Honorable Tom O'Connell Opinion Wo.JR-861 Criminal District Attorney Collin County Courthouse Re: Whether employment asa 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 ofthe nepotism law to a specific situation. You explain that ateacher was employed full-time for the school years 1978-1979, 1979-1980 and 1981-1982. The teacher resigned in the spring of 1982 andher namewas placed on the substitute list. She served intermittently asa substitute teacher until January of 1987 and then worked as a part-time teacher for the remainder of the school year. In September, 1987, shebegan work asa full-time teacher and continues in that capacity. The teacher's spouse was elected to the school board of trustees inApril, 1904, and continues to serve onthat 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, orvote for, or

Under a 1987 amendment, the requisite prior iiployment isonly length of sixmonths if the officer is elected atan 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 inthis opinion.

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confirm the appointment to any office, position, clerkship, employment orduty, 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 fora period of two (2)years prior to . . .the election orappointment of the officer or member related to such employee inthe prohibited degree.
Acts 1951, 52d Leg., ch. 97, 51,at 159. This article applies to school board trustees and to the employment ofteachers. Attorney General Opinion Nos. JM-636 (1987);374-371(1985);O-6259 (1945). The spouse of anofficer towhom the nepotism statute applies isrelated 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 asa full-time teacher and her namewas added to a list ofpersons available to serve as substitute teachers. name put on this Aswe 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 ateaching 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 ifa school district auditor was continuously under contract for two consecutive years prior to the election ofhis 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 aperiodic basis, but, unlike was performing the substitute teacher, the auditor was employed by the school district byvirtue ofhis contract. The substitute teacher's status ismore analogous to that of acourt-appointed attorney. In&an v. State, 691 S.W.Zd 773 (Tex. APP. - El Paso 1985, pet. ref'd), the

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- court found that repeated appointments to represent

indigent clients didnot constitute continuous employment: but rather that "[e]ach appointment represents amarate employment." & at 775 (emphasis added). The same is true inthis instance. The employment relationship does not exist until the school district offers temporary work to someone onthe list ofavailable substitutes, and the person accepts the assignment.2 Therefore, based on the fact that the teacher was not continuously employed fortwoyears before her spouse was **elected** to the board but served periodically ona substitute basis, the two year continuous prior employment provision was not triggered. Inour opinion, her employment as either a full-time, apart-time, or a substitute teacher **by** the school district during her spouse88 tenure onthe school board violates thenepotism statute.
SUMMARY Service as a substitute teacher does not constitute continuous employment under the provision ofthe nepotism statute which allows continued employment of a person related within the prohibited degree to a school board member. Very truly y0 , 

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4 JIM MATTOX -~ Attorney General ofTexas
MARYKRLLER FirstAssistant Attorney General

mu nCcREARY Executive Assistant Attorney General

**2.** Hence, when the teacher changed from substitute teaching topart-time teaching in January 1987, she did not terminate her employment inorder 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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