DAN MORALES 

ATTORNEY GENERAL 

QBffice of tfie lZlttornep @enera 

&ate of QLexae 

June 29,1992 

Mr. Lionel R. Meno 

Commissioner of Education 

Texas Education Agency 

1701 North Congress Avenue 

Austin, Texas 78701-1494 

Opinion No. DM-132 

Re: Interpretation of the prior continuous 

employment provision of the nepotism 

statute, V.T.C.S. article 5996a, section l(b), 

and related questions (RQ-268) 

Dear Commissioner Meno: 

You ask a number of questions about the Texas nepotism law, V.T.C.S. 

article 5996a, which prohibits school district officers and board members from 

voting for or confirming the employment of certain relatives’ of such officers and 

board members. 

Several of your questions relate to a particular set of facts. You describe a 

situation in which a man had been a school district employee for several years 

before 1990. In June of 1990 he was turned down for two different promotions. In 

March of 1991 he applied for another promotion, but a different person was 

selected for the position on March 12, 1991. Based on these three promotion 

denials, the employee filed three claims with the Equal Employment Opportunity 

Commission (EEOC) and an internal grievance with the school district. 

Subsequently, the employee has filed an action against the school district in federal 

court, alleging that the district illegally discriminated against him by not promoting 

him to the various promotions he sought. The federal lawsuit supersedes the 

employee’s EEOC and internal grievance claims. On May 4, 1991, the employee’s 

mother was elected to the school board. 

Your first question is whether the man could have retained a promotion 

made in June of 1990 in light of his mother’s election to the school board in May of 

‘The nepotism statok spccifkally prohibits school district offkrs and board members from 

voting for, or contirming the employment of any person related within the second degree by aftimity 

(marriage) or within the third degree by consanguinity (blood) to any office or board. Article 59!Xh, 

V.T.C.S., instructs how to calculate degrees of affinity and consanguinity. 

p. 680 
Mr. Lionel R. Meno - Page 2 (DM-132) 

1991. Under section l(b) of article 5996a, an employee related to a school board 

member may retain his position under certain circumstances: 

Nothing herein contained, nor in any other nepotism law 

contained in any charter or ordinance of any municipal 

corporation of this State, shah 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 the following period prior to the 

election or appointment, as applicable, of the officer or member 

related to such employee in the prohibited degree: 

(1) at least 30 days, if the officer or member is appointed; 

(2) at least six months, if the officer or member is elected at 

an election other than the general election for state and county 

officers; or 

(3) at least one year, if the officer or member is elected at 

the general election for state and county officers. 

In short, an employee may retain a position he assumed before his relative’s election 

or appointment as long as the employee has served in that position for the length of 

time required by section l(b). You advise that the mother of the employee in 

question was elected at an election other than the general election for state and 

county officers; accordingly, the six-month prior continuous service requirement set 

forth in section l(b)(2) applies to this, situation. The nepotism law thus would 

permit the employee to retain a position he had assumed in June of 1990. 

Your second question is whether the son could have retained a position he 

assumed in March of 1991. Because the son would not have held such a position for 

six months before his mother’s election, the nepotism law would prevent his 

continued employment in that position. 

Your third question is whether the board, with the mother serving as a 

member, may promote the son to a higher-paid position. Section l(c) of the 

nepotism law provides an answer to your question: 

When a person is allowed to continue in an office, position, 

clerkship, employment, or duty because of the operation of 

p. 681 
Mr. Lionel R. Meno - Page 3 (DM-132) 

Subsection (b) of this section, the Judge, Legislator, officer, or 

member of the governing body who is related to such person in 

the prohibited degree shall not participate in the deliberation or 

voting upon the appointment, reappointment, employment, 

confirmation, reemployment, change in status, compensation, or 

dismissal of such person, if such action applies only to such 

person and is not taken with respect to a bona fide class or 

category of employees. 

Thus, the board may appoint the son to a higher-paid position as long as his mother 

does not participate in the deliberation or voting. See Attorney General Opinion 

JM-1188 (1990) at 1-2. 

