No. DM-0002 (1991).

Case Date:February 04, 1991
Texas Attorney General Opinions 1991. No. DM-0002 (1991). February 4, 1991Opinion No. DM-002Morales Opinion No. DM-002 Office of the Attorney General State of TexasHonorable Maida ModglingCounty Attorney of Medina CountyMedina County CourthouseHondo, Texas 78861SYLLABUS:1991-0002Re: Application of nepotism law when an officer holds over, and construction of prior continuous service provisions of nepotism law (RQ-2160)Dear Ms. Modgling: You ask several questions about the Texas nepotism law, article 5996a, V.T.C.S. As background, you inform us that the city council of Devine, a Type A general-law municipality has, by ordinance, delegated to its city administrator the authority to hire city employees. See Local Gov't Code section 22.071 (governing body of general-law municipality may appoint officers and agents). You explain that when the brother of a member of the city council applied for employment with the city, the city administrator took the position that the nepotism law prevented the city from hiring him. As a consequence, the city council member resigned. The city then hired his brother. Your first question is whether the nepotism law would in fact prohibit the city from hiring the brother of a city council member if the city had delegated all hiring decisions to a city administrator. The nepotism law prohibits a member of a governing body from voting for the hiring of a person related to any member of the body within a prohibited degree. (fn1) Delegation of hiring decisions does not relieve the members of the governing body of the burdens of the nepotism law. Attorney General Opinion O-4686 (1942). You bring to our attention, however, Attorney General Opinion O-5274 (1943), which stated that a city could hire a relative of a member of the city's governing body because the city's charter prohibited members of the governing body from participating in hiring decisions. That holding is not inconsistent with Attorney General Opinion . The applicability of the nepotism law depends on whether an officer may exercise control over hiring decisions. Pena v. Rio Grande City Consol. Indep. School Dist., 616 S.W.2d 658 (Tex. Civ. App. Eastland 1981, no writ); Attorney General Letter Advisory LA-148 (1977). The governing body of a home-rule city may not, by ordinance, override a provision of the city charter. Tex. Const. art. Xl, section...

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