Continuing our series of columns on traps for the unwary, this month we will discuss the Nepotism Prohibition in Chapter 573, Government Code. Since 1907, this statute has applied to all public officials of this State and its political subdivisions, including members of Commissioners Courts.
Appointment and Confirmation. The statute prohibits a public official from appointing or confirming the appointment of a person within the prohibited relationship to a position that is directly or indirectly compensated from public funds. Under Section 573.041, this prohibition applies to all of the members of a board if the person is related to any member of the board, even if the related member does not participate in the decision. This means that the Commissioners Court cannot vote to appoint a prohibited relative of the Judge or another Commissioner, even if the related member is not present or abstains. See AG Opinion O-3016 (1941). In this case, all members who vote to employ the relative of another member will violate the statute.
Compensated Position. The statute applies to compensated positions paid from public funds. Therefore, the prohibition does not apply to unpaid positions or to persons employed by a private contractor with the county. See AG Opinion C-653 (1966). However, other statutes may apply to contracts with entities owned by members of the Commissioners Court.
Authority to Hire or Appoint. The statute applies to persons with the authority to hire and not otherwise. Therefore, since Commissioners Court is prohibited from influencing the appointment of deputies by other elected officials under Section 151.004, Local Government Code, those officials with independent hiring authority may hire a relative of a member of the Commissioners Court. See AG Opinion 0-4895 (1942) and AG Opinion KP-0045 (2015). However, Section 573.044 specifically prohibits “trading” such appointments or hiring by agreement between officials.
Continuous Employment. Section 573.062 permits the continued employment of a prohibited relative with sufficient prior service when the related official takes office. However, the prohibited relative cannot receive any promotion or salary increase except “across-the-board” increases. See AG Opinion MW-135 (1980).
Degree of Relationship. Under Section 573.002, the statute applies to relationships within the third degree of consanguinity (blood) or within the second degree by affinity (marriage). Subsequent sections provide instruction on the computation of these degrees of relationship, and several opinions and court decisions have been the subject of this question. Section 573.061 contains an exception for appointment of election clerks who are not related within the first degree of consanguinity or affinity. Whenever any question arises about a relationship to a member of the Commissioners Court, a legal opinion should be obtained to avoid an accidental violation.
Penalties. Under Subchapter E, Chapter 573, the penalties for violation of the nepotism statute are severe and include (1) removal from office and (2) a fine between $100 and $1,000. Clearly, the members of the Commissioners Court should obtain legal advice and proceed carefully whenever considering the appointment or hire of any relative of a member of the Commissioners Court.
