The Attorney General of Texas 

.“M MAlTOX 

!tomey General 

December 31, 1984 

,pame own sulldlng 

o.soz12s4a 

hArtIn, lx. 7s711.254s 

l W4?52sol 

11*x 01w874.1367 

Jlecoeler s12/47+02db 

1001 Texas. Suite 700 

“0uuon. lx 77002-3111 

II6 smaeway. sun* 312 

ubbock,lx 704014479 

aoEl747.s23a 

303 N. Tmlh. Suita ‘e 

nlcAll.n. nc 7sw1.1633 

512ms2~7 

Loo uun PfuL sull. a0 

San Amonlo. lx 78zosas7 

1zf?254101 

An Equal Owmlunltvl 

dflmWlw ActIon En-‘pfovn 

Wr. Beymou L. Bpua 

Ccfmishnm of l!dut~.tioo 

TaxaS Educatiou Agamy 

201 East 11th Street 

Austin, Texas 78701. 

opiniou No. su-208 

Bl2: Whether au iudividual employed 

in rolla capacity by school district 

for more than +wo years but promoted 

to school principal tan months 

before her husband became a trustee 

may continue to seme a* principal 

Deer CodSBiOfWT ByUUm: 

'..:You raque8t en interprsutiou of the nepotim etatute, erticle 

5996a. V.T.C.S. Par a&z 

..~ Must tlba Board of Trustees of San Beuito 

Cousolldaccd Indepeudmt School District 

[hereinaftar San Banito CISD] terminate from all 

employmaut with the district a school principal 

who had ,mrmad as'-school principal for ouly ten 

moutha when her husbaud was elected to the San 

Beuito cl:Z;D Board of Trustees when, prior to her 

appoilltmeut as prirlcipol, she had remed 

continuously 'as a school supervisqr vith San 

- -..-_ 

Beuito 'CI:SI'for a period. of time iti eitcesa of 24 

mouths? 

The San Ben:lto School District 'does uot offer eoutinuing 

coatracta , under which a teacher ia entitled to "continue in his 

poeitiou or a posi@u with the school district" vithout the necessity 

for anuual reappointment. Educ. Code 113.107. (Empba.sls added). 

Therefore. va need :mot consider how to recoucile the uapotism statute 

with the coutinuin,g contract provisions of the Education Code. See 

Uev Mexico State Board ai Educstion v. Board of Education of 

Alamogordo Public @ho01 District, 624 P.2d 530 (N.M. 1981). 

The relevant portion of the nepotism statute. article 5996a. 

V.T.C.S. s readn ao ~follows: 

Wo officer of this State nor any office? of any 

district, county, city, precinct, rchool district, 

or other qunicipal subdivision of this State, nor 
Hr. Saymon L. Bpnum - Page 2 (JPl-288) 

sny officer or member of any State district. 

county, city, echoal district or other muolclpal 

board . . . ah611 appoint, or vote for, or confirm 

the appointment to any office, position,~ clerkahlp, employment;? duty. of any pereon related 

vithln the second dcllrae by affinity or within the 

third degree by consanguinity to the person 60 

appointing or ao vo~::tng. or to any other member of 

sny such board, the Legislature, or court of which 

such pereoo ao appointing or voting ma9 be a 

member. when the salary, feea. or compenaotion of 

such appointee is to be paid for, directly or 

indirectly, out of 3.c from public funda or fees of 

office of any ki,nd or character whatsoever; 

provided, thst not’hlng herein contained, nor in 

any other nepotism l.aw contained in any charter or 

ordinance of any municipal corporation of thla 

State, shall prever,t the appoiutmant, voting for, 

or confirmation of any person who ahall hsve been 

continuously as&ad in any such officec 

position, clerkehie. employment or duty for a 

period of two (2) ‘rears prior to the election or 

appointment of the-officer or member appointing. 

voting for, or conf lrming the appointment, or to 

the election or c.p$ointmant of the officer or 

member related to ruch employee In the prohibited 

degree. (lImphaeis added). 

This statute prohibits a school board from employing or confirming the employment of a ‘persoo related to s school trustee within 

the second degree by affinity. The school principal IS related to her 

huaband by affinity within s prohibited degree. Attorney General 

Oplnioa V-785 (1949). An exception within the nepotism statute allows 

the continued service of “auy person vho shall have been continuously 

employed In sny such office, .poaition. clerkship, employment or duty” 

for two yesrs prior to the election of his relative to the school 

board. When the languege oil a statute fa plain and uombiguoua, it 

met be given effect according to its tense. Board of Insurance 

C&saiooers of Texas v. Gjuardian Life Insurance Co. of Texas, 180 

S.W.2d 906 (Tax. 1944). The%xceptior. .Ipplies only where the employee 

hes been continuously employl:d for two years in the “office, position, 

elerkahip. employment or dut:r” held when his relativr become6 a school 

board member. See Letter Advisory No. 151 (1978). 

