Can a sheriff promote his own son or daughter after he takes office if they already worked there?

Texas AG Opinion JM-1188: Can a Sheriff's Deputy Promote the Sheriff's Own Children?

Plain-English summary

The Polk County Criminal District Attorney described a situation where the sheriff's son and daughter both worked in the sheriff's office before their father took office, and both had enough prior continuous service to legally keep their jobs afterward under the nepotism statute's holdover exception. After their father became sheriff, the son was promoted from deputy to sergeant and the daughter from jailer to deputy, both promotions carrying pay raises. The district attorney asked whether these promotions violated section 1(c) of the nepotism statute, article 5996a, V.T.C.S., which bars an officer from participating in the deliberation or voting on a change in status, including promotion, of a relative within the prohibited degree, unless the action applies to a whole bona fide class or category of employees.

The Attorney General concluded the promotions were unlawful. The county attorney had raised the argument that a deputy, not the sheriff himself, actually made the promotion decisions, but the opinion rejected that as a workaround: a deputy serves at the sheriff's pleasure and, under the Local Government Code, the acts of a deputy are legally the acts of the sheriff, so the sheriff could not avoid the statute's participation bar simply by delegating the decision. The opinion also rejected the idea that these particular promotions fell within the statute's "bona fide class or category of employees" exception, since that exception is meant for things like an across-the-board cost-of-living raise, not promotions that, however consistent with office custom, singled out the sheriff's own children for better jobs.

Currency note

This opinion was issued in 1990. 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 mentioned here.

Who this opinion affected (as of 1990)

Sheriffs whose relatives already work in the office: The opinion meant that while a relative could keep an existing job under the statute's holdover provision, the sheriff could not later promote that relative, and could not sidestep the rule by having a deputy make the decision instead.

Sheriff's deputies asked to make personnel decisions involving the sheriff's relatives: The opinion held that a deputy's promotion decisions are legally attributed to the sheriff, so a deputy cannot lawfully do what the nepotism statute forbids the sheriff from doing himself.

County and district attorneys advising local law enforcement offices on nepotism compliance: The opinion illustrated that neither delegation to a subordinate nor an office custom of promoting employees on a certain timetable will convert an individual promotion decision into the kind of "bona fide class or category" action the statute exempts.

Common questions

If a sheriff has a deputy handle the paperwork, does that get around the nepotism law?
No. The opinion concluded that because a deputy serves at the sheriff's pleasure and the acts of a deputy are legally the acts of the sheriff, delegating a promotion decision to a deputy did not remove the sheriff's own participation from the nepotism statute's reach.

Can a sheriff's relative who already worked there before he took office keep the job?
Yes, that part is settled by the statute itself: section 1(b) of article 5996a lets a person with sufficient prior continuous service continue in an existing position. This opinion addressed a different question, promotions after the sheriff took office, not continued employment in the same position.

Does it matter that promoting employees this way was the office's usual custom?
No. The opinion found that the statute's exception for actions taken "with respect to a bona fide class or category of employees," such as a cost-of-living raise given to everyone, was not meant to give an officeholder's relatives the benefit of expectations created by office custom or common practice.

Background and statutory framework

Article 5996a, V.T.C.S., Texas's nepotism statute, generally bars public officials from appointing or voting to appoint relatives within a prohibited degree. Section 1(b) creates a holdover exception allowing a relative who already held a position when the official took office, with sufficient prior continuous service, to continue in that position. Section 1(c), the provision at issue here, separately bars the official from participating in the deliberation or voting upon the appointment, reappointment, employment, confirmation, reemployment, change in status, compensation, or dismissal of a person continuing in office under the holdover exception, unless the action is taken with respect to a bona fide class or category of employees rather than the individual alone.

