Does Texas nepotism law let a county hospital hire the county judge's spouse?

Plain-English summary

Ori White, the Pecos County Attorney, asked the AG whether the state's nepotism laws stopped the superintendent of Pecos County Memorial Hospital from employing the county judge's spouse. The nepotism statute, Government Code section 573.041, bars a public official from appointing, or voting to confirm, a close relative to a position paid from public funds. A county judge is a public official, and a husband and wife are related in the first degree by affinity, so at first glance a county judge cannot put his or her spouse on a public payroll.

The AG explained the catch that resolved the question: the nepotism prohibition reaches only a public official who actually has the statutory authority to appoint or confirm the position in question. So the real issue was whether the county judge has any authority to hire the hospital employee in question. Under chapter 263 of the Health and Safety Code, a county hospital is managed by a board of managers, and the board appoints a superintendent who serves as chief executive officer. The superintendent supervises the hospital's internal affairs, sets employees' duties, and appoints the staff he or she considers necessary, with the board's consent. Neither the commissioners court nor the county judge holds that hiring power. Because the county judge cannot hire hospital employees, the AG concluded the nepotism statute does not prohibit the superintendent from employing the judge's spouse.

Since there was no nepotism problem, the AG did not need to address the county attorney's second question about how to avoid one. But the AG flagged two adjacent concerns. First, the spouse's salary is paid through the commissioners court's routine process of settling claims against the county, and the county judge takes an oath not to be interested in a claim against the county; the AG noted prior opinions holding that a community-property interest in a spouse's county salary does not, by itself, violate that oath. Second, the county judge may vote to break a tie on the hospital board, which raised the possibility of the judge effectively voting on a matter involving the spouse; the AG pointed out that breaking a tie is permitted, not required, so the judge could abstain, and the commissioners court could avoid the issue altogether by appointing an odd number of board members. The AG also cautioned, in a footnote, that the common practice of seating a sitting commissioner on the board could raise a separate incompatibility concern.

Currency note

This opinion was issued in 2015. 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. The nepotism provisions of Government Code chapter 573 and the county-hospital provisions of Health and Safety Code chapter 263 may have been amended since 2015, so confirm the current statutes before relying on these specifics.

What the opinion meant for those who asked

County hospitals and their superintendents (as the opinion described it): The opinion described the superintendent (with the board of managers' consent) as holding the power to hire hospital staff, and concluded that because the county judge lacks that power, the nepotism statute did not bar the superintendent from employing the judge's spouse.

County judges and commissioners courts (as the opinion described it): The opinion described the nepotism bar as applying only to an official with appointment or confirmation authority over the position, and described the county judge's oath as not violated merely by a community-property interest in a spouse's county salary. It described the judge's authority to break a tie vote of the hospital board as permissive, so the judge could abstain.

Hospital boards of managers (as the opinion described it): The opinion described the board as managing the hospital and consenting to staff appointments, and noted the commissioners court could appoint an odd number of board members to prevent a tie that the county judge would otherwise be positioned to break.

Common questions

Can a Texas county hospital legally hire the county judge's spouse?
The AG concluded yes, because the nepotism statute only restricts an official who has the authority to hire the position, and the county judge has no authority to hire county hospital employees. That power belongs to the superintendent, with the board's consent.

Why does it matter who has the hiring authority?
The AG explained that the nepotism prohibition in Government Code section 573.041 applies only to a public official with statutory appointment or confirmation authority over the position. If the official cannot make or confirm the hire, the statute is not triggered.

Does the county judge violate his oath if the spouse's salary is paid by the county?
The AG concluded no, relying on prior opinions that a county judge or commissioner does not violate the oath of office merely by having a community-property interest in a spouse's county salary.

What about the judge breaking a tie vote on the hospital board?
The AG noted the judge is authorized but not required to break a tie, so the judge could abstain to avoid any appearance of impropriety, and the commissioners court could appoint an odd number of board members to prevent the tie in the first place.

Background and statutory framework

Government Code section 573.041 prohibits a public official from appointing, or voting to confirm, a person related within a prohibited degree to a position compensated from public funds (Tex. Gov't Code § 573.041). A county judge is a public official (Tex. Const. art. V, § 15; Tex. Gov't Code § 573.001(3)(A)), and spouses are related in the first degree by affinity (Tex. Gov't Code §§ 573.025(a), 573.002). But the prohibition applies only to an official with statutory appointment or confirmation authority over the position (Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 659-60 (Tex. Civ. App.-Eastland 1981, no writ)).

