Can a Texas probation department hire a relative of a district judge without breaking the nepotism law?

Plain-English summary

Texas has a nepotism law that stops public officials from hiring their close relatives into government jobs. The question here was whether that law was broken when a local probation agency, formally a "community supervision and corrections department," hired the nephew of a district judge who serves the same area. The district attorney had gotten two conflicting answers and asked the Attorney General to settle it. The answer: no, the hiring was not nepotism.

The key is who actually does the hiring. The nepotism law only applies to the official who has the legal power to hire. It does not reach an official who has no hiring authority, and an official who does have it cannot dodge the law by handing the decision to someone else. So the real question was whether the district judges, the relatives in question, have the legal authority to hire the department's staff.

The opinion concluded they do not. The statute that sets up these departments (article 42.131 of the Code of Criminal Procedure) gives the judges one job on staffing: they appoint the department's director. After that, it is the director, not the judges, who hires the rest of the staff. The statute does not give the judges any power to make those hires or even to approve them. The opinion compared this to an older, now-repealed law that had expressly let the judges appoint a chief probation officer and approve the chief's hiring decisions; the new law dropped that approval power, which the opinion treated as a meaningful change.

There was a wrinkle in the wording. The statute uses the word "employ" in two places, once for the judges and once for the director, which seemed to give both of them hiring power. The opinion resolved this by reading "employ" to mean different things in the two spots. Because another part of the statute makes the judicial district responsible for paying the staff's salaries, the opinion read "employ" in the judges' section to mean the district's duty to pay personnel, and "employ" in the director's section to mean the director's duty to hire them. With the director holding the actual hiring authority, the judges' family relationship to a new hire did not make the hiring nepotistic.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Texas nepotism statute (formerly V.T.C.S. article 5996a) was recodified into chapter 573 of the Government Code, and article 42.131 of the Code of Criminal Procedure governing community supervision and corrections departments has been amended and reorganized since 1993, so confirm current law before relying on anything described here.

Background and statutory framework

The McLennan County Criminal District Attorney asked whether, in light of article 42.131 of the Code of Criminal Procedure, the director of a community supervision and corrections department (CSCD) could hire, without violating the nepotism statute (V.T.C.S. article 5996a), a person related to a district judge sitting in the same county. The facts: McLennan County had four district courts trying criminal cases; a district judge took office on January 1, 1987; on September 12, 1988, the judges appointed a CSCD director; on May 1, 1990, the director hired the employee in question, the judge's nephew (the son of the judge's natural brother), related within the third degree of consanguinity. The DA had received conflicting opinions from the Texas Department of Criminal Justice's general counsel and from attorneys who represented the county in civil matters. The Attorney General concluded the hiring was not nepotistic.

The nepotism statute reaches only those with actual hiring authority. Section 1(a) of article 5996a bars an officer or judge of various governmental units from appointing, voting for, or confirming the appointment of a person related within the third degree of consanguinity (determined under article 5996h) when the appointee's compensation is paid from public funds. By its terms, the statute applies only to officers or judges who have actual, statutory authority to hire personnel (AG Opinion DM-163 (1992)). A person with such authority cannot, even by attempting to delegate it, abdicate that statutory authority or control (Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658, 660 (Tex. Civ. App.-Eastland 1981, no writ); Babcock & Collins, Local Government Law, 36 Sw. L.J. 471, 509 (1982)). So the controlling question was whether the CSCD director, or the district judges, has the actual statutory authority to hire department personnel.

Article 42.131's inconsistent text. Article 42.131 governs the establishment of CSCDs. Section 2(a) provides that the district judges trying criminal cases in each judicial district shall establish a department and "employ district personnel as may be necessary" to conduct presentence investigations, supervise probationers, enforce probation terms, and staff community corrections facilities. Section 4 provides that the judges "shall appoint a department director," and "[t]he department director shall employ a sufficient number of officers and other employees to perform the professional and clerical work of the department." The opinion found the emphasized portions inconsistent: section 2 has the judges employ all personnel, while section 4 has the judges appoint only a director, who in turn employs all other personnel.

