Could a Texas commissioners court approve a raise for a county attorney's investigator who was a commissioner's first cousin?

Texas AG Opinion JM-254: Nepotism and an Investigator's Raise

Plain-English summary

The Duval County Attorney employed an investigator who was "a first cousin of a Duval County commissioner" and asked whether the commissioners court could approve a salary increase without violating the nepotism statute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

JM-254 concluded that the raise could be approved. Its summary stated that the commissioners court "would not violate article 5996a, V.T.C.S., by approving a salary increase" even though a commissioner's first cousin held the investigator position. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

The result turned on divided authority over the office. The county attorney could employ necessary investigators and set their salaries subject to commissioners court approval, while article 3902 barred the court from influencing the county attorney's choice of employees. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

The opinion distinguished approval of the position and salary from selection of the individual. It said the commissioners court "has no control over the person who is appointed to that position" and could not require that the salary be paid to a particular person. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

Currency note

This opinion was issued in 1984. 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.

Common questions

Could the commissioners court approve the investigator's raise even though the investigator was a commissioner's first cousin?

Yes. JM-254 said the court "would not violate the nepotism law by approving a salary increase" for the investigator position under those facts. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

Who selected the county attorney's investigator?

The county attorney. The opinion said article 3328 allowed the county attorney to employ necessary investigators and other personnel, while article 3902 prohibited the commissioners court from attempting to influence the choice. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

What authority did the commissioners court retain?

It authorized the investigator position and approved the county attorney's salary recommendation. JM-254 emphasized that the court still had "no control over the person who is appointed to that position." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

Could the commissioners court direct that the approved salary go to the commissioner's relative?

No. The opinion stated: "The commissioners court cannot require that the salary be paid to a particular person." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

Background and statutory framework

Article 3328 governed county attorneys' employment of assistants, investigators, secretaries, and other office personnel. JM-254 said the county attorney could employ personnel necessary to operate the office and set investigators' salaries "subject to the approval of the commissioners court." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

Article 5996a prohibited a member of a commissioners court from appointing, voting for, or confirming a person related within the prohibited degree when the person's compensation came from public funds or fees of office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

Because the commissioners court approved the position and salary but did not select the individual, JM-254 treated its action as outside the nepotism statute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

Citations and references

• Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Eastland 1978, writ ref'd n.r.e.), and Neeper v. Stewart, 66 S.W.2d 812 (Tex. Civ. App. - Eastland 1933, writ ref'd), appeared in the discussion of article 3902's limit on commissioners court influence over the county attorney's employee selection. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf
• Attorney General Opinions H-697 (1975), O-4895 (1942), O-1954 (1940), O-480 (1939), H-1210 (1978), and O-1849 (1940), plus Letter Advisory Nos. 116 (1975) and 70 (1973), supported the distinction between controlling a position or salary and appointing the person who held it. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0254
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0254.pdf

Original opinion text

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

The Attorney General of Texas

December 14, 1984

Honorable Abelardo Garza
Duval County Attorney
P. O. Drawer H
San Diego, Texas 78384

Opinion No. JM-254

Re: Whether the salary of an investigator employed by a county attorney and related to a county commissioner may be increased

Dear Mr. Garza:

You employ an investigator who is a first cousin of a Duval County commissioner. You would like the commissioners court to grant the investigator a salary increase and, for this reason, ask whether the commissioners court would violate the nepotism statute, article 5996a, V.T.C.S., if it approved the increase.

Article 3328, V.T.C.S., governs the employment of assistants, investigators, and other personnel by county attorneys. See art. 332a, §1 ("prosecuting attorney" defined to include "county attorney"). The county attorney "may employ such assistant prosecuting attorneys, investigators, secretaries, and other office personnel" as are necessary to operate his office. Id. §2. He is to set the salaries of his investigators and other personnel subject to the approval of the commissioners court. Id. §5. Article 3902, V.T.C.S., prohibits the commissioners court from attempting to influence the county attorney's choice of employees. See Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Eastland 1978, writ ref'd n.r.e.); Neeper v. Stewart, 66 S.W.2d 812 (Tex. Civ. App. - Eastland 1933, writ ref'd).

Article 5996a, V.T.C.S., provides that no member of the commissioners court

shall appoint, or vote for, or confirm the appointment to any office, position, clerkship, employment or duty, of any person related within the second degree by affinity or within the third degree by consanguinity to the person so appointing or so voting, or to any other member of any such board . . . or court 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 or fees of office of any kind or character whatsoever. . . .

The commissioners court authorizes the position of investigator and has approval power over the county attorney's salary recommendations but has no control over the person who is appointed to that position. Under such circumstances, this office has determined that the action of the commissioners court does not come within the nepotism statute. See Attorney General Opinions H-697 (1975); O-4895 (1942); O-1954 (1940); O-480 (1939); Letter Advisory Nos. 116 (1975); 70 (1973). Nor does the court's action in approving a salary increase for the county attorney's investigator violate article 5996a, V.T.C.S. Attorney General Opinion H-1210 (1978). See Attorney General Opinion O-1849 (1940). The commissioners court cannot require that the salary be paid to a particular person. Thus, the commissioners court would not violate the nepotism law by approving a salary increase for the position of county attorney's investigator, even though the individual who serves as investigator is related to a commissioner within the prohibited degree.

SUMMARY

The commissioners court would not violate article 5996a, V.T.C.S., by approving a salary increase for the position of county attorney's investigator, even though a first cousin of a commissioner holds that position. Article 3902, V.T.C.S., bars the commissioners court from influencing the selection of a person for that position.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood