February 24, 1987 

Honorable Hugh Parmer 

Chairman 

Intergovernmental Relations 

Committee 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. JM-636 

ue: Whether an individual may avoid 

application of the nepotism law to 

a relative by resigning from a 

position on the board of trustees of 

a school district and subsequently 

standing for re-election 

Dear Senator Parmer: 

You inquire about the application of the nepotism law, article 

5996a. V.T.C.S., to a particular case involving a teacher who is 

related to a school board member. An independent school district 

hired a teacher in August of 1985. The school board approved the 

teacher’s rehiring in March of 1986. In April, 1986. the teacher’s 

mother was elected to the school board. A mother and daughter are 

related within the first degree of consanguinity, Letter Advisory Nos. 

115 (1975); 67 (1973), a relattonship covered by the following 

prohibition of the nepotism act: 

No officer of this State . . . nor any officer 

or member of any State district, county, city, 

school district or other municipal board . . . 

shall appoint, or vote for, or confirm the 

appointment to any office, position, clerkship, 

employment or duty, of any person related within 

the second degree by affinity or within the third 

degree by consanguinity to the person so 

appointing or so voting, or to any other member of 

any such board . . . when the salary, fees, or 

compensation of such appointee is to be paid for, 

directly or indirectly. out of or from public 

funds or fees of office of any kind or character 

whatsoever. . . . 

V.T.C.S. art. 5996a. 

The teacher had not completed a year of service prior to the time 

her mother joined the board. Thus, she did not qualify for the 

exemption proviso set out in the nepotism law: 

p. 2877 
Honorable Hugh Parmer - Page 2 (JM-636) 

[Plrovlded, that nothing herein contained. nor in 

any other nepotism law contained in any charter or 

ordinance of any municipal corporation of this 

State, shall prevent the appointment. voting for, 

or confirmation of any person who shall have been 

continuously employed In any such office, 

position, clerkship, employment or duty for a 

period of one (1) year prior to the election or 

appointment of the officer or member appointing, 

voting for, or confirming the appointment, or to 

the election or appointment of the officer or 

member related to such employee in the prohibited 

degree. 

V.T.C.S. art. 5996a. The school board on which the teacher’s mother 

served could not renew the daughter’s teaching contract, but the 

teacher would be allowed to serve out her present contract. See, 

-, Attorney General Opinions MU-286 (1980); M-862 (1971); Letter 

Advisory No. 70 (1973). 

You ask whether the school board member may resign in February of 

1987 and file to run again in the April 4, 1987 election so that her 

daughter might continue to hold her job as teacher. The teacher’s 

contract would presumably be renewed during the time her mother was 

not on the board. 

As a preliminary matter, we will point out that the board member 

will continue to serve in a holdover capacity after her resignation 

until she is replaced by a successor. Article XVI, section 17. of the 

Texas Constitution provides as follows: 

All officers within this State shall continue 

to perform the duties of their offices until their 

successors shall be duly qualified. 

An officer’s resignation creates a legal vacancy which can be filled 

in the manner provided by law. See Attorney General Opinion M-659 

(1970). The officer, however, continues to serve and to have the 

duties and powers of office until a successor is qualified. Jones v. 

City of Jefferson, 1 S.W. 903 (Tex. 1886); Pyote Independent School 

District v. Estes. 390 S.W.Zd 3 (Tex. Civ. App. - El Paso 1965, writ 

ref’d n.r.e.). Thus, until the legal vacancy created by the school 

trustee’s resignation is filled by a successor, she will remain a 

member of the school board, and the board will be barred from 

reappointing the trustee’s daughter as a teacher. 

Assuming that the trustee resigns from the board and is replaced 

by a successor. we must consider whether her daughter may be hired for 

another school year in March of 1987. 

p. 2878 
Honorable gugh Parmer - Page 3 (JM-636) 

We believe the school board may reappoint the teacher In this 

case, if her mother has resigned from the board and has been replaced 

by a qualified successor. If no board member is related to the 

teacher in a prohibited degree, the plain language of article 5996a. 

V.T.C.S., would not bar her reappointment. We caution, however, 

against the practice of trading. V.T.C.S. art. 5996c. 

Your request letter also suggests that the teacher will be 

exempted from the nepotism act if her mothe.r is again elected to the 

school board. You reason that her year of service prior to her 

mother’s resumption of office in April, 1987, will constitute one year 

of prior continuous service within the exemption provision. We will 

next address this issue. 

