BENEFITTING RELATIVE WITH POWER
OF APPOINTMENT

QUESTION: The Texas Human Resources Code provides that the county judge and the district judges in the county shall comprise the county juvenile board. The Code requires the board to appoint an advisory council consisting of not more than nine citizens. By practice, the board has allowed each board [member] to appoint one member of the council. May a district judge, sitting as a member of the county juvenile board, appoint his brother-in-law to the county juvenile advisory council?

ANSWER: No. Canon 3C(4) provides that, "A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism." In Opinion No. 83 (1986), we found the canon prevented a judge from appointing the lawyer-employee of his father and brother to represent the indigent. Although Opinion No. 83 is primarily concerned with the extent to which the lawyer's compensation would benefit the father and brother, and thereby accomplish indirectly that which cannot be done directly, it is not based solely on the pecuniary benefits that would accrue to the judge's relatives. Opinion No. 83 is equally concerned with the appearance of impropriety and perception of favoritism inherent in the arrangement, which concerns, together with nepotism, are more obviously present in the instant case.

Although we do not render legal opinions, and therefore do not decide whether Section 573.041 of the Texas Government Code answers the question posed, we note that a brother-in-law is within the degree of affinity commonly addressed by nepotism statutes. See Tex. Gov't. Code Ann. §§ 573.041, .002, .024 (Vernon 1994). Thus, by appointing his brother-in-law, the judge would engage in nepotism. Because Canon 3C(4) proscribes nepotism, the judge may not appoint his brother-in-law to serve on the advisory council. Additionally, Such an appointment would run afoul of Canon 2B's requirement that a judge not allow any relationship to influence judicial conduct or judgment and of Canon 2A's requirement that a judge act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.