The opinion
THE ATTORNEY GENERAL
OF TEXAS
Honorable Terry M. Brown OpiniOn NO. JM-1188
Criminal District Attorney
Polk County Re: Whether promotions of the
P. 0. Box 1717 son and daughter of a sheriff
Livingston, Texas 77351 violate the nepotism statute,
article 5996a, V.T.C.S.
(RQ-2018)
Dear Mr. Brown:
You ask for an interpretation of section l(c) of the
Texas nepotism law, article 5996a, V.T.C.S. You state that
the son and daughter of the current Polk County Sheriff were
both employed by the sheriff's office at the time their
father took office. Both had sufficient prior continuous
service to retain their positions. See V.T.C.S. art. 5996a,
§ l(b). After their father became sheriff, both the son and
daughter received promotions: the son was promoted from
deputy sheriff to sergeant (a higher-ranking deputy, we
assume), and the daughter was promoted from jailer to deputy
sheriff. You ask whether those promotions were in
contravention of section l(c) of article 5996a, which
provides:
When a person is allowed to continue in an
office, position, clerkship, employment or
duty because of [sufficient prior continuous
service] . . . the Judge, Legislator,
officer, or member of the governing body who
is related to such person in the prohibited
degree shall not participate * the
deliberation or voting upon the appo&ment
reappointment, employment, confirmation:
reemployment, change in status, compensation,
or dismissal of such person, if such action
applies only to such person and is not taken
with respect to a bona fide class or category
of employees.
You first ask whether the promotions were lawful
because they were made by a deputy sheriff, not the sheriff
himself. Section l(c) of article 5996a states that an
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Honorable Terry M. Brown - Page 2 (Jh-1188)
officer shall not participate in the deliberation about or
*voting upon a change in status1 of an employee related to
him within a prohibited degree. If the officer in question
is a member of a board, the related employee could receive a
promotion or pay raise as long as the related board member
did not discuss or vote on the promotion or pay raise. We
do not think, however, that the sheriff avoided
~~participation~~in the decision to promote his children by
delegating the authority to make the decision to a deputy.2
A deputy serves at the pleasure of the sheriff. Local
Gov't Code § 85.003(c). Consequently, the acts of a deputy
are legally the acts of the sheriff. Bev Woody 4 S.W.
242 (Tex. 1887); Cortimiolia v. Mill&E 3z6VS.W.2d a78 284
(Tex. Civ. App. - Houston 1959, no wkit). The acts'of a
deputy in deputizing another person or in promoting another
deputy are the acts of the sheriff. m Local Gov*t Code §
85.003(e)(making clear that relationship between sheriff and
deputy is that of principal and agent). But see Local Gov't
Code 55 158.001 - 158.015 (larger counties may operate
sheriff's office under civil service system). Therefore, a
deputy cannot lawfully perform an act that the sheriff is
prohibited from performing himself.3 In any case, the
1. You state that both the son and daughter received
pay raises in connection with their promotions. The salary
scale for various positions in the sheriff#s office is set
by the commissioners court. Local Gov't Code ch. 152. It is
the decision to promote his son and daughter to
higher-paid position that raises questions under th:
nepotism statute.
2. You do not ask and we do not consider whether the
language of section l(c) is so vague as to fail to give
notice of the proscribed conduct. pavachristou v. Citv of
Jacksonville, 405 U.S. 156 (1972); m Bean v. State
S.W.2d 773 (Tex. App. - El Paso 1985, writ ref'd) (h&d::;
Texas nepotism statute not unconstitutionally vague; case
precedes addition of section l(c) to nepotism statute).
3. We acknowledge that the language of section l(c)
may lead to some curious consequences. For example, not
only does it prohibit an officer from promoting a relative,
it appears to also prohibit the officer from dismissing a
relative. Whether a sheriff may dismiss a relative is not
the question before us.
P. 6264
Honorable Terry M. Brown - Page 3 (JM-1188)
applicability of the nepotism statute depends on whether the
sheriff may exercise control over a decision to promote.
Qe V. 0 'St., 616
S.W.2d 658 (Tex. Civ. App. - Eastland 1981).
The second issue you raise is based on the language of
section l(c) providing that an officeholder may participate
in a decision that affects a relative if the decision is
made "with respect to a bona fide class or category of
employees." An example of such a decision would be a
decision to give a cost-of-living raise to all employees of
the sheriff's office. The situation you describe is
somewhat different. Viewing the facts in the light most
favorable to the sheriff, it is a situation in which the
sheriff's son and daughter received promotions that were
consistent with the custom of the office. We do not think
that the language regarding actions taken with respect to a
bona fide category of employees was intended to give an
officeholder's relatives the benefit of expectations created
by custom or common practice. Furthermore, sheriffs'
deputies serve at the pleasure of the sheriff, and their
statutory at-will status cannot be undone by local custom.
&S Batterton v. Texas Gen. Land Ofti, 783 F.2d 1220 (5th
Cir.), cert. denied, 107 S.Ct. 316 (1986) (custom contrary
to state statute that allows removal at will cannot be
source of due process interest).
SUMMARY
A sheriff may not promote his son and
daughter even though they had sufficient
prior continuous service to retain their jobs
in the sheriffjs office after their father
became sheriff.
JIM MATTOX
Attorney General of Texas
WARYEELLER
First Assistant Attorney General
mu MCCREARY
Executive Assistant Attorney General
Pa 6265
Honorable Terry M. Brown - Page 4 (JM-1188)
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
P. 6266