Can a Texas commissioners court appoint a county commissioner's relative to a vacant county office?

Texas AG Opinion JM-741: Nepotism and a County Clerk Vacancy

Plain-English summary

A county attorney asked whether a commissioners court could appoint the first cousin of a sitting county commissioner to fill an unexpired term as acting county clerk. The related commissioner had abstained from the vote, and the appointee had served ten years as chief deputy county clerk. The Attorney General concluded the appointment was not allowed.

The opinion rested on article 5996a, the state nepotism statute, which barred an officer or a member of a board from appointing, voting for, or confirming a person related within a prohibited degree to the appointing officer or to any other member of the board, when the appointee's compensation came from public funds. Relying on Attorney General Opinion JM-253, the opinion treated a first cousin of a commissioner as within the degrees the statute reached, so the commissioners court could not make the appointment. The opinion noted that once a person is appointed "acting" county clerk, she acts in the full capacity of county clerk, so the appointment was to the office itself.

The opinion rejected the two features the county thought might save the appointment. The related commissioner's abstention did not matter, because the statute barred the court as a whole from appointing a member's relative. And the appointee's service as chief deputy did not fit the statute's continuous-employment exception, which the opinion, again following JM-253, read to protect only employees who had been continuously employed before the related officer took office, not a person newly appointed to the office by the court. The opinion added that a pending amendment to article 5996a in Senate Bill No. 933 would not change the result, and that until a valid appointment occurred the former county clerk continued to hold the office as a holdover under article 1617.

Currency note

This opinion was issued in 1987. 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 appoint a commissioner's first cousin as county clerk?

No. The opinion concluded that article 5996a's nepotism bar prohibited the commissioners court from appointing the first cousin of one of its members to the office.

Did it help that the related commissioner abstained from voting?

No. The opinion explained that the statute barred the court from appointing a member's relative regardless of whether that member abstained.

Did the appointee's ten years as chief deputy clerk matter?

No. The opinion held that prior service as chief deputy did not bring the appointment within the statute's continuous-employment exception, which protected employees continuously employed before the related officer took office rather than a person newly appointed by the court.

What happened to the office in the meantime?

The opinion noted that until there was a valid appointment, the formerly elected county clerk continued to hold the office as a holdover under article 1617, despite her resignation.

Background and statutory framework

Article 5996a was the Texas nepotism statute in force in 1987. It prohibited a broad list of officers and board members from appointing, voting for, or confirming the appointment of a person related within the second degree by affinity or the third degree by consanguinity to the appointing officer or to any other member of the same board, when the appointee's salary or fees were paid from public funds. It contained a proviso protecting a person who had been continuously employed in the position for a period before the election or appointment of the related officer.

The opinion applied that statute through Attorney General Opinion JM-253, which had analyzed the same statute in the context of a commissioners court filling a vacancy. Because a commissioners court fills certain county vacancies until the next general election, and because the appointee was a first cousin of a court member, the appointment fell within the statute's prohibition. The opinion treated the continuous-employment proviso as inapplicable to a person newly appointed to the office by the court, and it read a pending legislative amendment as leaving the analysis intact.

Citations and references

Constitutional and statutory authorities:

• Article 5996a, V.T.C.S. (nepotism)
• V.T.C.S. article 2355 (commissioners court filling a vacancy)
• V.T.C.S. article 3902 (appointment of deputies)
• Article 1617, V.T.C.S. (holdover in office)
• Texas Constitution article VIII, sections 14, 16, and 16a; Tax Code section 6.21
• Senate Bill No. 933, 70th Legislature (pending amendment to article 5996a)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0741
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0741.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

July 8, 1987

Honorable Michael S. Line
Scurry County Attorney
Courthouse
Snyder, Texas 79549

Opinion No. JM-741

Re: Authority of a commissioners court to appoint as county clerk an individual who is first cousin of a county commissioner

Dear Mr. Line:

You ask whether the commissioners court may appoint a first cousin of a county commissioner to fill an unexpired term as county clerk. The minutes of the commissioners court reflect that the appointment was for "acting county clerk until the next general election." You state that the commissioner who is related to the appointee abstained from voting on the appointment. Information furnished by you also reflects that the appointee has served the past ten years as chief deputy county clerk.

Prior to the appointment of a county clerk, the chief deputy may carry out the clerk's duties. If an individual is appointed "acting" county clerk, however, she acts, for all purposes, in the capacity of county clerk.

Article 5996a, V.T.C.S., 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. . . .

We believe that Attorney General Opinion JM-253 (1984) addresses the questions you have raised. It states:

First cousins are related within the second degree by consanguinity. See Attorney General Opinions O-6221 (1944); O-4670 (1942).

The county tax assessor-collector holds an elective office. Tex. Const. art. VIII, §§14, 16, 16a; Tax Code §6.21. Thus, ordinarily the tax assessor-collector would be elected by the people and not appointed by the commissioners court. The court, however, is statutorily authorized to fill a vacancy in this office until the next general election. V.T.C.S. art. 2355.

Article 5996a, V.T.C.S., bars the commissioners court from appointing the first cousin of a commissioner to any office or employment. Attorney General Opinions O-5452 (1943); O-4987 (1942); see also Attorney General Opinion O-4670 (1942). The statute prevents any member of the commissioners court from voting for

any person related within the second degree by affinity . . . to the person so appointing or so voting, or to any other member of any such board. . . . (Emphasis added).

V.T.C.S. art. 5996a. Thus, none of the commissioners may vote to appoint the first cousin of a commissioner to the vacant office of tax assessor-collector. See Attorney General Opinion O-3016 (1941).

You raise the exception to article 5996a, V.T.C.S., for a person employed by a governing board for two years continuously prior to the election of his relative to that board and suggest it may apply in this case. It is irrelevant to the problem before us. The tax assessor-collector appoints his deputies; the commissioners court cannot control or influence his selection of individuals for that post. V.T.C.S. art. 3902; Attorney General Opinions H-993 (1977); H-697 (1975); O-6221 (1944). The deputy tax assessor was never appointed by the commissioners court. She therefore does not come within the two-year proviso of article 5996a, V.T.C.S.

Article 5996a prohibits the commissioners court from appointing the first cousin of a commissioner to any office or employment. Such factors as the related commissioner abstaining from voting on the appointment or the appointee holding the position of chief deputy in the office in which the vacancy occurred fail to bring the appointment within the exception contained in article 5996a.

We have reviewed Senate Bill No. 933 passed by both the Senate and House in the regular session of the Seventieth Legislature which has recently concluded. This bill would amend certain provisions of article 5996a, but it would not affect the validity of Attorney General Opinion JM-253 (1984) or the conclusion we have reached herein. We note that until there is a valid appointment, the formerly elected county clerk continues to hold the office pursuant to article 1617, V.T.C.S., notwithstanding her resignation.

SUMMARY

The county commissioners court may not appoint the first cousin of a county commissioner to fill an unexpired term as acting county clerk.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General