No. JC-0558 (2002).

• Case Date: September 20, 2002
• Court: Texas

Texas Attorney General Opinions 2002. No. JC-0558 (2002). September 20, 2002Opinion No. JC-0558Tex. Att'y Gen. Op. No. JC-0558 (2002) -- John Cornyn AdministrationOffice of the Attorney General - State of Texas John CornynThe Honorable Frank Madla Chair, Intergovernmental Relations Committee Texas State Senate P.O. Box 12068 Austin, Texas 78711-2068SYLLABUS: 2002- Re: Whether a provision of the nepotism statute prohibits a city commissioner from deliberating on a merit salary increase for his sibling, and related question (RQ-0532-JC) Dear Senator Madla: You request an opinion regarding the application of a provision of the nepotism statute, chapter 573 of the Government Code, to a member of the governing body of a home-rule city. See Tex. Gov't Code Ann. ch. 573 (Vernon 1994 & Supp. 2002). You ask whether a city commissioner violates section 573.062(b) of the Government Code by participating in a deliberation regarding a merit salary increase for the commissioner's sibling, a long-time city employee. (1) See Tex. Gov't Code Ann. § 573.062(b) (Vernon 1994) (pertaining to continuous employment). You also ask whether the other city commissioners would violate any criminal statutes if they vote to approve the salary increase after involvement in the earlier nepotistic deliberation regarding the salary increase. See Request Letter, supra note 1, at 1. We conclude that section 573.062(b) of the Government Code prohibits a city commissioner from participating in a deliberation regarding a merit salary increase for his sibling; and if the city commissioner participates in such a deliberation, he may be found to have violated the statute. Additionally, we conclude that other city commissioners would not violate section 573.084 of the Government Code, which makes a violation of section 573.062(b) a criminal offense, by merely voting on a merit salary increase for a fellow city commissioner's sibling even after they were involved in the deliberation in which the fellow city commissioner participated. We cannot and do not resolve whether or not any person has actually violated section 573.062(b) because such a determination would require the investigation and resolution of fact questions, which cannot be done in the opinion process. See Tex. Att'y Gen. Op. Nos. JC-0307 (2000) at 1; JC-0184 (2000) at 4. To provide a legal context for your questions, we review the relevant provisions of chapter 573. Section 573.041 of the Government Code provides that a public official "may not appoint, confirm the appointment of, vote for the appointment or confirmation of the appointment of an individual to a position" compensated from public funds if the individual is related to the public official or to another member of the appointing board "within the third degree by consanguinity or within the second degree by affinity." Tex. Gov't Code Ann. §§ 573.002, .041 (Vernon 1994). Siblings are related to each other in the second degree by consanguinity, see id.§§ 573.022, .023(c)(2), and are thus within the degree of relationship affected by section 573.041, see id.§ 573.041. The section 573.041 nepotism prohibition does not apply to a relative continuously employed in a particular position for a specified period of time immediately before the election or appointment of the public official to whom the employee is related. See id.§ 573.062(a). The continuously employed relative may retain his or her position. See id.; see also Tex. Att'y Gen. Op. No. DM-2 (1991) at 3 (city council member's brother would retain job if he served for requisite time before election or appointment); Tex. Att'y Gen. LO-95-015, at 2 (mayor's wife may retain position in which she had been employed before her husband's election). But if an individual continues in a position under this exception, the public official to whom the individual is related in the prohibited degree may not participate in any deliberation or voting on the appointment, reappointment, confirmation of the appointment or reappointment, employment, reemployment, change in status, compensation, or dismissal of the...