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           OFFICE    OF THE All-ORNEY   GENERAL                  OF   TEXAS
                                 AUSTIN




     Honti@ls    Roger Thurmondw-       ___.-..^- ___- -....-
     Dletrlot   Attorney                          .. .. i
     Del Rio,   'Sexes                  (j...;,;::i.. \ i ..,I..I6


     Dear Q'.   Thurmondr




                  +irtlole$~ 49   and 43S,Y Vcrnon~s mnototo4                 Penal Oo40,
      19e5,   read~:as fciil~s~

                    "Art. 4%.     Ho omoar       of tkde stat. or any
            offloor     of any Uibtridt ;j~oOUnty Oltg prOOlnOt,
            school dlstrlot,      or qthor munio~pel su841~101on
            of thlo Xate,       or nny.offioer     or nouber of any
            !3tatc (  Clotrlct,   ccunty,   oit!:,  nohool district
            or otkcr muniolpal bonr4, cr ju4@ of an:. OVUrt,
*oCow"uIc*
        noMd+-AGeLbY .~,~~~n,.n~~~~~~~~s."~~~~~~                    oQL, r..,.rm
                                                                       1.15


Honorable   Roger Thurnmond, Po8e 2


     apeolal law of this Xste,         or sny maabor OS
     the Ls~isloturo,      ahall a3gotnt,    or vote ror,
     or ooMti      the appolntnant to any offloe,
     pos$tion;    olerkshlp,    enployxont or 4uty, of
     any person related within the seoond degree
     of~afflnltp     or wlthln the third degree by oon-
     asn@nlty      to the psrnon so appointing or so
     vdtln8, or to any other nember of any suoh
     board, the Legislature,       or oourt of wNoh
     suoh person so appolntlng or votlne may be
     a'msmbsr, when tho salary         fees, or oanpsn-
     sation of suoh appointee is to be paid for,
     Clreotly    or lndlrootly,    out of or fraq >ubllo
     tunda or fess of ofrloo of any klnd or
     ohartioter whatsoever&.!@

            "Art. 433.    The inhlbltlona      set forth in
      this law shall apply to and lnoludo the Governor,
      Lieutansnt Governor, Speaker of the Houss of
      Representatives,    Railroad Commissionsr~,
     -head of the departcmnts of the State govornmont,
      judges an4 members of any and all Boards an4
      oourts establlshlng     by or under the authority
      of any general     r speoia1.ls.w   of this State,
      memimre of the e, glslature,      mayors, oommiS-
      slonars,   reooFders, alderzen and members of
      sohool boards of lnoorporated       oltSe8 and
      towns, pub110 sohodl trustees,        offioers   and
      nstnbers cf boards of managers of the Stats
      TJnXoerslty and of its several bra.?ohes, an&
      of the varlous.State     eduo&tlonal in8$:tutions,
      and of.the various State elleemosynary insti-
      tutions,   an4 of the gonltentlaries. This
      enumeration shall not bs held to exclude frrap
      the operotlon ond effeot      of this lan any per-
       son lriqluded wlthln its general prQplsions.*
            From these 'articles    it 1s olcar that an sttOrneY WY
not bs appolctod Clty.Attornoy        by tho City Conmlsslon (oom-
posed of two oatidd~ners         and $he mayor) if he 1s roloted
to the nayor wl'tiln thq$sooond de.goe of affinity          or the
third 4emee by ooz~~$~ih~t'~.          ~000s ths prohibited   do&ree
of relotlonshlR    e'xist? ,
            In Tyler Tap “R~llkoad~.Co, Cr DOu&3sP vB* ~ol%Oll, _
1 A:;?. Ct. of Appeals, SOO. 533, 534, 535, tho nothods of
oailput1ny. ~!-.a
                deuces of oonsanplnlty were stated by the
oourt as folloi~sr
.   .