County hospitals are governed by chapter 263 of the Health and Safety Code. The board of managers manages the hospital and its officers and employees (Tex. Health & Safety Code § 263.046(a)(2)) and appoints a superintendent as chief executive officer (Tex. Health & Safety Code § 263.072(a)). The superintendent appoints staff with the board's consent (Tex. Health & Safety Code § 263.076(a)). Because neither the county judge nor the commissioners court holds that hiring authority, the AG concluded the nepotism statute did not apply to the superintendent's employment of the judge's spouse. On the related concerns, the AG noted that claims for hospital salaries are paid through the commissioners court (Tex. Health & Safety Code § 263.053(b); Tex. Loc. Gov't Code § 115.021), that the county judge's oath against being interested in a claim against the county (Tex. Loc. Gov't Code § 81.002(a)) is not violated by a community-property interest in a spouse's salary, and that the judge's authority to break a tie vote of the board (Tex. Health & Safety Code § 263.042(b)) is permissive. The AG also cited the common-law incompatibility doctrine in cautioning against seating a sitting commissioner on the board (Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)).

Citations

Constitutional and statutory provisions:

• Tex. Gov't Code § 573.041 (nepotism prohibition on appointing or confirming a relative)
• Tex. Gov't Code § 573.002 (degrees of relationship covered)
• Tex. Gov't Code § 573.001(3)(A) (definition of "public official")
• Tex. Gov't Code § 573.025(a) (spouses related in the first degree by affinity)
• Tex. Const. art. V, § 15 (office of county judge)
• Tex. Health & Safety Code § 263.046(a)(2) (board of managers manages the hospital and its employees)
• Tex. Health & Safety Code § 263.072(a) (superintendent as chief executive officer)
• Tex. Health & Safety Code § 263.076(a) (superintendent appoints staff with the board's consent)
• Tex. Loc. Gov't Code § 81.002(a) (county judge's oath against interest in a claim against the county)
• Tex. Loc. Gov't Code § 115.021 (commissioners court audits and settles county claims)

Cases:

• Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 659-60 (Tex. Civ. App.-Eastland 1981, no writ)
• Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0045
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0045.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

December 4, 2015

The Honorable Ori T. White Opinion No. KP-0045
Pecos County Attorney
103 West Callaghan Re: Whether nepotism laws prohibit a
Fort Stockton, Texas 79735 county hospital from employing a county
judge's spouse (RQ-0030-KP)

Dear Mr. White:

You ask whether "the State's nepotism laws" prohibit the superintendent of the Pecos County Memorial Hospital (the "Hospital") from employing the county judge's spouse. [1] The state's prohibition on nepotism for a public official is in section 573.041 of the Government Code, which provides, in pertinent part, that

[a] public official may not appoint, confirm the appointment of, or vote for the appointment or confirmation of the appointment of an individual to a position that is to be directly or indirectly compensated from public funds or fees of office if:

(1) the individual is related to the public official within a degree described by Section 573.002.

TEX. GOV'T CODE § 573.041. [2] A county judge is a public official. TEX. CONST. art. V, § 15 (establishing the office of county judge); TEX. GOV'T CODE § 573.001(3)(A) (defining a "public official" for purposes of nepotism to include a county official). A husband and wife are related to each other in the first degree by affinity. Id. § 573.025(a). Thus, a county judge clearly may not appoint his or her spouse to a position paid with public funds without violating the nepotism statute. By its terms, however, the nepotism prohibition applies only to a public official with statutory appointment or confirmation authority over the position in question. See Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 659-60 (Tex. Civ. App.-Eastland 1981, no writ) (noting that a person with such authority does not, even if the person attempts to delegate the authority to another, "abrogate or limit" the person's statutory authority or control); Tex. Att'y Gen. Op. No. DM-163 (1992) at 1. Thus, to determine whether the employment about which you ask is permissible, we consider whether the county judge has actual, statutory authority to hire a person to the position currently occupied by the judge's spouse.

County hospitals are governed by chapter 263 of the Health and Safety Code. See generally TEX. HEALTH & SAFETY CODE §§ 263.0001-.102. The general management and control of the hospital, "including ... its officers and employees" belongs to the hospital's board of managers (the "Board"), an appointed group of county residents. [3] Id. § 263.046(a)(2). The Board appoints a superintendent to be "the chief executive officer of the hospital." [4] Id. § 263.072(a). He or she "has general supervision and control of ... the internal affairs of the hospital, including discipline." Id. § 263.074(a)(3). The superintendent also "determine[s] the duties of ... employees of the hospital" and may discharge them for cause "at [his or her] discretion." Id. § 263.076(b)-(c); see also id. § 263.074(b) (requiring the superintendent to "enforce the bylaws and rules adopted by the [Board] for the government, discipline, and management of the hospital and its employees and patients"). With regard to hiring staff, "resident officers and employees considered proper and necessary by the superintendent for the efficient performance of the hospital's business" shall be appointed by the superintendent "[w]ith the consent of the [Board]." Id. § 263.076(a). Thus, the superintendent holds the power to appoint hospital employees, as does the Board because it must "consent" to any such appointment. See id. § 263.076(a). Neither the commissioners court nor the county judge, however, holds such authority. [5] Because the county judge has no authority to hire Hospital employees, the nepotism statute does not prohibit the Hospital superintendent from employing the county judge's spouse. [6] See Tex. Att'y Gen. Op. No. GA-0595 (2008) at 5 (similarly concluding that where a city charter reserves no authority to the city commissioners to appoint employees below department-head level, the nepotism prohibition does not prevent a city manager from appointing a relative of a city commissioner to such a position).

