ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

November l&2003 

Mr. Robert Scott 

Chief Deputy Commissioner of Education 

Texas Education Agency 

170 1 North Congress Avenue 

Austin, Texas 78701-1494 

Opinion No. GA-01 23 

Re: Applying the anti-nepotism laws, Govemrnent 

Code chapter 573, to an independent school district 

(RQ-0060-GA) 

Dear Mr. Scott: 

At the request of the Aldine Independent School District (the “District”), former 

Commissioner Alanis asked two questions about applying the anti-nepotism statutes, Government 

Code chapter 573, to an independent school district.’ See TEX. GOV’T CODE ANN. ch. 573 (Vernon 

1994 & Supp. 2004). 

Chapter 573 regulates the appointment or employment of a public official’s close relatives 

to positions within the official’s appointment or confirmation authority. Section 573.041 prohibits 

a public official from appointing, confirming the appointment of, or voting to appoint or confirm 

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 [slection 573.002; or 

(2) the public official holds the appointment or confirmation 

authority as a member of a state or local board . . . and the individual 

is related to another member of that board . . . within a degree 

described by [slection 573.002. 

Id. 8 573.041 (Vernon 1994). Section 573.041( 1) refers to “relationships within the third degree by 

consanguinity or within the second degree by affinity.” Id. 6 573.002; see also id. $3 573.021-.025 

(Vernon 1994 & Supp. 2004) (providing for determining relationships by consanguinity or by 

affinity). Appointments to certain positions are excepted, see id. 8 573.061 (Vernon Supp. 2004), 

as well as appointments of individuals who have been continuously employed for a certain period 

‘Letter fromFelipe T. Alanis, Commissioner ofEducation, Texas Education Agency, to Honorable Greg Abbott, 

Texas Attorney General (May 30,2003) (on file with Opinion Committee) [hereinafter Request Letter]. 
Mr. Robert Scott - Page 2 (GA-0123) 

of time prior to the official’s election or appointment, see id. 5 573.062 (Vernon 1994). An 

ineligible individual who is appointed to a position, notwithstanding the prohibition, may not be paid 

for any work performed in the position: “A public official may not approve an account or draw or 

authorize the drawing of a warrant or order to pay the compensation of an ineligible individual if the 

official knows the individual is ineligible.” Id. 5 573.083. 

Mr. Alanis’s questions involve the appointment of two individuals, each related to District 

trustees within a prohibited degree. See Request Letter, supra note 1, at 1. The questions are based 

on an assumption that, with respect to a school district, the board members are the public officials 

to whom the statutory nepotism prohibition applies. Your general counsel has asked us to assume 

that the District school board has, consistently with section ll.l63(a)( 1) of the Education Code, 

“delegated to the superintendent the authority to” select personnel. Id.; Telephone Conversation with 

David Anderson, General Counsel, Texas Education Agency (July 29,2003); see TEX. EDUC. CODE 

ANN. 6 11.163(a)(l) (Vernon 1996). 

Mr. Alanis asked first about the appointment and compensation of a bus driver. See Request 

Letter, supra note 1, at 1. We are informed that the District’s transportation director offered a board 

member’s daughter-in-law employment as a bus driver on January 11,200l. Id. The “school board 

did not consider or act on the employment.” Id. District officials terminated the individual’s 

employment on September 18, 2001, after determining that it violated chapter 573 of the 

Government Code. Id. The next payday arrived on September 20, 2001, and the District asks 

whether it may compensate the bus driver as though she had been eligible for employment. Id. 

A school district’s board of trustees has “exclusive power and duty to govern and oversee the 

management” of a district’s public schools, and it may adopt rules and bylaws as necessary to 

execute its powers. TEX. EDUC. CODE ANN. 8 11.151(b), (d) (Vernon 1996). The board “may 

employ by contract a superintendent,” who is the school district’s “educational leader and . . . chief 

executive officer,” for a term of no more than five years. Id. 5 11.201(a)-(b) (Vernon Supp. 2004). 

Among other things, section 11.163 of the Education Code requires a school board to “adopt a policy 

providing for the employment and duties of district personnel,” which must provide the 

superintendent with “sole authority to make recommendations to the board regarding the selection 

of all personnel other than the superintendent, except that the board may delegatefinal authorityfor 

those decisions to the superintendent.” Id. 8 ll.l63(a)( 1) (Vernon 1996) (emphasis added). A 

school district superintendent is also responsible for, among other duties, assigning and evaluating 

district personnel, and initiating an employee’s termination or suspension. See id. 8 11.201(d)(2)-(4) 

(Vernon Supp. 2004). 

Although you do not ask whether the District correctly assumed that the bus driver’s hiring 

violated section 573.041 of the Government Code, we believe that assumption should be examined. 

For purposes of chapter 573, a public official includes “an officer or member of a board . . . of a 

. . . school district .” TEX. GOV’T CODE ANN. 5 573.001(3)(B) (V emon 1994). This definition has 

been interpreted to designate only an officer who may exercise authority over a governmental entity’s 

appointment or employment decisions. See Pena v. Rio Grande City Consol. Indep. Sch. Dist., 

616 S.W.2d 658,660 (Tex. Civ. App.-Eastland 1981, no writ); Tex. Att’y Gen. Op. Nos. JC-0336 

(2001) at 3-4, JC-0193 (2000) at 3, DM-2 (1991) at 1. An officer is a person upon whom a. 
Mr. Robert Scott - Page 3 (GA-0123) 

“sovereign function of the government [has been] conferred . . . to be exercised by him for the 

benefit of the public largely independent of’ others’ control. Aldine Indep. Sch. Dist. v. Standley, 

280 S.W.2d 578,583 (Tex. 1955); see Pena, 616 S.W.2d at 659-60 (applying Aldine’s definition of 

an officer to a nepotism issue); Tex. Att’y Gen. Op. No. JM-91 (1983) at 2 (same). A person with 

the authority to select personnel exercises a sovereign function. See Tex. Att’y Gen. Op. No. JM-72 

(1983) at 6; see also Tex. Att’y Gen. Op. No. JM-91 (1983) at 2 (stating that the superintendent of 

a mental health and mental retardation facility, as the “person with the power to appoint the . . . staff 

and fix their salaries,” is an officer for purposes of the nepotism laws). 

In our opinion, a superintendent to whom a school board has delegated “final authority” to 

select personnel under section ll.l63(a)( 1) of the Education Code is a “public official” with 

appointment authority for purposes of section 573.041, Government Code. A superintendent who 

exercises final authority to select personnel exercises a sovereign function of the government largely 

independent of the school board’s control. Our conclusion applies to the anti-nepotism laws’ 

application only; we do not consider whether a school district superintendent is an officer for other 

purposes. See Tex. Att’y Gen. Op. No. JM-72 (1983) at 5. 

Furthermore, a member of a school board that has delegated to the superintendent final 

authority for personnel selection is not a public official with appointment authority for purposes of 

section 573.04 1. Although the trustees are officers for other purposes and are members of the board, 

they have no vestigial authority to select district personnel. Accordingly, while the superintendent 

may not hire his or her relatives, section 573.04 1 does not prohibit the hiring of board trustees’ 

relatives. CJ: Tex. Att’y Gen. Op. Nos. JC-0336 (2001) at l-2 (stating that, for purposes of 

Government Code section 573.041, “a police chief who has, under a collective-bargaining 

agreement, final authority to appoint, reward, discipline, or demote employees” is a public official); 

JC-0193 (2000) at 3 (same); Tex. Att’y Gen. LO-95-012, at 2 (concluding that school board 

member’s nephew may referee high school football games because the board has no control over the 

choice of referees). 

We conclude that, unless the bus driver is also related to the superintendent within a degree 

prohibited by the anti-nepotism statute, she was lawfully employed and may be compensated for the 

work she performed. This conclusion is contingent upon the assumption that the District delegated 

final authority to select personnel to the superintendent. 

Our conclusion is distinguishable from the conclusion that the Eastland Court of Civil 

Appeals reached in the 1981 Pena case. See Pena, 616 S.W.2d at 660. Relying on two statutes, one 

that provides trustees with “exclusive” authority to “manage and govern” the districts’ public 

schools, and the second, which authorized a board to “employ by contract a superintendent, a 

principal or principals, teachers, or other executive officers,” the court determined that a school 

board cannot delegate its statutory authority or control over personnel selection to the superintendent. 

See id. at 659-60; see also Act of June 2,1969,61st Leg., R-S., ch. 889, $5 23.26(b), 23.28(a), 1969 

Tex. Gen. Laws 2735’2954, repealed by Act of May 27’1995’74th Leg., R-S., ch. 260’9 58(a)(l), 

1995 Tex. Gen. Laws 2207,2498 (formerly sections 23.26(b) and 23.28(a) of the Education Code). 

According to the court, the statutes provided the board with “the exclusive right and sole legal 

authority to appoint or employ teachers,” and the board could not “abdicate” its statutory authority 
Mr. Robert Scott - Page 4 (GA-0123) 

to appoint or confirm personnel selections. Pena, 616 S.W.2d at 659-60. In addition, the court said, 

a superintendent may recommend certain individuals to the board, but no delegation of authority to 

the superintendent or others takes away the board’s exclusive statutory authority: “A school 

superintendent merely performs functions delegated to him by the trustees who do not by such 

delegation abdicate their statutory authority or control.” Id. at 660. 

