Untitled Texas Attorney General Opinion

Honorable W. G. Woods, Jr. Opinion No. C- 1% County Attorney Liberty, Texas Re: Whether or not It Is a violation of the Nepotism Law for a county hospital to employ a person as an office clerk when the superintendent of said hospital is the daughter Dear Mr. Woods: of said employee. This office is in receipt of your request for an opinion concerning the following question: "Whether or not it Is a violation of the Nepotism Law for a county hospital to employ a person as an office clerk when the superintendent of said hospital is the daughter of said employee." The following statutes are pertinent to the question asked this office: Article 4480, Vernon's Civil Statutes, states in part as follows: "The board of managers shall elect from among its members a president, and one or more vice-presidents and a secretary and a treasurer. It shall appoint a superintendent of the hospital who shall hold office at the pleasure of said board. S id superintendent shall t be a mem- ber of thz board and shall be a q%lfied prac- titioner of med.iGine,or be specially trained for work of such character." (Emphasis added) Article 4485, Vernon's Civil Statutes, states in part as follows: "The superintendent shall be the chief executive officer of the hospital, but=1 at all times be subJect to the by-laws, rules and regulations thereof, and to the powers of the board of managers. . . . -819-

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Honorable W. G. Woods, Jr. page 2 (c-169 )

Article 432, Vernon's Penal Code, provides: "No officer of this State nor any officer of any district, county, city, precinct, school district, or other municipal subdivision of this State, nor any officer or member of any State district, county, city, school district or other municipal board, or judge of any court created by or under authority of any General or Special Law of this State, nor any member of the Legisl- lature, shall appoint, or vote for, or confirm the appointment to any office, position, clerk- ship, employment or duty, of any person related within the second degree by affinity or within the third degree by consanguinity to the person so appointing or so voting, or to any other mem- ber of any such board, the Legislature, or court of which such person so appointing or voting may be a member, when the salary, fees, or compensation of such appointee is to be paid for, directly or indirectly, out of or from public funds, or fees of office of any kind or character whatsoever; pro- vided, that nothing herein contained, nor in any other nepotism law contained in any charter or ordinance of any municipal corporation of this State, shall prevent the appointment, voting for, or confirmation of any person who shall have been continuously employed in any such office, position, clerkship, employment or duty for a period of two (2) years prior to the election or appointment of the officer or member appointing, voting for, or confirming the appointment, or to the election or appointment of the officer or member related to such employee in the prohibited degree."

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It is apparent from a reading of Article 432, the Nepotism Statute, that in order for,said Statute to apply to a superintendent of a county hospital it must be decided whether a county superintendent Is an officer as set out within said Statute. Many definitions of "public officer" are to be found in the reported cases, but they are substantially of the ssme import. In the case of Kinney v. Zimpleman, 36 Tex. 554, (1871) the definition of a public office is said to be 'a right to exercise a public function or employment and take the fees and emoluments belonging to it." In Johnson v. Smith, 112 Tex. 222, 246 S.W. 1012 (1922), public office was defined~ as "a public station or employment conferred by the appoint- ment of government." In Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120 (1900), the Court defined a public office as "the right, authority and duty created and conferred by law by it, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is ln- vested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." In Banner v. Belsterling, 1% S.W. 571 (Tex.Civ.App. 1911) it was held that "a public office is something different from a public contract and that officers hold their positions by election or appointment and not by contract." In the case of Knox v. Johnson, 141,S.W.2d 698 (Tex. Clv.App. 19&C, error ref.) the court held that a superintendent of a state hospital was a "public officer" of the State of .Texas within the meaning of Section 7 of Article KV of the Constitution of Texas. Room a reading of Article 4480, Vernon's Civil Statutes, the Board of Managers a olnts a superintendent of the hospital who holds this oFi3k-z the pleasure of the Board. In Article 4485, Vernon's Civil Statutes, the superintendent is made the chief executive officer of the hospital but Is subject to '&e powers of th B d of Managers. This Article gives the superintendent the pbeso appoint such resident officers and employees and prescribe their duties with the consent of the Board. He may discharge such officers and employees without consent of the Board. Article 4485 of Vernon's Civil Statutes requires the superintendent to file a bond for the faithful performance of his d.uties. This office can find no direct authority holding a superintendent of a county hospital to be a 'public officer" within the nepotism statute. It Is the opinion of this office that as a practical matter since the superintendent is the

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Honorable W. G. Woods, Jr., page 4 (C-169)

chief executive officer and~does all the hiring and firing of the hospital employees, he should be subject to the nepotism statute. Therefore, it Is the opinion of this office that a superintendent of a county hospital Is a public officer with- in the meaning of the Nepotism Statute and cannot appoint, vote for, or confirm the appointment to any office, position, clerkship, employment or duty of any person related to him within the second degree~by affinity or within the third de- gree by consanguinity, unless such person has been continuous- ly employed~in such office, position, clerkship, employment or duty for a period of two years prior to the appointment of the superintendent.

SUMMARY The superintendent of a county hospital Is an officer as defined in Article 43'2, Vernon's Penal Code, the Nepotism Statute, and is thereby subject to said Statute. Very truly yours, WAGGONER CARR Attorney General

By isa w Bill Morse, Jr. Assistant APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Howard Fend~er Pat Bailey J. C. Davis APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone

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