                                       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       ;




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1.




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