Can a Texas county judge hire a county commissioner's spouse if the commissioners court delegated its hiring power to the judge?

Plain-English summary

The Burnet County Attorney asked a chain of questions arising from the county judge appointing the spouse of a county commissioner as the paid human resources director, a position that reports directly to the county judge, with the commissioners court approving the payroll and the department budget.

First, can a commissioners court delegate its hiring power to the county judge? The AG said yes. A commissioners court has only the powers the Constitution or Legislature gives it or that are necessarily implied, but its constitutional jurisdiction over "all county business" carries an implied authority to employ people needed for county business. A century-old case, Galveston County v. Gresham, held that a commissioners court could pass a resolution delegating to a committee that included the county judge the ministerial task of actually selecting and contracting with a hire, once the court itself officially decided to make the hire. So a commissioners court may, by official action, delegate its implied hiring authority to the county judge. Whether Burnet County's commissioners court actually took that official action is a fact question the AG would not resolve.

Second, if the judge has that delegated power, does the nepotism law block hiring a commissioner's spouse? Yes. Government Code section 573.041 prohibits a public official from appointing, confirming, or voting to appoint a person related within a prohibited degree to a compensated public position, and it reaches relatives of any member of a multi-member body the official sits on. A husband and wife are related in the first degree by affinity, which is within the prohibited range. The AG relied on the longstanding rule that a commissioners court cannot hire through an agent someone it could not hire directly (citing a 1942 opinion about a sheriff hiring a commissioner's brother). So a county judge exercising the commissioners court's delegated hiring power is barred by section 573.041 from appointing a commissioner's spouse.

Third, who can be prosecuted for a nepotism violation? The AG explained that section 573.084 makes it an offense involving official misconduct, a misdemeanor punishable by a $100 to $1,000 fine, to violate subchapter C (which includes section 573.041) or section 573.083. Section 573.083 covers a public official who approves an account or authorizes drawing a warrant to pay an ineligible person while knowing they are ineligible. So both the official who makes, confirms, or votes for the appointment and the official who approves or authorizes payment can face misdemeanor exposure. Whether any particular official violated chapter 573 is a fact question outside the opinion process.

What this means for you

If you are a county judge or sit on a commissioners court

Based on this opinion, delegation does not lift the nepotism bar. Even if the commissioners court formally hands hiring authority to the county judge, the judge cannot appoint a person related to any commissioner within a prohibited degree, and a spouse is within that range. The body cannot accomplish through the judge what it could not do directly.

If you handle county payroll or approve county accounts

The opinion flags that paying an ineligible nepotism hire carries its own exposure. Under section 573.083, a public official who approves an account or authorizes a warrant to pay someone they know is ineligible can commit a misdemeanor involving official misconduct under section 573.084.

If you advise a county on hiring and delegation

Two separate questions are in play: whether hiring authority was validly delegated (a fact question turning on official action by the commissioners court) and whether the nepotism statute bars the specific hire (a legal question the AG answers yes for a commissioner's spouse). Both the appointing official and the official authorizing payment can be reached by the criminal provisions, though actual violation is fact-bound.

Common questions

Q: Can a commissioners court give its hiring power to the county judge?
A: Yes, through official action. A commissioners court has implied authority to employ people for county business and may delegate that authority to the county judge.

Q: Can the judge then hire a commissioner's spouse?
A: No. Section 573.041's nepotism bar still applies. A commissioner and spouse are related in the first degree by affinity, and the body cannot hire through an agent someone it could not hire itself.

Q: Is a spouse within the prohibited degree of relationship?
A: Yes. Government Code section 573.025(a) provides that a husband and wife are related in the first degree by affinity, which falls within chapter 573's prohibited range.

Q: Who can be prosecuted for a nepotism violation?
A: A public official who makes, confirms, or votes for the appointment of an ineligible person, and one who approves an account or authorizes paying that person knowing they are ineligible, can commit a misdemeanor involving official misconduct under section 573.084. Whether anyone actually violated the law is a fact question.

Background and statutory framework

A commissioners court's power is limited to what the Constitution or Legislature delegates or what is necessarily implied (City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)), but its jurisdiction over "all county business" under article V, section 18(b) carries implied authority to employ persons necessary to carry out county business (Henry v. Cox, 520 S.W.3d 28 (Tex. 2017); Guynes v. Galveston Cnty., 861 S.W.2d 861 (Tex. 1993)). Galveston County v. Gresham, 220 S.W. 560 (Tex. Civ. App.—Galveston 1920, writ ref'd), held the court may delegate the ministerial act of selecting and contracting with a hire to a committee including the county judge after officially deciding to make the hire.

Government Code section 573.041 prohibits a public official from appointing, confirming, or voting for the appointment of an individual related to the official, or to another member of the official's board, within a degree described by section 573.002, to a compensated position. A husband and wife are related in the first degree by affinity (section 573.025(a)), and county officers are "public officials" (section 573.001(3)(A)). The AG applied the rule that a commissioners court cannot hire through an agent someone it could not hire directly. On enforcement, section 573.084 makes a violation of subchapter C or section 573.083 an offense involving official misconduct, a misdemeanor punishable by a $100 to $1,000 fine, and section 573.083 reaches an official who knowingly approves an account or authorizes payment of an ineligible individual.

