Does the nepotism law apply to a city housing authority's executive director?

Plain-English summary

Texas has a nepotism statute that stops certain public officials from hiring their close relatives. The Jim Wells County Attorney asked whether that statute reached the executive director of a municipal housing authority. The question matters because, if it did, the director could not be involved in appointing relatives to authority jobs.

The Attorney General concluded the statute did not apply to the executive director. The key is what the nepotism statute actually targets. By its terms, it applies to officers who have the authority to appoint or vote on appointments, in other words, officers who hold the hiring power. So the analysis turned on whether the executive director of a housing authority holds that power, and the answer comes from the authority's enabling law.

Under chapter 392 of the Local Government Code, a municipal housing authority is run by a five-member board of commissioners appointed by the mayor. The code gives the authority itself the power to employ a secretary, who serves as executive director, and to hire technical experts and other staff, and to set their qualifications, duties, and pay. The code does not assign any specific powers or duties to the executive director; the director exercises only the functions the authority chooses to delegate, and the authority keeps its statutory control even when it delegates. Because the Legislature put the hiring power in the authority and not in the executive director, the director does not have the kind of appointing authority that triggers the nepotism statute. So the executive director of a municipal housing authority is not subject to article 5996a.

Currency note

This opinion was issued in 1992. 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. Texas later recodified the nepotism statute (former V.T.C.S. article 5996a) into chapter 573 of the Government Code, and the housing-authority provisions of chapter 392 of the Local Government Code have been amended since 1992, so confirm the current statutes before relying on anything described here.

Background and statutory framework

Section 1(a) of the nepotism statute provided, in pertinent part, that no officer of any municipal subdivision of the state, nor any officer or member of any state, district, county, city, or other municipal board, "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, as determined under Article 5996h, Revised Statutes," to the appointing or voting officer or to any other member of the board, when the appointee's salary, fees, or compensation is to be paid, directly or indirectly, out of public funds or fees of office. V.T.C.S. art. 5996a, § 1(a). By its terms, section 1(a) applies only to officers who have the authority to hire personnel. To decide whether the executive director of a municipal housing authority is subject to the statute, the Attorney General examined the authority's enabling act to determine the executive director's scope of authority.

Chapter 392 of the Local Government Code creates an authority in each municipality of the state. Local Gov't Code § 392.011(a). An authority is composed of five commissioners whom the mayor appoints upon receiving notice from the municipality's governing body declaring the need for an authority. Id. § 392.031(a). The code authorizes the authority to employ a secretary, who serves as executive director, and to employ, on a permanent or temporary basis, technical experts and any other employees the authority considers necessary. Id. § 392.038. Chapter 392 does not specify any of the duties or powers an executive director, or any other employee of the authority, shall have; rather, the code requires the authority to determine the qualifications, duties, and compensation of all persons it employs. The authority may delegate to any of its employees those powers and duties it considers proper to delegate. Id. § 392.051(c).

Thus, while the executive director may perform functions the authority has chosen to delegate, the code itself confers no duties or functions on the executive director. Id. § 392.051(c); cf. Attorney General Opinion JM-91 (1983) at 2. As to those functions the authority delegates, the authority does not "by such delegation abdicate [its] statutory authority or control." See Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658, 660 (Tex. Civ. App.—Eastland 1981, no writ); Babcock & Collins, Local Government Law, 36 Sw. L.J. 471, 509 (1982) (summarizing Pena). Because the Legislature vested the power to hire in the authority and not in the executive director, the Attorney General concluded the executive director cannot be subject to the nepotism statute. See generally Pena, 616 S.W.2d 658; Babcock & Collins, supra, 36 Sw. L.J. at 509-10; Letter Advisory No. 148 (1977).

Common questions

Is a housing authority's executive director covered by the Texas nepotism law?
Under this opinion, no. The nepotism statute applies to officers who have the power to hire, and the executive director of a municipal housing authority does not have that power under the statute.

