Does a part-time or seasonal employee still count under the Texas nepotism continuous-employment exception?

Plain-English summary

Jeri Yenne, the Brazoria County Criminal District Attorney, asked the Attorney General whether an at-will employee who delivers employment services consistently but periodically qualifies for the continuous-employment exception to Texas nepotism law. The nepotism rule in Government Code section 573.041 generally bars a public official from appointing a relative within the third degree by consanguinity or the second degree by affinity to a publicly funded position. Section 573.062 carves out 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 beforehand: 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.

The request grew out of the situation of a grandson of an Alvin Independent School District trustee. As the district attorney presented the facts, the grandson worked part-time for the district for about eleven months before his grandfather's May 2008 election, left for college that August under an oral understanding that he would return, came back in June 2009 without reapplying, and was promoted to full-time work in September 2009. Because school trustees are elected outside the general election, the grandson needed six months of continuous employment before the 2008 election to fit the exception.

The Attorney General concluded that an at-will employee who works consistently but periodically may qualify for the section 573.062 exception, provided the employment was continuous. Whether it was continuous depends on the underlying circumstances and the terms of the employment, and that is a factual determination for the employer to make in the first instance. The AG noted that intermittent, day-to-day work does not count as continuous employment, while periodic service under a year-long contract may. Once the exception is satisfied, it shields the relative from the nepotism prohibition only until the employment relationship is broken.

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 Brazoria County Criminal District Attorney (as the opinion described it): The opinion did not give the district attorney a yes-or-no answer on the grandson because it would not resolve the disputed facts. It explained the legal framework instead: the six-month continuous-employment window ran from when the grandson was first employed to when his grandfather assumed office, and whether his consistent-but-periodic work was "continuous" was a fact question for the school district to decide in the first instance. The opinion gave the office two markers to apply, that intermittent day-to-day work is not continuous while periodic service under a year-long contract may be, and reminded the office that the exception lasts only until the employment relationship is broken.

Alvin ISD and similar public employers (as the opinion described it): The opinion placed the initial continuity determination on the employing entity, tied to the specific circumstances of the district, the employee, and the underlying employment terms.

Common questions

What is the continuous-employment exception to Texas nepotism law?
The opinion described section 573.062 as an exception letting a relative stay in a publicly funded job if the relative held the position immediately before the official's election or appointment and had been continuously employed beforehand for a set period (30 days, six months, or one year depending on how the official took office).

Can a part-time or seasonal worker ever count as continuously employed?
According to the opinion, yes, potentially. An at-will employee who works consistently but periodically may qualify, as long as the employment is continuous under the circumstances; the AG said periodic service under a year-long contract may be continuous.

What does not count as continuous employment?
The opinion stated that employment "on an intermittent, day-to-day basis" does not constitute continuous employment.

Who decides whether the employment was continuous?
The opinion said that determination is for the employer (here, the school district) to make in the first instance, based on the specific circumstances and the terms of the employment, because the AG does not resolve disputed fact questions.

How long does the exception last once it applies?
The opinion concluded the exception exempts the relative from the nepotism prohibition only until the employment relationship is broken.

Background and statutory framework

Government Code section 573.041 is the nepotism prohibition, and section 573.002 sets the degrees of relationship covered by chapter 573. A grandparent and grandchild are related in the second degree of consanguinity under section 573.023(a), so the rule reached the grandson. Section 573.062 is the continuous-employment exception, and section 573.062(a)(2)(B) supplied the six-month requirement for officials elected outside the general election. The AG measured the continuous-employment period from initial employment to the date the official assumes office, following Tex. Att'y Gen. Op. No. GA-1016 (2013).

For the meaning of "continuous," the opinion drew on its own prior opinions: LO-96-015 (subsection 573.062(b) and breaks in employment), JC-0442 (2001) (employment ends when the employment relationship is broken), and JC-0185 (2000) (continuity of part-time, at-will work depends on the circumstances, and intermittent day-to-day work is not continuous). It also cited Bean v. State, 691 S.W.2d 773, 775 (Tex. App.-El Paso 1985, pet. ref'd), where repeated appointments over six years were not continuous employment in one position, and JM-45 (1983), where periodic service under a year-long contract could be continuous. A footnote noted that a competing brief disputed the facts and that the opinion, citing GA-0876 (2011), would not resolve disputed fact issues and was limited to the facts as presented.

Citations

Cases:

• Bean v. State, 691 S.W.2d 773, 775 (Tex. App.-El Paso 1985, pet. ref'd)

Statutes:

• Tex. Gov't Code Ann. § 573.041(1) (West 2012)
• Tex. Gov't Code Ann. § 573.002
• Tex. Gov't Code Ann. § 573.023(a) (West 2012)
• Tex. Gov't Code Ann. § 573.062 (including § 573.062(a), § 573.062(a)(2), § 573.062(a)(2)(B), and § 573.062(b))

Other authority:

• Tex. Att'y Gen. Op. No. GA-1016 (2013) at 3
• Tex. Att'y Gen. Op. No. GA-0876 (2011) at 1
• Tex. Att'y Gen. Op. No. JC-0442 (2001) at 2
• Tex. Att'y Gen. Op. No. JC-0185 (2000) at 3-4
• Tex. Att'y Gen. Op. No. JM-45 (1983) at 3
• Tex. Att'y Gen. LO-96-015

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1024
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1024.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

November 22, 2013

The Honorable Jeri Yenne Opinion No. GA-1024
Brazoria County Criminal District
Attorney Re: Whether an employee with consistent but
111 East Locust, Suite 408A periodic delivery of employment services qualifies
Angleton, Texas 77515 for the nepotism continuous-employment exception
in Government Code section 573.062
(RQ-1125-GA)

Dear Ms. Yenne:

You ask whether an at-will employee who consistently but periodically delivers employment services qualifies for the continuous-employment exception under section 573.062 of the Texas Government Code.[1] Section 573.062 is an exception to the nepotism prohibition of section 573.041, which provides generally that a public official may not appoint 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 the second degree by affinity. TEX. GOV'T CODE ANN. § 573.041(1) (West 2012); see id. § 573.002 (establishing degrees of relationship to which chapter 573 applies). Section 573.062 provides that the nepotism prohibition does not apply 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 request concerns the grandson of a current member of the Alvin Independent School District Board of Trustees (the "District") who was first elected to his position in 2008 and then reelected in 2011. Request Letter at 2. You state the facts surrounding the grandson's employment situation as follows.[2] Prior to the board member's election in May 2008, his grandson had worked for the District for approximately eleven months on a "consistent part time basis" and continued to work in this capacity after the election until he left to attend college in August 2008. Id. The grandson did not resign his position, nor was he terminated, and there was an understanding, "based on an oral agreement between the District and the grandson," that the grandson would return to work for the District in the summer of 2009. Id. at 2, 4-5. During the grandson's absence, the District kept him on the payroll and considered him a standing employee. Id. at 5. When he returned in June 2009 "he was not required to fill out new paperwork ... , and he was not required to reapply for the position." Id. In September 2009, the grandson was promoted to a full-time position with the District, and he remains in that position today. Id. at 3. You explain that the arrangement between the grandson and the District "was not an uncommon one for college-aged students and the District still considered them standing employees." Id. at 4.

The nepotism prohibition of section 573.041 generally applies to the grandson because a grandparent and grandchild are related in the second degree of consanguinity. TEX. GOV'T CODE ANN. § 573.023(a) (West 2012). Because school district trustees are elected "at an election other than the general election for state and county officers," the grandson must have had six months of continuous employment prior to his grandfather's election in 2008 to qualify for the continuous-employment exception. Id. § 573.062(a)(2)(B). As this office has previously concluded, the starting and ending dates for determining whether the requisite period of the continuous-employment exception has been satisfied are the date when the individual is initially employed and the date the elected public official assumes office, respectively. Tex. Att'y Gen. Op. No. GA-1016 (2013) at 3; TEX. GOV'T CODE ANN. § 573.062(a) (West 2012).

Your main concern is "whether the grandson still qualified for the continuous employment exception upon his return to the District during the summer of 2009." Request Letter at 4. An opinion of this office previously addressed the situation where an employee resigned a position after the employee's relative was elected to office. Tex. Att'y Gen. LO-96-015, at 1. That opinion stated that subsection 573.062(b) applies to "a person who has been continuously employed both prior to and after the appointment or election of his or her relative up until the time of the 'appointment, reappointment, confirmation of the appointment or reappointment, employment, reemployment, change in status, compensation, or dismissal.'" Id. at 2 (emphasis added). Because the individual "did not continue after the election in the position the employee held before the election," that opinion concluded that "subsection (b) is inapplicable" and the "individual [was] not exempted from the nepotism prohibitions by virtue of section 573.062." Id. Generally, employment ends when the "employment relationship" is broken. See Tex. Att'y Gen. Op. No. JC-0442 (2001) at 2 (considering whether a teacher's retirement broke the employment relationship with the school district as a matter of law, thus disqualifying the teacher for the continuous-employment exception). Therefore, once the continuous-employment exception is satisfied, it exempts an individual from the nepotism prohibition of section 573.041 only until the employment relationship is broken.

Answering your question requires a determination as to whether the grandson's employment was "continuous" under section 573.062(a)(2) and remained so after the grandfather's election. Resolving that factual question "will depend on the specific circumstances of a school district, the employee, and the terms of the underlying employment contract" and is a determination to be made by the District in the first instance. Tex. Att'y Gen. Op. No. GA-1016 (2013) at 3; Tex. Att'y Gen. Op. No. JC-0185 (2000) at 3-4 (stating that the underlying circumstances of the employment relationship determine whether a part-time, at-will employment is continuous). We can advise, however, that employment "on an intermittent, day-to-day basis" does not constitute continuous employment. Tex. Att'y Gen. Op. No. JC-0185 (2000) at 4; see also Bean v. State, 691 S.W.2d 773, 775 (Tex. App.-El Paso 1985, pet. ref'd) (stating that a judge's "repeated appointments" of his uncle "to represent different ... clients in different cases over a six-year period does not constitute continuous employment in one position"). By contrast, periodic service provided pursuant to a year-long contract may constitute "continuous" employment. Tex. Att'y Gen. Op. No. JM-45 (1983) at 3 (discussing statutory exception to nepotism prohibition analogous to section 573.062).

SUMMARY

An at-will employee who consistently but periodically delivers employment services may qualify for the continuous-employment nepotism exception under Government Code section 573.062, provided that his employment was continuous. Whether employment is continuous depends on the underlying circumstances of the employment relationship and is a determination to be made by the employer in the first instance. Once the continuous-employment exception is satisfied, it exempts an individual from the nepotism prohibition of section 573.041 only until the employment relationship is broken.

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

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Jeri Yenne, Brazoria Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 3 (Apr. 24, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] A brief submitted in response to your request disputes the facts as you have described them, providing additional information regarding the grandson's employment and his oral agreement with the District. See Brief from Michael J. Lansford at 1-3, 6 (May 28, 2013) (on file with the Op. Comm.). This office does not resolve disputed issues of fact. See Tex. Att'y Gen. Op. No. GA-0876 (2011) at 1. Therefore, this opinion is limited to the facts as you have presented them.