JulY 5, 1950
Hon. Orvan B. Jones Opinion No. V-1080.
County Attorney
Cherokee County Re: Constructionof Article
Rusk, Texas 432, Penal Code, as
amended by H. B. No. 508,
Acts 51st Le e9 R.S.
1949, ch. 12% , pe 22?
Dear Sir:
Your request for an opinion, in part, reads as
follows:
"Since I am unable to answer the question
hereinafter propoundedto my own satisfaction,
I am requestingthat you render an opinion on
'such question which arises from the fact situa-
tion below stated:
Facts:
We have a teacher in a common school dis-
trict who has taught continuouslytherein for
the past four years. Said teacher has annually
executed a contract for one year for each school
year heretofore, and her present contract ex-
pires upon the expiration of the current school
year. On April 1, 1950, a trustee who is the
son of a half-brotherto the grandfatherof said
teacher was elected and subsequentlyqualified
for the office.
Question:
Can a board of trustees of a common school
district legally re-elect a teacher who has been
continuouslysmployed as a teacher in said school
for more than two years, said teacher being the
granddaughterof a half-brother to the father of
a newly elected and qualified trustee on said
board?"
The answer to our question is controlledby the
provisions of Article 433 Penal Code, as amended by House
Bill No. 508, Acts 5lst L:g., ROS., 1949, cho 126, PO 227,
from which we quote as folloWs:
Hon. Orvan B. Jones - Page 2 (V-1080)
"Article 432. Nepotism
"No officer of this State or any officer
of any district, county, city, precinct, school
district, or other municipal subdivision of this
State, or any officer or member of any State,
district, county, city, school district or other
municipal board, or judge of any court, created
by or under authority of any General or Special
Law of this State, or any Member of the Legisla-
ture, shall appoint, or vote for or confirm the
appointment to any office positIon clerkship
employment or duty, of an; person rilated withIn
the second degree by affinity or within the third
degree by consanguinityto the person so appoint-
ing or so voting, or to any other member of any
such board, the Legislature,or court of which
such person so appointing or voting may be a mem-
ber, when the salary, fees or compensationof
such appointee is to be pa1d for, directly or in-
directly, out of or from public funds or fees of
office of any kind or characterwhatsoever, pro-
vided, that nothing herein contained shall nrevent
the anoointment,voting for&or conffrmatixxof
y person who shall have been continuouslven-
iioved in anv such office, position. clerkshis,
emnlovraentor dutv for a period of two (2) veals
prior to the election or annointment of the offi-
cer or member appointing,voting for..or confirm-
ing the appointmentof such person to such office,
position, clerkshiD.emplovmont or dutv.
"Sec. 2. All laws and parts of laws in con-
flict herewith are hereby repealed." (Emphasis
added)
All the provisionsof Article 432 have been brought
forward, word for word, in House Bill 508. The only change
made in this article by the amendment is contained in the pro-
viso hereinbeforeemphasizedby US.
The,prohibitoryprovisions contained in Article 432,
both prior and subsequentto the amendment of this Article by
House Bill 508, first became a law March 9, 1909. (Acts 31st
1909 ch. 40 pe 85). Since that tine this office
~~gs'~o~sS;tently'heldth& prohibited a board of school trus-
tees from employing a teacher related within the second degree
by affinity or within the third degree by consanguinityto any
member of the board, when the salary of the teacher is to be
Hon. Orvan B. Jones - Page 3 (V-1080)
paid directly or indirectlyfrom public funds. This long
continued constructionof these provisions applies to them
as they appear In this Article as it now reads except in so
far as the exception containedtherein makes I$ inapplicable
to the specific factual situationtherein defined.
The facts submittedby you, as we understand them
to be, may be briefly summarizedas follows:
A lady teacher has been continuously employed by
the board of trustees of a common school district for the
past four years, includingthe current school year ending
August 31, 1950, at which time her present contract will ex-
pire. On April 1, 1950 a new trustee was elected in this
district and has quallfled in the manner prescribed by law.
In view of these facts, it is our opinion the board
of trustees comes within the exception contained in Article
432, as amended by House Bill 508, and may legally re-elect
this lady as a teacher.
SUMMARY
A board of trustees of a common school dis-
trict may legally re-elect a teacher who has been
continuouslyemployed as a teacher in the dis-
trict for two or more years prior to the election
of a member of the board related to the teacher
within the third degree by consanguinity. Art.
432, P.C. as amended by H.B. 508, Acts 51st Leg.,
R.S. ch. 126, p. 227.
APPROVED: Yours very truly,
C. K. Richards PRICE DANIEL
Trial & Appellate Division Attorney General
Joe R. Greenhill
First Assistant
BY
Price Daniel Bruce.W, Bryant
Attorney General Assistant
BWB:wb