Can a Texas official appoint a relative to an unpaid volunteer job that only reimburses expenses?

Plain-English summary

The Hale County Attorney asked the AG whether the state's nepotism laws stop a public official from appointing a close relative to a volunteer position that pays no salary but covers the relative's expenses. The concrete situation: the Hale County Sheriff sometimes has to transport female prisoners to other facilities, and the sheriff's brother and the brother's wife had volunteered to do those transports when needed. They would get no pay for their time, but they would drive a county-owned vehicle and receive money to defray their expenses. The county attorney wanted to know whether that arrangement ran afoul of Government Code section 573.041.

The AG concluded it did not. Section 573.041 prohibits a public official from appointing a relative within a prohibited degree (here, a sibling and the sibling's spouse) to a position that is directly or indirectly compensated from public funds or fees of office. The sheriff is a public official under the statute, the two volunteers are related to him within a prohibited degree, and the nepotism bar reaches any "duty," not just salaried jobs. So the only open question was whether paying the relatives' expenses counted as compensation.

It does not. Reading "compensation" against a line of prior AG opinions, the office concluded that reimbursing a volunteer for actual expenses incurred in performing appointed duties is not direct or indirect compensation from public funds, and that letting volunteers use a government vehicle to do the work is likewise not compensation. On the facts described, the sheriff's appointment of his relatives would not violate section 573.041. The AG added one caution in a footnote: a flat per diem, as opposed to payment of actual expenses, can raise a fact question about whether the money is really reimbursement or disguised pay, so a per diem must reflect expenses actually incurred to stay clear of the statute.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting county attorney (as the opinion described it): The opinion answered that on the facts described, the sheriff's appointment of his relatives to transport prisoners as unpaid volunteers who receive expense reimbursement and use a county vehicle would not violate Government Code section 573.041.

County officials weighing volunteer appointments of relatives (as the opinion described them): The opinion drew a line between compensation, which the nepotism statute bars for relatives, and reimbursement of actual expenses, which it does not treat as compensation. It also noted the nepotism bar reaches any duty, not only salaried positions.

Officials considering a per diem rather than actual-expense payment (as the opinion described them): The opinion cautioned that paying a per diem may raise fact issues about whether the volunteer is receiving legitimate reimbursement or compensation, and that to stay within section 573.041 a per diem must reflect the expenses actually incurred.

Common questions

Does Texas nepotism law let an official appoint a relative to an unpaid volunteer role?
Under this opinion, yes, when the only money the relative receives is reimbursement for actual expenses. The AG concluded that expense reimbursement is not compensation, so it does not trigger the section 573.041 nepotism bar.

Who counts as a relative under the nepotism statute?
The opinion applied the statute to a relative within the third degree by consanguinity or the second degree by affinity. A sibling is within the second degree by consanguinity, and the sibling's spouse is within the second degree by affinity.

Does the nepotism bar apply only to salaried jobs?
No. The opinion noted the statute defines "position" to include any office, clerkship, employment, or duty, so the bar reaches any duty compensated directly or indirectly from public funds, not just salaried positions.

Is paying a flat per diem the same as reimbursing actual expenses?
Not necessarily. The opinion warned that a per diem can raise a fact question about whether the payment is real reimbursement or disguised compensation, and said a per diem must reflect the expenses actually incurred to avoid violating the statute.

Background and statutory framework

Government Code section 573.041 provides that a public official may not appoint, confirm the appointment of, or vote for the appointment or confirmation of an individual to a position that is to be directly or indirectly compensated from public funds or fees of office if the individual is related to the public official within a prohibited degree (Tex. Gov't Code § 573.041(1)); the degrees of relationship are set by section 573.002 and related provisions. A county officer is a "public official" for these purposes (Tex. Gov't Code § 573.001(3)(A)), siblings are related within the second degree by consanguinity (§ 573.023(c)(2)), and the spouse of one sibling is related to the other in the second degree by affinity (§ 573.025(a)). Because "position" is defined to include any office, clerkship, employment, or duty (§ 573.001(2)), the prohibition reaches the sheriff's appointment of relatives to any duty compensated directly or indirectly from public funds.

The dispositive question was whether reimbursing the relatives for expenses incurred while performing appointed duties is direct or indirect compensation. In the absence of a statutory definition, the office had previously concluded that "compensation" in this context does not include reimbursement for incurred expenses (Tex. Att'y Gen. Op. No. JM-195 (1984) at 2). A volunteer who receives reimbursement for actual expenses is therefore not directly or indirectly compensated from public funds (Tex. Att'y Gen. LO-96-010 (1996) at 2; Tex. Att'y Gen. LO-95-089 (1995) at 3), and permitting volunteers to use government-owned vehicles to perform their duties likewise is not compensation (Tex. Att'y Gen. LO-95-089 (1995) at 3). On those authorities the appointment described would not violate section 573.041. The opinion added, in a footnote, that paying a per diem rate may raise fact issues about whether the payment is reimbursement or compensation, and that a per diem must reflect expenses actually incurred (Tex. Att'y Gen. Op. Nos. JM-1266 (1990) at 3; MW-21 (1979) at 1; GA-0449 (2006) at 2). A sheriff, as an elected county officer, has authority to select assistants of his own choice subject to applicable civil service protections (Tex. Att'y Gen. Op. No. GA-0037 (2003) at 3; Tex. Att'y Gen. Op. No. GA-0254 (2004) at 4).

