i_ OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

December 17,200l 

The Honorable Jim Solis Opinion No. JC-0442 

Chair, Committee on Economic Development 

Texas House of Representatives Re: Whether a teacher who retires from 

P.O. Box 2910 employment with a school district and later wishes 

Austin, Texas 78768-2910 to return to full-time employment as a certified 

teacher with the school district, qualifies for the 

continuous-employment exception to the statutory 

prohibition on nepotistic hiring by a school district, 

see TEX. GOV’T CODE ANN. $5 573.041, .062 

(Vernon 1994) (RQ-0413-JC) 

Dear Representative Solis: 

A public official generally may not appoint or vote to appoint an individual to a position that 

is to be paid with public funds if the official or another member of the governmental entity’s 

governing board is related to the individual within the third degree by consanguinity or within the 

second degree by affinity, with some exceptions. See TEX. GOV’T CODE ANN. 0 573.041 (Vernon 

1994); see also id. 8 573.002 (“Degrees of Relationship”). This prohibition does not apply, however, 

to the “appointment or employment of a substitute teacher by a school district.” Id. 8 573.061(6) 

(Vernon Supp. 2001). In addition, the prohibition may not apply to an individual who is “employed 

in the position immediately before the election or appointment of the public official to whom the 

individual is related in a prohibited degree” and who has been so employed for a certain period of 

time. See id. 4 573.062 (Vernon 1994). You indicate that a teacher who retired from the Pharr-San 

Juan Alamo School District to take advantage of a Teachers’ Retirement System incentive program 

would like to return to a full-time teaching position.’ But because she is related to a member of the 

school board, the school district has refused to let her return to the position; rather, she is substitute 

teaching in the same position. See Request Letter, supra note 1. You ask whether the prohibition 

on nepotistic hiring bars her from being appointed to a full-time teaching position. See id. We 

conclude that it does. 

Under the anti-nepotism statutes, a school board generally may not appoint an individual to 

a position that is compensated from public funds if the individual is related to a board member 

‘Letter from Honorable Jim Solis, Chair, Committee on Economic Development, Texas House of 

Representatives, to Honorable John Comyn, Texas Attorney General (Aug. 13,200l) (on file with Opinion Committee) 

[hereinafter Request Letter]. 
The Honorable Jim Solis - Page 2 (JC-0442) 

within the third degree by consanguinity or within the second degree by affinity. See TEX. GOV’T 

CODE ANN. 5 5 573.002, .041 (Vernon 1994). You have asked us about an individual whose brotherin-law, whom we understand to be her husband’s brother, sits on the school board. The sibling of an 

individual’s spouse is related to the individual within the second degree by affinity. See id. 

$9 573.024, .025 (Vernon 1994 & Supp. 2001). 

Two exceptions to this general statutory prohibition allow a school board to hire the close 

relative of a member of the governing body in certain circumstances. First, section 573.06 1 excepts 

the appointment or employment of a substitute teacher by a school district. See id. tj 573.061(6) 

(Vernon Supp. 200 1). We understand that the school district has provided the individual in question 

here with a substitute position under this exception, but she wishes to be a permanent, full-time, 

certified teacher, see Tex. Att’y Gen. Op. No. JC-0185 (2000) at 2 (distinguishing between 

permanent substitute, certified teacher employed by contract, and substitute teacher). Because you 

inquire only about the retiree’s eligibility for a full-time certified teaching position, we do not 

address the application of the substitute-teacher exception. 

Second, section 573.062 excepts the appointment or employment of an employee who has 

been continuously employed in a particular position for six months before the public official to 

whom the individual is related was elected. See TEX. GOV’T CODE ANN. 9 573.062(a)(l), (2)(B) 

(Vernon 1994). An individual who has been continuously employed in that position for the requisite 

duration may not only retain his or her position but may be the subject of an action affecting the 

employment, such as a promotion or raise, if “the public official to whom the individual is related 

in a prohibited degree” does not participate in any discussion or vote regarding the individual’s 

status, unless the decision concerns “a bona fide class or category of employees.” Id. 8 573.062(b). 

“Continuous” employment denotes employment “[ulninterrupted in time . . . ; connected; unbroken.” 

III OXFORD ENGLISH DICTIONARY 830 (2d ed. 1989); see TEX. GOV’T CODE ANN. 8 3 11 .Ol l(a) 

(Vernon 1998) (requiring that statutory words and phrases be construed consistently with common 

usage). See generally Tex. Att’y Gen. Op. No. JC-0185 (2000) at 3-4 (discussing nature of 

“continuous employment” with respect to teaching positions). Whether in any particular situation 

a teacher has an ongoing, uninterrupted employment relationship with a school district is generally 

a fact question that cannot be resolved in the opinion process. See, e.g., Tex. Att’y Gen. Op. Nos. 

JC-0032 (1999) at 4 (stating that question of fact is beyond purview of this office); JC-0027 (1999) 

at 3 (stating the questions of fact cannot be addressed in attorney general opinion); JC-0020 (1999) 

at 2 (stating that investigation and resolution of fact questions cannot be done in opinion process). 

The issue here is whether, by her retirement, the teacher broke her employment relationship with the 

school district as a matter of law, thereby disqualifying her for the continuous-employment 

exception. 

We conclude that the teacher may not be restored to her former position under the 

continuous-employment exception to the anti-nepotism statute. Retirement broke the teacher’s 

employment relationship with the school district as a matter of law. Retirement typically is a means 

by which an individual voluntarily terminates “one’s own employment . . . , especially upon reaching 

a certain age.” BLACK’S LAW DICTIONARY 13 17 (7th ed. 1999); see also XIII OXFORD ENGLISH 
The Honorable Jim Solis - Page 3 (JC-0442) 

DICTIONARY 782 sense 2 (2d ed. 1989) (defining “retire” as “to give up one’s business or 

occupation . . . to enjoy more leisure or freedom (esp. after having . . . earned a pension)).” For 

purposes of the Teacher Retirement System, “retirement” is a “withdrawal from service with a 

retirement benefit granted under this subtitle.” TEX. GOV’T CODE ANN. 8 821.001(13) (Vernon 

Supp. 2001). A Teacher Retirement System member’s retirement is not effective until the member’s 

employment ends. See id. 8 824.002(a)(3). Moreover, if the retired member returns to employment 

with the public school system within two months of the effective retirement date, the retirement 

is revoked. See id. 8 824.005(b). And, if a member had a contract for future employment in a 

public school when the member attempted to retire, the member’s retirement is not effective. See 

id. 5 824.002(c). See generaZZy Letter from Conni Brennan, General Counsel, Teacher Retirement 

System of Texas, to Susan D. Gusky, Chair, Opinion Committee, Office of the Attorney General 

(Oct. 19,200l) (on file with Opinion Committee). We have been provided no information that these 

retirement requirements were waived in this particular case. 
The Honorable Jim Solis - Page 4 (JC-0442) 

SUMMARY 

A teacher who has retired from a full-time, certified teacher 

position has broken his or her employment with the school district 

and does not qualify for the continuous-employment exception to the 

statutory prohibition on nepotistic hiring by the school district. See 

TEX. GOV’T CODE ANN. $8 573.041, .062 (Vernon 1994). 

Attorney General of Texas 

HOWARD G. BALDWIN, JR. 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Kymberly K. Oltrogge 

Assistant Attorney General, Opinion Committee