The Attorney General of 

September 12, 1979 

Texas 

md4 

+4 

. . . 

77 tr.e$#g J-IL- II 

Honorable M. L. Rrockette 

Commissioner of Education 

Texas Education Agency 

201 East Eleventh Street 

At&in, Texas 78701 

Opinion No. RW-56 

Re: Whether a school 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 a school district superintendent and hiring practices Of a 

school district. You lmve’asked under what condition8 a school district may 

hire ,the superintendentb relatives Who are within the degree9 Of kitWhip set 

forth in article 5996a; V.~.C.S. Your question has tien aa a result of 

better Advisory No. 156 (1978) in which it WM said the college district could 

not employ the president% relatives because the president of a junior 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 upon the 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 or within the third degree by eonsa@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. 177 
Honorable M. L. Brockette - PageTwo (Mw-56) 

For putposes of the nepotism statute we believe that the superintendent is an 

0ffiOeh See Educ. Code S 23.26. The arperintendent, therefore, may not ordbuuKy hire 

his kH Bee Attorney General Opinion R-500 0947). However, if the superintendent 

#ma no 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. On the 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 his relatives. Letter Advisory NOS 158,152 tl978). 

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 Advisory No. 

156 tl976), is not limited to those recommended by the superintendent. If the 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 from recommendhq 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 a factual question which we cennot resolve in the opinion procem. 

SUMMARY 

A school district may ~employ relatives of the superintendent wh&e 

he exercises no control over who b selected and does not himself 

appoint cr hire hts reiativea 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR 

Pint Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared su David B. Brooks 

Assistant Attorney General 

p. 178 
Honarble M. L. Brockette - Page Three (M-56) 

APPROVED: 

OPINION COMMlTFEE 

taiFBsb Chairman 

. 

waler Davis 

Btmn Garrison 

Rick Gilpin 

William G Reid 

Bruce Youngblood 

p. 179