# The Attorney General of September 12, 1979 

# Texas

md4 +4

. . . 77 tr.e$#g J-IL- II HonorableM.L. Rrockette Commissioner of Education Texas Education Agency 201East Eleventh Street At&in, Texas 78701 OpinionNo. RW-56 Re: Whetheraschool district may employ relatives of the School superintendent without violating th8 nepotism laws. Dear Commissioner Brockette: You have re.quest8d our opinion c0nc8dng the applicability of the nepotism statute to aschool district superintendent and hiring practices Of a school district. Youlmve’asked under what condition8a school district may hire,thesuperintendentb relatives Whoare within the degree9 OfkitWhip set forth in article 5996a; V.~.C.S. Your question has tien aa a result of better Advisory No. 156(1978)inwhich it WM said the college district could not employ the president% relatives because the president of ajunior college by statutory authority exercised joint control over the selection 

### of faculty and other employeea See R&c. Code S 130.082(a)(no one may be hired except uponthe presidenirecommendatindatia3. The nepotbm statute provi8es: Art. 5996a. Wepotbm ’ No officer of this State nor any officer of any district, county, city, 

### prednct, school district, or other municipal subdivision of this State, ncr any 

### officer or member of any State district, county, eity, school district or other munloipal board

. . . shall appoint, 

### or vote for, oc confirm 

### the appointment to any office, position, clerkship employment or duty, of any pemon related within the second degree by affinity orwithin the third degree byeonsa@nity to the person so appointing or so votinS

. . . when the salary, fees, or oompenaation of such appointee is to be paid for, directly or indirectly, out of or from public fun&.
. . .

p. 177HonorableM.L. Brockette - PageTwo (Mw-56)

For putposes of the nepotism statute we believe that the superintendent is an 0ffiOeh See Educ. Code S23.26. The arperintendent, therefore, may not ordbuuKy hire his kH Bee Attorney General OpinionR-500 0947). However, if the superintendent #mano detert%iii control over selection of those hired, and they are not considered employed and are not paid untii some action by the school board, relatives of the r\paintendent may be hired by the school district. Onthe other hand, b the extent the superintendent has been delegated authority under the district policy to hire or appoint without subsequent action by the school board he ls obvioraly exercish control in the selection process and may not hire hisrelatives. Letter Advisory NOS158,152tl978). We believe that the superintendent may recommend or forward a subordinate’s recommendation to the school board that his or the subordinate’s relative be hired. The board is not bound by that recommendation and unlike the facts of Letter AdvisoryNo. 156tl976), is not limited to those recommended bythe superintendent. Ifthe policy of the rhool ‘district requires the board of trustees to consider for employment only those persons recommended by the superintendent, we believe that Letter Adviswy No. 156 0978) would be applicable and would preclude the Wperintendent fromrecommendhq his relatives Whether his recommendation &es to the level of de facto control over the hirii as a matter of custom or practice in violation of the nepotism statute is in each ~caae afactual question whichwe cennot resolve inthe opinion procem. SUMMARY A school district may~employ 

### relativesofthe superintendent wh&e he exercises no control 

### over who b selected and does not himself appoint cr hire htsreiativea

MARK WHITE Attorney General of Texas JOHNW. FAINTER,JR Pint Assistant Attorney General TEDL. HARTLEY Executive Assistant Attorney General Preparedsu David B. Brooks Assistant Attorney General

p. 178Honarble M. L. Brockette - PageThree (M-56)

APPROVED: OPINION

COMMlTFEE taiFBsb Chairman

. waler Davis Btmn Garrison RickGilpin WilliamG Reid Bruce Youngblood



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