ATTORNEY GENERAL OF TEXAS GREG ABBOTT



### August 13, 2013

TheHonorable Rene 

### 0. Oliveira Chair, Committee onBusiness & 

### Industry Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768-2910

DearRepresentative Oliveira: OpinionNo. GA-1016 Re: Application of Government Code section 573.062, the nepotism continuousemployment exception, to a school district boardmember's spouse (RQ-1117-GA)

You askthree questions concerningthe application ofGovernment Code section 573.062, the nepotism continuous-employment exception, to a school district board member's spouse. 1 

### Chapter 573 ofthe Government Code generally prohibits nepotism by public officials, including members ofa school district board oftrustees. TEX. Gov'TCODE ANN. §§ 573.001-.084 (West 2012). Under section 573.041, a "public official may not appoint, confirmthe appointment of, or vote" to appoint or confirm the appointment ofan 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").

2Individuals are related by consanguinity if "one is a descendent ofthe other" or "they share a common ancestor." TEX. Gov'TCODE 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 ofone ofthe 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 otherrelationships by affinity, the degree ofrelationship is the same as the degree ofthe 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-employmentexceptionto thegeneral nepotismprohibition, providing: A nepotismprohibitionprescribedby Section 573.041

...does not apply to an appointment, confirmation ofan appointment, or vote for an appointment or confirmation of an appointment of an individual to apositionif: (1) the individual is employed in the pos1t10n immediately before the election or appointment of the public official to whomthe individual is related in aprohibiteddegree; and (2) thatprior employment ofthe individual is continuous for at least: (A) 30 days, ifthepublic official is appointed; (B) sixmonths, ifthepublic official is elected at an election other than the general election for state and county officers; (C)one year, ifthe public official is elected at the general electionfor state andcountyofficers. 

### !d. § 573.062(a). Your questions ask about the application of this provlSlon m specific circumstances. RequestLetter 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 electionsjointly 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 ofthejointelection. 

### !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'TCoDE 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 notchange the independent nature ofthe school districttrustee election. 

### CfTEX. ELEC. CoDE ANN. 

### § 271.0071 (West 2003) (explaining that restrictions on methods of voting do not "apply to ajoint election as ifthejoint election were a single election but rather apply independently to the election ofeach 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. §RepresentativeRene 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-monthperiod and othersusing a one-yearperiodto 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 GulfStates, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (explainingthatthe purpose ofstatutory construction is to "ascertain and give effectto the Legislature's intent"). Thus, the six-month continuous-employment period under subsection (2)(B) appliesto an employee ofa school districtthatconducts ajointelectionwith a county. Your second question asks, "What is the starting date for calculating the continuousemploymentnepotism exception?" Request Letter at4. You explainthat an employee may sign a contract with a school district weeks or months before the employee "reports for duty," and you question "which ofthe two events would be the controlling date for purposes ofanalyzing" 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 contractis signed or approved may not necessarily equate to the first day ofemployment. 

### See Tex. Att'yGen. 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 onthe specific circumstances ofa school district, the employee, and the terms ofthe 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 "isemployed"by the school district. 

### !d. Your third question asks, "What is the date for calculating the end ofthe period for the continuous employmentnepotism exception?" Request Letter at 4. You suggestthat it couldbe the "qualification ofthe elected official, presumably by taking the qualifying oath ofoffice," or, alternatively, "thedate uponwhichthe [electedofficial] would be first calleduponto consider an extension" ofthe individual's employment contract. 

### !d. at 2. In 

### Bean v. State, a Texas court addressed this question as applied to ajudge 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 thatthejudge was erroneously utilizingthe date ofhisuncle's employmentas anend date for the continuous-employment period and held that the critical date was instead the date the district judge "assumedhis 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 ofoffice). Applying this precedent to your question, the date for calculating the end of the period for the continuous-employment nepotism exceptionis the date the electedpublic 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 ofa school district trustee to whom the individual is related in aprohibited degree in order for the nepotism continuousemploymentexceptionto apply. Undertheterms ofthe statute, the continuous-employmentperiodbeginsthe 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 inaprohibited degree assumes office.

DANIEL T. HODGE First AssistantAttorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel VIRGINIA K. 

### HOELSCHER Chair, Opinion Committee Virginia K. 

### Hoelscher Very truly yours,

BOTT

AssistantAttorney General, Opinion Committee