Who does hold the hiring power at a municipal housing authority?
The authority itself, a five-member board of commissioners appointed by the mayor. Chapter 392 of the Local Government Code gives the authority the power to employ the executive director and other staff and to set their duties and pay.

Does it matter that the authority delegates work to the director?
No. The opinion noted that delegating functions to the executive director does not transfer the authority's hiring power, and the authority keeps its statutory control. The nepotism statute follows the statutory hiring power, which stays with the authority.

What is the nepotism statute's reach in terms of relatives?
It bars appointing or voting to appoint a person related within the second degree by affinity (marriage) or the third degree by consanguinity (blood), as determined under article 5996h, when the appointee is paid from public funds. But that bar applies to officers with appointing authority, which the opinion concluded the executive director did not have.

Citations

• V.T.C.S. art. 5996a, § 1(a) (nepotism statute); art. 5996h
• Local Government Code §§ 392.011(a), 392.031(a), 392.038, 392.051(c)
• Attorney General Opinion JM-91 (1983)
• Letter Advisory No. 148 (1977)
• Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658 (Tex. Civ. App.—Eastland 1981, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0163
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0163.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

September 9, 1992

Honorable Jesusa Sanchez-Vera
Jim Wells County Attorney
P. O. Drawer 2080
Alice, Texas 78333

Opinion No. DM-163

Re: Whether the executive director of a municipal housing authority is subject to the nepotism statute, V.T.C.S. article 5996a (RQ-282)

Dear Ms. Sanchez-Vera:

You ask whether the executive director of a public housing authority is subject to the nepotism statute, V.T.C.S. article 5996a. We conclude that a person holding that position is not.

Section 1(a) of the nepotism statute states in pertinent part as follows:

      [N]o officer . . . of any . . . municipal subdivision of this State, nor any officer or member of any State district, county, city, . . . or other municipal board . . . 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, as determined under Article 5996h, Revised Statutes, to the person so appointing or so voting, or to any other member of any such board, . . . 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.

V.T.C.S. art. 5996a, § 1(a). By its terms, section 1(a) applies only to officers who have the authority to hire personnel. Thus, to decide whether the executive director of a municipal housing authority is subject to the nepotism statute, and thereby precluded from appointing to any position any person related to the executive director within the second degree by affinity or within the third degree by consanguinity, we must examine the municipal housing authority's (the "authority") enabling act to determine the executive director's scope of authority.

Chapter 392 of the Local Government Code creates an authority in each municipality of the state. Local Gov't Code § 392.011(a). An authority is composed of five commissioners whom the mayor appointed upon receiving notice from the municipality's governing body declaring the need for an authority. Id. § 392.031(a). The code authorizes the authority to employ a secretary, who shall serve as executive director of the authority. Id. § 392.038. The code also authorizes the authority to employ, on a permanent or temporary basis, technical experts and any other employees the authority considers necessary. Id.

Chapter 392 does not specify any of the duties or powers an executive director, or any other employees of the authority, shall have. Rather, the code requires the authority to determine the qualifications, duties, and compensation of all persons it employs. Id. The authority may delegate to any of its employees those powers and duties it considers proper to delegate. Id. § 392.051(c).

Thus, while the executive director of an authority may perform functions the authority has chosen to delegate to him or her, the code itself confers no duties or functions on the executive director. Id. § 392.051(c); cf. Attorney General Opinion JM-91 (1983) at 2. As to those functions the authority delegates to the executive director, the authority does not "by such delegation abdicate [its] statutory authority or control." See Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658, 660 (Tex. Civ. App.—Eastland 1981, no writ); Babcock & Collins, Local Government Law, 36 Sw. L.J. 471, 509 (1982) (summarizing Pena). Because the legislature has vested the power to hire in the authority and not in the executive director, the executive director cannot be subject to the nepotism statute. See generally Pena, 616 S.W.2d 658; Babcock & Collins, supra, 36 Sw. L.J. at 509-10; Letter Advisory No. 148 (1977).

                             SUMMARY

      Because an executive director has no statutory authority to hire personnel, he or she is not subject to the nepotism statute, V.T.C.S. article 5996a.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General