Can a Texas city avoid the nepotism law by letting a city administrator do the hiring instead of the council?

Texas AG Opinion DM-0002: Nepotism Law, Delegated Hiring, and Holdover Officers

Plain-English summary

The city council of Devine, a Type A general-law municipality, had delegated its hiring authority to a city administrator by ordinance. When the brother of a council member applied for a city job, the administrator said the Texas nepotism law (article 5996a, V.T.C.S.) barred the hire. The council member then resigned, and the city hired his brother. The county attorney of Medina County asked the Attorney General several questions about whether that sequence actually solved the nepotism problem.

The Attorney General concluded that delegating hiring did not let the council escape the nepotism law. The law prohibits a member of a governing body from voting for the hiring of someone related within a prohibited degree, and earlier opinions had held that delegating hiring decisions does not relieve the members of that burden. The opinion distinguished an older opinion (O-5274) where a city charter, not a mere ordinance, stripped the governing body of any role in hiring. The difference matters because a home-rule city cannot override its charter by ordinance, while a general-law city's grant of hiring authority by ordinance can be repealed at will. So the administrator was right that the city could not hire the council member's brother.

The opinion also explained that the resignation did not immediately cure the problem. Under article XVI, section 17 of the Texas Constitution, an officer continues to serve in a holdover capacity until a successor qualifies, so the nepotism bar kept applying as long as the resigning member held over. Finally, on the prior-continuous-service exception in section 1(b) of article 5996a, the opinion read the statute literally: a relative already on the payroll keeps the job if employed for 30 days before the related officer is appointed, or six months before the officer is elected. Those periods track how the officer reaches office (appointment versus election), not the type of office, so the 30-day rule governs when a person is appointed to fill an elective seat. The opinion stressed literal reading because violating the nepotism law carried criminal penalties.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Texas nepotism statute has since been recodified into chapter 573 of the Government Code, and the Local Government Code provisions cited here may have changed. Verify current law before relying on any specific rule mentioned here.

Common questions

Could the city dodge the nepotism law by having an administrator make the hire?
No. The opinion held that delegating hiring to a city administrator did not relieve the council members of the nepotism law, because the council retained control: it had granted the authority by ordinance and could repeal that ordinance.

Did the council member's resignation fix the problem?
Not by itself. Under article XVI, section 17 of the Texas Constitution, the member continued to serve as a holdover until a successor qualified, and the nepotism bar on hiring his brother lasted as long as he held over.

How long must a relative have worked to keep a job under the exception?
The opinion read article 5996a, section 1(b) literally: 30 days of continuous employment before the related officer is appointed, or six months before the officer is elected.

Why did the appointment-versus-election distinction matter?
Because the statute tied the required service period to how the officer reached office, not to the kind of office. So a person appointed to fill an elective seat fell under the 30-day appointment rule, not the six-month election rule.

Background and statutory framework

The Texas nepotism law, article 5996a, V.T.C.S., prohibited a member of a governing body from voting for or confirming the appointment of a person related within a prohibited degree. The opinion relied on prior Attorney General Opinions O-4686 (1942) (delegation does not relieve the governing body) and O-5274 (1943) (a city charter that barred the governing body from hiring decisions could permit hiring a relative), reconciling them by asking whether the related officer could still exercise control over hiring. Because Devine's delegation came by ordinance under the Local Government Code rather than by charter, and the council could repeal the ordinance (Local Gov't Code § 51.001; see also Tex. Const. art. XI, § 5 on charters), the council kept control.

On the holdover point, the opinion cited Plains Common Consolidated School District No. 1 of Yoakum County v. Hayhurst, 122 S.W.2d 322, 326-27 (Tex. Civ. App.-Amarillo 1938, no writ), and article XVI, section 17 of the Texas Constitution. A footnote noted that an officer can divest an office by qualifying for an incompatible office, citing Pruitt v. Glen Rose Independent School District No. 1, 84 S.W.2d 1004 (Tex. 1935). On the prior-continuous-service exception, the opinion parsed article 5996a, section 1(b)(1) (30 days, appointment) and section 1(b)(2) (six months, election other than the general election), reading the periods to follow the manner of succession to office and invoking the rule that criminal statutes (article 5996f makes a violation a misdemeanor) must give fair notice, citing Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).

Citations

Statutory and constitutional provisions:

• TEX. REV. CIV. STAT. ANN. arts. 5996a, 5996f
• TEX. LOCAL GOV'T CODE ANN. §§ 22.010, 22.071, 51.001
• TEX. CONST. art. XI, § 5; art. XVI, § 17

Cases:

• Plains Common Consolidated School District No. 1 of Yoakum County v. Hayhurst, 122 S.W.2d 322, 326-27 (Tex. Civ. App.-Amarillo 1938, no writ)
• Pruitt v. Glen Rose Independent School District No. 1, 84 S.W.2d 1004 (Tex. 1935)
• Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)

Prior Attorney General opinions cited: O-4686 (1942); O-5274 (1943); JM-581 (1986); JM-636 (1987); JM-423; LA-148 (1977).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0002
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0002.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

DAN MORALES
Attorney General

February 4, 1991

Honorable Maida Modgling
County Attorney of Medina County
Medina County Courthouse
Hondo, Texas 78861

Opinion No. DM-2

Re: Application of nepotism law when an officer holds over, and construction of prior continuous service provisions of nepotism law (RQ-2160)

Dear Ms. Modgling:

You ask several questions about the Texas nepotism law, article 5996a, V.T.C.S. As background, you inform us that the city council of Devine, a Type A general-law municipality, has, by ordinance, delegated to its city administrator the authority to hire city employees. See Local Gov't Code § 22.071 (governing body of general-law municipality may appoint officers and agents). You explain that when the brother of a member of the city council applied for employment with the city, the city administrator took the position that the nepotism law prevented the city from hiring him. As a consequence, the city council member resigned. The city then hired his brother.

