ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

August 13, 2013 

The Honorable Rene 0. Oliveira 

Chair, Committee on Business & Industry 

Texas House of Representatives 

Post Office Box 2910 

Austin, Texas 78768-2910 

Dear Representative Oliveira: 

Opinion No. GA-1016 

Re: Application of Government Code 

section 573.062, the nepotism continuousemployment exception, to a school district 

board member's spouse (RQ-1117-GA) 

You ask three questions concerning the application of Government Code section 573.062, 

the nepotism continuous-employment exception, to a school district board member's spouse. 1 

Chapter 573 of the Government Code generally prohibits nepotism by public officials, including 

members of a school district board of trustees. TEX. Gov'T CODE ANN. §§ 573.001-.084 (West 

2012). Under section 573.041, a "public official may not appoint, confirm the appointment of, or 

vote" to appoint or confirm the appointment of an individual to a position that is "compensated 

from public funds" if "the individual is related to the public official within" the third degree by 

consanguinity or within the second degree by affinity. 2 !d. § 573.041(1); see id. § 573.002 

1

Letter from Honorable Rene 0. Oliveira, Chair, House Comm. on Bus. & Indus., to Honorable Greg 

Abbott, Tex. Att'y Gen. at 3--4 (Mar. 28, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter"). 

2

Individuals are related by consanguinity if "one is a descendent of the other" or "they share a common 

ancestor." TEX. Gov'T CODE ANN. § 573.022(a) (West 2012). An individual's relatives within the third degree by 

consanguinity are the individual's (1) parent or child; (2) brother, sister, grandparent, or grandchild; and (3) greatgrandparent, great-grandchild, aunt or uncle, nephew or niece. !d. § 573.023(c). Individuals are related by affinity 

if "they are married to each other" or "the spouse of one of the individuals is related by consanguinity to the other 

individual." !d. § 573.024(a). "A husband and wife are related to each other in the first degree by affinity. For 

other relationships by affinity, the degree of relationship is the same as the degree of the underlying relationship by 

consanguinity." !d. § 573.025(a). For example, an individual's relatives within the second degree by affinity 

include, among others, the individual's (1) mother-in-Jaw, father-in-Jaw, son-in-law or daughter-in-law, and (2) 

brother-in-law or sister-in-Jaw. See id. 
Representative Rene 0. Oliveira - Page 2 (GA-1016) 

(establishing the degrees of relationship to which chapter 573 applies). Section 573.062 

establishes a continuous-employment exception to the general nepotism prohibition, providing: 

A nepotism prohibition prescribed by Section 573.041 ... does not 

apply to an appointment, confirmation of an appointment, or vote 

for an appointment or confirmation of an appointment of an 

individual to a position if: 

(1) the individual is employed in the pos1t10n immediately 

before the election or appointment of the public official to 

whom the individual is related in a prohibited degree; and 

(2) that prior employment of the individual is continuous for at 

least: 

(A) 30 days, if the public official is appointed; 

(B) six months, if the public official is elected at an election 

other than the general election for state and county 

officers; 

(C) one year, if the public official is elected at the general 

election for state and county officers. 

!d. § 573.062(a). Your questions ask about the application of this provlSlon m specific 

circumstances. Request Letter at 3. 

You first ask whether, under subsection 573.062(a)(2), the six-month or one-year time 

period applies when the public official is a trustee of a school district that "conducts joint 

elections with a county." !d. at 1, 3. You explain that many school districts hold their trustee 

elections jointly with the counties in which they are located. Request Letter at 2. You question 

whether the applicable period in the exception is the subsection (2)(C) one-year period because 

of the joint election. !d. 

Under subsection 573.062(a)(2)(C), in order for the one-year continuous-employment 

period to apply, the public official must be "elected at the general election for state and county 

officers." TEX. Gov'T CoDE ANN. § 573.062(a)(2)(C) (West 2012). Some school districts may 

choose to hold their elections on the same date as the general election for state and county 

officers. See TEX. EDuc. CODE ANN. § 11.0581(a)(2) (West 2012) (requiring a school district 

trustee election to be held on the same date as at least one other specified governmental body). 

However, doing so does not change the independent nature of the school district trustee election. 

Cf TEX. ELEC. CoDE ANN. § 271.0071 (West 2003) (explaining that restrictions on methods of 

voting do not "apply to a joint election as if the joint election were a single election but rather 

apply independently to the election of each participating political subdivision"). School district 

trustees are neither state nor county officers, and they are therefore elected "at an election other 

than the general election for state and county officers." TEX. Gov'T CODE ANN. § 
Representative Rene 0. Oliveira - Page 3 (GA-1016) 

573.062(a)(2)(B) (West 2012). To conclude otherwise would result in some school districts 

using a six-month period and others using a one-year period to calculate continuous employment, 

depending solely upon when the school districts choose to hold their elections. Nothing in the 

language of the statute suggests that the Legislature intended to distinguish between school 

districts in this regard. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 

2009) (explaining that the purpose of statutory construction is to "ascertain and give effect to the 

Legislature's intent"). Thus, the six-month continuous-employment period under subsection 

(2)(B) applies to an employee of a school district that conducts a joint election with a county. 

Your second question asks, "What is the starting date for calculating the continuousemployment nepotism exception?" Request Letter at 4. You explain that an employee may sign 

a contract with a school district weeks or months before the employee "reports for duty," and 

you question "which of the two events would be the controlling date for purposes of analyzing" 

whether the continuous-employment exception applies. !d. at 2. Subsection 573.062 requires 

that the individual seeking the continuous-employment exception be "employed" for the 

requisite period in order for the exception to apply. TEX. Gov'T CoDE ANN. § 573.062(a)(1) 

(West 2012). The day an employment contract is signed or approved may not necessarily equate 

to the first day of employment. See Tex. Att'y Gen. Op. No. M-862 (1971) at 2 (concluding that 

a person who had been "contracted for two or more years" but had "continuously performed 

services for a period of less than two years" was not exempt from the nepotism provisions). 

When employment officially begins for an individual will depend on the specific circumstances 

of a school district, the employee, and the terms of the underlying employment contract. That is 

a determination best made by the school district in the first instance. We can, however, advise 

that the starting date for calculating the continuous-employment exception is the first day the 

employee "is employed" by the school district. !d. 

Your third question asks, "What is the date for calculating the end of the period for the 

continuous employment nepotism exception?" Request Letter at 4. You suggest that it could be 

the "qualification of the elected official, presumably by taking the qualifying oath of office," or, 

alternatively, "the date upon which the [elected official] would be first called upon to consider an 

extension" of the individual's employment contract. !d. at 2. In Bean v. State, a Texas court 

addressed this question as applied to a judge who had appointed his uncle to represent indigent 

defendants. 691 S.W.2d 773, 775 (Tex. App.-El Paso 1985, pet. refd). The court concluded 

that the judge was erroneously utilizing the date ofhis uncle's employment as an end date for the 

continuous-employment period and held that the critical date was instead the date the district 

judge "assumed his office." !d.; see also Tex. Att'y Gen. Op. No. M-857 (1971) at 2-5 (opining 

. that a teacher may enter into a renewal contract with a school district after a relative trustee's 

election but before his qualification and taking the oath of office). Applying this precedent to 

your question, the date for calculating the end of the period for the continuous-employment 

nepotism exception is the date the elected public official assumes office. 
Representative Rene 0. Oliveira - Page 4 (GA-1016) 

SUMMARY 

Government Code subsection 573.062(a)(2)(B) requires 

that an individual be continuously employed for six months prior 

to the election of a school district trustee to whom the individual is 

related in a prohibited degree in order for the nepotism continuousemployment exception to apply. Under the terms of the statute, the 

continuous-employment period begins the first day the employee is 

employed by the school district. The continuous-employment 

period ends the date the public official to whom the employee is 

related in a prohibited degree assumes office. 

DANIEL T. HODGE 

First Assistant Attorney General 

JAMES D. BLACKLOCK 

Deputy Attorney General for Legal Counsel 

VIRGINIA K. HOELSCHER 

Chair, Opinion Committee 

Virginia K. Hoelscher 

Very truly yours, 

BOTT 

Assistant Attorney General, Opinion Committee