Citations and references

Statutes:

• Tex. Gov't Code § 573.041 — anti-nepotism prohibition on appointments
• Tex. Gov't Code § 573.084 — official-misconduct offense and penalty
• Tex. Const. art. V, § 18(b) — commissioners court jurisdiction over county business

Key cases:

• Galveston County v. Gresham, 220 S.W. 560 (Tex. Civ. App.—Galveston 1920, writ ref'd) — court may delegate ministerial hiring tasks to a committee including the county judge
• Henry v. Cox, 520 S.W.3d 28 (Tex. 2017) — implied authority to employ persons for county business
• City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003) — commissioners court power limited to delegated or necessarily implied authority

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0449
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2023/kp-0449.pdf

Original opinion text

PAXTON
ATTORNEY GENERAL OF TEXAS

October 23, 2023

The Honorable Eduardo Arredondo
Burnet County Attorney
220 South Pierce
Burnet, Texas 78611

Opinion No. KP-0449

Re: Whether a county commissioners court may cede authority to the county judge to hire a county commissioner's spouse for a position that reports directly to the county judge; and related questions involving Government Code chapter 573 (RQ-0511-KP)

Dear Mr. Arredondo:

You ask several questions regarding hiring a human resources director for Burnet County ("County").¹ You tell us that the county judge appointed the spouse of a county commissioner "as the compensated director of Human Resources for the County"² and that the position "reports directly to the Burnet County Judge."³ Request Letter at 2. You also tell us that the commissioners court approves the payroll for this position as well as the budget for the human resources department. Id.

You first ask whether a commissioners court may delegate its implied power to hire and employ persons "to one of its members, the county judge[.]" Id. at 1–2.

A commissioners court may, through official action, delegate to the county judge its implied authority to employ persons necessary to carry out county business.

A commissioners court is the governing body of the county and its "power is limited to that which is expressly delegated to it by the Texas Constitution or Legislature, or necessarily implied to perform its duties[.]" City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003). As you observe, no state law specifically authorizes a commissioners court to hire a human resources director. See Request Letter at 2. However, the Texas Constitution provides that a county commissioners court "shall exercise . . . power[] and jurisdiction over all county business . . . ." TEX. CONST. art. V, § 18(b). And under this provision courts have recognized a commissioners court's implied authority to employ persons necessary to carry out county business. See Henry v. Cox, 520 S.W.3d 28, 32 n.6 (Tex. 2017) (acknowledging that an employment position was created pursuant to a commissioners courts' implied authority under article V, subsection 18(b)); Guynes v. Galveston Cnty., 861 S.W.2d 861, 864 (Tex. 1993) (holding a commissioners court had authority to fund and make use of a county legal department for the conduct of its civil legal affairs); see also Tex. Att'y Gen. Op. No. JC-0264 (2000) at 3 (opining that "[t]he commissioners court has implied authority to employ persons necessary to carry out county business derived from its express constitutional authority" under article V, subsection 18(b) and statutes defining its hiring powers generally).

At least one Texas court has held that a commissioners court may delegate to a committee that includes a county judge its implied power to employ persons necessary to carry out county business. In the case of Galveston County v. Gresham, the county commissioners passed a resolution appointing the county judge and another individual to act as a committee "to employ counsel to represent Galveston county in all legal and legislative matters pertaining to the construction of a sea wall . . . ." 220 S.W. 560, 561 (Tex. Civ. App.—Galveston 1920, writ ref'd). The county auditor subsequently refused to pay the individual hired to do the work arguing, in part, that article V, subsection 18(b) did not authorize hiring the individual and that the commissioners' court had delegated "to agents the exercise of such judgment and discretionary powers as are exclusively reposed by the Constitution and laws of this state in that court alone." Id. at 562. The Galveston Court of Appeals rejected both arguments. See id. at 562–63. The court held that hiring the individual "was clearly 'county business' within the jurisdiction of the commissioners' court." Id. at 562. The court further held that

[t]he [commissioners] court as such having first officially determined upon and formally passed and entered its resolution directing the employment of counsel for the particular purposes specified, the mere carrying out of that action by selection of the individual attorney, fixing his compensation, and drawing the contract with him, were only such ministerial and executive duties as could be turned over to its committee[.]

Id. at 563. Accordingly, a commissioners court may, through official action, delegate to the county judge its implied authority to hire and employ persons.

Whether the commissioners court's implied authority to employ persons was delegated to the county judge in this instance depends on facts which are unclear in your letter. See Request Letter at 2 (indicating that further research may reveal whether "the Burnet County Commissioners Court took official action to delegate its authority to hire a Human Resources Director to the Burnet County Judge"); see also Tex. Att'y Gen. Op. No. KP-0178 (2018) at 3 (noting that this office does not resolve fact questions in the opinion process).

A court would likely conclude that a county judge who is delegated the commissioners court's implied authority to employ persons may not appoint the spouse of a county commissioner to a paid county position.

