Could a Texas commissioners court appoint a commissioner's first cousin to fill a vacant county tax assessor-collector office?

Texas AG Opinion JM-253: Tax Office Vacancy and Nepotism

Plain-English summary

A vacancy arose in Trinity County's tax assessor-collector office after the incumbent died. The chief deputy had worked in the office for twenty-two years and was "a first cousin of a county commissioner" who had served since January 1, 1961. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf

The county attorney asked whether the commissioners court could appoint the chief deputy to the vacancy without violating the nepotism statute. JM-253 answered no. Its summary stated that the court "may not appoint the first cousin of a commissioner" to the vacant office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf

The opinion treated first cousins as related within the second degree by consanguinity. Article 5996a barred any commissioner from voting for a person related within the prohibited degree to that commissioner or to any other member of the court. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf

The chief deputy's long employment did not trigger the two-year continuous-employment proviso. JM-253 said the tax assessor-collector, not the commissioners court, had appointed her as a deputy, so she "does not come within the two-year proviso." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.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

Could the commissioners court appoint the chief deputy to the vacant tax assessor-collector office?

No. JM-253 concluded that "none of the commissioners may vote to appoint the first cousin of a commissioner" to the vacancy. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf

Why did the commissioners court have appointment authority if the tax assessor-collector was normally elected?

The opinion said the office was elective but V.T.C.S. art. 2355 authorized the commissioners court "to fill a vacancy in this office until the next general election." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf

Did the nepotism rule apply only to the related commissioner's own vote?

No. The quoted statute covered a person related to the member voting "or to any other member" of the board or court. JM-253 therefore said none of the commissioners could vote for the appointment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf

Why did twenty-two years of employment not satisfy the continuous-employment exception?

The tax assessor-collector had appointed the deputies, and the commissioners court could not control that selection. The opinion said the chief deputy "was never appointed by the commissioners court" and therefore was outside the proviso. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf

Background and statutory framework

Article VIII of the Texas Constitution and Tax Code section 6.21 identified the county tax assessor-collector as an elective office. V.T.C.S. art. 2355 supplied the commissioners court's temporary vacancy-filling authority until the next general election. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf

Article 5996a prohibited a public officer or member of a county board from appointing, voting for, or confirming a person related within the stated degrees when compensation came from public funds or fees of office. It contained a proviso for a person continuously employed for two years before the relevant officer's election or appointment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf

V.T.C.S. art. 3902 placed selection of deputies with the tax assessor-collector and kept the commissioners court from controlling or influencing that choice. That separation meant the chief deputy's prior service was not continuous employment by the body making the new appointment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf

Citations and references

• Attorney General Opinions O-6221 (1944) and O-4670 (1942) treated first cousins as related within the second degree by consanguinity. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf
• Attorney General Opinions O-5452 (1943), O-4987 (1942), O-4670 (1942), and O-3016 (1941) appeared in the discussion of appointments barred by article 5996a. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf
• Attorney General Opinions H-993 (1977), H-697 (1975), and O-6221 (1944) appeared in the discussion of deputy selection by the tax assessor-collector rather than the commissioners court. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0253
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0253.pdf

Original opinion text

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

The Attorney General of Texas

December 14, 1984

Honorable Joe Warner Bell
Trinity County Attorney
P. O. Box 231
Groveton, Texas 75845

Opinion No. JM-253

Re: Whether a chief deputy may be appointed tax assessor-collector by a commissioners court of which her cousin is a member

Dear Mr. Bell:

You state that a vacancy has been created in the office of tax assessor-collector by the death of the incumbent who had served since January 1, 1961. The chief deputy has been continuously employed in the office in various positions for twenty-two years and has been chief deputy for several. She is a first cousin of a county commissioner who has served continuously in office since January 1, 1961.

You ask whether the commissioners court may appoint the chief deputy to fill the vacancy without violating the nepotism statute. Article 5996a, V.T.C.S., on nepotism, provides:

No officer of this State . . . nor any officer or member of any State district, county, city, school district 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 to the person so appointing or so voting, or to any other member of any such board . . . 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; provided, that nothing herein contained . . . shall prevent the appointment, voting for, or confirmation of any person who shall have been continuously employed in any such office, position, clerkship, employment or duty for a period of two (2) years prior to the election or appointment of the officer or member appointing, voting for, or confirming the appointment, or to the election or appointment of the officer or member related to such employee in the prohibited degree.

First cousins are related within the second degree by consanguinity. See Attorney General Opinions O-6221 (1944); O-4670 (1942).

The county tax assessor-collector holds an elective office. Tex. Const. art. VIII, §§14, 16, 16a; Tax Code §6.21. Thus, ordinarily the tax assessor-collector would be selected by the people and not appointed by the commissioners court. The court, however, is statutorily authorized to fill a vacancy in this office until the next general election. V.T.C.S. art. 2355.

Article 5996a, V.T.C.S., bars the commissioners court from appointing the first cousin of a commissioner to any office or employment. Attorney General Opinions O-5452 (1943); O-4987 (1942); see also Attorney General Opinion O-4670 (1942). The statute prevents any member of the commissioners court from voting for

any person related within the second degree by affinity . . . to the person so appointing or so voting, or to any other member of any such board. . . .

V.T.C.S. art. 5996a. Thus, none of the commissioners may vote to appoint the first cousin of a commissioner to the vacant office of tax assessor-collector. See Attorney General Opinion O-3016 (1941).

You raise the exception to article 5996a, V.T.C.S., for a person employed by a governing board for two years continuously prior to the election of his relative to that board and suggest it may apply in this case. It is irrelevant to the problem before us. The tax assessor-collector appoints his deputies; the commissioners court cannot control or influence his selection of individuals for that post. V.T.C.S. art. 3902; Attorney General Opinions H-993 (1977); H-697 (1975); O-6221 (1944). The deputy tax assessor was never appointed by the commissioners court. She therefore does not come within the two-year proviso of article 5996a, V.T.C.S.

SUMMARY

The commissioners court may not appoint the first cousin of a commissioner to the office of county tax assessor-collector vacated by the death of the incumbent.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton