February 24, 1987
Honorable Hugh Parmer Opinion No. JM-636
Chairman
Intergovernmental Relations ue: Whether an individual may avoid
Committee application of the nepotism law to
Texas State Senate a relative by resigning from a
P. 0. Box 12068 position on the board of trustees of
Austin, Texas 78711 a school district and subsequently
standing for re-election
Dear Senator Parmer:
You inquire about the application of the nepotism law, article
5996a. V.T.C.S., to a particular case involving a teacher who is
related to a school board member. An independent school district
hired a teacher in August of 1985. The school board approved the
teacher’s rehiring in March of 1986. In April, 1986. the teacher’s
mother was elected to the school board. A mother and daughter are
related within the first degree of consanguinity, Letter Advisory Nos.
115 (1975); 67 (1973), a relattonship covered by the following
prohibition of the nepotism act:
No officer of this State . . . nor any officer
or member of any State district, county, city,
school district or other municipal board . . .
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 consanguinity to the person so
appointing or so voting, or to any other member of
any such board . . . when the salary, fees, or
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. . . .
V.T.C.S. art. 5996a.
The teacher had not completed a year of service prior to the time
her mother joined the board. Thus, she did not qualify for the
exemption proviso set out in the nepotism law:
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Honorable Hugh Parmer - Page 2 (JM-636)
[Plrovlded, that nothing herein contained. nor in
any other nepotism law contained in any charter or
ordinance of any municipal corporation of this
State, 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 one (1) year 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.
V.T.C.S. art. 5996a. The school board on which the teacher’s mother
served could not renew the daughter’s teaching contract, but the
teacher would be allowed to serve out her present contract. See,
-, Attorney General Opinions MU-286 (1980); M-862 (1971); Letter
Advisory No. 70 (1973).
You ask whether the school board member may resign in February of
1987 and file to run again in the April 4, 1987 election so that her
daughter might continue to hold her job as teacher. The teacher’s
contract would presumably be renewed during the time her mother was
not on the board.
As a preliminary matter, we will point out that the board member
will continue to serve in a holdover capacity after her resignation
until she is replaced by a successor. Article XVI, section 17. of the
Texas Constitution provides as follows:
All officers within this State shall continue
to perform the duties of their offices until their
successors shall be duly qualified.
An officer’s resignation creates a legal vacancy which can be filled
in the manner provided by law. See Attorney General Opinion M-659
(1970). The officer, however, continues to serve and to have the
duties and powers of office until a successor is qualified. Jones v.
City of Jefferson, 1 S.W. 903 (Tex. 1886); Pyote Independent School
District v. Estes. 390 S.W.Zd 3 (Tex. Civ. App. - El Paso 1965, writ
ref’d n.r.e.). Thus, until the legal vacancy created by the school
trustee’s resignation is filled by a successor, she will remain a
member of the school board, and the board will be barred from
reappointing the trustee’s daughter as a teacher.
Assuming that the trustee resigns from the board and is replaced
by a successor. we must consider whether her daughter may be hired for
another school year in March of 1987.
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Honorable gugh Parmer - Page 3 (JM-636)
We believe the school board may reappoint the teacher In this
case, if her mother has resigned from the board and has been replaced
by a qualified successor. If no board member is related to the
teacher in a prohibited degree, the plain language of article 5996a.
V.T.C.S., would not bar her reappointment. We caution, however,
against the practice of trading. V.T.C.S. art. 5996c.
Your request letter also suggests that the teacher will be
exempted from the nepotism act if her mothe.r is again elected to the
school board. You reason that her year of service prior to her
mother’s resumption of office in April, 1987, will constitute one year
of prior continuous service within the exemption provision. We will
next address this issue.
We may look to the emergency clause of the bill in order to
ascertain the legislative intent underlying the one-year requirement.
Popham v. Patterson, 51 S.W.2d 680 (Tex. 1932); see also Attorney
General Opinion V-1142 (1951). A 1949 amendment to the nepotism law
added the exemption provision. Acts 1949, 51st Leg., ch. 126. at 227.
The original exemption provision exempted persons who had been
“continuously employed . . . for a period of two (2) years prior to
the election or appointment of the officer” related to the employee
within a prohibited degree. Id. Il. Article 5996a, V.T.C.S., has
been amended twice since 1949.?ee Acts 1951, 52nd Leg., ch. 97, at
159; Acts 1985, 69th Leg., chT152, at 683. The most recent
amendment, adopted in 1985. reduced the required period of prior
service from two years to one year and made other changes affecting
the employment of persons who are exempted by the one year provision.
Acts 1985, 69th Leg.. ch. 152, 91, at 683. The amendments subsequent
to 1949 have not, however, changed the requirement that the employee
have been continuously employed “prior” to his relative’s assumption
of office. Thus, we may still look to the emergency clause of the
1949 amendment for some indication of legislative intent.
The emergency clause states in part:
The fact that numerous employees of the State
and Its agencies and subdivisions whose services
are valuable to the State are required to give up
such employment because members of their f,amily
may be, from time to time, elected to offices in
this State under whom such employees hold their
employment, and the fact that persons who have
continuously served the State prior to the
election to some office of a relative should not
be discharged for that reason alone, and the fact
that the purpose of the nepotism law was not to
oust such persons from legitimate employment by
the State, create an emergency. . . .
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Honorable Hugh Parmer - Page 4 (JM-636)
Acts 1949, 51st Leg., ch. 126, 13. at 227. This clause recognizes the
value of a public employee's services, particularly au employee who
has served continuously for a designated period of time. The length
of service provides a measure of the employee's value, in that it
signifies some degree of job loyalty and job experience.
The one year may also provide an opportunity for disinterested
evaluation of the employee. Once the employee's relative becomes a
board member, the other board mem@ers may hesitate to fire him because
of his relationship to their fellow board member. A supervisor,
answerable to the board, may be reluctant to give a negative
evaluation to an employee related to a board member. During the one
year of prior service, however. the employee may prove his merit, and
the board may evaluate him. without being subject to such indirect
influences as an actual nepotism relationship might cause. Cf. New
--
Mexico State Board of Education v. Board of Education, 624 P.2d 530
(N.M. 1981) (competency of tenured teacher was established years
before family member was elected to school board).
The legislature has decided to distinguish between employees who
have completed one year of prior continuous service before their
relative takes office and employees with less than one year of
service. See, e.g., Bean v. State, 691 S.W.Zd 773 (Tex. App. - El
Paso 1985. writ ref'd): Attorney General Oninion Nos. JP-371 (1985):
MW-23 (1979); M-862 (1971). We cannot disregard the distinction which
the legislature has enacted. We believe the legislature intended that
public employees have a year of prior service free of a nepotism
relationship. See, e.g., Attorney General Opinion M-862 (1971) (period
of prior service starts when employee begins work, not when he signs
contract).
Therefore, ff the trustee in this case severs her connection with
the school board in February of 1987 and rejoins the board in April of
1987, her daughter will not have completed the one year of continuous
service prior to the time her relative took office. Only if the
trustee remains off the board for a full year will her daughter have
an opportunity to complete the required year of prior service.
SUMMARY
The exemption provision of the nepotism law,
article 5996a, V.T.C.S., requires the employee to
complete one year of continuous service at a time
that the employee's relative is not an officer
with power to hire and fire the employee.
Where a school trustee leaves office for two
months and then resumes office, the trustee's
relative has not completed one year of continuous
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Honorable Hugh Parmer - Page 5 (JM-636)
service prior to the time her relative takes
office. Only if the trustee remains off the board
for a full year till her daughter have an oppor-
tunity to complete the required year of prior
service
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
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