Can a newly appointed Texas county official keep supervising a relative who already worked there?

Plain-English summary

Cherokee County faced a succession question with a family wrinkle. The sitting county tax assessor-collector planned to retire before her term ended, and one of the people in line to be appointed to fill the vacancy had worked in the tax office for more than twenty-three years. The catch: if appointed, she would end up supervising her own sister-in-law, who had already worked in the office for over six years. The county attorney asked whether that arrangement ran afoul of Texas's nepotism law, and specifically whether it fit the law's continuous-employment exception.

The AG started with the general rule. Chapter 573 of the Government Code — the nepotism statute — prohibits a public official from appointing or employing, with public funds, a person related to the official within a specified degree of consanguinity (blood) or affinity (marriage). A sister-in-law falls within the prohibited degree of affinity, so absent an exception, employing one would violate the statute. The AG also noted that the prohibition reaches officials who merely exercise control over hiring decisions, and that for at-will employees the official is presumed to make a fresh retention decision each month.

The exception is section 573.062, the "continuous-employment" provision. It lets a relative keep a job if the relative was already employed in the position immediately before the official took office and had been continuously employed for a set period — one year where the official holds an office filled at the general election for county officers. Because county tax assessor-collector is an elective office under the Texas Constitution, the relevant period here was one year. The AG explained how to measure it: the clock starts on the first day the sister-in-law held her current position and ends on the day the newly appointed assessor-collector assumes office, so there must be at least a full year between those two dates. The AG was not given the exact employment dates, so it could not decide the question as a matter of law, but it advised that to the extent the sister-in-law completes one year of continuous service before the appointee assumes office, her continued employment satisfies section 573.062 and does not violate chapter 573. The AG added one limit: even where the exception applies, section 573.062(b) bars the official from participating in or voting on any raise, promotion, or other change in status that applies only to that relative.

Currency note

This opinion was issued in 2019. 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

Commissioners courts and county officials filling vacancies: At the time of the opinion, the AG read chapter 573 to bar a public official from employing a relative within a prohibited degree, but recognized the section 573.062 exception for a relative continuously employed in the position for one year (for an elective county office) before the official takes office.

County tax assessor-collectors and their offices: The opinion treated the office as elective under article VIII, section 14 of the Texas Constitution, so the continuous-employment period was one year, measured from the relative's first day in her current position to the date the appointee assumes office.

Officials whose relatives stay on under the exception: The AG noted that section 573.062(b) still prohibits the official from participating in or voting on a raise, promotion, or other change in status that applies only to that relative.

Common questions

Does Texas's nepotism law bar a county official from employing a sister-in-law?
Generally yes. The AG explained that chapter 573 of the Government Code prohibits a public official from employing a person related within a prohibited degree, and a sister-in-law is within the prohibited degree of affinity — unless an exception applies.

What is the continuous-employment exception?
The AG described section 573.062 as excepting a relative who was already employed in the position immediately before the official took office and was continuously employed for a set period. For an office filled at the general election for county officers, that period is one year.

How is the one year measured?
The AG said the clock starts on the first day the relative held her current position and ends on the date the newly appointed official assumes office. There must be at least one year between those two dates.

Can the official give the relative a raise or promotion after that?
Not one aimed only at that relative. The AG noted section 573.062(b) bars the official from participating in or voting on a raise, promotion, or other change in status that applies only to the related individual rather than to a bona fide class of employees.

Did the AG decide whether this specific arrangement was legal?
No. The AG was not given the exact employment dates, so it could not determine the question as a matter of law; it explained the rule and how to apply it.

Background and statutory framework

The request concerned a planned appointment to fill a vacancy in the office of county tax assessor-collector, where the appointee would supervise her sister-in-law. The AG identified section 573.041 of the Government Code as the general nepotism prohibition, which bars a public official from appointing or employing, with public funds, a person related within a specified degree of consanguinity or affinity, and noted the prohibition reaches an officer who may exercise control over hiring decisions (Tex. Att'y Gen. Op. No. GA-0419 (2006)) and presumes a monthly retention decision for at-will employees (Tex. Att'y Gen. Op. No. GA-0121 (2003)). A "public official" includes a county officer (§ 573.001(3)(A)), and a sister-in-law is within the prohibited degree of affinity (§§ 573.023, .024(a)(2), .025(a); § 573.024(a); § 573.025(a); § 573.023(c)(1)-(2)).

Section 573.062 excepts a person continuously employed in the position immediately before the official's appointment for a period that depends on the office — one year if the official is elected at the general election for state and county officers (§ 573.062(a)(1), (2)). Because county tax assessor-collector is an elective office (Tex. Const. art. VIII, § 14; Tex. Att'y Gen. Op. No. JM-253 (1984)), with the commissioners court authorized to fill a vacancy until the next general election (Tex. Loc. Gov't Code § 87.041(a)(8)), the relevant period was one year (§ 573.062(a)(1), (a)(2)(C)). The AG explained the continuous-employment period runs from the first day in the current position (Tex. Att'y Gen. Op. Nos. GA-1024 (2013), GA-1016 (2013)) to the date the appointee assumes office (Bean v. State, 691 S.W.2d 773, 775 (Tex. App.-El Paso 1985, pet. ref'd)). Lacking the exact dates, the AG could not decide the matter as a matter of law, but concluded that to the extent the sister-in-law completes one year of continuous service before the appointment, her continued employment satisfies section 573.062 and does not violate chapter 573. The AG also noted that section 573.062(b) would preclude the official from participating in or voting on a promotion or raise applicable only to the sister-in-law (Tex. Att'y Gen. Op. No. JM-1188 (1990)).

Citations

Statutory provisions:

• Tex. Gov't Code § 573.001(3)(A); § 573.023; § 573.023(c)(1)-(2); § 573.024(a); § 573.024(a)(2); § 573.025(a); § 573.041; § 573.062; § 573.062(a); § 573.062(a)(1), (2); § 573.062(a)(1), (a)(2)(C); § 573.062(b)
• Tex. Const. art. VIII, § 14
• Tex. Loc. Gov't Code § 87.041(a)(8)

Cases and Attorney General opinions:

• Bean v. State, 691 S.W.2d 773, 775 (Tex. App.-El Paso 1985, pet. ref'd)
• Tex. Att'y Gen. Op. No. GA-0419 (2006)
• Tex. Att'y Gen. Op. No. GA-0121 (2003)
• Tex. Att'y Gen. Op. No. JM-253 (1984)
• Tex. Att'y Gen. Op. No. GA-1024 (2013)
• Tex. Att'y Gen. Op. No. GA-1016 (2013)
• Tex. Att'y Gen. Op. No. JM-1188 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0238
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0238.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 22, 2019

The Honorable Dana Norris Young Opinion No. KP-0238
Cherokee County Attorney
Post Office Box 320 Re: Application of Government Code section
Rusk, Texas 75785 573.062, the nepotism continuous-employment
exception, to a tax assessor-collector's sister-
in-law (RQ-0243-KP)

Dear Ms. Young:

    You ask whether a county tax assessor-collector may supervise and employ her sister-in-

law who has worked in the tax assessor's office for over a year. [1] You tell us the current tax
assessor-collector plans to retire prior to the end of her term. See Request Letter at 1. One of the
individuals seeking appointment to fill the vacancy has worked in the tax assessor's office for over
twenty-three years. See id. If the commissioners court appoints a particular individual to fill the
vacancy, she will supervise her sister-in-law. See id. The tax office has employed the sister-in-
law for over six years. See id. You ask whether these circumstances are within the scope of section
573.062 of the Government Code. See id. at 2.

     Government Code chapter 573-the nepotism statute-generally prohibits a public

official [2] from appointing a person, compensated from public funds, who is related to the public
official within the specified degree of consanguinity or affinity. See TEX. GOV'T CODE § 573.041;
see also Tex. Att'y Gen. Op. Nos. GA-0419 (2006) at 2 ("Section 573.041 applies to an officer
who 'may exercise control over hiring decisions, even if the officer refrains from confirming,
appointing, or voting in a particular case.'"), GA-0121 (2003) at 3 ("[I]n the case of an at-will
employee, it is presumed that a public official makes a new decision each month to retain the
employee."). A sister-in-law is within the prohibited degree of affinity. [3] See TEX. GOV'T CODE
§§ 573.023, .024(a)(2), .025(a).

