ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

March 15,2006 

The Honorable Carlos Valdez 

District Attorney 

105th Judicial District 

Nueces County Courthouse 

901 Leopard, Room 206 

Corpus Christi, Texas 7840 1-368 1 

Opinion No. GA-04 15 

Re: Whether the nepotism statute applies to a 

junior college district’s employment of a person 

related to a member of the district’s board of 

regents (RQ-0401 -GA) 

Dear Mr. Valdez: 

You ask whether the nepotism statute, Government Code chapter 573, prohibits Del Mar 

College (“the college”), a two-year institution of higher education in Corpus Christi, from hiring an 

adjunct instructor who is related within a prohibited degree to a member of the College Board of 

Regents (the “board”).’ The college is governed by Education Code chapter 130, which applies to 

junior college districts. See Request Letter, supra note 1, at 3; see also TEX. EDUC. CODE ANN. ch. 

130 (Vernon 2002 & Supp. 2005). 

The nepotism statute prohibits public officials from employing individuals who are related 

to them within a certain degree of affinity or consanguinity. It provides in part: 

A public official may not appoint, confirm the appointment of, 

or vote for the appointment or confirmation of the appointment of an 

individual to a position that is to be directly or indirectly compensated 

from public funds or fees of office if: 

(1) the individual is related to the public official within 

a degree described by Section 573.002; or 

(2) the public official holds the appointment or 

confirmation authority as a member of a state or local board, the 

legislature, or a court and the individual is related to another member 

‘Letter from Honorable Carlos Valdez, District Attorney, 105th Judicial District, to Honorable Greg Abbott, 

Attorney General of Texas (Oct. 4,2005) (on file with the Opinion Committee, also available at http:llwww.oag.state 

.tx.us) [hereinafter Request Letter]. 
The Honorable Carlos Valdez - Page 2 (GA-041 5) 

of that board, legislature, or court within a degree described by 

Section 573.002. 

TEX. GOV’T CODE ANN. 9 573.041 (Vernon 2004); see also id $573.002 (degrees of relationship 

by affinity or consanguinity subject to chapter 573). Section 573.041 prohibits an individual public 

official from employing a relative within a degree described by Government Code section 573.002, 

and it prohibits all board members from employing an individual related to any board member within 

such prohibited degree. An individual who violates this provision is subject to removal and a charge 

of committing an offense involving official misconduct. See id. $0 573.081, .084. 

You state that the adjunct instructor is related within a prohibited degree to a member of the 

college board, but you argue that the board does not “appoint, confirm the appointment of, or vote 

for the appointment or confirmation of the appointment” of an adjunct instructor because the college 

president exercises that authority. Id. 5 573.041. A board policy states that the board has delegated 

full power and authority to the president “to manage, control, and operate the college, except to the 

extent that such authority is required by law to be reserved to the Board,” including authority to 

“employ faculty and all other employees of the district.” DEL MAR COLLEGE, MANUAL OF POLICIES 

AND PROCEDURES, ModiJied to show only Board of Regents directed policies, ch. II, B2.3.1, 

B2.3.1.12 (updated July 7,2004), available at http://www.delmar.edu/policymanual/boardpolicy/. 

You maintain that “the only person to whom the nepotism statutes apply in the normal course of 

board action would be the president of the college, who is responsible for employing faculty and 

other employees.” Request Letter, supra note 1, at 2. 

Education Code section 130.082 vests employment authority in the board. It provides in part 

that: 

Said board shall be authorized to appoint or employ such agents, 

employees, and officials as deemed necessary or advisable to carry 

out any power, duty, or function of said board; and to employ a 

president, dean, or other administrative officer, and upon the 

president’s recommendation to employ faculty and other employees 

of the junior college. 

TEX. EDUC. CODE ANN. 0 130.082(d) (Vernon 2002). 

Section 130.082(d), read in connection with the decision in Pena v. Rio Grande City 

Consolidated Independent School District, answers your question. See Pena v. Rio Grande City 

Consol. Indep. Sch. Disk, 616 S.W.2d 658 (Tex. Civ. App.-Eastland 198 1, no writ). In Pena, the 

school district superintendent’s wife had been employed by the school district, and at issue was 

whether the superintendent was a school district official subject to the nepotism prohibition. See 

Pena, 6 16 S. W .2d 658, The court noted that the trustees had exclusive statutory authority to manage 

and govern the school and to employ teachers and administrators. It continued as follows: 
The Honorable Carlos Valdez - Page 3 (GA-0415) 

We think it is apparent from the above quoted sections of the 

Texas Education Code2 that the board of trustees has the exclusive 

right and sole legal authority to appoint or employ teachers . . . . A 

superintendent’s recommendation to the school board concerning the 

appointment of teachers, even when consistently followed, cannot 

abrogate or limit the exclusive authority granted by statute to the 

board of trustees. 

Pena, 616 S. W.2d at 659. Moreover, “[a] superintendent is merely an employee or agent of the 

school board, and is not an ‘officer”’ under the nepotism provisions. Id. The superintendent “merely 

performs functions delegated to him by the trustees who do not by such delegation abdicate their 

statutory authority or control.” Id. at 660. 

Pena establishes generally that the nepotism statute applies to the officials with final statutory 

authority over employment decisions. As stated in Pena, the nepotism law applies to a “public 

official,” defined to include “an officer or member of a board of this state or of a district, county, 

municipality, school district, or other political subdivision of this state.” TEX. GOV’T CODE ANN. 

$573.00 1(3)(B) (Vernon 2004). A member of a junior college board of trustees holds a public office 

and is thus a “public official” within the nepotism law. See TEX. EDUC. CODE ANN. 8 130.082(e) 

(Vernon 2002) (election of board members to six year term); 130.084 (junior college district board 

shall be governed by law governing independent school districts to the extent applicable); see also 

Tex. Att’y Gen. LO-92-43 (junior college trustees are subject to the nepotism law). 

In contrast to the junior college trustees, the president is an employee or agent of the board 

and not a “public official” within the nepotism law. See Tex. Att’y Gen. LO-92-43. Like the 

superintendent in Pena, the junior college president has no statutory authority to hire faculty or other 

employees absent board approval. Section 130.082(d) vests authority to employ faculty and other 

employees in the board. See TEX. EDUC. CODE ANN. $ 130.082(d) (Vernon 2002). The board 

members’ delegation of employment authority to the college president does not “abdicate their 

statutory authority or control.” See Pena, 616 S.W.2d at 660; Tex. Att’y Gen. Op. No. GA-0073 

(2003) at 3 (because a university board of regents has exclusive hiring authority, the board members 

are public officials subject to the nepotism statute); DM-2 (1991) at 1 (applicability of the nepotism 

law depends on whether the officer may exercise control over hiring decisions); see also Tex. Att’y 

Gen. Op. No. GA-0123 (2003) at 4 (nepotism provisions do not apply to school board that has 

2Pena cited Education Code sections 23.26(b) and 23.28(a), which were adopted in 1969 and repealed in 1995. 

See Act of June 2, 1969, 61st Leg., R.S., ch. 889, Q 23.28, 1969 Tex. Gen. Laws 2735, 2954 (adopting the Texas 

Education Code). See also Act of May 27, 1995,74th Leg., R.S., ch. 260, 5 58(a)(l), 1995 Tex. Gen. Laws 2207,2498 

(repealing Education Code chapters 1 through 3 1 and 36). Section 23.26(b) was reenacted as Education Code section 

1 I. 15 l(b) and section 23.28 was revised and reenacted in part as section 11.20 l(b). See Act of May 27, 1995, supva, 

3 1, 1995 Tex. Gen. Laws 2207,2227,2230. 

‘Because of changes in the Education Code since Pena was handed down, its reasoning and conclusion no 

longer apply in all school districts. See generally Tex. Att’y Gen. Op. No. GA-0123 (2003). 
The Honorable Carlos Valdez - Page 4 (GA-0415) 

delegated final hiring authority to superintendent pursuant to express statutory authority). Although 

the board may not actually vote on employing the adjunct instructor, the nepotism statute applies as 

if it does. 

Because the legislature has vested in the Board of Del Mar College final authority to employ 

faculty members and other employees, the state nepotism law prohibits the board from hiring as an 

adjunct instructor an individual related to a board member within a prohibited degree. See TEX. 

GOV’T CODE ANN. $573.041 (Vernon 2004). 
The Honorable Carlos Valdez - Page 5 (GA-0415) 

SUMMARY 

A nepotism provision, Government Code section 573.041, 

prohibits Del Mar College from employing an adjunct instructor who 

is related within a prohibited degree to a member of the college 

district’s Board of Regents. The board’s delegation of employment 

authority to the college president does not insulate the board from the 

application of the nepotism law. 

Attorn&%neral of Texas 

BARRY R. MCBEE 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee