Honorable Tom O'Connell Opinion Wo. JR-861
Criminal District Attorney
Collin County Courthouse Re: Whether employment as a
McKinney, Texas 75069 substitute teacher consti-
tutes 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 dis-
trict . . . shall appoint, or vote for, or
Under a 1987 amendment, the requisite length of
prior iiployment is only 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.
p. 4176
Honorable Tom O'Connell - Page 2 (JM-861)
1
confirm the appointment to any office, posi-
tion, clerkship, employment or duty, of any
person related within the second degree by
affinity. . [Plrovided, that nothing
herein con;ain;d . . . shall prevent the
appointment, voting for, or confirmation of
any person who shall have been continuously
employed in any such office, position,
clerkship, 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 I
General Opinion Nos. JW-371 (1985); H-993 (1971).
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. As we understand it, having one's
name put on this "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 consecu-
tive years prior to the election of his first cousin to
the school board, the auditor could continue his employ-
ment for the school board after his cousin took office.
/- The auditor, like the substitute teacher, was performing
services on a periodic basis, but, unlike the substitute
teacher, the auditor was employed by the school district
by virtue of his contract.
h
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
p. 4177
Honorable Tom O'Connell - Page 3 (JM-861)
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 sub-
stitute basis, the two year continuous prior employment
provision was not triggered. In our opinion, her employ-
ment 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
Ip
allows continued employment of a person
related within the prohibited degree to a
school board member.
J )h
Very truly y0 ,
4
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.
p. 4178
Honorable Tom O'Connell - Page 4 (34-861)
JUDGE ZOLLIE STEAKLJZY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
p. 4179
Untitled Texas Attorney General Opinion
Combined Opinion