Your final question in regard to this particular set of facts is as follows: 

May a Texas school district compromise and settle a grievance, a 

complaint, or a lawsuit by hiring or promoting, or placing an 

employee in a position otherwise prohibited by the Texas 

nepotism statutes? In that regard, can the employee be awarded 

back pay or compensation as a part of a compromise and 

settlement when such pay or compensation is prohibited by the 

Texas nepotism statutes? 

We limit our answer to this question to the facts presented here. If the school board 

determines in good faith that the employee has a legitimate discrimination claim, 

the board can decide whether to settle the claim by agreeing to pay back wages. See 

Attorney General Opinion H-1186 (1978) at 3. Accordingly, if the board determines 

that the employee has a legitimate claim with respect to either of the two 

promotions for which he applied in June 1990, the board may agree to pay back 

wages for the period beginning at the time the employee would have taken the 

promotion to the present. If the board determines that the employee has a 

legitimate claim with respect to the promotion for which he applied in March 1991, 

on the other hand, the board may agree to pay back wages only for the period 

~beginning at the time the employee would have taken the promotion through the 

end of the pay period after his mother was elected to the school board.? Because of 

%e assume that this person is an at will employee and not a contract employee. Thus, we 

need not answer any question about the payment of back wages under a contract entered into before 

his mother became a trustee. See infix p, 7 (answering your seventh question, concerning at will and 

contract employees). 

p. 682 
Mr. Lionel R. Meno - Page 4 (DM-132) 

the compensatory nature of a back pay settlement, Annot. 21 AL.R. FED. 472, 485 

(1974) (awarding back pay under the Equal Employment Opportunities Act), the 

nepotism statute requires the employee’s mother to abstain from participating in the 

deliberation or voting on a back pay settlement. See V.T.C.S. art. 5996a, $ l(c). 

The school board also may agree, as part of a settlement, to promote the 

employee to either of the positions it refused him in June 1990. Such a promotion 

would be a prospective promotion. Pursuant to the nepotism statute, the 

employee’s mother cannot participate in the board’s deliberation and voting on the 

employee’s promotion. See id. 

The remaining questions you pose arise from various fact situations, all of 

which differ from the facts underlying the first four questions. Your fifth question is 

whether a school board employee may retain his position after he marries a relative 

of a board member and thereby establishes a relationship within the scope of the 

nepotism law. The nepotism law applies to relationships that arise during the 

course of an individual’s employment. Attorney General Opinions V-785 (1949); 

O-1408 (1939); Letter Opinion No. 89-53 (1989). The nepotism law does allow a 

governmental body to retain an employee related to a board member if the 

employee has sufficient prior continuous service. In the case of an individual 

related to a school board member, the individual must have been employed for six 

months before the election of the related board member. See V.T.C.S. art. 5996a, 

8 l(b)(2). Significantly, under the nepotism statute, prior continuous service is the 

time served before the board member’s election, not the time served before the 

marriage. See Bean v. State, 691 S.W.2d 773 (Tex. App.--El Paso 1985, writ refd); 

see also Attorney General Opinion DM-2 (1991) (explaining prior continuous 

service requirement). 

Your sixth question is whether the nepotism statute applies to campus 

principals since a campus principal exercises discretion over all appointments to his 

or her campus. Under section 13.352 of the Education Code, each public school’s 

principal shall “approve all teacher and staff appointments for that principal’s 

campus from a pool of applicants selected by the district or of applicants who meet 

the hiring requirements established by the district, based on criteria developed by 

the principal after informal consultation with the faculty.” Educ. Code 

5 13.352(d)(l). This office has construed section 13.352(d)(l) to authorize public 

school principals to approve all teacher and staff appointments on their campuses. 