Citations

Statutes:

• Tex. Gov't Code §§ 573.041, 573.041(1), 573.002, 573.001(3)(A), 573.023(c)(2), 573.025(a), 573.001(2)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. JM-195 (1984)
• Tex. Att'y Gen. LO-96-010 (1996)
• Tex. Att'y Gen. LO-95-089 (1995)
• Tex. Att'y Gen. Op. No. GA-0037 (2003)
• Tex. Att'y Gen. Op. No. GA-0254 (2004)
• Tex. Att'y Gen. Op. No. JM-1266 (1990)
• Tex. Att'y Gen. Op. No. MW-21 (1979)
• Tex. Att'y Gen. Op. No. GA-0449 (2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0157
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0157.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

August 3, 2017

The Honorable James M. Tirey Opinion No. KP-0157
Hale County Attorney
500 Broadway, Suite 340 Re: Whether relatives of a public official may
Plainview, Texas 79072 perform uncompensated work for the official's
office without violating nepotism laws if the
relatives receive reimbursement of actual
expenses or a per diem expense payment
(RQ-0147-KP)

Dear Mr. Tirey:

   You ask whether the State's nepotism laws prohibit a public official from appointing a close relative to a volunteer position that provides reimbursement for expenses but no compensation. [1] Your question arises from the following facts:

             The Hale County Sheriff must, from time to time, transport female prisoners to other facilities away from the Hale County Jail. The Sheriff's brother ... and the brother's wife, have volunteered to transport female prisoners when the need arises. They would receive no compensation for their time and effort transporting the prisoners, but they would use a vehicle owned by Hale County and receive money to defray their expenses ....

Request Letter at 1. In this scenario, you specifically question whether the relatives' service without pay but with reimbursement for expenses violates the nepotism prohibition under Government Code section 573.041. Id.; see TEX. GOV'T CODE § 573.041.

     Section 573.041 of the Government Code provides, in relevant part:

             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 [the individual is related to the public official within the third degree by consanguinity or within the second degree by affinity] ....

TEX. GOV'T CODE § 573.041(1) (emphasis added); see also id. § 573.002 ("Degrees of Relationship"). As you note, the sheriff is a public official for purposes of the statute, and the prospective appointees are related to him within a prohibited degree. See Request Letter at 2; TEX. GOV'T CODE §§ 573.001(3)(A) (defining "public official" for purposes of nepotism laws to include county officers), .023(c)(2) (providing that siblings are related within the second degree by consanguinity), .025(a) (providing that if two individuals are related to each other in the second degree by consanguinity, the spouse of one of the individuals is related to the other individual in the second degree by affinity). Moreover, this prohibition applies to the sheriff's appointment of individuals to serve any duty. [2] See TEX. GOV'T CODE § 573.001(2) (defining "position" for purposes of nepotism laws as any "office, clerkship, employment or duty") (emphasis added). Thus, section 573.041 prohibits the sheriff from appointing these relatives to any duty compensated directly or indirectly from public funds.

    At issue, however, is whether reimbursing the sheriff's relatives for expenses incurred while performing appointed duties constitutes direct or indirect compensation from public funds. In the absence of a statutory definition, this office previously concluded that in this context the term "compensation" does not include reimbursement for incurred expenses. Tex. Att'y Gen. Op. No. JM-195 (1984) at 2 (interpreting statutory predecessor to section 573.041). Thus, a volunteer who receives reimbursement for actual expenses incurred in the performance of appointed duties is not directly or indirectly compensated from public funds. See id. (concluding "compensation" for purposes of nepotism laws does not include reimbursement for expenses incurred in attending official meetings); Tex. Att'y Gen. LO-96-010 (1996) at 2 (concluding section 573.041 inapplicable to position that receives reimbursement for expenses but no compensation); see also Tex. Att'y Gen. LO-95-089 (1995) at 3 ("Compensation for services and expense reimbursements are distinguishable."). Likewise, permitting volunteers to use government-owned vehicles in the performance of their appointed duties also does not constitute compensation. See Tex. Att'y Gen. LO-95-089 (1995) at 3 (concluding vehicle "may be compensation or a reimbursement for expenses, depending on whether the governmental body provides it to benefit the employee or to carry out a purpose of its own"). Thus, under the factual scenario you describe, the sheriff's appointment of these relatives would not violate section 573.041. [3]

                                 SUMMARY

                  Section 573.041 of the Government Code prohibits a public official from appointing certain relatives to positions compensated with public funds. The reimbursement of expenses, however, is not compensation. Thus, a public official may appoint a close relative to a volunteer position that provides reimbursement for incurred expenses but no compensation.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable James M. Tirey, Hale Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. (Jan. 27, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Subject to civil service protections applicable in some counties, a sheriff as an elected county officer has authority "to select assistants of his or her own choice." Tex. Att'y Gen. Op. No. GA-0037 (2003) at 3 (quotation marks omitted); see also Tex. Att'y Gen. Op. No. GA-0254 (2004) at 4.

[3] You additionally ask whether paying the sheriff's relatives a per diem rate, rather than paying for expenses actually incurred, violates section 573.041. Request Letter at 1-2. Paying a per diem rate may raise fact issues as to whether a volunteer is receiving a legitimate reimbursement of expenses or compensation. See Tex. Att'y Gen. Op. Nos. JM-1266 (1990) at 3 (recognizing that governmental entity may not avoid prohibition on compensating certain individuals "merely by denominating a ... monthly payment an 'expense allowance' rather than a 'salary'"); MW-21 (1979) at 1 ("If a lump-sum is utilized [to reimburse a volunteer for expenses], there will be a factual question as to whether the sum has a basis in fact and reasonable calculation."). To avoid violating section 573.041, the per diem rate must reflect the expenses actually incurred by the volunteers in the performances of their official duties. See Tex. Att'y Gen. Op. No. GA-0449 (2006) at 2 ("[R]eimbursements that exceed actual expenses . . . constitute 'compensation.'").