Your second question is whether the county judge could take any particular steps "to avoid ... a potential nepotism violation[,]" such as abstaining from voting on Hospital salary matters. Request Letter at 5. As we have concluded, the appointment by the superintendent of the county judge's spouse does not present a nepotism problem; therefore, we need not address its avoidance.

However, your question appears to address issues regarding potential conflicts of interest based not on the nepotism prohibition of chapter 573 but, rather, on the fact of the familial relationship of marriage. While we do not attempt a comprehensive survey of all potentially applicable law, you identify two specific facts that merit brief discussion.

The first is that when the Board certifies "all bills and accounts, including salaries and wages" of the hospital, it "transmit[s] them to the commissioners court" for payment, which the commissioners court makes "in the same manner that other charges against the county are paid." TEX. HEALTH & SAFETY CODE § 263.053(b); see also TEX. LOC. GOV'T CODE § 115.021 (claims against the county are audited and settled by the commissioners court, who "shall direct the payment of those accounts"). Presumably, your concern is that the county judge would, in essence, be voting for the salary of his spouse through this process in contravention of the oath a county judge takes that he "will not be interested, directly or indirectly, in a ... claim against the county except: (1) a contract or claim expressly authorized by law; or (2) a warrant issued to the judge or commissioner as a fee of office." TEX. LOC. GOV'T CODE § 81.002(a). However, this office has previously concluded that the oath of office taken by county judges and commissioners is not violated by sole virtue of the officer having a community-property interest in a salary claim against the county held by a spouse who is a county employee. See Tex. Att'y Gen. LO-93-008, at 3, Tex. Att'y Gen. Op. No. MW-437 (1982) at 3 (both concluding that a county commissioner does not violate an oath of office on account of a community-property interest in the salary earned from the county by a spouse). Thus, the mere fact that the county judge's wife's salary is among the group of claims being presented to the commissioners court for payment does not, by itself, constitute a violation of the county judge's oath.

Second, you note the Health and Safety Code provision that "the county judge of the county in which the hospital is located may vote to break a tie vote by the [Board]." TEX. HEALTH & SAFETY CODE § 263.042(b). You allude to the possibility that the Board could deadlock on a matter concerning the county judge's wife. Request Letter at 3-4; see also TEX. HEALTH & SAFETY CODE § 263.047(a) (providing that the Board "shall determine the salaries of the ... employees of the hospital"); Request Letter at 3 (referring to the Hospital's personnel policy, pursuant to which the Board "can hear [employee] grievances and vote to resolve" them). The county judge, however, is merely authorized, and not required, to vote in order to break a tie. To avoid any appearance of impropriety, the judge could abstain from voting to break a tie vote of the Board. And because the Board may be composed of "at least six but not more than 12 residents of the county," the commissioners court could preclude the scenario above from occurring by appointing an odd number of persons to the Board. See TEX. HEALTH & SAFETY CODE § 263.041(a).

SUMMARY

Because the county judge has no authority to hire employees of the Pecos County Memorial Hospital, the nepotism statute does not prohibit the superintendent of the Hospital from employing the spouse of the county judge.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Ori T. White, Pecos Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1, 4 (June 18, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] See also TEX. GOV'T CODE § 573.002 (providing that applicable degrees of relationship are those "within the third degree by consanguinity or within the second degree by affinity").

[3] "[A]t least six but not more than 12 residents of the county" are appointed to the Board to two-year terms by the commissioners court. TEX. HEALTH & SAFETY CODE § 263.041(a). Once appointed, however, "the [B]oard is not accountable on a day-to-day basis to the commissioners court." Tex. Att'y Gen. LO-97-100, at 1.

[4] The superintendent is appointed to his or her position by a hospital's board of managers and "holds office at the pleasure of the board." TEX. HEALTH & SAFETY CODE § 263.071(a).

[5] You tell us that the commissioners court "usually selects one Commissioner to serve on the board." Request Letter at 2. We caution that this practice may run afoul of the self-appointment aspect of the common-law doctrine of incompatibility. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928); Tex. Att'y Gen. Op. No. GA-0580 (2007) at 2 (concluding that the commissioners court cannot appoint one of its own members to an office over which the commissioners court has general appointment authority).

[6] In Letter Opinion LO-89-50, this office concluded that the Tyler County Hospital District is precluded by the nepotism statute from employing the wife of the county judge. Tex. Att'y Gen. LO-89-50, at 2-3. In that instance, however, the county judge was statutorily obligated to serve on the hospital board. Id. at 1. In the present situation, the county judge does not serve on the hospital board.