We may look to the emergency clause of the bill in order to 

ascertain the legislative intent underlying the one-year requirement. 

Popham v. Patterson, 51 S.W.2d 680 (Tex. 1932); see also Attorney 

General Opinion V-1142 (1951). A 1949 amendment to the nepotism law 

added the exemption provision. Acts 1949, 51st Leg., ch. 126. at 227. 

The original exemption provision exempted persons who had been 

“continuously employed . . . for a period of two (2) years prior to 

the election or appointment of the officer” related to the employee 

within a prohibited degree. Id. Il. Article 5996a, V.T.C.S., has 

been amended twice since 1949.?ee Acts 1951, 52nd Leg., ch. 97, at 

159; Acts 1985, 69th Leg., chT152, at 683. The most recent 

amendment, adopted in 1985. reduced the required period of prior 

service from two years to one year and made other changes affecting 

the employment of persons who are exempted by the one year provision. 

Acts 1985, 69th Leg.. ch. 152, 91, at 683. The amendments subsequent 

to 1949 have not, however, changed the requirement that the employee 

have been continuously employed “prior” to his relative’s assumption 

of office. Thus, we may still look to the emergency clause of the 

1949 amendment for some indication of legislative intent. 

The emergency clause states in part: 

The fact that numerous employees of the State 

and Its agencies and subdivisions whose services 

are valuable to the State are required to give up 

such employment because members of their f,amily 

may be, from time to time, elected to offices in 

this State under whom such employees hold their 

employment, and the fact that persons who have 

continuously served the State prior to the 

election to some office of a relative should not 

be discharged for that reason alone, and the fact 

that the purpose of the nepotism law was not to 

oust such persons from legitimate employment by 

the State, create an emergency. . . . 

p. 2879 
Honorable Hugh Parmer - Page 4 (JM-636) 

Acts 1949, 51st Leg., ch. 126, 13. at 227. This clause recognizes the 

value of a public employee's services, particularly au employee who 

has served continuously for a designated period of time. The length 

of service provides a measure of the employee's value, in that it 

signifies some degree of job loyalty and job experience. 

The one year may also provide an opportunity for disinterested 

evaluation of the employee. Once the employee's relative becomes a 

board member, the other board mem@ers may hesitate to fire him because 

of his relationship to their fellow board member. A supervisor, 

answerable to the board, may be reluctant to give a negative 

evaluation to an employee related to a board member. During the one 

year of prior service, however. the employee may prove his merit, and 

the board may evaluate him. without being subject to such indirect 

influences as an actual nepotism relationship might cause. Cf. New 

-- 

Mexico State Board of Education v. Board of Education, 624 P.2d 530 

(N.M. 1981) (competency of tenured teacher was established years 

before family member was elected to school board). 

The legislature has decided to distinguish between employees who 

have completed one year of prior continuous service before their 

relative takes office and employees with less than one year of 

service. See, e.g., Bean v. State, 691 S.W.Zd 773 (Tex. App. - El 

Paso 1985. writ ref'd): Attorney General Oninion Nos. JP-371 (1985): 

MW-23 (1979); M-862 (1971). We cannot disregard the distinction which 

the legislature has enacted. We believe the legislature intended that 

public employees have a year of prior service free of a nepotism 

relationship. See, e.g., Attorney General Opinion M-862 (1971) (period 

of prior service starts when employee begins work, not when he signs 

contract). 

Therefore, ff the trustee in this case severs her connection with 

the school board in February of 1987 and rejoins the board in April of 

1987, her daughter will not have completed the one year of continuous 

service prior to the time her relative took office. Only if the 

trustee remains off the board for a full year will her daughter have 

an opportunity to complete the required year of prior service. 

SUMMARY 

The exemption provision of the nepotism law, 

article 5996a, V.T.C.S., requires the employee to 

complete one year of continuous service at a time 

that the employee's relative is not an officer 

with power to hire and fire the employee. 

Where a school trustee leaves office for two 

months and then resumes office, the trustee's 

relative has not completed one year of continuous 

p. 2880 
Honorable Hugh Parmer - Page 5 (JM-636) 

service prior to the time her relative takes 

office. Only if the trustee remains off the board 

for a full year till her daughter have an opportunity to complete the required year of prior 

service 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 2881