Was the superintendent of a Texas mental-health facility a public officer subject to state nepotism restrictions?
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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-91: Mental-Health Superintendent Nepotism
Plain-English summary
JM-91 concluded that the superintendent of a Texas Department of Mental Health and Mental Retardation facility was a public officer subject to the state nepotism statutes.
"We believe that such a person is an officer within the meaning of articles 5996a and 5996b, V.T.C.S."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
The opinion applied the Texas test that distinguished officers from employees by asking whether the person exercised a sovereign government function for the public, largely independently of others' control.
"The courts of this state have frequently stated that the standard that determines status as an officer, as distinguished from an employee, is 'whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
The superintendent met that test because statutes, rather than only departmental delegation, made the superintendent the institution's administrative head and authorized that official to establish rules, appoint staff, and set salaries.
"The powers and duties of superintendents of mental health and mental retardation facilities are not functions mainly delegated to them by the commissioner and deputy commissioners of the department, but are derived from statutes such as articles 3175-3177, V.T.C.S., the Texas Mental Health Code, and the Mentally Retarded Persons Act."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf"The Superintendent shall be the administrative head of the institution to which he is appointed."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf"Where not otherwise provided by law, to appoint the subordinate officers, teachers, attendants, and other employees, and to fix their salaries."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
On the specific employment question, JM-91 said a superintendent's brother-in-law was within the prohibited degree of affinity. Because the employee had served for less than two years before the relationship arose and worked month to month, continued employment was prohibited.
"The person is a brother-in-law of the superintendent and, therefore, within the degree of affinity prohibited by article 5996a."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf"Because the person was employed at the facility for less than two years prior to the time he became the superintendent's brother-in-law, we conclude that the two-year continuous service exception in article 5996a is not applicable."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf"If the person is an employee who is hired on a month-to-month basis, we believe a new contract would be entered into each month and that the person's continued employment at the facility is prohibited."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
Currency note
This opinion was issued in 1983. 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
Why did JM-91 classify the superintendent as an officer instead of an employee?
The superintendent exercised statutory government powers as the institution's administrative head, including authority over facility rules, staff appointments, and salaries.
"However, we believe that a court would find that each superintendent, as the administrative head of the institution to which he is appointed and the person with the power to appoint the facility's staff and fix their salaries, exercises sovereign functions of government for the benefit of the public largely independent of the control of others."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
Did appointment and removal by the commissioner make the superintendent only an employee?
No. JM-91 acknowledged that the commissioner appointed the superintendent, with board approval, and that the superintendent served at the commissioner's pleasure. It still concluded that the independently conferred statutory powers satisfied the officer test.
"Each superintendent of a facility is appointed by the commissioner with the approval of the Texas Board of Mental Health and Mental Retardation and serves at the pleasure of the commissioner."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf"Accordingly, we conclude that a superintendent of a Mental Health and Mental Retardation facility is subject to the prohibitions imposed by the nepotism statutes."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
Why was a public-school superintendent case different?
JM-91 said the school superintendent in Pena derived duties solely from the employing school board, while the mental-health facility superintendent's duties came from statute.
"Unlike a school superintendent, whose duties are prescribed solely by the employing school board, the duties of a superintendent of a facility of the Texas Department of Mental Health and Mental Retardation are prescribed by statute."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
Could the employee use the nepotism statute's two-year exception?
No. The opinion said the employee had not worked continuously at the facility for the required period before becoming the superintendent's brother-in-law.
"Because the person was employed at the facility for less than two years prior to the time he became the superintendent's brother-in-law, we conclude that the two-year continuous service exception in article 5996a is not applicable."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
Would a preexisting fixed-term employment contract have remained valid?
JM-91 said a contract made before the prohibited relationship would remain valid for its term, but the employee in question did not have that kind of contract.
"While we believe that a contract of employment that was made prior to the prohibited relationship would remain valid for the term of the contract, we are advised that the person in question is not hired on a contractual basis with the facility."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
Background and statutory framework
Commissioner Gary E. Miller asked whether a facility superintendent was an officer for purposes of the Texas nepotism statutes.
"You have asked whether a superintendent of a Texas Department of Mental Health and Mental Retardation facility is an officer for purposes of the Texas nepotism statutes."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
Article 5996a prohibited a state officer from appointing a person related within the second degree by affinity or third degree by consanguinity to a publicly paid position, subject to a continuous-service exception.
"[N]o officer of this State . . . shall appoint . . . to any office, position, clerkship, employment or duty . . . any person related within the second degree by affinity or within the third degree by consanguinity to the person so appointing . . . 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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
Article 5996b expressly included officers of state eleemosynary institutions.
"Article 5996b expressly specifies certain officers to whom the prohibition applies, including officers 'of the various state eleemosynary institutions.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
Article 3176 made each superintendent the administrative head and conferred powers over institutional rules and personnel.