Your first question is whether the nepotism law would in fact prohibit the city from hiring the brother of a city council member if the city had delegated all hiring decisions to a city administrator. The nepotism law prohibits a member of a governing body from voting for the hiring of a person related to any member of the body within a prohibited degree.[1] Delegation of hiring decisions does not relieve the members of the governing body of the burdens of the nepotism law. Attorney General Opinion O-4686 (1942). You bring to our attention, however, Attorney General Opinion O-5274 (1943), which stated that a city could hire a relative of a member of the city's governing body because the city's charter prohibited members of the governing body from participating in hiring decisions. That holding is not inconsistent with Attorney General Opinion O-4686. The applicability of the nepotism law depends on whether an officer may exercise control over hiring decisions. See ___ School Dist., 616 S.W.2d 658 (Tex. Civ. App.-Eastland 1981, no writ); Attorney General Letter Advisory LA-148 (1977). The governing body of a home-rule city may not, by ordinance, override a provision of the city charter. Tex. Const. art. XI, § 5. In this instance, the grant of authority to the city administrator was made by ordinance, which the city council has the power to repeal. Local Gov't Code § 51.001 (regarding adoption and repeal of city ordinances). Therefore, the city administrator correctly advised that the city could not hire the brother of a member of the city's governing body.

Several of your other questions are based on the assumption that the resignation of the council member resolved the nepotism problem. We must point out, however, that the council member would continue to serve in a holdover capacity until replaced.[2] Plains Common Consolidated School Dist. No. 1 of Yoakum County v. Hayhurst, 122 S.W.2d 322, 326-27 (Tex. Civ. App.-Amarillo 1938, no writ); Tex. Const. art. XVI, § 17. Although the council member's resignation would create a vacancy that could be filled in accordance with section 22.010 of the Local Government Code, the nepotism statute would continue to bar the hiring of his brother as long as the council member held over. Attorney General Opinion JM-636 (1987).

Your final question is in regard to the construction of subsection (b) of section 1 of article 5996a, which provides:

Nothing herein contained, nor in any other nepotism law contained in any charter or ordinance of any municipal corporation of this State, shall prevent the appointment, voting for, or confirmation of any person who shall have been continuously employed in any such office, position, clerkship, employment or duty for the following period prior to the election or appointment, as applicable, of the officer or member related to such employee in the prohibited degree:

(1) at least 30 days, if the officer or member is appointed;

(2) at least six months, if the officer or member is elected at an election other than the general election for state and county officers; or

(3) at least one year, if the officer or member is elected at the general election for state and county officers.

In other words, a relative of an officer may continue in his position if he has served for a specified length of time before the related officer's election or appointment.

You ask how long the brother must have worked for the city in order to retain his job if the other brother were either reappointed or re-elected to the city council. See Local Gov't Code § 22.010(b) (filling vacancy on governing body by appointment); see id. § 22.010(c), (d) (filling vacancies by election). As we have discussed, the nepotism law would not permit the hiring of the brother of the council member unless the council member had ceased to hold over. In answering your question, we will assume that the brother's hiring was valid.

If the former council member were elected to fill a council vacancy at a special election, his brother would be able to retain his job if he had served for the six months preceding the election. V.T.C.S. art. 5996a, § 1(b)(2) (applicable when officer is elected); see generally Attorney General Opinion JM-636 (1987). If the former council member were appointed to fill a vacancy, his brother would be able to retain his job if he had served for 30 days before his brother's appointment. V.T.C.S. art. 5996a, § 1(b)(1) (applicable when officer is appointed). It has been suggested that subsection (b)(2), which sets out the prior continuous service requirement for relatives of an officer elected to his position, should apply in the case of a person who is appointed to an elective office. The language of subsection (b) of section 1 of article 5996a does not, however, support that suggestion. It makes the six-month prior continuous service requirement applicable "if the [related] officer or member is elected." V.T.C.S. art. 5996a, § 1(b)(2). It makes the 30-day requirement applicable "if the [related] officer or member is appointed." Id. § 1(b)(1). Those requirements are not linked to types of office, but rather to the manner by which an individual succeeds to an office. We think a court would apply those provisions in accordance with their literal language, especially since there are criminal penalties attached to violations of the nepotism law. V.T.C.S. art. 5996f (making violation of nepotism laws a misdemeanor involving official misconduct). See Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) (holding that due process requires that criminal statutes give fair notice of the activity that is outlawed).

SUMMARY

Members of a city council do not avoid the prohibitions of the nepotism law, article 5996a, V.T.C.S., by delegating the responsibility to hire city employees. The nepotism law applies to a city council member who has resigned but who is holding over in his office. The 30-day prior continuous service requirement in subsection (b)(2) of section 1 of the nepotism law applies when an officer is appointed to an elective office.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

SUSAN GARRISON
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

[1] The council member is related to his brother in the first degree. See Attorney General Opinion JM-581 (1986) (describing method for computing degrees of kinship).

[2] A person can divest himself of an office by qualifying for and entering upon the duties of another office that he cannot lawfully hold at the same time. Pruitt v. Glen Rose Independent School Dist. No. 1, 84 S.W.2d 1004 (Tex. 1935); see also Attorney General Opinion JM-423 (officer does not hold over when appointment rejected by Senate).