         Honorable   Roger Thurmond, Page 3



                      “In oomputlag the degree of lineal oon-
               88ngulnlty exlstlng      between two pnrsons, every
               generation    in the’ direct oourse of relatlon-
              dip     between the two partlee makes a aegroe,
               en4 the ~16 la the same by the 01~11 and
               oommon law.     The mode OS oomputlng dsgrees of
             , oollatersl    oonsangulnlty    at the oommonand by
               the. onnon law la to alsoover the oomnon nn-
               oestor,    to begin with him to reokon dew -
               warda, and the degree the two persons 97or the
             “more remote of them, 1s dlstant rrom the an-
               oestor,    la the degree of kindred subslating
               between them. For instanoe,        two brothers
               are telated to eaoh other in the first degree
               beoause iron the father eaoh one of them Is
               one degree..    An unole and nephew are related
               to eaoh other in the seoond degree, hsoause
               the nephew la two degrees distant tram the
               oomnm anoestor,      and the unole la extended to
               the remotest degree o? colleteral       relatlonshlp.w
                       The wife of the mapor and the wife of the attor-
          ney whose appointment la antioipated       nre flrSt oo;lslns,  and
         .?irst~ oouslns are related by consanguinity       in the seoond
          dagr~s.     Tyler Tap Railroad Cb. vs. Overtoh, 1 App. C. C.,
          See..;-533; Opinion O-791; aee also Dunoan vs. State, 103
          Cr. R. 293, 280 9. 1. 216. -However, if thq mayor an4
          the ‘attorney are related in any degree, It ~1s by anrrlage
          or afflnltp.      Degrees of afrinlty   are oomputed fn the same
        ’way am those of consan&ulnlty.         That la to say, the re-
        ’ lations    o? the wife stand in the same degree o? affinity
          to the Q~sband as they are related to the .i?e by con-
          sanguinity.      2 Cori Jur. seounaum 99i2; I! Cor. Jur. 379;
          Kelly vs. Neely, &2~Ark. 657, 56 Am. D. 288; Paddook ~6.
          Wells    2 Barb. Ch. (N. Y.) 331; 333; Waterhouse vs. Martin,
          Peok fTenn. 1 374; ,309; Chlnn vs. atate, 47 Oh. St. 575,
          579, 26 N. If. 986,:,1% L R. A. 830; State vs. Hooper,
          37 Pao. (24.1 52, 6+,5140 Xsns. 481. This dootrlne 1s
          puallfle4    to the sxtet& that blood relatlona     or the husband
          and the blood’rekatlonq      o? the wife are nbt relate4 to eaoh
          other by affinity.      ~iRespectivo consanguinei do ndt become
          relate4 by afrinity.       This 1.8 the undoubted weight 0r
          authorl ty and the Tsxsa rule. I:. 2 Cor. Jur. 378 and oases
          oited in the notes; State vs. Wall, 41 Fla. 463, 466, 26
Honorable Ro er Thurmond, Page 4



so. 1020, 79 Am. St. Rep. 195, 49 &. R. A. 548; Kelly vs.
Neely, 12 Ark. 057,.660, 56 Am. D. 2SS; Johnson vs.
Richardson, 52 Tex. 481; William  ve. Foster,    (Clv. App.)
233 9. W. 120; Farmpre Natl. Bank vs. Wallaoe,    (Civ. App.)
863 9. w. 1105. The mayor's wife then 1s related to the
attorney in the eeoond degree by affinity.    Is the Mayor
also bo related?
            According to the great weight of authority         in
 ihlr bountry, relationship     by affinity   does not include
 parsons related to the spouse simply by affinity.          The
 dootrlne 1s expressed in the phrase affinis        mel, afflnis,
pdon eet &hi aiflnls;     or stated in another wayi the afflnes
 OS the wife are not those of the husband, nor are the
 afflnes OS the hueband those of the wife.        2. C. J. 379;
 2 C.-J. Seoundum, 992; Bliss vs. Caille Brothers Co.,
 149 Nioh. 601, 608, 113 N. We 317, 12 Ann. Cas. 513;
 wdrae..vs.   Livingston,  5 Mart. (La;) 292, 295; Waterhouse
 vs. Nartln, Tech. (Term.) 374, 389; Chlnn VS. State, 47
 Ohlo St. 575, 26 N. E. 986, 11 L. R. A. 630; Kirby YB.
 Stat@, 89 Ala. 63, 8 So. 110; Oneal vs. State, 47 Ca.
 229; Duapree vs. Duepree, 45 Ga. 415; Tegarden vs. Phll-
 lips, 14 Ind. App. 27, 42 N. E. 547; Chase vs. Jennings,
 3S yS.'44; Blgelow vs. Sprague, 140 bfabacs.425, 5 N. X.
 144; Bigbe vs. Leonard, 1 Den. (N. Y.) 186; Eggleston vs.
 Smlley, 17 Johns (N. Y. ) 133; Rank vs. Shewey, 4 Watt
  (Pa.) 218; Moses vs. State, 11 Hunch. '(Term.) 232; Rector
 ~6. Drury, 4 Chandl. (Wis.) 24. The rule 1s said to be
 basedton the proposltlsn    that the relation     of the husband
 gtd the wife is one of affinity.        Bliss ~8. Call16 Bros.
     ., 149 Yich. 601, 608, 113 N. W. ~3l7, 12 Ann. Cas. 513;
  State vs. W&ill, 41 Fla. 463, 466, 26 So. lQ20, 79 Am.
  St. Rep. 195, 49 L. R. A. 540.
            '?n the other hand, there 1s a strong minority
 view firmly entrenched in the jurisdictions        in whldh it 1s
 applied, which,cpposed to the *majority view 1s based on
 tha reasoning that.the     relr:tion   between the husband and
 the wife is no% one'of affinity,        but that they should be
 m&rded in l&w as ohe..person.          Hence, the arflnem of one
 aPouae are th'e affl&eii of the othes.       State vs. wall, 41
 =a.   463, 4bb., 20 Sb'. 1020, 79 Am. St. Rep. lQ5, 49 L. R. A.
 %;    Kelly vs. Neely,.f2'@k.        657, 56 Am. D. 288; Foot VS.
 krton     1 Hill (N. Y.) ,654; Paddock vs. Wells, 2 Barb. Ch.
  (N. Y.1 331; Cain vs. .Ing@am, ,7:$bw. (N. Y.) 470; Charles
 vs. John, Y. B. 41 Zdw. III 9.
                                                                      1.11