If a commissioners court may delegate to the county judge its implied authority to employ persons, your second question asks whether the anti-nepotism provision of Government Code section 573.041 would prohibit the judge from hiring a person who is the spouse of a county commissioner. Request Letter at 1–2. Section 573.041 provides 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; or

(2) the public official holds the appointment or confirmation authority as a member of a state or local board, the legislature, or a court and the individual is related to another member of that board, legislature, or court within a degree described by Section 573.002.

TEX. GOV'T CODE § 573.041.

A county commissioner is related to his or her spouse within the first degree by affinity. Id. § 573.025(a) (providing "[a] husband and wife are related to each other in the first degree by affinity"); see also id. §§ 573.001(3)(A) (defining "[p]ublic official" for purposes of nepotism laws to include county officers), 573.002 (providing that chapter 573 applies to relationships within the second degree by affinity). Section 573.041 prohibits a member of a governing body from appointing, confirming the appointment, or voting to hire a person related to any member of the body within a prohibited degree. Id. § 573.041(2); see Tex. Att'y Gen. Op. No. KP-0360 (2021) at 2 (explaining that "[i]f the public official is prohibited from hiring a relative by section 573.041, so too is any member of the multi-member body on which the public official sits"). This office has long opined that a commissioners court may not, through an agent, hire a person that it would not be authorized to hire on its own. See Tex. Att'y Gen. Op. No. O-4686 (1942) at 1 (concluding that the sheriff, acting as an agent of the commissioners court, could not hire the brother of a commissioner as a janitor or other courthouse employee). Thus, a court would likely conclude that a county judge who is delegated the commissioners court's implied authority to employ persons is prohibited by section 573.041 from appointing the spouse of a county commissioner to a paid county position.

A public official who makes, confirms, or votes for an appointment or confirmation of an ineligible employee or who approves an account or authorizes the drawing of a warrant or order to pay the employee's salary potentially commits a misdemeanor involving official misconduct.

Your final question asks, "who may be criminally pursued for such [a nepotism violation] under Texas Government Code [section] 573.084[.]" Request Letter at 2. Section 573.084 provides, in relevant part, that "[a]n individual commits an offense involving official misconduct if the individual violates Subchapter C . . . or 573.083." TEX. GOV'T CODE § 573.084(a); see also id. § 573.084(b) (providing an offense "is a misdemeanor punishable by a fine not less than $100 or more than $1,000").

Subchapter C contains the prohibition in section 573.041, discussed above. See id. §§ 573.041–.044 (comprising subchapter C). By its terms, section 573.041's prohibition applies to a public official who makes an appointment, confirms an appointment, or votes for an appointment or confirmation of appointment of an ineligible individual to a compensated position. Id. § 573.041. Section 573.083 prohibits a public official from approving an account or drawing or authorizing "the drawing of a warrant or order to pay the compensation of an ineligible individual if the official knows the individual is ineligible." Id. § 573.083. Thus, a public official who makes, confirms, or votes for an appointment or confirmation of an ineligible employee or who approves an account or authorizes the drawing of a warrant or order to pay the employee's salary potentially commits a misdemeanor involving official misconduct. Whether any particular public official violated chapter 573 involves questions of fact, which cannot be resolved in an Attorney General opinion. See Tex. Att'y Gen. Op. No. JC-0184 (2000) at 4.

¹ See Letter from Honorable Eduardo Arredondo, Burnet Cnty. Att'y, to John Scott, Interim Tex. Att'y Gen. at 1 (June 2, 2023) ("Request Letter").

² We have received a brief that asserts additional or different facts. See Brief from Sara Ann Luther, Burnet Cnty. Hum. Res. Coordinator at 1–2 (June 23, 2023). As this office does not attempt to resolve fact questions, we consider your statement of facts solely as premises for your questions. See Tex. Att'y Gen. Op. No. GA-0659 (2008) at 3 n.5 ("To answer a requestor's questions of law . . . we assume that the requestor's description of the facts is correct.").

³ You do not indicate the human resources director position was created pursuant to subchapter A, chapter 151, Local Government Code. See generally Request Letter; see also TEX. LOC. GOV'T CODE §§ 151.001–.004 (providing that a county officer who requires the services of an employee in the performance of the officer's duties may appoint an employee after the commissioners court authorizes it but prohibiting the commissioners court from influencing the appointment of a particular person to the position).

SUMMARY

A commissioners court has implied authority to employ persons necessary to carry out county business. A commissioners court may, through official action, delegate to the county judge its implied authority to employ persons.

A court would likely conclude that a county judge who is delegated the commissioners court's implied authority to employ persons is prohibited by the anti-nepotism provision in Government Code section 573.041 from appointing the spouse of a county commissioner to a paid county position.

Pursuant to Government Code section 573.083, a public official who makes, confirms, or votes for an appointment or confirmation of an ineligible individual or who approves an account or authorizes the drawing of a warrant or order to pay the individual's salary potentially commits a misdemeanor involving official misconduct.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

CHRISTY DRAKE-ADAMS
Assistant Attorney General, Opinion Committee