The Attorney General of Texas
JIM MATTOX October 29, 1985
Attorney General
SuPromeCQun Building Ur. U. 1. Kirby Opid.an No. JX-371
P. 0. Box ta4a
Aurtln. TX. 757t1.254s Colldlreloner of Educatloe
51214752501 Texaco Education Agency Be: whether l tea c h e r tray be
Tdex.5lW57C1257 201 Saw Bleventh Street promtad to reglatrar In a
Td.co@n 5lZ475.0255 Auatln, Texan 78701 school dlatrlct wbere her
hueband serves on the board of
714Jlcluon. Suite 700 truatee8. and related questlons
oalla& TX. 752024505
2141742.S!% Dear Hr. Kirby:
Tou request ILCI lnterpretatlonof the nepotism law, article 5996a.
4824AlbertaAve.. suite 150
El Pm.o.TX. 70205.2193 V.T.C.S., wblch prohibits a board of echool trustee8 from employing
01- any permn related within a prohibited degree to a board medcr. YOU
state tbat an lni.ivldual was otlgl~lly qloycd as a teacher by an
lndepmdmt school dlotrlct ln August 1974. .Xier husband, a relative
1001Tqxu. Suite 7~0 .~. vlthln the degree o fl fflnlty wbject to the nepotlm lav. became a
HQY4tOn.TX. 77002.2111
712f22%x5
trustee of the di.at.rlct ia April 1978. See Attorney General Opinion
V-785 (1949). Sioco the teacher had byxt time been employed for
forty-five montha contlnuoualy, rhe vae llloved to continue working
w5 aroadway.suit. 312’ for the lchool d.letrlct under the grandfather provision of the
Lubbock TX. 7S4al-247S nepatlm kv thm in effect:
Soa747-5225
provided, that nothins herein contained...
008 N. Tmth, SuIta 8 &all :prrevmt. the appolnmt, votlnS for, or
McAllm. TX. 7s5ol-16s5 : cmflrmrtloo of cay person who shall have hem
512mS2.4547 ea.. cmtlnuuuely .emplayed: in my 8UCh off+.
,~. porltlaa:~-clerkablp, .emplmt or duty for a
200 MaIn Plaza,Sut4 400 * ;*"perlod olf two (2) yeero'ptir to the election or
San Antonlo,TX 7S2os27m7
fi' appaintmmt of the officer or member appointing.
512m5.4191 ;:,. ;’ :'votinS *or. or -confitning the lppolntmeat, or to
_.. c. the llm~ctionor lppoinwt of the officer or
m&er't~latcd to mcb ~cmployee lo the prohibited
degree; :~ : _~.
..-. 2 ..-
cb . 97;~at:,l59 (formerlrtfcle 5996a. V.T.C.S.).
hcr8.~1,951,~;5296..Irq.,
~Actes:1985, ~~5!$b.%eS:,,eh;.lS2, d.:800-01 (amendmentby Senate Bill
~.lo,..599.$o -quotti$ .lan~uaSe ~offectivo.,May 24. 1985). Tbla provision
~~~e$loVed.tbe~~+r to contimu her +@yamt In the dlatrlct but did
aat :.allarr .the, board of trustoem to trenefor her to l dlffermt
'poeltlon. Attqsoq General Opiniona JM-288 (1984); M-671 (1970);
Letter Advisory No. 69 (1973).
* .
p. 1700
Hr. W. N. Kirby - P#ISS 2 (JM-371)
In July of 19:'9. the board of trustees promoted tha teacher to
high school rag18 t:car. Accordtag to the Information you have
submitted. she was :g:Lven the registrar position at her teacher’s daily
salary rate plus em additional ten days of employment. Eer contract
and the school records placed her at pay grade eight, although ths
registrar position LIB customarily classlflcd as a grade 10B position.
The trustees’ action In promoting this lndlvvidual to registrar
violated the nepot~lm statute. The ma year proviso of the former
nepotism statute, quoted above, allowed the teacher to keep the
“office. position, ~:larkshlp. employment or duty” In which she had
been continuously tmployed for at least two years before her husband
became a trustee. Attorney General Opinion JM-234 (1984); Letter
Advisory No. 69 (1973). It did not authorize the board to appoint her
to a different position. even a less remunerative ode, or to assign
her additional day11 of vork. Attorney General Opinion MU-135 (1980);
Letter Advisory No. 69 (1973). The Taas Education Agency has
concluded that he:: promotion to registrar violated article 5996a.
V.T.C.S.. and we a(;rhe wlth this conclusion.
The school dlstrlct viabes to continue this amployee as
registrar. You auk whether the district may return her to a pay
status identical to that which she maintained before the promotion but
allow her to coutlme to perform her duties as registrar.
Your qusstlotl about potential action- by the school trustees
requires us to lntm~rst article 5996a, V.T.C.S., as amended by Senate
Bill No. 599 of ,tbe Slxty-nlnth LaSlslature. Senate Bill No. 599
became effective on May 24. 1985. and the grandfather clause of
article 59968, V.T.C.S.. now reads as follows:
provided, that nothing herein contained . . .
shall prevent the appointment. voting for, or
conflrmet~lon of any person who shall have been
continuously employed In any Nch office,
posltlon , clerkship, employment or duty far a
period of’ one (1) year prior to the election or
appointment of the officer or member appointing,
voting for, or conflrmlng the appointment. or to
the election or appointment of the officer or
member rolatsd to such aployee ln the prohibited
p. 1701
Mr. U. N. Kirby - Iage 3 (Jh-371)
reappoint~nent, euployuent, confirmation, reeuploy-
uent, chrzge in status, campensatiott, or disuissal
of such person. If such action applies only to
such perron and Is not taken with respect to a
bona fidar class or category of employees.
(Euphasicyadded).
The employee j.n question was continuously l uployed for forty-five
months as a teacher before her husband became a board member in 1978.
The nepotism law prohibited the school board from promoting her to
registrar In 1979; ahe was lnaliglble for that position. See Attorney
General Cpinlon H-728 (1970). The board's action vat ineffective to
change her legal status f&u teacher to registrar. See Fairless v.
Cameron County Water Improvemoat District go. 1. 25 S.2d 651 (Tex.
Civ. App. - San konio 1930, writ ref'd). In our opinion the
employee Is still II teacher for purposes of interpretlng'the nepotism
statute even though she has perforued the duties of registrar since
1979. Under the recently auended grandfather provision of article
5996a. V.T.C.S., the'echool board may change her employment status and
compensation, but the trustee to whom she Is related may not
particfpate In the deliberation or vote thereon.
Under article 5996a, V.T.C.S., as amended by
the Sixty-ninth Legislature. a school teacher with
one year of continuous euployuent prior to her
husband% election as school trustee may continue
to serve the district as a teacher. Tba school
board say change her euploynent status and
compensation, but her relative say not deliberate
or vote ,tlrereon.
d-/h
Very ruly your ,
.
JIM MATTOX
Attorney General of Texas
TON GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERTGRAY
Special .Assistant Attorney General
p. 1702
Mr. U. W. Kirby - Pwgc 4 (JM-371)
RICK GILPIN
cbairmau, opi.nion comittac
Prepared by Suun 1,. Garrieon
Aarirteut Attoruey General
APPSDVBD:
OPINIOI~ COIMITYKE
Kick Gilpin, Chairnm
Colin Cirl
Sueau Garrieou
Tony Guillory
JiaUdlirrger
Jennifer Riggo
Baucy Suttou .
sarab Woelk
BrucaYoua~blood ;
I 2 .,.’
1.
._ .
.
-.
p; 1703