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.
1
See Letter from Honorable Eduardo Arredondo, Burnet Cnty. Att’y, to John Scott, Interim Tex. Att’y Gen.
at 1 (June 2, 2023), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2023/RQ0511KP.pdf
(“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 T
EX. 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).
The Honorable Eduardo Arredondo - Page 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.
The Honorable Eduardo Arredondo - Page 3
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
The Honorable Eduardo Arredondo - Page 4
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.
The Honorable Eduardo Arredondo - Page 5
S UMMARY
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
