Can a county government hire someone related to the county judge, and is the Texas nepotism law too vague to enforce?

Texas AG Opinion JM-581: Nepotism Statute

Plain-English summary

The Brooks County Attorney asked two things about the state nepotism statute, article 5996a, V.T.C.S. First, was the statute unconstitutionally vague because it did not spell out how to count degrees of family relationship? Second, did it bar the county library from hiring a first cousin of the county judge's mother? The AG answered that the statute is not vague, and that the hiring is prohibited. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0581.pdf

On the vagueness question, the AG followed a 1985 appeals court decision, Bean v. State, which had held article 5996a clear and unambiguous. The statute's silence on which counting method to use did not make it vague, because Texas had used the common law method for computing degrees of kinship since an 1878 decision, and this office had applied that method consistently ever since. A statute is not vague just because a reader must consult other laws and court decisions to pin down its meaning. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0581.pdf

On the hiring question, a first cousin of the county judge's mother is related to the judge in the third degree of consanguinity, a degree the statute prohibits. The commissioners court, of which the county judge is a member, appoints the county librarian, and the librarian hires library staff with the court's approval. That shared control brought library hiring within the nepotism statute. The fact that the commissioners court had let the librarian hire without its approval did not remove the court's underlying authority, so the statute still applied. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0581.pdf

Currency note

This opinion was issued in 1986. 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

Was the Texas nepotism statute unconstitutionally vague?

No. JM-581 followed Bean v. State in holding article 5996a clear and unambiguous, and found no vagueness in the statute's failure to name a method for counting degrees of kinship. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0581.pdf

How are degrees of family relationship counted?

By the common law method. The AG explained that Texas had used the common law (canon law) method since an 1878 case and that this office had applied it consistently in nepotism questions ever since. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0581.pdf

Was a first cousin of the county judge's mother too close to hire?

Yes. That person is related to the county judge in the third degree of consanguinity, which the nepotism statute prohibits when the hiring body is one the judge sits on. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0581.pdf

Did it matter that the commissioners court had delegated library hiring?

No. The AG concluded that the commissioners court's decision not to exercise its approval authority over library hiring did not abrogate or limit that authority, so the nepotism statute still reached the employment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0581.pdf

Background and statutory framework

Article 5996a barred a wide range of officials, including members of a commissioners court, from appointing, voting for, or confirming the appointment of a person related to them within the second degree by affinity or the third degree by consanguinity, when that person's pay comes from public funds. It contained a "continuous employment" exception for people already employed for a year before the related official took office, coupled with a rule that the related official must not participate in personnel decisions affecting only that individual. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0581.pdf

To settle the counting method, the AG surveyed the civil law and common law approaches, quoting 23 Am. Jur. 2d, and relied on the early Texas decision in Tyler Tap R.R. Co. & Douglas v. Overton, a long line of prior opinions, and Jackson v. Maypearl Independent School District, and it observed that the common law method also governs kinship computations under other Texas statutes, citing Warner v. Rice, Whitworth v. Bynum, and Fry v. Tucker, and noting, as McBride v. Clayton explains, that a statute must be read together with related law. For the vagueness holding, the AG relied on Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. and on Brockert v. Skornicka before turning to the library hiring, where it applied article 1683 and article 1685 on the appointment of the county librarian and staff, treated the shared control like the joint control discussed in a 1978 opinion about junior colleges, and cited Pena v. Rio Grande City Consolidated Independent School District for the point that unused authority is still authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0581.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0581.pdf

Statutes:

• V.T.C.S. art. 5996a (nepotism statute)
• V.T.C.S. art. 1683
• V.T.C.S. art. 1685
• Educ. Code § 130.082(d)

Cases:

• Bean v. State, 691 S.W.2d 773 (Tex. App. - Eastland 1985, writ ref'd)
• Jackson v. Maypearl Independent School District, 392 S.W.2d 892 (Tex. Civ. App. - Waco 1965, no writ)
• Warner v. Rice, 541 S.W.2d 896 (Tex. Civ. App. - Eastland 1976, no writ)
• Whitworth v. Bynum, 679 S.W.2d 608 (Tex. App. - Houston [1st Dist.] 1984, no writ)
• Fry v. Tucker, 202 S.W.2d 218 (Tex. 1947)
• McBride v. Clayton, 166 S.W.2d 125 (Tex. 1942)
• Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)
• Brockert v. Skornicka, 711 F.2d 1376 (7th Cir. 1983)
• Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658 (Tex. Civ. App. - Eastland 1981, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0581
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0581.pdf

Original opinion text

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

Honorable David T. Garcia
Brooks County Attorney
P. O. Box 557
Falfurrias, Texas 78355

Opinion No. JM-581

Re: Constitutionality of article 5996a, V.T.C.S., the nepotism statute

Dear Mr. Garcia:

You ask several questions about the nepotism statute, article 5996a, V.T.C.S., which provides:

No officer of this State nor any officer of any district, county, city, precinct, school district, or other municipal subdivision of this State, nor any officer or member of any State district, county, city, school district or other municipal board, or judge of any court, created by or under authority of any General or Special Law of this State, nor any member of the Legislature, 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, the Legislature, 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; provided, that 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 a period of one (1) year prior to the election or appointment of the officer or member appointing, voting for, or confirming the appointment, or to the election or appointment of the officer or member related to such employee in the prohibited degree. When a person is allowed to continue in an office, position, clerkship, employment, or duty because of the operation of the exceptions contained in the two foregoing provisions then 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. (Emphasis added).

You first ask whether article 5996a is unconstitutionally vague because it fails to specify whether the common law method or the civil law method is to be used in determining degrees of kinship.

