The Attorney General of Texas 

July 25, 1983 

JIM MATTOX 

Attorney General 

S”preme Co”r! Building 

P, 0. BOX 12548 

A”S11”. TX. 78711- 2548 

5,2,475-2501 

Teiex 9101674~1367 

Telecopier 5121475-0266 

1607 Main St.. suite 1400 

Dallas. TX~ 75201-4709 

2141742-8944 

4824 Alberta Ave.. Suite 160 

E, Paso. TX. 79905.2793 

9151533.3484 

806 Broadway. Sutfe 312 

Lubbock. TX, 79401-3479 

8061747-5238 

4309 N. Tenth. swte 8 

McAllen. TX. 78501.1685 

5121682-4547 

200 Main Plaza. suite 400 

San Anlonm TX~ 782052797 

5121225-4191 

A” Equal Opporlullltyl 

Afllrmafive AC,,O” Empluyer 

Honorable Bob Bush 

Chairman 

Committee on Judiciary 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Opinion No. JM-45 

Re: Whether an outside auditor 

who contracts to perform for a 

school district is subject to 

article 5996a, V.T.C.S., the 

nepotism statute 

Dear Representative Bush: 

You have requested a construction of article 5996a. V.T.C.S., 

which deals with "nepotism." The facts are as follows: in April, 

1982, an individual was elected as a trustee of an independent school 

district. This trustee is a first cousin of a certified public 

accountant (CPA) who serves as the school district's auditor. 

Accordfng to a letter from the superintendent of this school district, 

this CPA "was first awarded a contract to perform the School 

District's annual audit in 1972 and he has served continuously in this 

capacity for the past eleven (11) years." This letter also states 

that the trustee has no financial interest in the audit firm in which 

the CPA is employed. 

Article 5996a provides in part: 

No officer. . . any. . . school district. . . 

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 c"nsang"inity to the person so 

appointing or so voting, or to any other member of 

any such board. . . of which such person so 

appointing or voting may be a member, when the 

salary, fees, "t 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; provided, that nothing 

herein contained. . . shall prevent the 

appointment, voting for, or confirmation of any 

person who shall have been continuously employed 

in any such office, position, clerkship, 

p. 196 
Honorable Bob Bush - Page 2 (JM-45) 

employment or duty for a period of two (2) years 

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. (Emphasis 

added). 

You have asked whether, in the situation outlined above, any violation 

of article 5996a has occurred. We assume that the CPA in question is 

currently serving as the school district’s auditor. 

In the aforementioned letter, the superintendent indicated that 

one of his concerns is whether, under article 5996a, it makes any 

difference that the CPA is an “independent contractor” rather than an 

“employee” of the school district. We think not. In our opinion, the 

legislature, in enacting this statute, chose the extremely 

comprehensive words “office, position, clerkship, employment or duty” 

in an effort to cover every conceivable situation in which a 

governmental body might hire someone to perform some service for it. 

It sought, in other words, to make it clear that nepotism questions 

should not turn on technical distinctions between “employee” and 

“independent contractor”; instead, the relevant question should be 

whether the governmental body employed the individual in question to 

perform some service for it. Thus, even assuming arguendo that this 

CPA is an independent contractor, this employment situation is covered 

by article 5996a, because the CPA (1) is related to a school trustee 

within the prohibited degree; (2) was hired, i.e., “appointed” by a 

school board containing this trustee to perform a service for the 

school district; and (3) occupies a “position” or “employment” or is 

performing a “duty” for the district within the meaning of this 

statute. 

Recause this employment relationship is governed by article 

5996a, the CPA may, while his relative is serving on the school board, 

continue to be hired by that school board to perform as the school 

district’s auditor only if the two-years’ continuous employment 

proviso in article 5996a is applicable. He may be reemployed, in 

other words, only if he was “continuously employed” by the school 

district for two years prior to the date on which his first cousin 

officially became a school trustee. See Attorney General Opinion 

- 

M-857 (1971). 

In his letter, the superintendent advises that the CPA conducts 

the annual audit for the school district. We have been unable to 

locate a prior opinion dealing wf,th a situation quite like this one, 

in which the question is whether the “continuous employment” proviso 

can apply where sn individual is hired to perform a service during one 

portion of each year rather than throughout the entire year. We 

p. 197 
Honorable Bob Bush - Page 3 (JM-45) 

conclude, however, that the proviso applies in this instance if, 

during the two years immediately preceding the qualification of the 

CPA’s first cousin as a trustee, the CPA was continously in the employ 

of the school district as its auditor, regardless of whether he was 

actually rendering auditing services for the district. 

Webster’s New International Dictionary, 2nd Edition, defines 

“continuous” as “without break, cessation, or interruption; without 

intervening space or time.” In Attorney General Letter Advisory No. 

151 (1978)) which concluded that the express refusal by a school 

district to rehire a teacher’s aide before her current term of 

employment ended constituted a break in her employment for purposes of 

the two-year proviso, this office quoted the following statement from 

Cox v. Brown, 50 S.W.2d 763, 764 (MO. App. 1932): 

Continuously in. . . employ does not mean 

continuously in. . . service. To be employed in 

anything means not only the act of doing it, but 

also to be engaged to do it, or to be under 

contract or orders to do it. 

These authorities establish that an individual who performs 

services on a seasonal or periodic basis may be protected by the 

two-years’ continuous service proviso. For the proviso to apply, 

however, the individual must have been “employed” by, &, “engaged” 

by or operating under a contract with, the governmental entity that 

hired him for the entire two years immediately preceding the election 

or appointment of his relative (within the prohibited degree) to the 

governing board of that entity. 

If, during the entire 730 days immediately preceding the 

qualification of his first cousin as trustee, this CPA was 

continuously under contract with the school district to perform 

auditing services for it, we believe that no violation of article 

5996a occurred when the school board thereafter continued to reemploy 

him as its auditor. The fact that the auditor was hired to perform a 

periodic service does not mean that he cannot be deemed to have been 

“continuously employed” by the school district as its auditor for that 

two-year period. Of course, the question of whether the CPA was 

employed by the school district for the required two year period is a 

fact question which cannot be resolved in the opinion process. 

SUMMARY 

No viol~ation of article 5996a. V.T.C.S., 

occurred where a CPA who had served as the school 

district’s auditor since 1972 was reemployed in 

that capacity after his first cousin was elected 

to the school board, if the CPA was “continuously 

p. 198 
honorable Bob Bush - Page 4 (33-45) 

employed" by the school district as its auditor 

for two consecutive years prior to the election of 

his cousin as trustee. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Acting Chairman 

Jon Bible 

David Brooks 

Colin Carl 

Jim Moellinger 

Nancy Sutton 

Bruce Youngblood 

p. 199