See Attorney General Opinion DM-27 (1991). 

p. 683 
Mr. Lionel R. Meno - Page 5 (DM-132) 

You contend that section 13.352(d) of the Education Code “has vested a 

campus principal with powers of a public officer and the nepotism laws apply to the 

principal and those same laws continue to apply to the board members. [You also 

contend] that the governing board of a school district can hire a person related to a 

campus principal within a prohibited degree, but the person may not be hired to 

serve on the campus of the principal who is related to the applicant within the 

prohibited degree.” In the past, this office has concluded that a person with a role in 

the hiring process similar to that of a campus principal shares joint control over the 

hiring of personnel and therefore is an officer of the state subject to the nepotism 

law. See Attorney General Opinion MW-56 (1979); Letter Advisory No. 156 (1978). 

However, in 1981 the Eastland Court of Civil Appeals expressly overruled Attorney 

General Opinion MW-56, and we believe the court’s decision overrules as well the 

reasoning in Letter Advisory No. 156. See Pena v. Rio Grande City Consol. Indep. 

Sch. Dirt, 616 S.W.2d 658, 660 (Tex. Civ. App.--Eastland 1981, no writ). But c$ 

Attorney General Opinion JM-91 (1983). 

In Pena, the court considered whether the superintendent of an independent 

school district is an officer of the school district subject to the statutory prohibition 

against official nepotism. Pena, 616 S.W.2d at 658. The court found that under 

sections 23.26 and 23.28(a) of the Texas Education Code the board of trustees of an 

independent school district has the “exclusive right and sole legal authority to 

appoint or employ teachers,” despite the fact that the superintendent could 

recommend to the board teachers the board should appoint. Id.~ at 659. The Pena 

court pointed out, however, that the board need not follow the superintendent’s 

recommendations; furthermore, even if the board consistently follows the superintendent’s recommendations, the board’s exclusive authority cannot be abrogated or 

limited thereby. Id. Thus, relying on the indicia of public officers articulated in 

Aldine Independent School District v. Stand&v, 280 S.W.2d 578 (Tex. 1955),3 the Penn 

31n Aldine, the Supreme Court of Texas considered whether a school district tax assessorcollector that the board of trustees appointed was a public officer. 280 S.W.Zd at 580. The Aldine 

court stated that in determining whether a person is a public officer, the decisive factor is “‘whether any 

sovereign function of the government is conferred upon the individual to be exercised by him for the 

benefit of the public largely independent of the cor:~ol of otlwrs.“Id. ’ at 583 (quoting Durrbur v. Broria 

Counry, 224 S.W.2d 738,740 (Tex. Civ. App-Galveston 1949, wit refd)) (emphasis added by supreme 

coort). The court relied on several indicia of public office to determine that the tax assessor-collector 

was not independent of the board’s control, and thus was not an officer. Id. at 580-85. First, the board 

of trustees has the power to appoint its assessor-collector. Second, the assessor-collector had no futed 

term of office. Third, no constitutional or statutory provisions provide for the tax assessor-collector’s 

removal, rather, the board may remove the assessor-collector whenever it wishes (subject to the 

assessor-collector’s right to appeal to a higher authority). Fourth, the assessor-collector is not required 

to take an oath of oftice. Fifth, the board is authorized to determine the assessor-collector’s 

p. 684 
Mr. Lionel R. Meno - Page 6 (DM-132) 

court found that the superintendent did not act largely independent of the board’s 

control and therefore was an agent of the board, not a public officer, for purposes of 

the nepotism statute. 616 S.W.2d at 660. 

In our opinion, while each principal has authority to approve all teachers and 

staff personnel assigned to the school, he or she lacks authority to hire anyone. The 

principal-s authority is more like veto power. Hiring actually is done by the school 

board, which retains the power to appoint a pool of applicants, or to establish the 

hiring criteria. Additionally, despite section 13.352(d)(l)% grant of power to 

principals, nothing in the Education Code abrogates the school district’s board of 

trustees’ “exclusive power to manage and govern” public schools in the district, nor 

does any provision abrogate the board’s power to employ the principal at each 

campus. Educ. Code $5 23.26, 23.28(a). We believe that the principal is, therefore, 

not a public officer for purposes of the nepotism statutes. Accordingly, a principal 

may approve the appointment of a teacher or staff member to the principal’s 

campus even though the principal and appointee are related within a prohibited 

degree under the nepotism statute. The school board can prevent nepotism at the 

school level by refusing to send the principal the application of the principal’s 

relative. 

Your seventh question is whether a school board may delegate to the 

superintendent the authority to hire and dismiss employees. In Pena, the court held 

that pursuant to sections 23.26 and 23.28(a) of the Education Code a school 

district’s board of trustees alone has the right and legal authority to appoint or 

employ teachers. Pena, 616 S.W.2d at 659. Even though a board may permit the 

superintendent to recommend appointments of teachers, the board cannot delegate 

its authority to hire and dismiss employees. See id. Similarly, a board cannot avoid 

the burdens of the nepotism law by delegating to the superintendent the authority to 

recommend to the school board an applicant the superintendent believes should fill 

a position the school board has authorized. See Attorney General Opinions DM-2 

at 1; JM-1188 at 2. 

As a subpart of your seventh question, you ask whether, for purposes of the 

nepotism statute, contract employees differ from at will employees. In numerous 

opinions and letter advisories, this office has stated that contract employees who 

lose their positions because of the nepotism law may remain employed for the 

(footnote continued) 

qualitications. Sixth, and tinally, the assessor-collector’s compensarion is f&d by agreement between 

the board and the appointed assessor-collector. Id. 

p. 685 
Mr. Lionel R. Meno - Page 7 (DM-132) 

remainder of the employee’s contract term, while at will employees may remain 

employed only for the remainder of the pay period. Compare Attorney General 

Opinion V-785 at 5 (regarding contract employee) with Attorney General Opinion 

O-1408 (regarding at will employee); Letter Opinion No. 89-53 (same). 

Your eighth question is, in essence, whether the nepotism law applies to 

independent contractors. We recently answered this question in Attorney General 

Opinion DM-76 (1992), in which we stated that “the nepotism law applies whenever 

a governmental body hires a natural person, whether as an employee or as an 

independent contractor.” Attorney General Opinion DM-76 at 2-3. We reaffirm 

that conclusion here. 

SUMMARY 

The nepotism statute, V.T.C.S. article 5996a, permits an 

employee to retain a promotion he received over six months 

before his mother was elected to the school board of trustees, if 

she was elected at an election other than the general election for 

state and county officers. However, the employee could not 

retain a promotion he received less than six months before his 

mother was elected to the school board of trustees. The school 

board, with the employee’s mother as a member, could promote 

the employee to a higher paid position so Iong as the mother 

does not participate in the deliberation or voting on the 

promotion. 

A school district may settle a lawsuit by agreeing to pay back 

wages to an employee the district determines would have 

received a promotion but for the board’s discriminatory 

treatment, even though the employee’s mother presently sits on 

the board. The board only may pay back wages for the length of 

time the employee would have held the promotion; thus, if his 

mother’s election to the board would have resulted in his loss of 

the promotion, he can receive back wages only for that period of 

time that he actually would have held the promotion. The 

mother cannot participate in the board’s deliberations or voting 

on whether to settle by agreeing to pay back wages. 

A school board employee may retain his or her position 

after the employee marries a relative of a board member, 

p. 686 
Mr. Lionel R. Meno - Page 8 (DM-132) 

thereby coming within the scope of the nepotism statute, if the 

employee was continuously employed for six months before the 

election of the related board member. 

The nepotism statute does not apply to campus principals. 

Thus, a principal may approve an applicant within a prohibited 

degree of consanguinity or affinity to work at the principal’s 

campus; however, the board may not employ a person related to 

any board member within a prohibited degree of consanguinity 

or affinity. 

The nepotism law applies to independent contractors as well 

as employees. 

Very truly yours, 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Kymberly K. Oltrogge 

Assistant Attorney General 

p- 687