In Bean v. State, 691 S.W.2d 773, 776 (Tex. App. - Eastland 1985, writ ref'd), the court held that the provisions of article 5996a were clear and unambiguous and were not unconstitutionally vague. The court in Bean did not address the failure of article 5996a to specify the appropriate method for determining degrees. After studying that specific issue, however, we find no reason to question the holding in Bean.

Some American jurisdictions use the civil law method of determining degrees of kinship, while others use the common law method.

Under [the civil law] method the degree of kinship is determined by counting upward from the intestate to the nearest common ancestor, then downward to the claimant, each generation representing one degree. Computing by the rule of the civil law, parents and children of a deceased are related to him in the first degree; and grandparents, grandchildren, brothers, and sisters of the deceased are related to him in the second degree. Uncles, aunts, nephews, nieces, and great-grandparents of the deceased are related to him in the third degree. The fourth degree of relationship includes first cousins, great-uncles and great-aunts, and great-great-grandparents. The great-great uncles and great-great aunts, the children of a cousin, and the children of a great-uncle or great-aunt are related in the fifth degree, while the relationship of children of second cousins is in the sixth degree.

. . . .

Under [the common law or canon law] method the degree of kinship is determined by counting the number of generations from the nearest common ancestor down to the intestate or to the claimant, taking the longer of the two lines where they are unequal.

23 Am. Jur. 2d Descent and Distribution § 55.

In 1878 a Texas Court held that the common law method was the proper method for computing degrees of kinship under Texas law. Tyler Tap R.R. Co. & Douglas v. Overton, 1 White & W. 267 (Tex. Ct. App. 1878). Since then this office has consistently applied the common law method in answering questions about the nepotism statute. Attorney General Opinions O-791 (1939); O-2523 (1940); O-3016, O-3996 (1941); O-4670, O-4987 (1942); O-5452 (1943); O-6307, O-6337 (1945); V-785 (1949); LA-67 (1973); JM-153 (1984). See also Jackson v. Maypearl Independent School District, 392 S.W.2d 892 (Tex. Civ. App. - Waco 1965, no writ).

Furthermore, it is well-established that the common law method is the proper method for computing degrees of kinship under other Texas statutes. See Warner v. Rice, 541 S.W.2d 896, 898 (Tex. Civ. App. - Eastland 1976, no writ) (guest statute); Whitworth v. Bynum, 679 S.W.2d 608 (Tex. App. - Houston [1st Dist.] 1984, no writ) (computing affinity relationships under guest statute); see also Fry v. Tucker, 202 S.W.2d 218 (Tex. 1947) (disqualification of judges); Smith v. Bates, 27 S.W. 1044 (Tex. Civ. App. 1894, no writ) (disqualification of jurors).

A statute must be read with reference to other laws. McBride v. Clayton, 166 S.W.2d 125, 128 (Tex. 1942) (meaning of statute is to be determined with reference to common law, other statutes, and court decisions). We know of no case holding that a statute is unconstitutionally vague because one must turn to other laws in order to know the precise meaning of the statute in question. See generally Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982) and Brockert v. Skornicka, 711 F.2d 1376, 1381 (7th Cir. 1983) (it is relevant to vagueness inquiry that persons affected have ability to seek clarification of law in order to plan behavior). Therefore, we find no reason to question the holding in Bean that article 5996a is clear and unambiguous and not unconstitutionally vague.

Your second question is whether it is a violation of the nepotism statute for a first cousin of the mother of the county judge to be hired as a county library employee. A first cousin of the mother of the county judge is related to the county judge in the third degree of consanguinity, so the relationship is in a degree prohibited by the nepotism statute. Therefore article 5996a prohibits the employment in question if the commissioners court -- of which the county judge is a member -- appoints, votes for, or confirms the appointment of an employee of the county library.

The commissioners court appoints the county librarian. V.T.C.S. art. 1683. The county librarian has authority to appoint and dismiss library employees with the approval of the commissioners court. V.T.C.S. art. 1685. In Letter Advisory No. 156 (1978) this office considered whether the nepotism law prohibited a junior college district from hiring relatives of the college president. That opinion stated:

The Board of Trustees of a junior college is authorized to hire faculty and other employees upon the president's recommendation. Art. 130.082(d), Educ. Code. Thus the president and the board exercise joint control over the selection of employees and faculty. We believe this control is sufficient to make the nepotism statute applicable to the employment of persons related to the president. See Letter Advisory No. 152 (1978) (chief of police had influence over retaining probationary employee); Letter Advisory No. 148 (1977) (university may not employ niece of regent).

Similarly, the joint control exercised by the county librarian and the commissioners court is sufficient to make the nepotism statute applicable to the employment by a county library of persons related to the county judge or another member of the commissioners court.

You tell us, however, that the commissioners court has authorized the county librarian to employ personnel without the approval of the commissioners court. The fact that the court does not use its statutory authority to exercise control over the appointment of county library employees does not abrogate or limit the authority. Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658 (Tex. Civ. App. - Eastland 1981, no writ). Thus, the employment by the county library of a first cousin of the county judge is prohibited by article 5996a. LA-148 (1977).

1. Tyler relied on the rule that the common law of England is the law of Texas except where it has been changed by constitution or statute. The issue may not have been as clear-cut as Tyler suggests because the so-called "common law" rule of computing degrees of kinship is actually the ecclesiastical or canon-law rule, and it is not clear that this method became part of the common law of England. See 26A C.J.S. Descent and Distribution § 22, at 562; D. Robertson, Succession (1836). Nonetheless, Tyler established the "common law" rule as the Texas rule.

SUMMARY

The nepotism statute, article 5996a, V.T.C.S., is not unconstitutionally vague. The nepotism statute prohibits the county library from employing someone related to a county judge within a prohibited degree of consanguinity.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General