OPF,CE OF THE ATTORNEY GENERAL. STATE OF TEXAS 

JOHN CORNYN 

February 24,200O 

Mr. James Nelson 

Commissioner of Education 

Texas Education Agency 

1701 North Congress Avenue 

Austin, Texas 78701-1494 

Opinion No. K-0185 

Re: Whether a permanent substitute teacher who has 

been employed as such for six months prior to the 

election of his sister to school district board has been 

continuously employed for the purpose of section 

573.062 of the Government Code (RQ-0104-X) 

Dear Commissioner Nelson: 

On behalf of the La Joya Independent School District (the “District”), your predecessor in 

office requested our opinion regarding the continuous-employment exception to the antinepotism 

statute, section 573.062 of the Government Code. The District asks whether a “permanent 

substitute” teacher may be continuously employed for purposes ofthe nepotism statute, chapter 573 

of the Government Code. Assuming that the permanent substitute has an ongoing employment 

relationship with the school district, we conclude that the permanent substitute teacher may satisfy 

the continuous-employment exception to the statutory nepotism prohibition. 

The District’s question is premised upon a situation in which the District hired, in 

August 1996, a teacher who had obtained a two-year probationary certification under the Alternative 

Certification Program. See Letter from Jose R. Guerrero, Montalvo & Ramirez, General Counsel 

to La Joya Independent School District, to Dr. Mike Moses, Commissioner of Education, Texas 

Education Agency (July 20,1999) (on tile with Opinion Committee) [hereinafter “Request Letter”]. 

The District employed the teacher under successive one-year contracts through November 2,1998, 

when the teacher resigned his term contract “after losing his certification for failing the exam.” 

Id. at 1. When the employee’s resignation became effective, he was immediately hired by the 

District as a “permanent substitute teacher in the same teaching position, at a daily rate of $95.00. 

The teacher’s duties and the responsibilities remain the same.” Id. 

Meanwhile, inMay 1999 the permanent substitute’s sister was elected to the District’s Board 

of Trustees. Id. Assuming that the permanent substitute retains his position, the District would like 

to hire him on a full-time basis if he becomes certified. See id. The District asks whether 

employment as a permanent substitute may constitute “continuous employment” for the purposes 

of section 573.062 of the Government Code so that the District may retain him as a permanent 

substitute or, should he become certified, promote him. See id. 
Mr. James Nelson - Page 2 (JC-0185) 

Since the original request was made, the individual employed as a permanent substitute with 

the District took a position with the city manager’s office. Accordingly, whether the District may 

promote this particular permanent substitute to a certified teaching position is no longer in question. 

But because the permanent-substitute arrangement “involves a reasonably common employment 

arrangement for school districts in Texas,” you ask that we consider generally whether a permanent 

substitute may be continuously employed for the purposes of section 573.062 of the Government 

Code, so that a school district may retain or promote a permanent substitute upon the election to the 

school board of the permanent substitute’s relative. Letter from Jim Nelson, Commissioner of 

Education, Texas Education Agency, to Elizabeth Robinson, Chair, Opinion Committee, Office of 

the Attorney General (Jan. 7, 2000). To answer the question generally, we assume that the 

permanent substitute has been employed by the school district in that position for six months 

immediately prior to the time his or her relative is elected to the school board or for thirty days prior 

to the date his or her relative is appointed to the school board. See TEX. GOV’T CODE ANN. 

5 573.062(a)(2)(A), (B) (Vernon 1994). 

By hiring an individual as a “permanent substitute,” a school district avoids the statutory 

requirement that all teachers, teacher interns, or teacher trainees must be certified as such 

consistently with sections 21.03 I through 21.057 of the Education Code. See TEX. EDUC. CODE 

ANN. 5 21.003 (Vernon 1996); see also id. $5 21.031-.057 (Vernon 1996 & Supp. 2000) (pertaining 

to “Certification of Educators”). A certified classroom teacher must be employed under a 

probationary contract, a continuing contract, or a term contract. See id. § 21.002(a) (Vernon 1996); 

seea1soid.~~21.101-.106~emon1996&Supp.2000)(probationarycontract);id.~~21.151-.160 

(Vernon 1996) (continuing contract); id. $5 21.201-,213 (term contract). Anindividual not certified 

to teach may teach if the school district that wishes to employ the individual obtains a teaching 

permit from the State Board of Educator Certification. See id. 4 21.055(a). But see id. 5 21.057 

(Vernon Supp. 2000) (requiring school district that assigns uncertified teacher to same classroom 

for more than thirty consecutive instructional days during same school year to notify parents of 

students in that classroom). In this opinion, to clearly distinguish between a‘permanent substitute,” 

a certified teacher employed by contract, and a substitute employed on a day-to-day basis, we will 

refer to the first as an “uncertified teacher;” to the second as a “certified teacher;” and to the third 

as a “substitute teacher.” 

Under the antinepotism statutes, a school board generally may not appoint an individual to 

a position that is compensated from public funds if the individual is related within the third degree 

by consanguinity or within the second degree by affinity. See TEX. GOV’TCODE ANN. @ 573.002, 

,041 (Vernon 1994). Because you have asked us to consider the continuous-employment issue 

generally, we assume that the uncertified teacher is related within a prohibited degree to a member 

of the school district board of trustees. 

Two exceptions to this general statutory prohibition allow a governing body to hire the close 

relative of a member of the governing body in certain circumstances. First, section 573.061 excepts 

the appointment or employment of a substitute teacher by a school district. See id. $ 573.061(6) 

(Vernon Supp. 2000). This exception does not apply to a school district’s appointment of a certified 
Mr. James Nelson - Page 3 (JC-0185) 

teacher. Nor may a school district that wishes to promote a substitute or an uncertified teacher to 

a certified teaching position avail itself of this exception. 

Second, section 573.062 excepts the appointment or employment of an employee who has 

been continuously employed in a particular position for six months before the election of the public 

official to whom the individual is related in the prohibited degree. See id. 5 573.062(a)(l), (2)(B) 

(Vernon 1994). An individual who has been continuously employed in that position for the requisite 

duration may not only retain his or her position but may be the subject of an action affecting the 

employment, such as a promotion or raise, if “the public official to whom the individual is related 

in a prohibited degree” does not participate in any discussion or vote regarding the individual’s 

status, unless the decision concerns “a bona fide class or category of employees.” Id. 5 573.062(b). 

Thus, if an uncertified teacher may be said to be “continuously employed” for the purposes of 

section 573.062 of the Government Code, and if the uncertified teacher has been continuously 

employed as such for the period of time set forth in section 573.062(a)(2), then he or she may be 

“promoted” to the rank of certified teacher upon his certification so long as the teacher’s relative on 

the school board does not participate in any discussion or vote on the issue in accordance with 

section 573.062(b) of the Government Code. 

What is meant by “continuous employment” is not defined in the statute. “Continuous” 

employment denotes employment “[u]nintetrupted in time. ; connected; unbroken. III OXFORD 

ENGLISH DICTIONARY 830 (2d ed. 1989); see TEX. GOV’T CODE ANN. 5 311 .Ol l(a) (Vernon 1998) 

(requiring that statutory words and phrases be construed consistently with common usage). Whether 

in any particular situation an uncertified teacher has an ongoing, unintermpted employment 

relationship with a school district is a fact question that cannot be resolved in the opinion process. 

See, e.g., Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond 

purview of this office); JC-0027 (1999) at 3 (stating the questions of fact cannot be addressed in 

attorney general opinion); JC-0020 (1999) at 2 (stating that investigation and resolution of fact 

questions cannot be done in opinion process). 

Two previous opinions of this office suggest that intermittent, interrupted periods of 

employment do not constitute continuous employment. Attorney General Opinion JM-861 

concludes that service as a “substitute teacher” does not constitute continuous employment. See Tex. 

Att’y Gen. Op. No. JM-861 (1988) at 3. The substitute teacher in that case had “her name. added 

to a list of persons available to serve as substitute teachers. . [Hlaving one’s name put on this 

‘substitute list’ creates neither a guarantee of being contacted by the school district to serve as a 

substitute teacher, nor an obligation to accept a teaching assignment if offered one.” Id. at 2. Thus, 

the substitute teacher “was not a party to any continuing contract.” Id. Attorney General Letter 

Opinion No. 92-75 similarly concludes that a “regular substitute” cafeteria worker for a school 

district is not continuously employed for purposes ofthe nepotism laws. Tex. Att’y Gen. LO-92-75, 

at 3. The regular substitute was described as “an individual who has been placed on a list of 

substitutes, [who] is regularly called upon to work.” Id. at 2. Because the regular substitute had not 

been working under a contract ofcontinuing employment, she did not have “the same guarantees and 

obligations as an individual” who had been working under such a contract. Thus, a substitute, 
Mr. James Nelson - Page 4 (JC-0185) 

employed on an intermittent, day-to-day basis by a school district is not continuously employed for 

the purposes of the antinepotism laws. 

To the extent Attorney General Opinion JM-861 and Letter Opinion No. 92-75 focus upon 

the fact that the substitute employees were not subject to “continuing contracts,” they require 

clarification. First, the term “continuing contract” is a term of art in the Education Code referring 

to a contract of employment between a school district and a certified teacher, principal, librarian, 

nurse, or counselor under sections 21.15 I through 21.160 of the Education Code. See TEX. EDUC. 

CODE ANN. 5 21.002 (Vernon 1996). School district employees who have term contracts or 

probationary contracts do not have continuing contracts with the school district, see id., yet they may 

be continuously employed for the purposes of section 573.062 of the Government Code. Second, 

an at-will employee may be continuously employed for purposes of the antinepotism statute, see 

Tex. Att’y Gen. Op. No. V-l 142 (1951) at 4, despite the fact that the employee may not contract 

with his or her employer to limit either party’s authority to terminate the relationship at will, see 

Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642,644 (Tex. 1994). 

Rather than focusing on the existence of a “continuing contract,” section 573.062 focuses on 

the continuing nature of the employment relationship. Hence, a judge’s “repeated appointments” 

ofhis uncle “to represent indigent clients in different cases over a six-year period does not constitute 

continuous employment in one position.” Bean v. State, 691 S.W.2d 773,775 (Tex. App.-El Paso 

1985, pet. ref d). By comparison, a certified public accountant retained by a school district on a 

yearly basis who performed services during only part of the year may qualify for the continuousemployment exception. See Tex. Att’y Gen. Op. No. JM-45 (1983) at 3. 

We conclude that an uncertified teacher who is an at-will employee of a school district may 

satisfy the continuous-employment exception to the nepotism prohibition. See TEX. GOV’T CODE 

ANN. $3 573.041, .062 (Vernon 1994). As the uncertified-teacher position has been described to us, 

an uncertified teacher has an ongoing, unintemtpted employment relationship with the school until 

and unless the relationship is terminated by either party: 

[T]he district characterizes a“permanent” substitute as a noncertified person who is employed to fill a teaching vacancy until such 

vacancy can be tilled with a certified teacher. The permanent 

substitute teacher, unlike other substitute teachers, is not placed on a 

substitute list, but rather is given the assignment and is expected to 

report to work everyday until a certified teacher is employed to fill 

the position or until he is terminated for any other reason. He has 

been offered a continuous assignment for an indefinite period oftime, 

so he is like any other at-will employee. 

Request Letter, supra, at 3-4. Accordingly, should a relative of an uncertified teacher who has been 

continuously employed by a school district for the requisite period be appointed or elected to the 

school district board, the uncertified teacher may retain his or her position. Additionally, should the 
Mr. James Nelson - Page 5 (X-0185) 

uncertified teacher become certified as a teacher, the school district board may promote the teacher 

to a position as a certified teacher so long as the relative does not participate in the board’s 

deliberation or vote on the employment action. 

SUMMARY 

An individual employed as an uncertified teacher in an at-will 

employment relationship with a school district may be continuously 

employed for the purposes of section 573.062 of the Government 

Code. The uncertified teacher must be employed as such for the 

period of time specified in section 573.062 “immediately before the 

election or appointment of’ a public official to whom the permanent 

substitute is related in third degree by the consanguinity or the second 

degree of affinity to retain his or her position. An uncertified teacher 

who has been continuously employed for the period specified in 

section 573.062 also may be promoted to the rank of certified teacher 

(upon receipt of certification) if the related public official does not 

participate in the discussion or vote. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

ELIZABETH ROBINSON 

Chair, Opinion Committee 

Kymberly K. Oltrogge 

Assistant Attorney General - Opinion Committee