How long must a school trustee's spouse have worked to keep their job under Texas nepotism law?

Plain-English summary

Representative Rene O. Oliveira, chair of the House Committee on Business & Industry, asked the Attorney General three questions about how the continuous-employment exception to Texas nepotism law works for a school district trustee's relative. Chapter 573 of the Government Code generally bars a public official, including a school board trustee, from appointing or voting to appoint a relative (within the third degree by consanguinity or the second by affinity) to a publicly funded job. Section 573.062 makes an exception when the relative was already employed in the position immediately before the official's election or appointment and had been continuously employed for a set time: 30 days for an appointed official, six months for one elected outside the general election, and one year for one elected at the general election for state and county officers.

The first question was which time period applies when a school district holds its trustee elections jointly with the county on the general-election date. The Attorney General concluded that the six-month period still applies. School district trustees are not state or county officers, and holding the trustee election on the same day as the general election does not change the independent nature of that election, so trustees are elected "at an election other than the general election for state and county officers." Reading it the other way would make the required period turn on nothing more than the date a district happened to pick for its elections.

The second question was when the continuous-employment clock starts, since an employee may sign a contract well before reporting for work. The Attorney General said the starting date is the first day the person "is employed," which is not necessarily the day the contract is signed, and that the school district decides when employment actually began. The third question was when the clock stops. Following a Texas court decision, the AG concluded the end date is the date the related elected official assumes office.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The House Committee on Business & Industry (as the opinion described it): The opinion gave the committee three concrete answers. The six-month continuous-employment period applies to a school district employee even when the district runs a joint election with the county. The continuous-employment period starts the first day the employee is actually employed, a date the school district determines in the first instance based on the employment terms. And the period ends the day the related official assumes office.

School districts and their relatives-employees (as the opinion described it): The opinion described the practical measuring window for the exception: at least six months of continuous employment running from the employee's first day of employment to the day the related trustee takes office. It also noted the degrees of relationship covered by the nepotism rule, including spouses (first degree by affinity) and other in-laws within the second degree.

Common questions

Does a school trustee's relative need six months or a year of prior employment?
According to the opinion, six months. Because school trustees are not state or county officers, they are elected outside the general election for those officers, so the six-month period in section 573.062(a)(2)(B) applies, even if the district holds a joint election with the county.

When does the continuous-employment clock start?
The opinion said it starts on the first day the employee is actually employed, which may not be the date the contract is signed; the school district decides when employment began.

When does the clock stop?
The opinion concluded the period ends on the date the related elected official assumes office, following the Texas court decision in Bean v. State.

Does a joint election with the county change the answer?
No. The opinion explained that holding the trustee election on the general-election date does not change the independent nature of the school district election, so the six-month period still applies.

Background and statutory framework

The opinion laid out the nepotism framework: Government Code chapter 573, the section 573.041 prohibition, and the degree-of-relationship rules in sections 573.002, 573.022(a), 573.023(c), 573.024(a), and 573.025(a). Section 573.062(a) supplied the continuous-employment exception and its 30-day, six-month, and one-year tiers.

On the joint-election question, the AG reasoned that school trustees are not state or county officers and cited Education Code section 11.0581(a)(2) (allowing a trustee election on the general-election date) and, by analogy, Election Code section 271.0071 (joint-election rules apply independently to each subdivision), reading the statute to give effect to legislative intent under the Texas Supreme Court's decision in Entergy Gulf States, Inc. v. Summers; on the start date, it relied on the statute's word "employed" and Tex. Att'y Gen. Op. No. M-862 (1971). On the end date, it followed the El Paso court of appeals' decision in Bean v. State (the date the official "assumed his office"), along with Tex. Att'y Gen. Op. No. M-857 (1971).

Citations

Cases:

• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)
• Bean v. State, 691 S.W.2d 773, 775 (Tex. App.-El Paso 1985, pet. ref'd)

Statutes:

• Tex. Gov't Code Ann. §§ 573.001-.084 (West 2012); § 573.041(1); § 573.002; § 573.022(a); § 573.023(c); § 573.024(a); § 573.025(a)
• Tex. Gov't Code Ann. § 573.062(a), § 573.062(a)(2)(B), § 573.062(a)(2)(C) (West 2012)
• Tex. Educ. Code Ann. § 11.0581(a)(2) (West 2012)
• Tex. Elec. Code Ann. § 271.0071 (West 2003)

Other authority:

• Tex. Att'y Gen. Op. No. M-862 (1971) at 2
• Tex. Att'y Gen. Op. No. M-857 (1971) at 2-5

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1016
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1016.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 13, 2013

The Honorable Rene O. Oliveira Opinion No. GA-1016
Chair, Committee on Business & Industry
Texas House of Representatives Re: Application of Government Code
Post Office Box 2910 section 573.062, the nepotism continuous-
Austin, Texas 78768-2910 employment exception, to a school district
board member's spouse (RQ-1117-GA)

Dear Representative Oliveira:

You ask three questions concerning the application of Government Code section 573.062, the nepotism continuous-employment exception, to a school district board member's spouse.[1] Chapter 573 of the Government Code generally prohibits nepotism by public officials, including members of a school district board of trustees. TEX. GOV'T CODE ANN. §§ 573.001-.084 (West 2012). Under section 573.041, a "public official may not appoint, confirm the appointment of, or vote" to appoint or confirm the appointment of an individual to a position that is "compensated from public funds" if "the individual is related to the public official within" the third degree by consanguinity or within the second degree by affinity.[2] Id. § 573.041(1); see id. § 573.002 (establishing the degrees of relationship to which chapter 573 applies). Section 573.062 establishes a continuous-employment exception to the general nepotism prohibition, providing:

A nepotism prohibition prescribed by Section 573.041 ... does not apply to an appointment, confirmation of an appointment, or vote for an appointment or confirmation of an appointment of an individual to a position if:
(1) the individual is employed in the position immediately before the election or appointment of the public official to whom the individual is related in a prohibited degree; and
(2) that prior employment of the individual is continuous for at least:
(A) 30 days, if the public official is appointed;
(B) six months, if the public official is elected at an election other than the general election for state and county officers;
(C) one year, if the public official is elected at the general election for state and county officers.

Id. § 573.062(a). Your questions ask about the application of this provision in specific circumstances. Request Letter at 3.

You first ask whether, under subsection 573.062(a)(2), the six-month or one-year time period applies when the public official is a trustee of a school district that "conducts joint elections with a county." Id. at 1, 3. You explain that many school districts hold their trustee elections jointly with the counties in which they are located. Request Letter at 2. You question whether the applicable period in the exception is the subsection (2)(C) one-year period because of the joint election. Id.

Under subsection 573.062(a)(2)(C), in order for the one-year continuous-employment period to apply, the public official must be "elected at the general election for state and county officers." TEX. GOV'T CODE ANN. § 573.062(a)(2)(C) (West 2012). Some school districts may choose to hold their elections on the same date as the general election for state and county officers. See TEX. EDUC. CODE ANN. § 11.0581(a)(2) (West 2012) (requiring a school district trustee election to be held on the same date as at least one other specified governmental body). However, doing so does not change the independent nature of the school district trustee election. Cf. TEX. ELEC. CODE ANN. § 271.0071 (West 2003) (explaining that restrictions on methods of voting do not "apply to a joint election as if the joint election were a single election but rather apply independently to the election of each participating political subdivision"). School district trustees are neither state nor county officers, and they are therefore elected "at an election other than the general election for state and county officers." TEX. GOV'T CODE ANN. § 573.062(a)(2)(B) (West 2012). To conclude otherwise would result in some school districts using a six-month period and others using a one-year period to calculate continuous employment, depending solely upon when the school districts choose to hold their elections. Nothing in the language of the statute suggests that the Legislature intended to distinguish between school districts in this regard. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (explaining that the purpose of statutory construction is to "ascertain and give effect to the Legislature's intent"). Thus, the six-month continuous-employment period under subsection (2)(B) applies to an employee of a school district that conducts a joint election with a county.

Your second question asks, "What is the starting date for calculating the continuous employment nepotism exception?" Request Letter at 4. You explain that an employee may sign a contract with a school district weeks or months before the employee "reports for duty," and you question "which of the two events would be the controlling date for purposes of analyzing" whether the continuous-employment exception applies. Id. at 2. Subsection 573.062 requires that the individual seeking the continuous-employment exception be "employed" for the requisite period in order for the exception to apply. TEX. GOV'T CODE ANN. § 573.062(a)(1) (West 2012). The day an employment contract is signed or approved may not necessarily equate to the first day of employment. See Tex. Att'y Gen. Op. No. M-862 (1971) at 2 (concluding that a person who had been "contracted for two or more years" but had "continuously performed services for a period of less than two years" was not exempt from the nepotism provisions). When employment officially begins for an individual will depend on the specific circumstances of a school district, the employee, and the terms of the underlying employment contract. That is a determination best made by the school district in the first instance. We can, however, advise that the starting date for calculating the continuous-employment exception is the first day the employee "is employed" by the school district. Id.

Your third question asks, "What is the date for calculating the end of the period for the continuous employment nepotism exception?" Request Letter at 4. You suggest that it could be the "qualification of the elected official, presumably by taking the qualifying oath of office," or, alternatively, "the date upon which the [elected official] would be first called upon to consider an extension" of the individual's employment contract. Id. at 2. In Bean v. State, a Texas court addressed this question as applied to a judge who had appointed his uncle to represent indigent defendants. 691 S.W.2d 773, 775 (Tex. App.-El Paso 1985, pet. ref'd). The court concluded that the judge was erroneously utilizing the date of his uncle's employment as an end date for the continuous-employment period and held that the critical date was instead the date the district judge "assumed his office." Id.; see also Tex. Att'y Gen. Op. No. M-857 (1971) at 2-5 (opining that a teacher may enter into a renewal contract with a school district after a relative trustee's election but before his qualification and taking the oath of office). Applying this precedent to your question, the date for calculating the end of the period for the continuous-employment nepotism exception is the date the elected public official assumes office.

SUMMARY

Government Code subsection 573.062(a)(2)(B) requires that an individual be continuously employed for six months prior to the election of a school district trustee to whom the individual is related in a prohibited degree in order for the nepotism continuous-employment exception to apply. Under the terms of the statute, the continuous-employment period begins the first day the employee is employed by the school district. The continuous-employment period ends the date the public official to whom the employee is related in a prohibited degree assumes office.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Rene O. Oliveira, Chair, House Comm. on Bus. & Indus., to Honorable Greg Abbott, Tex. Att'y Gen. at 3-4 (Mar. 28, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Individuals are related by consanguinity if "one is a descendent of the other" or "they share a common ancestor." TEX. GOV'T CODE ANN. § 573.022(a) (West 2012). An individual's relatives within the third degree by consanguinity are the individual's (1) parent or child; (2) brother, sister, grandparent, or grandchild; and (3) great grandparent, great-grandchild, aunt or uncle, nephew or niece. Id. § 573.023(c). Individuals are related by affinity if "they are married to each other" or "the spouse of one of the individuals is related by consanguinity to the other individual." Id. § 573.024(a). "A husband and wife are related to each other in the first degree by affinity. For other relationships by affinity, the degree of relationship is the same as the degree of the underlying relationship by consanguinity." Id. § 573.025(a). For example, an individual's relatives within the second degree by affinity include, among others, the individual's (1) mother-in-law, father-in-law, son-in-law or daughter-in-law, and (2) brother-in-law or sister-in-law. See id.