Honorable Roger Thurmond, Page 5



            We have dlscureed  the method of detsralnlng
 the prohibitive  degree6 of rslatiamhlp   under Art.1010
 432, Penal Cods, the majorltp   and mlnorlty rlewa as to
 whether or not one spouse is related to the afflnes of
,ths other, and.the zeasone given in support of these
 Vldwa, What la the rule to be applied In Texas?
             In determining the rule la Texar we must be
careful tg dlstlngulsh       our oases.    We:muut oa8t to ona
&'de those deolslons      *bioh speolfloally    hold in aootirdanoe
with the great weight of authority         in this oountrf t&t
b)ood..+.elat+ons   of.the hurrband and blood relationcr of the
w+fe are not related to eaoh other by affinity         aa Jopxmon
rs..Rlohardeon,     52 Tex. 481; Wllllams VI). Foster (CRY.
App;) 833 5. W. 120; Fax-mere       Natfonal Bank ~6. Wallaoe (Clv.
App.),    263 S. W. 1105.     Likewise, we must shelve those
oases holding that in a ault by one spouse which will
enhance or artaot~oomnunlty       property,   the other rpouae
thou&h not undo a r0mi         party is so interested    in the
outcome    of the suit that her relation within the prohl-
bl@d degree to a judge or juror ~111 dlrq\lalify him,
R&ilway YIS. Terrell,     69 Tex.~b50,    7 8. W. 670; Railway
~6.   Home,   69 Ter.   643, 9 8. W.   440..   We must   Oaafh~e
otqselrrsa to those oases in whloh the westion  of whether
of not one sp~se 1s related to 'the affirma OS th6 other
wae raised or passid upon.
            The' first instance we &SYOdlsoovered in whloh
this question was raised was in Us oasa“-of EOUatOn & T.
C. Rys. Co. vs. Tsrrell,    deolded by-e&the      Supreme Court in
1888 (7 S. 1. 670~). There it appeared that one of the
jurors'and   the ~plalntlff  had marrlod sisters.     Judge Gaines
found it unnece+rarf to pass upon the questlon.but        oalled
the attentlon    to the ninorlty   view when he rtated:
            .iqfe a0 n+ pass upon the question whether
       the.blalnti'ff~    apd the jurpr were related    by
       afflnlty    0-r' not'.. The oourt held they were not.
       Seemingly upon good authority,        a contrary doo-
       trlne was exhrisaly       deolded by the Supreme Court
       of New York.       Foo't va';,yorton, 1 Hill 634. . .”
            The next lnstaqoe   in whloh the question was express-
 ly called to the attention   of the S.lpreme Court was ldthe
 following  year, 1889.   There is an cplnlon by Ibr. Chief
 Justice Stayton in the case of Sohultie VS. YoIaary (11
 S. W; 924), it a;l?ears that on a ?revious trial the wives
Ronorable   Roger Thurmond, Page 6



or the dletrlot  judge at!d one of the defendants, Orynskl,
were slstere.   Here again the oourt found it unneoessary
to pass upon the question,   but in oblter dlotum said:
             "It 1s denied that the plalntlff          in the
      action the epeoIa1 judge was appointed to try,
      was related to the defendant therein, whose
      wiie was the sister        0s the a0 0s the dlatrlct
      judge, by affinity       in any degree; and we have
      understood that In euoh case8 no relationship
      of that character existed.          It do08 not r0um
     !from this, however, that the judge was not dfs-
      qualified,     and it ought not to be held upon
     .niere oonjecture     that the certlfloete      of dIs-
       qualification     sent to the Covernor was not true.
      It may be that the judge end Orynskl were not
       related by afflnlty       at all, but if the olalra
       represented by the matter was one In vhlch
        OrynskI was with the representative          of his wife
      who was so related,        or if fhe was a representa-
       tive or-the rights ol+limd by himself and hla
       wire in oomwnlty rights, or if any judgment
       oould be rendered In his favor or against him
       would affect     the right of his wife t&rough her
       comnunlty rights,      even to the'ertent      of ooets,
       then the wIfs of Orynski, within the s.#lrlt
       and purpose of the aonetltutlonal         p~ovI8lona
       to \Qloh we hive referred, VW a party to the
       su$t, and.the dlatriot        judge dlsquallfled.      . ."
            Finally,  ln.an oplnlon'by   Mr.'Chlef Justice Fly
speaking for the San Antonio Court of Clrll Appeals, in the
oase df,Seabrook,.,et    al '16. Flrct National Rank of Port
Iavaoa.t (C. C. A. 1914) 171 5. W. Z47. it was directly       held
that spouses oi first     oouslns are not~relcted   at all by
affinity.    As authority   ror this proposition   the oourt
cited Schultze.vs.?   McLeary, supra, and the Ohio case of
Chlnn vs.'~State., Y7<Ohlo St. 575, 26 N. E. 986, 11 L. R. A.
630.    Appqrently; w..yIt     waa'applled for.
                 . ..      .
          i%andlhg squarely in oonfllot    with the Seabrook oase
and the dlotus of *he Supreps Court heretofore    set rorth Is
the case of Strlngfelloi  .vsi,State, decided by the Court of
Criminal Appeals ln~ 1901 (61 S. W. 719).    There appellant WSS
Eonorabie   Roger Thurmond, Page 7



oonvloted of murder lh the trkal oourt, aud one of his gmunda
for motion for new tti&a1 ma thet one of the jurors and the
deceased  wives were first  ooualna. In dlaouaaIng the quea-
tlon,  the oourt said:    *

             aOne 0s the grounds 0s the motion for new
    ~.trlal ohallengea the oompetenoy of Hanks, ona
     ‘of the jurors who tried the oauae.        It Is made
      to appmr, wlthout oontmdlotlon,         that Hanks and
      daoeaaad married rim         ooual~:  that the wir6 0s
      d~deaaad   died some years prior to the trial,
      learing two aooa as the laaue 0s that marriage.
      These sons wera private prosecutors        in this oaaa.
      Appeailant ,waa ignorant of these facts udtll after
      the oonvlotlon.       The juror answered on his volr
      dire that he uaa not related to defendant or de-
       oedaed by consanguinity, or affinity     within the
     .prohiblted    degree.    Itxoapt for the lesue -reeul-
       tant of the'marxlage between deceased and his
      wife. th d th of said wife would haYe termin-
       ated theere&Ionahlp          Under the authorities,
      It seems that by reas&.i of the issue the rela-
       tlonshiD la extended beyond the death of the
       spouse.   Under the law. as It la understood in
      %hla state. Hanks and deoeaaed, by’reaaon of



