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Ezel / AG Opinions / TX
TX JM-195 August 30, 1984

Did Texas's nepotism law apply when interim State Board of Education members received only expense reimbursement?

Short answer: No. JM-195 concluded that statutory reimbursement for board-related expenses was not salary, fees, or compensation under article 5996a. Because the interim board members received no compensation, the nepotism statute did not apply to their appointments.

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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.

Currency note: this opinion is from 1984
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.
Disclaimer: This is an official Texas Attorney General opinion. AG opinions are persuasive authority in Texas courts but are not binding precedent. This summary is for informational purposes only and is not legal advice. The opinion dates from 1984; verify current nepotism, appointment, expense-reimbursement, compensation, and education-board law before relying on it.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original AG opinion (PDF)

Texas AG Opinion JM-195: Nepotism and Board Expenses

Plain-English summary

JM-195 concluded that Texas's nepotism statute did not apply to appointments to the interim State Board of Education because its members received expense reimbursement but no salary, fees, or compensation.

"Article 5996a, V.T.C.S., the nepotism law, is not applicable to appointments to the interim State Board of Education created by House Bill No. 72 ... since the members thereof do not receive 'compensation,' but only reimbursement for expenses incurred."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0195.pdf

The opinion interpreted "compensation" in article 5996a as excluding the statutory repayment of expenses incurred while attending board meetings or dealing with specified board-related litigation.

"The term 'compensation' as used in article 5996a should not be construed to include statutory reimbursement for expenses incurred in attending meetings of the interim State Board of Education."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0195.pdf

Because no salary, fees, or compensation would be paid, the statute's public-funds condition was absent.

"Thus, since no 'salary, fees or compensation' will be paid to members of the board, article 5996a has no application to appointments thereto."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0195.pdf

Currency note

This opinion was issued in 1984. 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

What did the nepotism statute prohibit?

The quoted law barred specified public officers and bodies from appointing, voting for, or confirming certain relatives to a public position when salary, fees, or compensation would be paid from public funds or office fees.

"No officer of this State ... 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 ... 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/1984/jm0195.pdf

What did interim State Board members receive?

They received no salary but could be reimbursed for expenses incurred in attending meetings or incident to specified judicial action involving a board order.

"Shall receive no salary but shall be reimbursed for all expenses incurred in attending meetings of the board or incident to any judicial action taken because of appeal from a board order."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0195.pdf

Did the opinion treat every payment to an official as compensation?

No. It followed the view that reasonable official-expense reimbursement was distinct from salary, compensation, or an office emolument.

"The allowance of reasonable expenses incurred in the discharge of the official duties of an office is neither salary, compensation nor an emolument of the office."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0195.pdf

Was there a Texas case directly deciding the same article 5996a question?

No. JM-195 said no Texas case had directly addressed whether expense reimbursement counted as compensation under that statute.

"No Texas case has directly addressed this question."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0195.pdf

Why did the public-funds condition matter?

Article 5996a's quoted appointment bar applied when the appointee's salary, fees, or compensation would be paid directly or indirectly from public funds or office fees.

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0195.pdf

Background and statutory framework

House Bill No. 72 created a transitional State Board of Education whose members were appointed by the governor upon recommendation of the Legislative Education Board.

"That bill creates a transitional State Board of Education, whose members are to be appointed by the governor, upon recommendation of the Legislative Education Board."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0195.pdf

The request asked specifically whether reimbursing those board members for expenses constituted salary, fees, or compensation for article 5996a.

"Specifically, you inquire whether the reimbursement of expenses to board members constitutes 'salary, fees, or compensation' for purposes of article 5996a."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0195.pdf

JM-195 reviewed decisions from other jurisdictions and a Texas decision distinguishing an expense allowance from a lucrative office, then adopted the non-compensation reading.

"The majority of cases from other jurisdictions which have considered the question have held that reimbursement for expenses is not embraced within the meaning of the term."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0195.pdf

Citations and references

  • Article 5996a supplied the nepotism restriction interpreted by JM-195.

"You ask whether article 5996a applies to appointments to the board."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0195.pdf

  • Education Code section 11.22(k), enacted through House Bill No. 72, supplied the no-salary and expense-reimbursement terms for the board.

"The bill enacts section 11.22(k) of the Education Code to provide that members shall receive no salary but shall be reimbursed for all expenses incurred."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0195.pdf

Source

Original opinion text

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

The Attorney General of Texas
Aul:ust30, 1984
JIM MATTOX
Attorney General

Supreme Court Building Honorable Gibson D. (Gib) Lewis Opinion No. JM-195
P. 0. Box 12548
Speaker of the House!
Austin, TX. 78711. 2546
5121475-2501
Texas House of Reprc!$entatives Re: Whether article 5996a.
Telex 9101874-1367 P. 0. Box 2910 V.T.C.S., the nepotism law,
Telecopier 5121475.0266 Austin, Texas 78?('5 is applicable to appointments
to the interim State Board of
714 Jackson, Suite 700
Education
Dallas, TX. 75202.4506
2141742.6944 Dear Speaker Lewis:

                                   You request our opinion as to whether article 5996a, V.T.C.S..

