Can a private prison company hire the county sheriff's relative, or does nepotism law block it?

TX AG Opinion GA-0419: Does nepotism law block a private jail operator from hiring the sheriff's son?

Plain-English summary

The Reeves County Attorney asked the Attorney General whether the nepotism statute applies when a private company that runs a county detention center hires a relative of the county sheriff. The facts were specific: the Reeves County Detention Center was a prison facility under private management by the GEO Group under a contract with the county, kept separate from the county jail the sheriff runs. The management contract gave the GEO Group the authority to hire and fire the detention center's employees. The sheriff's son applied for a job there but was rejected over worries that hiring him might violate the nepotism laws, so the county asked whether the son was actually disqualified.

The opinion answered that the nepotism statute did not apply. Chapter 573 of the Government Code bars a public official from appointing, confirming, or voting for a relative (within the defined degrees) to a position compensated from public funds. A county sheriff is a public official, and a father and son are related within the first degree, so if the statute reached the situation, the hiring would be prohibited. But the key is control: the nepotism law applies only when the officer may exercise control over hiring decisions, even if the officer abstains in a particular case or delegates the decision to someone else.

The opinion found the sheriff had no such control. The detention center was operated and managed by the GEO Group, a private entity, under its contract with the county, and the sheriff had no power to hire or fire its employees or manage the facility. The opinion lined this up with a series of prior opinions holding that when a governmental body contracts with a private corporation, and the corporation hires, supervises, and pays its own workers, the nepotism statute does not bar the corporation from employing an official's relative. It also addressed the sheriff's statutory right to "regular, on-site monitoring" of the facility, explaining that this lets the sheriff evaluate the vendor's performance of the contract, not make or overrule day-to-day operational decisions like hiring. Because the sheriff did not control hiring at the privately run center, the GEO Group was not prohibited by the nepotism statute from hiring his son.

The opinion added a note about a separate law it did not decide: because a county's contract for a private jail requires the sheriff's approval, the sheriff might later have to consider the conflict-of-interest statute (chapter 171) in connection with future commissioners-court actions on the contract. But the request asked only about nepotism, so that was as far as the opinion went.

Currency note

This opinion was issued in 2006. 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 nepotism statute (Government Code chapter 573), the private-jail and on-site-monitoring provisions (Local Government Code section 351.101 and 351.103), and the conflict-of-interest statute (chapter 171) have all been subject to amendment since 2006. Anyone evaluating a similar hiring or contract today should check the current statutes and any later AG opinions and apply them to the specific contract terms, rather than rely on this 2006 account.

Who this opinion affected (as of 2006)

Private companies operating county jails or detention centers: The opinion told them that, because they hire and pay their own employees under their management contracts, the nepotism statute did not bar them from employing a relative of the county sheriff.

County sheriffs: It clarified that a sheriff's on-site monitoring authority over a privately run facility is about evaluating the vendor's contract performance, not controlling who the vendor hires, and flagged a possible future conflict-of-interest question under chapter 171.

Relatives of public officials seeking jobs with government contractors: It signaled that working for a private contractor that controls its own hiring is different, for nepotism purposes, from being appointed by the official.

Common questions

Can a private prison operator hire the county sheriff's son?
According to the opinion, yes. Because the private operator controlled hiring at the detention center under its contract and the sheriff did not, the nepotism statute did not prohibit the operator from hiring the sheriff's son.

Why doesn't the nepotism statute apply when the relative works for a contractor?
The opinion explained that the nepotism law applies only when the official may exercise control over hiring decisions. When a governmental body contracts with a corporation that hires, supervises, and pays its own employees, the official is not appointing or employing the individual, so the statute does not reach it.

Doesn't the sheriff's on-site monitoring give him control over the facility?
No. The opinion concluded that the sheriff's authority for "regular, on-site monitoring" under Local Government Code section 351.103(2) lets him evaluate the vendor's performance, not make or overrule day-to-day operational decisions such as hiring.

Are there any other laws the sheriff might still have to consider?
The opinion noted that because a private-jail contract requires the sheriff's approval, future commissioners-court actions on the contract might require the sheriff to consider the conflict-of-interest statute (chapter 171), but it did not decide that question because the request was only about nepotism.

Background and statutory framework

The nepotism statute bars a public official from appointing, confirming, or voting for the appointment of a relative within a described degree to a position compensated from public funds, and "position" includes employment (Tex. Gov't Code Ann. §§ 573.041, 573.002, 573.001(2) (Vernon 2004)). A county sheriff is a public official subject to the law (id. § 573.001(3)(A)), and a father and son are related within the first degree of consanguinity (id. § 573.002; Tex. Att'y Gen. Op. No. JM-801 (1987)). The law's applicability depends on whether the officer may exercise control over hiring decisions, and it applies even if the officer abstains or delegates the decision (Tex. Att'y Gen. Op. Nos. DM-2 (1991), GA-0226 (2004), GA-0073 (2003), GA-0415 (2006), GA-0123 (2003); Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658 (Tex. Civ. App.-Eastland 1981, no writ)).

The opinion found the sheriff lacked control because the GEO Group managed the detention center under its contract with the county and the sheriff could not hire, fire, or manage there. It relied on prior opinions holding that when a governmental body contracts with a corporation that appoints, supervises, and pays its own employees, the nepotism statute does not bar the corporation from hiring an official's relative (Tex. Att'y Gen. Op. Nos. H-1210 (1978), JC-0585 (2002) (analogous Water Code provision, Tex. Water Code Ann. § 49.052); Tex. Att'y Gen. LO-95-080, LO-92-052). The sheriff's right to "regular, on-site monitoring" under Local Government Code section 351.103(2) is authority to evaluate the vendor's performance, not to make or overrule day-to-day operational decisions (Tex. Loc. Gov't Code Ann. § 351.103(2) (Vernon 2005); Tex. Att'y Gen. Op. No. DM-86 (1992); 37 Tex. Admin. Code § 297.12 (2005)). The opinion concluded the nepotism statute did not apply and flagged, without deciding, the conflict-of-interest statute as a possible future consideration given the sheriff's contract-approval role (Tex. Loc. Gov't Code Ann. §§ 351.101, 171.001-.010 (Vernon 1999 & Supp. 2005)).

Citations

Statutes and rules:

• Tex. Gov't Code Ann. §§ 573.001(2), (3)(A), 573.002, 573.041 (Vernon 2004)
• Tex. Loc. Gov't Code Ann. §§ 171.001-.010, 351.101, 351.103(2) (Vernon 1999, 2005 & Supp. 2005)
• Tex. Water Code Ann. § 49.052
• 37 Tex. Admin. Code § 297.12 (2005)

Cases:

• Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658 (Tex. Civ. App.-Eastland 1981, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0419
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0419.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 27, 2006

The Honorable Richard Slack
Reeves County Attorney
Post Office Box 825
Pecos, Texas 79772

Opinion No. GA-0419

Re: Whether the nepotism statute is applicable to the employment of a sheriff's 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 sheriff's relative by a private company that operates a county detention center.[1] He informed us that the Reeves County Detention Center ("detention center") is a "prison facility under private management by the GEO Group, Inc. in compliance with section 351.103 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 GEO Group and that the contract grants "authority to hire and terminate employees" at the detention center to the GEO Group. See Owens Letter, supra note 1, at 1. The sheriff's 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 Sheriff's son be disqualified from employment at the facility under the nepotism statutes."[2] Id.

The nepotism statute, found in chapter 573 of the 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 CODE ANN. § 573.041 (Vernon 2004); see also id. §§ 573.002 (degrees of relationship by affinity 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. § 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 sheriff's 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 Grande 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 if the 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 GEO Group under a contract between Reeves County and the GEO Group. See Request Letter, supra note 1, at 2. Your predecessor did not provide us with any particular language or provision but informed us that under the contract the GEO Group manages the detention center. See id. He informed us further that because "management of the facility has been contracted to the GEO Group[,] . . . the Sheriff does not have the power to hire or fire 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 would violate the nepotism statute. See id. This office stated that "[u]nder its contract with the city, [the] County has no right to control the employment of the ambulance supervisor" and opined that the commissioners court's action with respect to the salary would not violate the nepotism statute. Id. at 2. Similarly, 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 ("[T]he 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 office 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 GEO 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 351.103, Local Government Code, does expressly provide for "regular, on-site monitoring by the sheriff." See TEX. LOC. GOV'T CODE ANN. § 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 § 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, GEO Group, Inc. as the operator of the Reeves County Detention Center is not prohibited by section 573.041 from hiring the sheriff's son.

SUMMARY

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

Very truly yours,

GREG ABBOTT
Attorney General of Texas

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

Footnotes

1. See Letter from Honorable Luis U. Carrasco, Reeves County Attorney, to Honorable Greg Abbott, Attorney General of Texas (Oct. 13, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter]; see also Letter from J. Lynn Owens, Reeves County Auditor, to Honorable Randall Reynolds, Reeves County District Attorney, 143d Judicial District (June 13, 2005) (attached to Request Letter) [hereinafter Owens Letter].

2. The request letter inquired only about application of the nepotism statute. See Request Letter, supra note 1, at 1-2. Thus our opinion is limited to the scope of the requestor's question. However, because a contract between a county and a private organization for a private jail facility requires the approval of the sheriff, see TEX. LOC. GOV'T CODE ANN. § 351.101 (Vernon Supp. 2005), subsequent actions by the commissioners court regarding the contract may require the sheriff to consider the application of the conflict of interest statute. See id. §§ 171.001-.010 (Vernon 1999 & Supp. 2005) (chapter 171, Local Government Code).