      Hill,, 654; D&mnond Y. Dearmond,.lO Ind.. 191;
      Kelly Y. Newly, 12 Ark. 657, 56 Am. Deoi 889.
      The oontentlv     by the:atate    that the reliitian-
      ahlp ceased on the death of the wife ofthe            de-
      ceased Gould be wall taken in the abmenoe of
      lsaue of the mrrrlag6; but as applled to this
      case the lnalstment is lnoorreot,       beoauw of the
      birth and ~urvl~lng'or     the ohlldren Of the mar-
               Ths propdsltlon     that the relationship
      t%;     by.'reason'di   the issue la supported by
      the weight of authority.        Jaquea v. Comonwealth,
      10 Orat. 890; Blgalow’v;       Sprageu, 140 MmS. 425,
      5 N. E. 144; 1 Am.'& Ehg. Fnh. claw (New Ed.) PPe
      912,913; 17 Am. & yng. 9m. Qiw (New Ed.1 P. 1125.
       of the doosaaod by the first wire.     Not ouly So,
      -but they *ora jirlvete prosecutorSI   end the
       graUnd0 of ohallan~a to the juror ftankoahhluld
       have beau mstshwd,     end a new trial should have
       b,een Crated  on thla acoount.*    (Unciaraoorlag
       ours)
           The oasa of kelly vs. Naoly, cltad :vIth approval
In the ~trlagfallow     OLUW, dleoutsaa   the muton      for the aa-
jorlty  end nlnorlty    views heretofore   set forth,    ana oonoludea
that by merrla:;a a aon ;;laoaa hlzself      13 the auce degree of
piopInqnl$y to all the reletions       of hle \clfa, either by lff h-
ity or oonaangulnlty', 88 sho sotually stands tomrd tham. 23 y
raqaon of. the oltstlon     of approvul accorded Kelly vs. 23saly
and yoot vs. brgan,      aupra,,In the Strlnsfellor      oaae, ua are
Impelled to the oonolualon thet the n:norlty        view as bsmto-
fore sat forth and dlreotly.folloued       ln 6trlngfellors   va. 5tote
Is the lew In Texas - at least lnaofar aa tb Court 0s                1
CrlxAoal Appeal8 la ooncerned.       Xcweover, m feel oonmtrelnod
to adopt the view of the Court of Criminal A~paala in Lntor-
pretlns a orlalnal    lt3tute, Arti       132, CSC~ Cods.
             In pasalne, w should like to confera that the qwa-
tlon involved la scamwhat aubtla and we heve not reaohed our
oonoluslm     herein without dlffloulty.        For aoam twenty yaara
Wmore     this ;)spertraent,    in preoadln    sdmLnlstrrtisn8,      has
oonalot,ently ruled thet the       najorlt;   rule  obtslned     in Tows
(as Indeed lt dOea in our 01~11 oourt6) overlbokln~; the
StrlnCfellou    deolalon.      Tbls %dxLnlstratlon,      In opinlona
Nos. O-119, C-W4,.and        O-1096, hs8 heretoSore eaaumed that
tha opinions ot this L%pporbent          over that gerlod of years
were correct,     llkewln    ovarlookln;    the 3tr:ngfollcm      oeso.
                           *
             St 1~ el;parent thst the oonfllot        between the civil
OOurts 2nd tho crlminul on this point ZUEt be settlod.                  In
Our opl:lon    the Ltr.n.:fello*    caao msy Later be dlstlnglahed
on the bssls that the mmarka         ooncornln-: the re1;tlonrhl.p         of
tha doortaed, !.'onkhouse ws zot nocesccry to the deolalon,
Slooe, under the x~ajorS~~,vlew, the 00~3 01 the aaoewoa                 rife
Of 2onkbouee. H~J ~wre ;rlvtite        ;ros&outors,    ~>e:e rellrted to
the Juror i!a;h'~throUi:h t!,e?r xothar.        T~o’:+ovu~‘, slnoe  the
xor,orobla   korer   Thuraoad,   hip3   0



court of cri.rnlnJh2peslr ha@ r/pa;-•ntly;lacrd the deoitroa
ln tha CtrJ. ell.0~oar on both grouse, wa aemot 8erely
             hc oaurt will mtraot the atrtementr
~~suma that"&'                                    side
thoreln 4th r~Cermoa to the alnorlty rule. 5m must    there-
fore edvlno th-t, 80 fvirh6 tha pmuntlg raaorctodview oi
the Court 0r Crinlnal xppbola it oonecrned it will bo a
vi0lntlon0S Article8 432-433 or tba i-d     Cob* of Tawm
for.the City.cauncL1 0r noI do to oppoLnt ~‘6aity Attomoy
e /reotlal~ ettomap whoao wire le a flrst oar&     by eon-
nai&u.lnlty to   thb wire or the Earor 0r   that   city.




                     ATTORNEY GEKERAL 02 TCCAS