      [1] See Letter from Honorable Dana Norris Young, Cherokee Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y

Gen. at 1 (Aug. 17, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
[2] Under chapter 573, a "public official" includes "an officer of this state, or of a district, county, municipality,
precinct, school district, or other political subdivision of this state." TEX. GOV'T CODE § 573.001(3)(A).
[3] People are related by affinity if "they are married to each other" or "the spouse of one of the [persons] is
related by consanguinity to the other individual." Id. § 573.024(a). "A husband and wife are related to each other in
the first degree by affinity." Id. § 573.025(a). "For other relationships by affinity, the degree of relationship is the
same as the degree of the underlying relationship by consanguinity." Id. For example, a person's relatives within the
second degree by affinity include, among others, the person's (1) mother-in-law, father-in-law, son-in-law or daughter-
in-law, and (2) brother-in-law or sister-in-law. See id.; see also id. § 573.023(c)(1)-(2).

     Section 573.062 excepts from the application of the prohibition persons who have been

continuously employed for specified periods of time depending on the nature of the office of the
public official. See id. § 573.062. Under section 573.062, the person must be "employed in the
position immediately before the ... appointment of the public official to whom the [person] is
related in a prohibited degree," and the employment must be continuous for "one year, if the public
official is elected at the general election for state and county officers." Id. § 573.062(a)(1), (2).
While the circumstances you describe involve the appointment of the tax assessor-collector, the
office of county tax assessor-collector is an elective office, elected at the general election for
county officers. See TEX. CONST. art. VIII, § 14 ("The qualified voters of each county shall elect
an assessor-collector of taxes for the county, except as otherwise provided by this section."); TEX.
LOC. GOV'T CODE § 87.041(a)(8) (authorizing commissioners court to appoint a county tax
assessor-collector to fill a vacancy until the next general election); see also Tex. Att'y Gen. Op.
No. JM-253 (1984) at 1 (recognizing that the county tax assessor-collector holds an elective office
but that the commissioners court is authorized to fill a vacancy in the office until the next election).
Thus, the relevant period under section 573.062(a) is one year. See TEX. GOV'T CODE
§ 573.062(a)(1), (a)(2)(C).

      The starting date for calculating the continuous employment is the first day the tax office

employed the sister-in-law in her current position. See Tex. Att'y Gen. Op. Nos. GA-1024 (2013)
at 2, GA-1016 (2013) at 3. The ending date for calculating the continuous employment is the date
the individual appointed as tax assessor-collector assumes office. See Bean v. State, 691 S.W.2d
773, 775 (Tex. App.-El Paso 1985, pet. ref'd); see also Tex. Att'y Gen. Op. No. GA-1016 (2013)
at 3. Thus, there must be at least one year between the date of employment of the sister-in-law
and the date the individual appointed to the vacancy assumes the office of tax assessor-collector.
You do not provide the exact dates of the sister-in-law's employment in her position, so we cannot
determine as a matter of law the applicability of section 573.062. You do, however, state that the
sister-in-law will have completed one year of continuous employment at the time the individual,
if appointed, would assume the position of tax assessor-collector. See Request Letter at 2. To the
extent the sister-in-law has at least one year of continuous employment in her position in the tax
office prior to the individual's appointment to tax assessor-collector, the sister-in-law's continued
service satisfies the requirement under section 573.062, and her continued employment does not
violate chapter 573 of the Government Code. [4]

      [4] Section 573.062(b) provides:
               If, under Subsection (a), an individual continues in a position, the public official
               to whom the individual is related in a prohibited degree may not participate in any
               deliberation or voting on the appointment, reappointment, confirmation of the
               appointment or reappointment, employment, reemployment, change in status,
               compensation, or dismissal of the individual if that action applies only to the
               individual and is not taken regarding a bona fide class or category of employees.

Id. § 573.062(b). This provision would preclude the tax assessor-collector, if appointed, from promoting the sister-
in-law or giving the sister-in-law a raise applicable to only the sister-in-law. See id.; see also Tex. Att'y Gen. Op. No.
JM-1188 (1990) at 3 ("A sheriff may not promote his son and daughter even though they had sufficient prior
continuous service to retain their jobs in the sheriff's office after their father became sheriff.").

                                   SUMMARY

                    Section 573.041 of the Government Code prohibits a public
           official from employing a person who is related to the public official
           by the specified degree of consanguinity or affinity. Section
           573.062 excepts persons employed in a position for a specified
           continuous period of time prior to a relative's election or
           appointment to public office.

                   To the extent the tax office employs the sister-in-law in her
           current position for one year prior to the appointment of her relative
           as county tax assessor-collector, the sister-in-law's service satisfies
           the requirements under section 573.062 and her continued
           employment does not violate chapter 573 of the Government Code.

                                          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

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee