 Group. See Owens Letter, supra note 1, at 1. The
 sheriffs son applied for employment with the detention center but was rejected because of concerns
that the employment may violate the nepotism laws. See Request Letter, supra note 1, at 1. Thus,
 we were specifically asked “[i]f a County contracts with a private vendor for the management of a
 County Detention Center under section 351.103 of the Local Government Code[,] would the
 Sheriffs son be disqualified from employment at the facility under the nepotism statutes.“* Id.




        ‘SeeLetterfromHonorableLuisU. Carrasco,ReevesCountyAttorney,to HonorableGregAbbott,Attorney
Generalof Texas(Oct. 13,2005)(on file withthe OpinionCommittee,also mailable af http:i/www.oag.state.tx.us)
[hereinafterRequestLetter];see also Letter from J. Lynn Owens,ReevesCountyAuditor,to HonorableRandall
Reynolds,ReevesCountyDistrict Attorney, l43d JudicialDistrict(June 13, 2005) (attachedto RequestLetter)
[hereinafterOwensLetter].

         *Therequestletterinquiredonlyaboutapplicationof the nepotismstatute.See RequestLetter,szrpranote I,
at 1-2. Thusour opinionis limitedto the scopeof the requestor’squestion. However,becausea contractbetweena
countyanda privateorganizationfor aprivatejailfacilityrequirestheapprovaloftbesheriff,seeTEX.LOC.GOV’TCODE
ANN.5351.101(VernonSupp.ZOOS),       subsequentactionsbythecommissioners     courtregardingthecontractmayrequire
the sheriffto considerthe applicationofthe conflictofintereststatute.Seeid. $5 171.001-,010(Vernon1999& Supp.
2005)(chapter171,LocalGovernmentCode).
The Honorable Richard Slack - Page 2           (GA-0419)




         The nepotism statute, found in chapter 573 ofthe Texas Government Code, prohibits a public
official from employing a relative within a described degree. Specifically, it provides in relevant
part that

               [a] public official may not appoint, confirm the appointment of, or
               vote for the appointment or confirmation of the appointment of an
               individual to a position that is directly or indirectly compensated from
               public funds or fees of office if:

                       (1) the individual is related to the public official within a
                degree described by Section 573.002       ;

TEx. GOV’T CODEANN. 3 573.041 (Vernon 2004); see also id. 5s 573.002 (degrees of relationship
by aflinity or consanguinity); 573.001(2) (defining “position” to include employment). A county
sheriff is a public official subject to the nepotism laws. See id. § 573.001(3)(A) (defining public
official to include county officers). A father and son are related to each other within the first degree
of consanguinity proscribed by chapter 573. See id. 3 573.002; see also Tex. Att’y Gen. Op. No.
JM-801 (1987) at 1. If the nepotism statute applies to the sheriff under these circumstances, the
detention center’s employment of the sheriffs son would be prohibited.

        “The applicability of the nepotism law depends on whether the officer may exercise control
over hiring decisions.” Tex. Att’y Gen. Op. No. DM-2 (1991) at 1 (citing Pena v. Rio Grunde City
Consol. Indep. Sch. Dist., 616 S.W.2d 658 (Tex. Civ. App.-Eastland      1981, no writ)); see also Tex.
Att’y Gen. Op. Nos. GA-0415 (2006) at 2-3; GA-0123 (2003) at 2. Section 573.041 applies to an
officer who “may exercise control over hiring decisions, even ifthe officer refrains from confirming,
appointing, or voting in a particular case,” Tex. Att’y Gen. Op. No. GA-0226 (2004) at 2 (citing
Pena, 616 S.W.2d at 659), or delegates the hiring decision to others. See Pena, 616 S.W.2d at
659-60; see also Tex. Att’y Gen. Op. Nos. GA-0226 (2004) at 2; GA-0073 (2003) at 2-3; DM-2
~(1991) at 1. Thus, we must determine whether the sheriff has control over the hiring decisions of
the detention center.

        The detention center is operated and managed by the GE0 Group under a contract between
Reeves County and the GE0 Group. See Request Letter, supru note 1, at 2. Your predecessor did
not provide us with any particular language or provision but informed us that under the contract
the GE0 Group manages the detention center. See id.’ He informed us further that because
“management of the facility has been contracted to the GE0 Group[,]       the Sheriff does not have
the power to hire or tire employees or to manage the facility.” Id. In Opinion H-1210, this office
considered a similar situation involving a contract between a city and a county and the hiring of a
county commissioner’s daughter. See generally Tex. Att’y Gen. Op. No. H-1210 (1978). The
contract called for the city to operate the county-owned ambulance. See id. at 1. It required the city
to provide an ambulance supervisor at a specified salary. See id. The city hired the county
commissioner’s daughter to be the ambulance supervisor. See id. When the daughter subsequently
requested an increase in salary, the commissioners court refused to order a modification to the
contract to provide for the increased salary because the commissioners court believed the order
The Honorable Richard Slack - Page 3            (GA-0419)




would violate the nepotism statute. See id. This office stated that “[ulnder its contract with the city,
[the] County has no right to control the employment of the ambulant: supervisor” and opined that
the commissioners court’s action with respect to the salary would not violate the nepotism statute.
Id. at 2. Similariy, this office concluded that the nepotism statute did not prohibit the spouse of a
school district trustee from being employed by a private corporation that contracted with the school
district to provide speech pathology services to the district. See Tex. Att’y Gen. LO-95-080, at 1
(“[Tlhe board votes on whether or not to enter into a contract with the private corporation         [and]
it is the corporation that is responsible for the appointment, supervision, and payment of the
individual [employees].“); see also Tex. Att’y Gen. LO-92-052, at 2 (“The nepotism statute
addresses the hiring of individual persons by a governmental body, and not a contract between a
governmental body and a corporation that employs a number of people in various capacities.“).
Moreover, when addressing an analogous nepotism provision in the Texas Water Code, this o&e
came to the same conclusion. See Tex. Att’y Gen. Op. No. JC-0585 (2002) at 3 (considering section
49.052, Water Code, and reasoning analogously that as “this office has pointed out in connection
with section 573.041, a governmental body that contracts with a corporation does not vote to appoint
or employ any particular individual to the corporation; rather, ‘it is the corporation[‘s responsibility]
to appoint, supervise, and pay its employees”). Because the Reeves County Detention Center is
managed by the GE0 Group, a private entity, under its contract with Reeves County, we do not
believe the sheriff has authority over the employees of the Reeves County Detention Center.

        We note that section 35 1.103, Local Government Code, does expressly provide for “regular,
on-site monitoring by the sheriff.” See TEX. Lot. GOV’T CODE ANN. 3 351.103(2) (Vernon 2005).
However, this authorization has been construed by this office to mean that the sheriff has “authority
to evaluate the vendor’s performance of the contract.” Tex. Att’y Gen. Op. No. DM-86 (1992)
at 2. The section does not grant the sheriff “authority to make or overrule decisions about the details
of day-to-day operation[s].”      Id.; see also 37 TEX. ADMIN. CODE 5 297.12 (2005) (Texas
Commission on Jail Standards) (listing nonexclusive “specifics of such on-site monitoring” to
include resolution of disputes, disagreements or deficiencies).

         We conclude that the nepotism statute does not apply to the sheriff in these circumstances.
Accordingly, GE0 Group, Inc. as the operator of the Reeves County Detention Center is not
prohibited by section 573.041 from hiring the sheriffs son.
The Honorable Richard Slack - Page 4        (GA-0419)




                                      SUMMARY

                        The nepotism statute does not apply to the employment of a
               sheriffs relative by a private company that operates a county
               detention center.




BARRY R. MCBEE,
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
