                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                 August 26, 2010



Mr. Robert Scott                                         Opinion No. GA-0794
Commissioner of Education
Texas Education Agency                                   Re: Whether section 11.1513 of the Education
1701 North Congress Avenue                               Code prohibits a school superintendent to whom
Austin, Texas 78701-1494                                 final selection of personnel is delegated from
                                                         employing persons related to trustees of his district
                                                         (RQ-0842-GA)

Dear Mr. Scott:

       You ask several questions related to whether subsection I 1.1 513(f) of the Education Code,
when read in conjunction with section 573.041 of the Government Code, prohibits school districts
from employing relatives of members of a school district board of trustees when the board has
delegated final authority for selection of personnel to the district superintendent. I

        Chapter 573 of the Government Code regulates the appointment or employment of a public
official's close relatives to positions within the official's appointment or confirmation authority.
See TEx. GOV'T CODE ANN. §§ 573.001(3), .041, .061 (Vernon 2004). Section 573.041 of the
Government Code states:

                          A public official may not appoint, confirm the appointment of,
                  or vote for the appointment or confirmation of the appointment of an
                  individual to a position that is to be directly or indirectly compensated
                  from public funds or fees of office if:

                         (1) the individual is related to the public official within a
                  degree described by Section 573.0022; or




         IRequest Letter at 1-2 (available at http://www.texasattorneygeneral.gov).

         'Section 573.002 generally describes the individuals affected by section 573.041 as those with "relationships
within the third degree by consanguinity or within the second degree by affmity" of a public official. TEX. GOV'T CODE
ANN. § 573.002 (Vernon 2004).
Mr. Robert Scott - Page 2                                (GA-0794)



                           (2) the public official holds the appointment or confinnation
                   authority as a member of a state or local board, the legislature, or a
                   court and the individual is related to another member of that board,
                   legislature, or court within a degree described by Section 573.002.

Id. § 573.041 (footnote added).3

        As you note, in 2003, this office explained that under the nepotism laws then in place, "a
member of a school board that has delegated to the superintendent final authority for personnel
selection is not a public official with appointment authority for purposes of section 573.041." Tex.
Att'y Gen. Op. No. GA-0123 (2003) at 3. Attorney General Opinion GA-0123 therefore concluded
that a superintendent could employ a relative of a board member if the superintendent had been
delegated final authority to select personnel. Id. Subsequently, the Legislature enacted subsection
11.1513(f) of the Education Code, which states:

                  If, under the employment policy, the board oftrustees delegates to the
                  superintendent the final authority to select district personnel:

                       (l) the superintendent is a public official for purposes of
                  Chapter 573, Government Code, only with respectto a decision made
                  under that delegation of authority; and

                       (2) each member of the board of trustees remains subject to
                  Chapter 573, Government Code, with respect to all district
                  employees.

TEx. EDUC. CODE ANN. § 11.1513(f) (Vernon SUpp. 2009).

        You first ask "whether, after the enactment of Section 11.1513 (f), a superintendentto whom
fmal selection of personnel is delegated continues to have the discretion to employ persons related
to board members as [this office] concluded in GA-0123." Request Letter at 1. You explain that
"it appears that the intended purpose of Section 11.1513(f) was to prohibit a superintendent from
selecting for employment a person who is related to a member of the board of trustees if the board
would be prohibited under Chapter 573, Government Code" from doing so. Id. However, due to
the specific language of Government Code section 573.041, "a question has been raised as to
whether the prohibition ... might not apply" to a school district's superintendent. Id. Your question
arises because a superintendent, as the public official with final authority to select personnel in a
school district, "is not 'a member of a state or local board' as contemplated by Subsection
573.041(2)." Id.




          'Section 573 .061 ofthe Government Code establishes certain exceptions to the application ofthis rule, including
certain school district's appointment of bus drivers and the employment of substitute teachers. Id § 573.061(4), (6).
Mr. Robert Scott - Page 3                         (GA-0794)



        In construing statutes, our primary objective is to ascertain and give effect to the Legislature's
intent. Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009). We give effect to the legislative
intent as it is expressed by the plain meaning of words used in the statute unless the context
necessarily requires a different construction. City o/Waco v. Kelley, 309 S.W.3d 536, 542 (Tex.
2010). We must examine the Legislature's words in context of the statute as a whole and not
consider words or parts of the statute in isolation. ld.

        You are correct that a superintendent does not hold "appointment or confirmation authority
as a member ofa state or local board." See TEX. GOV'T CODE ANN. § 573.041(2) (Vernon 2004)
(emphasis added). A superintendent is not a school board member. Thus, when read in isolation,
it may appear that section 573.041 does not prohibit a superintendent, who has been delegated final
authority for personnel selection, from employing a relative of a school board member. However,
when analyzing this provision from the perspective of a school district superintendent, section
573.041 must not be read in isolation, but instead must be read in conjunction with section
11.1513(f) ofthe Education Code. By enactment of section 11.1513(f), the Legislature made it clear
that "each member of the board of trustees remains subject to Chapter 573, Government Code, with
respect to all district employees" even when the board "delegates to the superintendent the fmal
authority to select district personnel." TEx. EDUC. CODE ANN. § 11.1513(f)(2) (Vernon Supp. 2009)
(emphasis added).