The opinion first addressed whether having a deputy, rather than the sheriff, make the promotion decisions avoided section 1(c)'s participation bar. Local Government Code section 85.003(c) provides that a deputy serves at the pleasure of the sheriff, and section 85.003(e) makes clear the relationship between sheriff and deputy is one of principal and agent, so that the acts of a deputy, including deputizing or promoting another deputy, are legally the acts of the sheriff, citing Heye v. Moody and also Cortimiglia v. Miller on the same point. The opinion noted the separate civil service system available to larger counties under Local Government Code sections 158.001 through 158.015 but found it did not change the analysis here. Because a deputy cannot lawfully perform an act the sheriff is himself prohibited from performing, the opinion concluded the sheriff did not avoid "participation" in his children's promotions simply by delegating the decision to a deputy, also citing Pena v. Rio Grande City Consol. Indep. School Dist. on whether an official may exercise control over a promotion decision.

On the "bona fide class or category of employees" exception, the opinion explained that a decision like an across-the-board cost-of-living raise for all employees of the sheriff's office would qualify, but the situation described, promotions consistent with the office's custom but given specifically to the sheriff's own son and daughter, was different; the opinion did not read the exception as intended to give an officeholder's relatives the benefit of expectations created by office custom or common practice. The opinion noted that deputies' at-will status under Local Government Code section 85.003 cannot be undone by local custom, citing Batterton v. Texas Gen. Land Office for the proposition that a custom contrary to a state statute permitting at-will removal cannot be a source of a due-process interest. A footnote observed that the vagueness of section 1(c)'s language was not before the office, citing Papachristou v. City of Jacksonville and noting that the holding of Bean v. State, that the nepotism statute is not unconstitutionally vague, predated section 1(c)'s addition to the statute. The opinion also noted, without deciding, that section 1(c)'s language could be read to bar an officer from dismissing, not just promoting, a covered relative, but that question was not before the office. The commissioners court's chapter 152 authority to set the sheriff's office salary scale was likewise not disputed; the nepotism question arose from the decision to move the sheriff's children into higher-paid positions, not from the pay scale itself.

Citations

Statutes:

• V.T.C.S. art. 5996a, § 1(b)
• V.T.C.S. art. 5996a, § 1(c)
• Local Gov't Code § 85.003(c)
• Local Gov't Code § 85.003(e)
• Local Gov't Code §§ 158.001-158.015
• Local Gov't Code ch. 152

Cases:

• Heye v. Moody, 4 S.W. 242 (Tex. 1887)
• Cortimiglia v. Miller, 326 S.W.2d 278, 284 (Tex. Civ. App.-Houston 1959, no writ)
• Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)
• Bean v. State, 691 S.W.2d 773 (Tex. App.-El Paso 1985, writ ref'd)
• Pena v. Rio Grande City Consol. Indep. School Dist., 616 S.W.2d 658 (Tex. Civ. App.-Eastland 1981)
• Batterton v. Texas Gen. Land Office, 783 F.2d 1220 (5th Cir.), cert. denied, 107 S.Ct. 316 (1986)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1188
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1188.pdf

Original opinion text

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

July 23, 1990

Honorable Terry M. Brown
Criminal District Attorney
Polk County
P. O. Box 1717
Livingston, Texas 77351

Opinion No. JM-1188

Re: Whether promotions of the son and daughter of a sheriff violate the nepotism statute, article 5996a, V.T.C.S. (RQ-2018)

Dear Mr. Brown:

You ask for an interpretation of section 1(c) of the Texas nepotism law, article 5996a, V.T.C.S. You state that the son and daughter of the current Polk County Sheriff were both employed by the sheriff's office at the time their father took office. Both had sufficient prior continuous service to retain their positions. See V.T.C.S. art. 5996a, § 1(b). After their father became sheriff, both the son and daughter received promotions: the son was promoted from deputy sheriff to sergeant (a higher-ranking deputy, we assume), and the daughter was promoted from jailer to deputy sheriff. You ask whether those promotions were in contravention of section 1(c) of article 5996a, which provides:

When a person is allowed to continue in an office, position, clerkship, employment or duty because of [sufficient prior continuous service] . . . the Judge, Legislator, officer, or member of the governing body who is related to such person in the prohibited degree shall not participate in the deliberation or voting upon the appointment, reappointment, employment, confirmation, reemployment, change in status, compensation, or dismissal of such person, if such action applies only to such person and is not taken with respect to a bona fide class or category of employees.

