JulY 5, 1950

Hon. Orvan B. Jones County Attorney Cherokee County Rusk, Texas

Dear Sir: Opinion No. V-1080.

Re: Constructionof Article 432, Penal Code, as amended by H. B. No. 508, Acts 51st Le 1949, ch. 12

%e9 R.S.

, pe 22?

Your request for an opinion, in part, reads as follows:
"Since I am unable to answer the question hereinafterpropoundedto my own satisfaction, I am requestingthat you render an opinion on 'such questionwhich arises from the fact situation below stated:

Facts: We have a teacher in a common school district who has taught continuouslytherein for the past four years. Said teacher has annually executeda contractfor one year for each school year heretofore,and her present contract expires upon the expirationof the current school year. On April 1, 1950, a trusteewho is the
son of a half-brother to the grandfatherof said teacherwas electedand subsequently qualified for the office. Question: Can a board of trustees of a common school district legally re-elect a teacherwho has been continuouslysmployedas a teacher in said school for more than two years, said teacherbeing the granddaughter

of a half-brotherto the father of a newly electedand qualified trustee on said board?"
The provisionsof Bill No. 508, from which we answer to

Article 43

3our question is controlled by the Penal Code, as amendedby House Acts 5lst L:g., ROS., 1949, cho 126, PO 227, quote as folloWs:Hon. Orvan B. Jones - Page 2 (V-1080)

"Article432. Nepotism

"No officer of this State or any officer of any district,county, city, precinct, school district, or other municipal subdivisionof this State, or any officer or member of any State, district, county, city, school district or other municipalboard, or judge of any court, created by or under authority of any General or Special Law of this State, or any Member of the Legislature, shall appoint, or vote for or confirm the appointmentto any office positIon clerkship employmentor duty, of an; person rilatedwithIn the second degree by affinity or within the third degree by consanguinity to the person so appointing or so voting, or to any other member of any such board, the Legislature,or court of which such person so appointingor voting may be a member, when the salary,fees or compensationof such appointee is to be pa1 d for, directly or indirectly, out of or from public funds or fees of office of any kind or characterwhatsoever,provided, that nothingherein contained shall nrevent the anoointment,

voting for&or conffrmatixxof y personwho shall have been continuouslveniioved in anv such office,position. clerkshis, emnlovraent

or dutv for a period of two (2) veals prior to the electionor annointment of the officer or member appointing, voting for..or confirming the appointmentof such person to such office, position, clerkshiD.emplovmont or dutv.

"Sec. 2. All laws and parts of laws in conflict herewith are hereby repealed." (Emphasis added)
All the provisionsof Article 432 have been brought forward,word for word, in House Bill 508. The only change made in this articleby the amendment is contained in the proviso hereinbeforeemphasized by US.
The, prohibitory

provisions contained in Article 432, both prior and subsequentto the amendment of this Article by House Bill 508, first became a law March 9, 1909. (Acts 31st

1909 ch. 40 pe 85). Since that tine this office ~~gs'~o~sS;tently'held th& prohibiteda board of school trustees from employinga teacher relatedwithin the seconddegree by affinity or within the third degree by consanguinity to any member of the board,when the salary of the teacher is to beHon. Orvan B. Jones - Page 3 (V-1080)

paid directly or indirectlyfrom public funds. This long continued constructionof these provisionsapplies to them
as they appear In this Article as it now reads except in so far as the exceptioncontainedtherein makes I$ inapplicable to the specific factual situationtherein defined.

The facts submitted by you, as we understandthem to be, may be briefly summarized as follows:

A lady teacherhas been continuouslyemployedby the board of trustees of a common school district for the past four years, includingthe current school year ending August 31, 1950, at which time her present contractwill expire. On April 1, 1950 a new trustee was elected in this district and has quallfled in the manner prescribedby law.

In view of these facts, it is our opinion the board of trustees comeswithin the exception contained in Article 432, as amended by House Bill 508, and may legally re-elect this lady as a teacher.

SUMMARY

A board of trusteesof a common school district may legally re-electa teacher who has been continuouslyemployedas a teacher in the district for two or more years prior to the election of a member of the board related to the teacher within the third degreeby consanguinity. Art. 432, P.C. as amendedby H.B. 508, Acts 51st Leg., R.S. ch. 126, p. 227.

APPROVED: Yours very truly,

C. K. Richards PRICE DANIEL Trial & Appellate Division Attorney General

Joe R. Greenhill First Assistant BY Bruce.W, Bryant Assistant Price Daniel Attorney General
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