 i_ OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN CORNYN




                                            December     17,200l



The Honorable Jim Solis                                Opinion No. JC-0442
Chair, Committee on Economic Development
Texas House of Representatives                         Re: Whether       a teacher who retires from
P.O. Box 2910                                          employment with a school district and later wishes
Austin, Texas 78768-2910                               to return to full-time employment as a certified
                                                       teacher with the school district, qualifies for the
                                                       continuous-employment     exception to the statutory
                                                       prohibition on nepotistic hiring by a school district,
                                                       see TEX. GOV’T CODE ANN. $5 573.041, .062
                                                       (Vernon 1994) (RQ-0413-JC)


Dear Representative     Solis:

        A public official generally may not appoint or vote to appoint an individual to a position that
is to be paid with public funds if the official or another member of the governmental entity’s
governing board is related to the individual within the third degree by consanguinity or within the
second degree by affinity, with some exceptions. See TEX. GOV’T CODEANN. 0 573.041 (Vernon
1994); see also id. 8 573.002 (“Degrees of Relationship”). This prohibition does not apply, however,
to the “appointment or employment of a substitute teacher by a school district.” Id. 8 573.061(6)
(Vernon Supp. 2001). In addition, the prohibition may not apply to an individual who 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 who has been so employed for a certain period of
time. See id. 4 573.062 (Vernon 1994). You indicate that a teacher who retired from the Pharr-San
Juan Alamo School District to take advantage of a Teachers’ Retirement System incentive program
would like to return to a full-time teaching position.’ But because she is related to a member of the
school board, the school district has refused to let her return to the position; rather, she is substitute
teaching in the same position. See Request Letter, supra note 1. You ask whether the prohibition
on nepotistic hiring bars her from being appointed to a full-time teaching position. See id. We
conclude that it does.

         Under the anti-nepotism     statutes, a school board generally may not appoint an individual to
a position that is compensated       from public funds if the individual is related to a board member



           ‘Letter from Honorable  Jim Solis, Chair, Committee on Economic        Development,     Texas House of
Representatives, to Honorable John Comyn, Texas Attorney General (Aug. 13,200l)   (on file with Opinion Committee)
[hereinafter Request Letter].
The Honorable Jim Solis - Page 2                 (JC-0442)




within the third degree by consanguinity or within the second degree by affinity. See TEX. GOV’T
CODEANN. 5 5 573.002, .041 (Vernon 1994). You have asked us about an individual whose brother-
in-law, whom we understand to be her husband’s brother, sits on the school board. The sibling of an
individual’s spouse is related to the individual within the second degree by affinity. See id.
$9 573.024, .025 (Vernon 1994 & Supp. 2001).

         Two exceptions to this general statutory prohibition allow a school board to hire the close
relative of a member of the governing body in certain circumstances. First, section 573.06 1 excepts
the appointment or employment of a substitute teacher by a school district. See id. tj 573.061(6)
(Vernon Supp. 200 1). We understand that the school district has provided the individual in question
here with a substitute position under this exception, but she wishes to be a permanent, full-time,
certified teacher, see Tex. Att’y Gen. Op. No. JC-0185 (2000) at 2 (distinguishing          between
permanent substitute, certified teacher employed by contract, and substitute teacher). Because you
inquire only about the retiree’s eligibility for a full-time certified teaching position, we do not
address the application of the substitute-teacher exception.

         Second, section 573.062 excepts the appointment or employment of an employee who has
been continuously employed in a particular position for six months before the public official to
whom the individual is related was elected. See TEX. GOV’T CODE ANN. 9 573.062(a)(l), (2)(B)
(Vernon 1994). An individual who has been continuously employed in that position for the requisite
duration may not only retain his or her position but may be the subject of an action affecting the
employment, such as a promotion or raise, if “the public official to whom the individual is related
in a prohibited degree” does not participate in any discussion or vote regarding the individual’s
status, unless the decision concerns “a bona fide class or category of employees.” Id. 8 573.062(b).
“Continuous” employment denotes employment “[ulninterrupted in time . . . ; connected; unbroken.”
III OXFORD ENGLISHDICTIONARY 830 (2d ed. 1989); see TEX. GOV’T CODE ANN. 8 3 11 .Ol l(a)
(Vernon 1998) (requiring that statutory words and phrases be construed consistently with common
usage). See generally Tex. Att’y Gen. Op. No. JC-0185 (2000) at 3-4 (discussing nature of
“continuous employment” with respect to teaching positions). Whether in any particular situation
a teacher has an ongoing, uninterrupted employment relationship with a school district is generally
a fact question that cannot be resolved in the opinion process. See, e.g., Tex. Att’y Gen. Op. Nos.
JC-0032 (1999) at 4 (stating that question of fact is beyond purview of this office); JC-0027 (1999)
at 3 (stating the questions of fact cannot be addressed in attorney general opinion); JC-0020 (1999)
at 2 (stating that investigation and resolution of fact questions cannot be done in opinion process).
The issue here is whether, by her retirement, the teacher broke her employment relationship with the
school district as a matter of law, thereby disqualifying her for the continuous-employment
exception.

         We conclude that the teacher may not be restored to her former position under the
continuous-employment     exception to the anti-nepotism statute. Retirement broke the teacher’s
employment relationship with the school district as a matter of law. Retirement typically is a means
by which an individual voluntarily terminates “one’s own employment . . . , especially upon reaching
a certain age.” BLACK’S LAW DICTIONARY13 17 (7th ed. 1999); see also XIII OXFORD ENGLISH
The Honorable Jim Solis - Page 3                 (JC-0442)




DICTIONARY 782 sense 2 (2d ed. 1989) (defining         “retire” as “to give up one’s business or
occupation . . . to enjoy more leisure or freedom (esp.  after having . . . earned a pension)).” For
purposes of the Teacher Retirement System, “retirement” is a “withdrawal from service with a
retirement benefit granted under this subtitle.” TEX. GOV’T CODE ANN. 8 821.001(13) (Vernon
Supp. 2001). A Teacher Retirement System member’s retirement is not effective until the member’s
employment ends. See id. 8 824.002(a)(3). Moreover, if the retired member returns to employment
with the public school system within two months of the effective retirement date, the retirement
is revoked. See id. 8 824.005(b). And, if a member had a contract for future employment in a
public school when the member attempted to retire, the member’s retirement is not effective. See
id. 5 824.002(c). See generaZZy Letter from Conni Brennan, General Counsel, Teacher Retirement
System of Texas, to Susan D. Gusky, Chair, Opinion Committee, Office of the Attorney General
(Oct. 19,200l) (on file with Opinion Committee). We have been provided no information that these
retirement requirements were waived in this particular case.
The Honorable   Jim Solis - Page 4                (JC-0442)




                                        SUMMARY

                         A teacher who has retired from a full-time, certified teacher
                position has broken his or her employment with the school district
                and does not qualify for the continuous-employment    exception to the
                statutory prohibition on nepotistic hiring by the school district. See
                TEX. GOV’T CODE ANN. $8 573.041, .062 (Vernon 1994).




                                               Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
