Honorable Tom O'Connell Opinion Wo. JR-861 

Criminal District Attorney 

Collin County Courthouse Re: Whether employment as a 

McKinney, Texas 75069 substitute teacher constitutes continuous employment 

under the nepotism statute, 

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

(RQ-1261). 

Dear Hr. O'Connell: 

you ask about the application of the nepotism law to 

a specific situation. You explain that a teacher was 

employed full-time for the school years 1978-1979, 

1979-1980 and 1981-1982. The teacher resigned in the 

spring of 1982 and her name was placed on the substitute 

list. She served intermittently as a substitute teacher 

until January of 1987 and then worked as a part-time 

teacher for the remainder of the school year. In 

September, 1987, she began work as a full-time teacher and 

continues in that capacity. The teacher's spouse was 

elected to the school board of trustees in April, 1904, 

and continues to serve on that board. 

The question is whether the teachergs service as a 

substitute satisfies the continuous employment exception 

to the general prohibition of nepotism found in article 

5996a, V.T.C.S. 

At the time that the spouse was elected to the school 

board, article 5996a read as follows:1 

No officer of . . . any . . . school district . . . shall appoint, or vote for, or 

Under a 1987 amendment, the requisite 

prior iiployment is only 

length of 

six months if the officer is 

elected at an election other than the general election for 

state and county offices.' m Acts 1987, 70th Leg., ch. 

427, 51, at 3958-59. That change, however, does not affect 

the result in this opinion. 

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Honorable Tom O'Connell - Page 2 (JM-861) 

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confirm the appointment to any office, position, clerkship, employment or duty, of any 

person related within the second degree by 

affinity. . [Plrovided, 

herein con;ain;d . . . 

that nothing 

shall prevent the 

appointment, voting for, or confirmation of 

any person who shall have been 

employed in any such office, 

continuously 

clerkship, 

position, 

employment or duty for a period 

of two (2) years prior to . . . the election 

or appointment of the officer or member 

related to such employee in the prohibited 

degree. 

Acts 1951, 52d Leg., ch. 97, 51, at 159. 

This article applies to school board trustees and to 

the employment of teachers. Attorney General Opinion Nos. 

JM-636 (1987); 374-371 (1985); O-6259 (1945). 

The spouse of an officer to whom the nepotism statute 

applies is related within the first degree of affinity. 

Attorney General Opinion V-785 (1949); see also Attorney 

General Opinion Nos. JW-371 (1985); H-993 (1971). 

I 

The information provided to us indicates that the 

teacher resigned her employment as a full-time teacher and 

her name was added to a list of persons available to serve 

as substitute teachers. 

name put on this 

As we understand it, having one's 

"substitute list" creates neither a 

guarantee of being contacted by the school district to 

serve as a substitute teacher, nor an obligation to accept 

a teaching assignment if offered one. The teacher about 

whom you inquire was not a party to any continuing 

contract. 

We distinguish the current situation from that of a 

school district auditor. In Attorney. General Opinion 

JW-45 (1983) this office found that if a school district 

auditor was continuously under contract for two consecutive years prior to the election of his first cousin to 

the school board, the auditor could continue his employment for the school board after his cousin took office. 

The auditor, like the substitute teacher, 

services on a periodic basis, but, unlike 

was performing 

the substitute 

teacher, the auditor was employed by the school district 

by virtue of his contract. 

The substitute teacher's status is more analogous to 

that of a court-appointed attorney. In &an v. State, 691 

S.W.Zd 773 (Tex. APP. - El Paso 1985, pet. ref'd), the 

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Honorable Tom O'Connell - Page 3 (JM-861) 

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court found that repeated appointments to represent 

indigent clients did not constitute continuous employment: 

but rather that "[e]ach appointment represents a marate 

employment." & at 775 (emphasis added). The same is 

true in this instance. The employment relationship does 

not exist until the school district offers temporary work 

to someone on the list of available substitutes, and the 

person accepts the assignment.2 

Therefore, based on the fact that the teacher was not 

continuously employed for two years before her spouse was 

elected to the board but served periodically ona substitute basis, the two year continuous prior employment 

provision was not triggered. In our opinion, her employment as either a full-time, a part-time, or a substitute 

teacher by the school district during her spouse88 tenure 

on the school board violates the nepotism statute. 

SUMMARY 

Service as a substitute teacher does 

not constitute continuous employment under 

the provision of the nepotism statute which 

allows continued employment of a person 

related within the prohibited degree to a 

school board member. 

Very truly y0 , J 4 )h JIM MATTOX -~ 

Attorney General of Texas 

MARYKRLLER 

First Assistant Attorney General 

mu nCcREARY 

Executive Assistant Attorney General 

2. Hence, when the teacher changed from substitute 

teaching to part-time teaching in January 1987, she did 

not terminate her employment in order to come within the 

exception to the nepotism statute found in section 2 of 

article 5996g, V.T.C.S. 

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JUDGE ZOLLIE STEAKLJZY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Karen C. Gladney 

Assistant Attorney General 

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