- 

10 our opinion, vhen the board takes action to reassign an 

employee to enhanced respone;ibilities. it has appointed him to an 

“office. position, clerkship, employment or duty.” The employee’ s 

length of continuous service for purposes of the nepotism law will be 

determined from the time of that board action, rather than from its 

p. 1278 
My. uymn L. B9num - Psge 3 (,JM-288) 

initial hiring of the smployl:e. However, ve do not believe that an 

adjustment in employee duties or a change in job responsibilities made 

at an administrative level be:Lov the board will constitute appointment 

to a nev position for purpose,, of computing the two-year proviso. The 

nepotism lav is concerned with the relationship betveen board member6 

and the individual employee; zha board's action to appoint an employee 

to a poaltion Involving incrcaaed authority or additional sahrY is 

the significant event. Chsngea in reaponsibilitles and job 

deecriptiona made by admiois~:rstors subordinate to the board do not 

interrupt the employment rela::tonship established vheo the board first 

hired the employee and thus do not start s nev tvo-year period 

running. 

In the present case, sch,z,l board action van necessary to promote 

the amployee from school supervisor to principal. Section 23.28 of 

the Education Code governs the employment of school principals in 

school districta vhich have rwe adopted the continuing contract law. 

(a) The board ofi truetaaa of any independent 

school district me9 employ by contract a superintendent, s princip~rl. or principals, teachers, or 

other executive officers for a term not to exceed 

the maximurn specified in this,section. 

The hiring decisions are vltll:Ln the exclusive authority of the board 

of trustees. Pana v. Rio Griwde City Consolidated Independent School 

District, 616 S.W.Zd 658 (Tex: Civ. App. - Eastland 1981. no writ). 

Since the school board appointed the employee in this case to the 

position of principal 01119 ten months before her husband joined ~the 

board. her employment as prjncipal is not protected by the tvo-year 

proviso. Article 5996a. V.T.C.S.. forbids the board from taking any 

action to rehire her or confirm her employment as school principal. 

She ma9 finish out her contract, but she ma9 not enter into a new 

contract as principal vith the school board on which her husband 

sew88 . Attorney General C$inions MU-286 (1980); H-857 (1971). Of 

course, If her husband res,igns or othervise leaven his position on the 

board before her contract is to be reneved, the board may continue her 

as principal. 

She may, however, be reinstated under certain conditions to her 

former position as school supervisor. because such' reinstatement is 

not an appointment to a pol%:ition of enhanced status and authority 

which is the object of thti: nepotism statute's proscription. Her 

reinstatement to the school wpervlsor position ma9 be deemed to fall 

vithio the two-year proviso IX, the extent that her contractual duties 

as principal. apart from th'e status and enhanced authority of that 

office, reflect continuity vieh her duties as school supervisor. 

Whether such continuity exists' Is essentially a factual matter which 

p. 1279 
Mr. P~ymon L. Bynum - Pspe 4 (JM-288) 

this office cmuot resolve. wa believe thst it would be contrary to 

the Purpose of the statute to deprive a public employee in these 

circmstances of the protection of the proviso when the ultimate 

resolution of her employment pwritiou involves sn actual demotion in 

rank and respousibility. 

Attorney General Opinion V-1142 (1951) appears to have reached s 

conclusiou inconsistent uith our couclusiou. This opinion concerned a 

county employee whose brother was elected to the conmiseionera court. 

Prior to the time his brother wok office, the employee had served the 

county continuously for twenty-five monthe, first with the county 

terracing comittee and then wtth the roed and bridge department in 

Precinct No. 2. The ooinion concluded that the individual was 

“coutinuously employed by-the county in ooe capacity or another” for 

the requisite period, and he could therefore keep his job after his 

brothe&‘s assumption of office. It did not expressly consider whether 

the assigument to the road and bridge coumittee constituted an 

appointment by the comissfoners court to an enhanced position. 

-Gvment, or duty within th’c language of the tvo-year proviso. It 

did not state vhether thirl job Change v&s by action of the 

conmissioners court or e lomt-level admixistrator. Implicitly the 

opinion Indicates that the change in posttions with the county 

involved no promotion in status. authority, and responsibilities. We 

so construe Attorney General Opinion V-1142 and accordingly find lt 

not inconsistent with this opittiou. 

The exception ‘:I) the nepotism statute for 

employees vlth tua years of continuous service 

prior to their relative’s election to the bosrd 

does not apply to a long-term school district 

employee appointed as ichool principal by the 

board ten months before her husband became a board 

member. Under ths: circumstances, the employee 

paps however, be reinstated to her former, 

lover-level positico, with the school district. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

o. 1280 . 
Mr. Raymon L. Bynum - Page 5 (JM-288) 

DAVID R. RICRARDS 

Executive Assistant Attorney General 

RICLC GILPIN 

Chairman. Opinion Committee 

Prepsred by Susan Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COEMITPEE 

Rick Gilpln. Chairman 

Colln Carl 

Susan Garrison 

Robert Gray