4824 Alberta Ave., Suite 160
the nepotism statute, is applicable to appointments to the interim
El Paso, TX. 79905.2793
9151533.3464 State Board of Edwzltion created by House Bill No. 72. Acts 1983,
68th Leg., 2d C.S.: ch. , 94. at (not yet published).
That bill creates :I transitional State Board of Education, whose
‘701 Texas. Suite 700 members are to be ;llBpointedby the governor. upon recommendation of
.ousto”. TX. 77002~3111
the Legislative Edwation Board. The bill enacts section 11.22(k) of
7131223.5886
the Education Code t:cprovide that members

606 Broadway. Suite 312 shall receive no salary but shall be reimbursed
Lubbock. TX. 79401.3479 for all e,:pensesincurred in attending meetings of
6061747-5236
the board csrincident to any judicial action taken
because oi'appeal from a board order.
4309 N. Tenth, Suite S
McAllen. TX. 78501.1685 You ask whethw: article 5996a applies to appointments to the
512,662.4547 board. That statute provides, in pertinent part:

200 Main Plaza, Suite 400 No off<.c:erof this State nor any officer of any
San Antonio, TX. 78205.2797 district, county, city, precinct, school district,
5121225.4191 or other municipal subdivision of this State, nor
w officer or member of any State district,
county, ciry, school district or other municipal
An Equal Opportunity/
Affirmative Action Employer
board, or ijudgeof any court, created by or under
authority >f any General or Special Law of this
State, nor any member of the Legislature, shall
appoint, '+: vote for, or confirm the appointment
to any ofFLce, position, clerkship, employment or
duty, of sny person related within the second
degree by affinity or within the third degree by
consanguin:.tyto the person so appointing or so
vlxing, o:: to any other member of any such board,
Honorable Gibscr!D. (Gib) Lwis - Page 2 (JM-395)

      the Legislature, or court of which such person so
      appointing or votl.rg may be a member, when the
      salary, fees, or wn!pensation of such appofntee j-6
      to be paid for, dirxtly or indirectly, out of or
      from public funds (IIfees of office of any kind or
      character whatsoewz . . . .

Specifically, you inquire whether the reimbursement of expenses to
board members constitutes "salary, fees, or compensation" for purposes
of article 5996a.

 No Texas case has direcl::yaddressed this  question.
                                                      Although one

court has said that the word "'compensation' is broad enough to
include recompense of expen!;I!s,"Tierney v. Van Arsdale, 332 S.W.2d
546, 549 (KY. 1960), the majority of cases from other !urisdictions
which have considered the q;estibn have held that reimbursement for
expenses is not embraced within the meaning of the term. In Manning
v. Sims, 213 S.W.2d 577 (Ky. :948). for example; the court said that

      the allowance of :xasonable expenses'incurred in
      the discharge of the official duties of an office
      is neither salary, compensation nor an emolument
      of the office . .   .

213 S.W.2d at 580. In *x,rman v. Williams,,415 P.2d 597 (Okle.
1966), the Supreme Court of Oklahoma declared: ‘

      office and traveling expenses iuctirredby rcembers
      of the Legislative Council are expenses of the
      performance of clifjcial duties and are not
      compensation, salnr:ror emoluments . . . .

415 P.2d at 602. And in Happe v. State, 469 P.2d 909 (Wash. 1970),
the court said that

      the word 'compensation' . . . does not embrace nor
      include appropriats reimbursement for expenses
      incurred . . . .

469 P.2d at 912. ---
See Whitehc'adv. Julian, 476 S.W.2d 844 (Tex. 1972)
(expense allowance paid tcs city mayor does not make position a
"lucrative" office within meaning of art. III, P19, Tex. Const.,
making the holder of a l.ucrative office ineligible for state
legislature).

 In our opinion, the telal"compensation" as used in article 5996a

should not be construed to include statutory reimbursement for
expenses incurred in attendj,r,g
meetings of the interin:State Board of
Education. Thus, since no "salary, fees or compensation" wjll be paid
Honorable Gibson D. (Gib) Lew:.s- Page 3 (JM-195)

to members of the board, article 5996a has no application to appoint-
ments thcl-eto.

                         _:iUMM"RY

          Article 5996a, V.T.C.S., the nepotism law, is
      not applicable tc appointments to the interim
      State Board of Edw;~tion created by House Bill No.
      72,   Acts 1983, Sj.xty-eighthLegislature, Second
      Called Session, chapter             , section 4, St
              , since the rlembers thereof do not receive
      "compensation," I!lli only       reimbursement  for
      expenses incurred.




                                     Attorney General of Texas

TOM GREEN
First AssistaritP.ttorneyGem.:al

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMNITTIX

Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moell.inger
Nancy Sutton

                               p. 859

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