"The Superintendent shall be the administrative head of the institution to which he is appointed."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf"To establish such rules and regulations for the government of the institution in his charge, as he deems will best promote the interest and welfare of its inmates."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf"Where not otherwise provided by law, to appoint the subordinate officers, teachers, attendants, and other employees, and to fix their salaries."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
Holding
"The superintendent of a facility of the Texas Department of Mental Health and Mental Retardation is an officer within the meaning of the Texas nepotism statutes and may not employ a person who is related to him within the degree of kinship prohibited by article 5996a, V.T.C.S."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.pdf
Citations and references
Statutes and acts quoted or discussed by JM-91:
- "articles 5996a and 5996b, V.T.C.S." Official PDF
- "articles 3175-3177, V.T.C.S." Official PDF
- "the Texas Mental Health Code" Official PDF
- "the Mentally Retarded Persons Act" Official PDF
- "Article 3176" Official PDF
Cases cited by JM-91:
- "Green v. Stewart, 516 S.W.2d 133, 135 (Tex. 1974)" Official PDF
- "Aldine Independent School District v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)" Official PDF
- "Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658, 660 (Tex. App. - Eastland 1981, no writ)" Official PDF
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0091
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0091.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
JIM MATTOX
Attorney General
November 10, 1983
Gary E. Miller, M.D.
Commissioner
Texas Department of Mental Health and Mental Retardation
P. O. Box 12668
Austin, Texas 78711
Opinion No. JM-91
Re: Whether the superintendent of a mental health and mental retardation facility is an officer subject to the nepotism statute
Dear Dr. Miller:
You have asked whether a superintendent of a Texas Department of Mental Health and Mental Retardation facility is an officer for purposes of the Texas nepotism statutes. We believe that such a person is an officer within the meaning of articles 5996a and 5996b, V.T.C.S.
Article 5996a provides, in part, that
[N]o officer of this State . . . shall appoint . . . to any office, position, clerkship, employment or duty . . . any person related within the second degree by affinity or within the third degree by consanguinity to the person so appointing . . . 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 . . . provided that nothing herein . . . shall prevent the appointment . . . of any person who shall have been continuously employed in any such office, position, clerkship, employment or duty for a period of two (2) years prior to the election or appointment of the officer or member appointing . . . or to the election or appointment of the officer or member related to such employee in the prohibited degree.
Article 5996b expressly specifies certain officers to whom the prohibition applies, including officers "of the various state eleemosynary institutions."
The courts of this state have frequently stated that the standard that determines status as an officer, as distinguished from an employee, is "whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others." (Emphasis in original). Green v. Stewart, 516 S.W.2d 133, 135 (Tex. 1974); Aldine Independent School District v. Standley, 280 S.W.2d 578, 583 (Tex. 1955); Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658, 660 (Tex. App. - Eastland 1981, no writ).
The powers and duties of superintendents of mental health and mental retardation facilities are not functions mainly delegated to them by the commissioner and deputy commissioners of the department, but are derived from statutes such as articles 3175-3177, V.T.C.S., the Texas Mental Health Code, and the Mentally Retarded Persons Act. Article 3176 provides, in part:
The Superintendent shall be the administrative head of the institution to which he is appointed. He shall have the following powers:
To establish such rules and regulations for the government of the institution in his charge, as he deems will best promote the interest and welfare of its inmates.
Where not otherwise provided by law, to appoint the subordinate officers, teachers, attendants, and other employees, and to fix their salaries.
Each superintendent of a facility is appointed by the commissioner with the approval of the Texas Board of Mental Health and Mental Retardation and serves at the pleasure of the commissioner. See V.T.C.S. art. 5547-202, §2.12. However, we believe that a court would find that each superintendent, as the administrative head of the institution to which he is appointed and the person with the power to appoint the facility's staff and fix their salaries, exercises sovereign functions of government for the benefit of the public largely independent of the control of others. Accordingly, we conclude that a superintendent of a Mental Health and Mental Retardation facility is subject to the prohibitions imposed by the nepotism statutes.
We note that this situation is different from that presented in Pena v. Rio Grande City Consolidated Independent School District, supra, which held that a superintendent of an independent school district is not an officer within the meaning of the nepotism statutes. Unlike a school superintendent, whose duties are prescribed solely by the employing school board, the duties of a superintendent of a facility of the Texas Department of Mental Health and Mental Retardation are prescribed by statute. This statute confers upon such a superintendent sovereign functions of government largely independent of the control of others.
You also ask whether the nepotism statutes prohibit the employment of a particular person at a mental health and mental retardation facility. The person is paid from public funds. The person is a brother-in-law of the superintendent and, therefore, within the degree of affinity prohibited by article 5996a. Because the person was employed at the facility for less than two years prior to the time he became the superintendent's brother-in-law, we conclude that the two-year continuous service exception in article 5996a is not applicable.
While we believe that a contract of employment that was made prior to the prohibited relationship would remain valid for the term of the contract, we are advised that the person in question is not hired on a contractual basis with the facility. If the person is an employee who is hired on a month-to-month basis, we believe a new contract would be entered into each month and that the person's continued employment at the facility is prohibited. See Attorney General Opinion M-857 (1971).
SUMMARY
The superintendent of a facility of the Texas Department of Mental Health and Mental Retardation is an officer within the meaning of the Texas nepotism statutes and may not employ a person who is related to him within the degree of kinship prohibited by article 5996a, V.T.C.S.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
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