You first ask whether the promotions were lawful because they were made by a deputy sheriff, not the sheriff himself. Section 1(c) of article 5996a states that an officer shall not participate in the deliberation about or voting upon a change in status[1] of an employee related to him within a prohibited degree. If the officer in question is a member of a board, the related employee could receive a promotion or pay raise as long as the related board member did not discuss or vote on the promotion or pay raise. We do not think, however, that the sheriff avoided "participation" in the decision to promote his children by delegating the authority to make the decision to a deputy.[2]

A deputy serves at the pleasure of the sheriff. Local Gov't Code § 85.003(c). Consequently, the acts of a deputy are legally the acts of the sheriff. Heye v. Moody, 4 S.W. 242 (Tex. 1887); Cortimiglia v. Miller, 326 S.W.2d 278, 284 (Tex. Civ. App.-Houston 1959, no writ). The acts of a deputy in deputizing another person or in promoting another deputy are the acts of the sheriff. See Local Gov't Code § 85.003(e) (making clear that relationship between sheriff and deputy is that of principal and agent). But see Local Gov't Code §§ 158.001-158.015 (larger counties may operate sheriff's office under civil service system). Therefore, a deputy cannot lawfully perform an act that the sheriff is prohibited from performing himself.[3] In any case, the

1. You state that both the son and daughter received pay raises in connection with their promotions. The salary scale for various positions in the sheriff's office is set by the commissioners court. Local Gov't Code ch. 152. It is the decision to promote his son and daughter to a higher-paid position that raises questions under the nepotism statute.

2. You do not ask and we do not consider whether the language of section 1(c) is so vague as to fail to give notice of the proscribed conduct. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); see Bean v. State, 691 S.W.2d 773 (Tex. App.-El Paso 1985, writ ref'd) (holding Texas nepotism statute not unconstitutionally vague; case precedes addition of section 1(c) to nepotism statute).

3. We acknowledge that the language of section 1(c) may lead to some curious consequences. For example, not only does it prohibit an officer from promoting a relative, it appears to also prohibit the officer from dismissing a relative. Whether a sheriff may dismiss a relative is not the question before us.

applicability of the nepotism statute depends on whether the sheriff may exercise control over a decision to promote. Pena v. Rio Grande City Consol. Indep. School Dist., 616 S.W.2d 658 (Tex. Civ. App.-Eastland 1981).

The second issue you raise is based on the language of section 1(c) providing that an officeholder may participate in a decision that affects a relative if the decision is made "with respect to a bona fide class or category of employees." An example of such a decision would be a decision to give a cost-of-living raise to all employees of the sheriff's office. The situation you describe is somewhat different. Viewing the facts in the light most favorable to the sheriff, it is a situation in which the sheriff's son and daughter received promotions that were consistent with the custom of the office. We do not think that the language regarding actions taken with respect to a bona fide category of employees was intended to give an officeholder's relatives the benefit of expectations created by custom or common practice. Furthermore, sheriffs' deputies serve at the pleasure of the sheriff, and their statutory at-will status cannot be undone by local custom. See Batterton v. Texas Gen. Land Office, 783 F.2d 1220 (5th Cir.), cert. denied, 107 S.Ct. 316 (1986) (custom contrary to state statute that allows removal at will cannot be source of due process interest).

SUMMARY

A sheriff may not promote his son and daughter even though they had sufficient prior continuous service to retain their jobs in the sheriff's office after their father became sheriff.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General