The DM-79 comparison. The opinion drew on AG Opinion DM-79 (1992), which had addressed a parallel juvenile-board statute. There, Human Resources Code section 152.0007(1) directed a juvenile board to "employ" probation personnel, while section 152.0008(a) authorized the chief juvenile probation officer to appoint personnel "with the approval of the board," and section 152.0271(e) let the chief set salaries with board approval. DM-79 concluded that the chief had delegated authority to hire subject to board approval, but the board retained the actual hiring authority (and was the "appointing authority" under section 152.0008(b)), and that "employ" in section 152.0007(1) meant only to compensate, not to hire. Article 42.131 differed in two significant ways: its section 4 requires the director to employ officers and employees (rather than merely authorizing it), and it does not reserve to the district judges any power to approve the director's employment decisions.

Legislative history and the repealed predecessor. The legislature added article 42.131 in 1989 (Acts 1989, 71st Leg., ch. 785, § 3.02), through House Bill 2335, a measure restructuring the criminal-justice system at the state and local levels to alleviate prison and jail overcrowding (Senate Comm. on Criminal Justice, Bill Analysis, C.S.H.B. 2335; AG Opinion JM-1185 (1990)). The same bill repealed section 10 of former article 42.12, which had provided for local probation departments (AG Opinion JM-1131 (1989)). Under repealed article 42.12, section 10, the district judges established a probation office and "employ[ed]" district personnel, and where more than one probation officer was required, the judges appointed a chief adult probation officer or director who, "with their approval," appointed assistants. So under the old law the judges clearly had authority both to appoint a chief and to approve all of the chief's selections for employment. By contrast, although much of article 42.131's language parallels the old article 42.12, section 4 of article 42.131 does not reserve for the district judges any power of approval over the director's employment selections.

Resolving "employ." The opinion concluded article 42.131 uses "employ" inconsistently. Each of sections 2(a) and 4 requires a particular actor to "employ" personnel, but section 2(a) obligates the district judges while section 4 obligates the director the judges appointed. Because section 6(b) requires the judicial districts receiving services from a department to pay the salaries of department personnel, the opinion read "employ" in section 2(a) to refer to the judicial district's responsibility to compensate departmental personnel (see DM-79, reading "employ" to mean compensate, not hire), while "employ" in section 4 refers to the director's obligation to hire necessary personnel. Because article 42.131 gives the director, not the district judges, actual authority to hire the officers and employees needed for the department's work, no nepotism violation occurs when the director hires a person related within the third degree to one of the district judges.

Common questions

Did the probation department break the nepotism law by hiring the judge's nephew?
No. The opinion concluded the hiring was not nepotistic because the director, not the judges, had the legal authority to make the hire.

Why does it matter who has hiring authority?
Because the nepotism statute applies only to officials who actually have the statutory power to hire. A judge with no authority over a particular hire is not covered, and one who does have authority cannot escape the statute by delegating the decision.

Don't the judges run the probation department?
The judges appoint the department's director and participate in managing the department, but the opinion concluded the statute gives the director, not the judges, the authority to hire the department's other officers and employees, and gives the judges no power to approve those hires.

What does "employ" mean in the statute?
The opinion read it two ways: in the section addressing the judges, "employ" means the judicial district's duty to pay (compensate) the personnel, while in the section addressing the director, it means the director's duty to hire them.

Citations

• V.T.C.S. art. 5996a, § 1(a) (nepotism prohibition); art. 5996h (degrees of consanguinity)
• Code of Criminal Procedure art. 42.131 (community supervision and corrections departments): § 2(a) (judges establish department and "employ" personnel), § 4 (judges appoint director; director "shall employ" staff), § 6(b) (judicial districts pay personnel salaries)
• Code of Criminal Procedure art. 42.12, § 10(a), (b) (repealed; former local probation departments)
• Human Resources Code §§ 152.0007(1), 152.0008(a), 152.0008(b), 152.0271(e) (juvenile board / chief probation officer)
• Acts 1989, 71st Leg., ch. 785, §§ 3.02, 4.17 (House Bill 2335)
• Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658 (Tex. Civ. App.-Eastland 1981, no writ)
• Attorney General Opinions DM-163 (1992), DM-79 (1992), JM-1185 (1990), JM-1131 (1989); Babcock & Collins, Local Government Law, 36 Sw. L.J. 471 (1982)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0208
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0208.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; garbled case names were verified against the official reporters. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 17, 1993

Honorable John W. Segrest
Criminal District Attorney
McLennan County
219 North Sixth Street, Suite 200
Waco, Texas 76701

Opinion No. DM-208

Re: Whether a person related to a district judge within the degree prohibited by the nepotism statute, V.T.C.S. article 5996a, can take employment with a community supervision and corrections department without causing a violation of the nepotism statute in light of the provisions of article 42.131 of the Code of Criminal Procedure (RQ-473)

Dear Mr. Segrest:

You have asked us to determine whether, in light of the provisions of the Code of Criminal Procedure article 42.131, the director of a community supervision and corrections department may hire, without causing a violation of the state nepotism statute, V.T.C.S. article 5996a, a person related to a district judge who sits in the same county as the community supervision and corrections department. Your question is based on the following facts:

1. McLennan County has four district courts, . . . each of which can be considered as "trying criminal cases" in th[e] judicial district;

2. On January 1, 1987, one district judge took office after his election the previous November, and continues to serve to this date;

3. On September 12, 1988, all of the judges appointed [a] . . . Director [of the community supervision and corrections department in McLennan County], a position [the same person] holds to this date;

   . . . .

4. On May 1, 1990, the Director hired the employee in question;

5. The Employee is a nephew of the Judge, being the son of the Judge's natural brother, and is thus related within the third degree of consanguinity.

We understand that you have received conflicting opinions, one from the general counsel of the Texas Department of Criminal Justice and one from attorneys who have represented McLennan County in civil matters, on whether the director's hiring of the judge's nephew constitutes a nepotistic hiring. We conclude that the hiring is not nepotistic.

Section 1(a) of the nepotism statute, V.T.C.S. article 5996a, states in pertinent part as follows:

[n]o officer . . . of any . . . municipal subdivision of this State, nor any officer or member of any State district, county, city, . . . or other . . . board, or judge of any court, created by or under authority of any General or Special Law of this State, . . . shall appoint, or vote for, or confirm the appointment to any office, position, clerkship, employment or duty, of any person related . . . within the third degree by consanguinity, as determined under Article 5996h, Revised Statutes, to the person so appointing or so voting, or to any other member of any such board, . . . of which such person so appointing or voting may be a member, when the salary, fees, or compensation of such appointee is to be paid for, directly or indirectly, out of or from public funds . . . of any kind or character whatsoever.

By its terms, section 1(a) applies only to officers or judges who have actual, statutory authority to hire personnel. Attorney General Opinion DM-163 (1992) at 1. A person with such authority does not, even if the person attempts to delegate the authority to another, "abdicate [its] statutory authority or control." See Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658, 660 (Tex. Civ. App.-Eastland 1981, no writ); Babcock & Collins, Local Government Law, 36 Sw. L.J. 471, 509 (1982) (summarizing Pena). Thus, to determine whether a community supervision and corrections department (the department) lawfully may employ the nephew of a district judge who tries criminal cases in the same county as the department, we must determine who has actual statutory authority to appoint personnel for the department.