        If a board has delegated final authority to select district personnel to the superintendent, its
members will not be in the position of appointing, voting for, or confirming individuals for
employment. Cj Hurley v. Tarrant County, 232 S.W.3d 781, 789 (Tex. App.-Fort Worth 2007,
no pet.) (explaining that because a county civil service commission has "final authority" over the
decision to demote, suspend or terminate an employee, "[n]o other county official or body has
authority over the commission's employment decisions"). Thus, the only meaning to be derived
from subsection 11.1513(f)(2) is that, despite the board's delegation, relatives of board members
continue to be prohibited from employment, implicitly prohibiting the superintendent from
employing them. It is presumed that the Legislature, in adopting amendments to statutes, intended
to make some change in the existing law. Tex. Att'y Gen. Op. No. GA-0395 (2006) at 4 (citing Am.
Sur. Co. o/N. Y v. Axtell Co., 36 S.W.2d 715, 719 (Tex. 1931)). Prior to the Legislature's enactment
of subsection 11.1513(f)(2), this office interpreted the law to allow superintendents with final
authority for personnel selection to hire the relative of a board member. Tex. Att'y Gen. Op. No.
GA-0123 (2003) at 3. Therefore, interpreting section 573.041 of the Government Code to allow
superintendents with final authority for personnel selection to hire the relative of a board member
would render the Legislature's subsequent enactment of subsection 11.1513(f)(2) unnecessary. By
amending the statute, it is clear that the Legislature intended to change the law, and we must give
meaning to this change. See Cityo/Houstonv. ClearCreekBasinAuth., 589 S.W.2d671, 681 (Tex.
1979) ("It is apparent in amending the statute, the legislature intended some change in the existing
law, and this court will endeavor to effect the change."). Thus, pursuant to Education Code section
11.1513(f), the Legislature has generally prohibited a school district, either through its board of
Mr. Robert Scott - Page 4                                (GA-0794)



trustees or superintendent to whom final selection ofpersonnel is delegated, from employing persons
related to board members within the degrees described in chapter 573 of the Government Code. 4

        You next ask whether the limitation "applies only if the district or the majority ofthe territory
of the district is located in a county with a population of at least 35,000." Request Letter at 2. When
it adopted section 11.1 513(f), the Legislature made an exception for school districts located in
smaller counties:

                   Subsection (f) does not apply to a school district that is located:

                            (I)    wholly in a county with a populationofless than 35,000;
                   or

                           (2) in more than one county, if the county in which the
                   largest portion of the district territory is located has a population of
                   less than 35,000.

TEx. EDUC. CODE ANN. § l1.l513(g) (Vernon Supp. 2009). Based on the plain language of this
statute, it seems apparent that the Legislature intended to avoid applying the restrictions found in
subsection (f) to those school districts described in subsection (g). Thus, subsection 11.1513(f) of
the Education Code and section 573.041 of the Government Code do not prohibit a superintendent
who has been delegated final authority for personnel selection and whose school district is located
in an area described by subsection 11.1513(g) from employing a relative of a member of the school
district board of trustees.

         Your final question asks whether a violation ofthe nepotism prohibition in section 573.041
"subjects the superintendent to penalties under Subchapter E, Chapter 573, Government Code and
whether such a violation by the superintendent subjects members of the board to penalties under
Subchapter E, Chapter 573, Government Code, even though the board did not make the employment
decision." Request Letter at 2. Under subchapter E, "[a]n individual who violates [the nepotism
prohibitions] shall be removed from the individual's position" and "commits an offense involving
official misconduct ... punishable by a fine not less than $100 or more than $1,000." TEx. GOV'T
CODE ANN. §§ 573.081(a) (Vernon 2004) ("Removal in General"), 573.084(a)--{b) ("Criminal
Penalty'').




         4Multiple state organizatious iuterpreting section 11.1513 of the Education Code have similarly concluded that
a superintendent would be prohibited from employing persons related to board members within the degrees of affinity
and consanguinity described in chapter 573 ofthe Government Code. See TEXAS ASS'N OF SCH. BDS., LEGAL SERVICES,
"Conflicts of Interest: Nepotism" at 2-3 (July 2008), available at http://www.tasb.org/services/legal/documents/
conflicUnt_nepotis.pdf(last visited Aug. 16, 2010); TEXAS EDUC. AGENCY, OFFICE OF LEGAL SERVICES, "School Board
Questions", available at http://ritter.tea.state.tx.us/legal/schoolboard.html ("Even if a school board does not approve a
staff appointment, the nepotism law would still apply to the school board because the board has authority to approve or
disapprove an appointment even if it doesn't actually do so.") (last visited Aug. 16,2010).
Mr. Robert Scott - Page 5                         (GA-0794)