Since the 1981 Pena decision, the legislature has significantly revised relevant portions of 

the Education Code, providing a school district superintendent with increased authority. In 1995, 

for example, the legislature amended section 11.201(a) of the Education Code to change the 

superintendent’s status from that of “administrative manager” to “chief executive officer” of the 

district. Compare Act of May 27,1995,74th Leg., R.S., ch. 260’8 1, sec. 11.201(a), 1995 Tex. Gen. 

Laws 2207, 2230, with Act of June 30, 1984, 68th Leg., 2d C.S., ch. 28, art. III, part F, 5 1, sec. 

13.351(a), 1984 Tex. Gen. Laws 117, 156. In the same year, germane to the issue here, the 

legislature adopted section 11.163(a)(l), which expressly authorizes a school board to delegate “final 

authority” to select personnel to the superintendent. See Act of May 27, 1995’74th Leg., R.S., ch. 

260,s 1,1995 Tex. Gen. Laws 2207’2230; TEX. EDUC. CODE ANN. 0 11.163(a)(l) (Vernon 1996). 

A school board that has delegated final authority under section 11.163(a) no longer has “the 

exclusive right and sole legal authority to appoint” or confirm personnel selections on which the 

Pena decision hinged. See Pena, 616 S.W.2d at 659-60. For this reason, the conclusion in Pena 

does not apply here. 

Mr. Alanis asked second whether a public school superintendent may reassign a teacher who 

is related to a school trustee without action by the board. See Request Letter, supra note 1, at 1. 

Your predecessor provided us with the following facts: The school district employs a teacher whose 

father is a board member. Id. The District wants to know if the superintendent “may promote the 

teacher to a supervisory position (departmental chair) for which there is supplementary pay without 

action by the board.” Id. This issue involves the reassignment of an employee, not a selection 

covered by section ll.l63(a)( 1). 

The superintendent may reassign a trustee’s relative to fill a department chair position, and 

the board is not authorized to act on the matter. Section 11.201(d) of the Education Code expressly 

reposes in the superintendent the duty to “assum[e] administrative authority and responsibility” for 

assigning and evaluating district personnel. TEX. EDUC. CODE ANN. 4 11.201(d)(2) (Vernon Supp. 

2004). The superintendent’s duties listed in section 11.201(d) were adopted in 1995 by the same bill 

that authorized a school board to delegate final authority to select personnel to the superintendent. 

See Act of May 27,1995,74th Leg., R.S., ch. 260’8 1, sets. 11.163(a)(l), 11.201(d), 1995 Tex. Gen. 

Laws 2207,2230-3 1. Because the District’s school board has no authority to assign personnel, board 

members are not public officials for purposes of chapter 573, Government Code. 

Mr. Alanis informed us that the teacher satisfied the continuous employment provision to the 

anti-nepotism statute, section 573.062 of the Government Code. See Request Letter, supra note 1, 

at 1; see also TEX. GOV’T CODE ANN. 8 573.062 (Vernon 1994) (providing continuous employment 

exception). Because the board members are not the relevant public officials for determining the 

nepotism laws’ applicability, this fact is irrelevant. 
Mr. Robert Scott - Page 5 (GA-0123) 

SUMMARY 

A school district that has delegated to the superintendent final 

authority to select personnel under section 11.163(a)(l), Education 

Code, may employ and compensate a bus driver related to a trustee 

within a prohibited degree under chapter 573 of the Government 

Code, unless the driver is also related within a prohibited degree to 

the superintendent. See TEX. EDUC. CODE ANN. 8 ll.l63(a)( 1) 

(Vernon 1996). The conclusion of Pena v. Rio Grande City 

Consolidated Independent School District, that a school district’s 

superintendent is not a public official for purposes of chapter 573, 

Government Code, does not apply to a school board that has 

delegated final authority to select personnel to the district’s 

superintendent. See Pena v. Rio Grande City Consol. Indep. Sch. 

Dist., 616 S.W.2d 658,660 (Tex. Civ. App.-Eastland 1981, no writ). 

Because a superintendent has exclusive statutory authority to 

assign district personnel under section 11.20 1 (d)(2) of the Education 

Code, he or she may reassign a trustee’s relative to fill a departmental 

chair position. The board is not authorized to act on the 

reassignment, and board members are not, therefore, public officials 

for purposes of chapter 573, Government Code, with respect to the 

reassignment. 

Very tnjly yours, 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Kymberly K. Oltrogge 

Assistant Attorney General, Opinion Committee