Article 42.131 of the Code of Criminal Procedure pertains to the establishment of community supervision and corrections departments. The article reads in pertinent part as follows:

Establishment of Departments

Sec. 2. (a) The . . . district judges trying criminal cases in each judicial district in the state shall establish a community supervision and corrections department and employ district personnel as may be necessary to conduct presentence investigations and risk assessments, supervise and rehabilitate probationers, enforce the terms and conditions of probation, and staff community corrections facilities. Both the district judges trying criminal cases and the judges of statutory county courts trying criminal cases that are served by a community supervision and corrections department are entitled to participate in the management of the department.

. . . .

Department Director

Sec. 4. The . . . judges shall appoint a department director. The department director shall employ a sufficient number of officers and other employees to perform the professional and clerical work of the department. [Emphasis added.]

Obviously, the emphasized portions of sections 2 and 4 are inconsistent: section 2 requires the district judges to employ the personnel necessary to perform all of the tasks a department is to perform, while section 4 requires the judges only to appoint a department director, who, in turn, is required to employ all other necessary personnel.

We examined a similar statute in Attorney General Opinion DM-79 (1992). In that opinion, we were asked to determine whether the Brazos County Juvenile Board has the authority to hire employees of the Brazos County Juvenile Probation Department after the juvenile board has employed a chief juvenile probation officer. Attorney General Opinion DM-79 at 1. Section 152.0007(1) of the Human Resources Code, which defines the duties of the juvenile board, requires a juvenile board to "employ personnel to conduct probation services, including a chief probation officer and, if more than one officer is necessary, assistant officers." On the other hand, section 152.0008(a) of the Human Resources Code provides that the chief juvenile probation officer "may appoint necessary personnel with the approval of the board." (Emphasis added.) Additionally, section 152.0271(e) of the Human Resources Code provides that "[t]he chief juvenile probation officer may set the salaries and allowances of juvenile probation personnel with the approval of the board." (Emphasis added.) Given the applicable provisions of the Human Resources Code, the requestor was uncertain as to whether the board or the chief probation officer is required to employ other members of the department, or if that duty may vary at the juvenile board's discretion. Id. at 2.

We determined that section 152.0008(a) delegates to the chief juvenile probation officer the authority to hire assistant juvenile probation officers and other employees subject to the juvenile board's approval. Id. Thus, while the juvenile board's authority with respect to hiring personnel is limited to approving or rejecting the chief juvenile probation officer's hiring decisions, it retains the actual authority for hiring personnel. Id. at 2-3. Section 152.0007(1), which requires a juvenile board to "employ" personnel, requires a juvenile board only to compensate, not to hire, personnel. Id. at 3. These determinations, together with the juvenile board's role under a predecessor statute, led us to conclude that the juvenile board, not the chief juvenile probation officer, was the appointing authority for purposes of section 152.0008(b) of the Human Resources Code, which empowers the "appointing authority" to terminate juvenile probation officers. Id. at 4.

Article 42.131 of the Code of Criminal Procedure differs in two significant respects from the provisions of the Human Resources Code that we considered in Attorney General Opinion DM-79. First, article 42.131, section 4 requires a department director to employ officers and employees as necessary to perform the department's professional and clerical work, whereas section 152.0008(a) merely authorizes the chief juvenile probation officer to hire assistant juvenile probation officers and other employees. Second, article 42.131, section 4 does not explicitly reserve to the district judges the power to approve the department director's employment decisions, whereas section 152.0008(a) requires the juvenile board to approve (or, implicitly, to reject) the chief juvenile probation officer's appointments.

The legislature added article 42.131 to the Code of Criminal Procedure in 1989. See Acts 1989, 71st Leg., ch. 785, § 3.02, at 3483-86. House Bill 2335, the bill that proposed adding article 42.131, made many changes in the structure of the criminal justice system at the state and local levels in an effort to alleviate prison and jail overcrowding. See Senate Comm. on Criminal Justice, Bill Analysis, C.S.H.B. 2335, 71st Leg. (1989); Attorney General Opinion JM-1185 (1990) at 1-3. Notably, while House Bill 2335 added article 42.131 to provide for the establishment of departments, it repealed section 10 of existing article 42.12 of the Code of Criminal Procedure, which had provided for the establishment of local probation departments. See Acts 1989, 71st Leg., ch. 785, §§ 3.02, 4.17, at 3483, 3519-21; Attorney General Opinion JM-1131 (1989) at 2. Both the predecessor local probation departments and the current community supervision and corrections departments were or are designed generally to correspond geographically to judicial districts. See Code Crim. Proc. art. 42.12, § 10(a) (repealed by Acts 1989, 71st Leg., ch. 785, § 4.17, at 3519-21); id. art. 42.131, § 2(a); Attorney General Opinion JM-1131 at 2.

Prior to its repeal in 1989, section 10 of article 42.12 of the Code of Criminal Procedure provided in pertinent part as follows:

(a) For the purpose of providing adequate probation services, the . . . district judges trying criminal cases in each judicial district of this state shall establish a probation office and employ, in accordance with standards set by the commission, district personnel as may be necessary to conduct presentence investigations, supervise and rehabilitate probationers, and enforce the terms and conditions of misdemeanor and felony probation. . . .

(b) Where more than one probation officer is required, the . . . judges shall appoint a chief adult probation officer or director, who, with their approval, shall appoint a sufficient number of assistants and other employees to carry out the professional, clerical, and other work of the court.

Acts 1989, 71st Leg., ch. 785, § 4.17, at 3519 (emphasis added). Under the now-repealed article 42.12, section 10 of the Code of Criminal Procedure, the district judges clearly had authority to appoint a chief adult probation officer or director; furthermore, the district judges clearly had authority to approve all of the chief adult probation officer's selections for employment. While much of the language of article 42.131, sections 2 and 4 of the Code of Criminal Procedure parallels the language of the now-repealed article 42.12, section 10(a), (b), article 42.131, section 4 does not reserve for the district judges any power of approval over the department director's employment selections.

We must, therefore, clarify the use of the word "employ" in sections 2(a) and 4 of article 42.131 of the Code of Criminal Procedure. Each section requires a particular actor to "employ" personnel to staff the local department; however, section 2(a) obligates the district judges trying criminal cases in each judicial district, while section 4 obligates the department director, whom the judges have appointed. We note that section 6(b) of article 42.131 of the Code of Criminal Procedure requires the judicial districts receiving services from a department to pay the salaries of department personnel. In our opinion, therefore, article 42.131 uses the term "employ" inconsistently. We believe that "employ" in the context of section 2(a) refers to the responsibility of the judicial district to compensate departmental personnel. See Attorney General Opinion DM-79 at 3 (concluding that "employ" in section 152.0007(1) of the Human Resources Code refers only to providing compensation, not to hiring). On the other hand, "employ" in the context of section 4 refers to the department director's obligation to hire necessary personnel.

As article 42.131 provides the department director, not the district judges, with actual authority to hire officers and other employees necessary to perform the professional and clerical work of the department, no violation of the nepotism statute occurs if the department director hires a person related within the third degree of consanguinity to one of the district judges.

SUMMARY

Article 42.131 of the Code of Criminal Procedure requires the director of a community supervision and corrections department to hire the officers and other employees necessary to perform the professional and clerical work of the department. The judges in the judicial district that the community supervision and corrections department serves appoint the director but have no further authority to hire or to approve the director's hiring of additional department personnel. The word "employ," as used in sections 2(a) and 4 of article 42.131 of the Code of Criminal Procedure, has two different meanings. In the context of section 2(a), "employ" refers to the responsibility of the judicial district to compensate department personnel. However, in the context of section 4, "employ" refers to the department director's obligation to hire necessary personnel.

Because the judges have no authority to hire or approve the hiring of department personnel other than the director, no violation of the nepotism statute, V.T.C.S. article 5996a, section 1(a), occurs if the department director hires a person related within the third degree of consanguinity to one of the judges in that judicial district.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General