        With respect to a superintendent who has been delegated final authority to select district
personnel, the Legislature has defined that position as "a public official for purposes of Chapter 573,
Government Code, only with respect to a decision made under that delegation of authority." TEx.
EDUC. CODE ANN. § 11.l513(f)(1) (Vernon Supp. 2009). Under section 573.041, "[aj public official
may not appoint, confirm the appointment of, or vote for the appointment or confirmation of the
appointment of an individual if ... the public official holds the appointment or confirmation
authority as a member of a state or local board, the legislature, or a court and the individual is related
to another member ofthat board, legislature, or court within a degree described by Section 573 .002."
TEx. GOy'T CODE ANN. § 573.041 (Vernon 2004). We have concluded above that Education Code
subsection 11.1513(f)(2) and Government Code section 573.041 prohibit a school district, either
through its board of trustees or superintendent to whom final selection of personnel is delegated,
from employing relatives of the school board.

        However, as we noted above, a superintendent does not hold "appointment or confirmation
authority as a member ofa state orlocal board." See id. § 573.041(2) (emphasis added). We believe
a superintendent with final hiring authority could read Education Code subsection 11.1513(f)(2) and
Government Code section 573.041 and reasonably conclude that the provisions do not apply
specifically to the superintendent.

         Whether the school board members are subject to penalties when they did not make the
employment decision is a separate question but raises a similar concern. In amending subsection
11.1513(f), the Legislature stated that "each member of the board of trustees remains subject to
Chapter 573, Government Code, with respect to all district employees." TEx. EDuc. CODE ANN.§
11.1513(f)(2) (Vernon SUpp. 2009). Such language could be interpreted to mean that the nepotism
provisions, including the criminal penalties, continue to apply to board members even if they
delegate to the superintendent final authority to select district personnel. However, a public official
is subject to the nepotism penalties only by appointing, confirming the appointment of, or voting for
the appointment or confirmation of an individual unauthorized to hold the employment. TEx. GOy'T
CODEANN. § 573.041 (Vernon 2004). If the board of trustees has delegated final authority to select
district personnel to the superintendent, as the Legislature has expressly authorized it to do, then the
board members will not be appointing, confirming the appointment of, or voting for the appointment
of employees of the district, as required in order for the nepotism penalties to apply. TEx. EDuc.
CODEANN. § 11.1513(a)(2) (Vernon Supp. 2009); see also Tex. Att'yGen. Op. No. JC-0184 (2000)
at 2 (concluding that because a board member abstained from voting on the appointment of her
spouse, she had not violated section 573.041, although the board members voting in favor of his
appointment did violate that provision); cf Tex. Att'y Gen. Op. No. 0-793 (1939) at 3 (concluding
that a board member who voted against the appointment of a person related to another board member
"would not be liable to prosecution" if the other members of the board appointed the unauthorized
individual).

       It is a long-settled rule of law that a penal statute "must be sufficiently explicit to inform
those who are subject to it what conduct on their part will render them liable to its penalties."
Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). Considering the lack of clarity in these
provisions, we refrain from concluding that a superintendent to whom final selection of personnel
Mr. Robert Scott - Page 6                     (GA-0794)




is delegated and who hires a board member's relative will be subject to the penalties of subchapter
E, chapter 573 of the Government Code. Similarly, we refrain from concluding that school board
members that have delegated fmal hiring authority to the superintendent could be subject to the
nepotism penalties when they did not appoint, confirm the appointment of, or vote for the
appointment or confirmation of an individual unauthorized to hold the employment with the district.
If the Legislature intends otherwise, it may expressly amend the statute to so provide.
Mr. Robert Scott - Page 7                      (GA-0794)



                                       SUMMARY

                      Pursuantto subsection 11.1513(f) of the Education Code, the
              Legislature has generally prohibited a school district, either through
              its board of trustees or its superintendent to whom final selection of
              personnel is delegated, from employing persons related to members
              of the school district's board of trustees within the degrees described
              in chapter 573 of the Government Code.

                       Pursuant to Education Code subsection 11.1513(g), a
              superintendent who has been delegated fmal authority for personnel
              selection may employ a relative of a member of the school district
              board of trustees if the superintendent's school district is located: (I)
              wholly in a county with a population of less than 35,000; or (2) in
              more than one county, ifthe county in which the largest portion of the
              district is located has a population of less than 35,000.

                      Under chapter 573 of the Government Code, criminal
              penalties may be imposed on a public official who appoints, confirms
              the appointment of, or votes for the appointment or confirmation of
              the appointment of an individual if the public official holds the
              appointment or confirmation authority as a member of a state or local
              board, the legislature, or a court and the individual is related to
              another member of that board, legislature, or court within a degree
              described by section 573.002. Section 11.1513(f) of the Education
              Code is not clear as to whether the criminal penalties would apply to
              a superintendent with final hiring authority or to board members that
              delegated that final authority. Due to the long-settled rule oflaw that
              a penal statute must be sufficiently explicit to inform those who are
              subject to it what conduct on their part will render them liable to its
              penalties, we refrain from concluding that the superintendent or the
              board members could be subject to these penalties. If the Legislature
              intends otherwise, it may expressly amend the statute to so provide.

                                              Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee
