                                ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                 March 15,2006



The Honorable Carlos Valdez                                 Opinion No. GA-04 15
District Attorney
105th Judicial District                                     Re: Whether the nepotism statute applies to a
Nueces County Courthouse                                    junior college district’s employment of a person
901 Leopard, Room 206                                       related to a member of the district’s board of
Corpus Christi, Texas 7840 1-368 1                          regents (RQ-0401 -GA)

Dear Mr. Valdez:

        You ask whether the nepotism statute, Government Code chapter 573, prohibits Del Mar
College (“the college”), a two-year institution of higher education in Corpus Christi, from hiring an
adjunct instructor who is related within a prohibited degree to a member of the College Board of
Regents (the “board”).’ The college is governed by Education Code chapter 130, which applies to
junior college districts. See Request Letter, supra note 1, at 3; see also TEX. EDUC. CODE ANN. ch.
 130 (Vernon 2002 & Supp. 2005).

       The nepotism statute prohibits public officials from employing individuals who are related
to them within a certain degree of affinity or consanguinity. It provides in part:

                          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 573.002; or

                                (2) 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




          ‘Letter from Honorable Carlos Valdez, District Attorney, 105th Judicial District, to Honorable Greg Abbott,
Attorney General of Texas (Oct. 4,2005) (on file with the Opinion Committee, also available at http:llwww.oag.state
.tx.us) [hereinafter Request Letter].
The Honorable Carlos Valdez     - Page 2       (GA-041 5)




               of that board, legislature,   or court within a degree described      by
               Section 573.002.

TEX. GOV’T CODE ANN. 9 573.041 (Vernon 2004); see also id $573.002 (degrees of relationship
by affinity or consanguinity subject to chapter 573). Section 573.041 prohibits an individual public
official from employing a relative within a degree described by Government Code section 573.002,
and it prohibits all board members from employing an individual related to any board member within
such prohibited degree. An individual who violates this provision is subject to removal and a charge
of committing an offense involving official misconduct. See id. $0 573.081, .084.

         You state that the adjunct instructor is related within a prohibited degree to a member of the
college board, but you argue that the board does not “appoint, confirm the appointment of, or vote
for the appointment or confirmation of the appointment” of an adjunct instructor because the college
president exercises that authority. Id. 5 573.041. A board policy states that the board has delegated
full power and authority to the president “to manage, control, and operate the college, except to the
extent that such authority is required by law to be reserved to the Board,” including authority to
“employ faculty and all other employees of the district.” DELMAR COLLEGE,MANUALOF POLICIES
AND PROCEDURES, ModiJied to show only Board of Regents directed policies, ch. II, B2.3.1,
B2.3.1.12 (updated July 7,2004), available at http://www.delmar.edu/policymanual/boardpolicy/.
You maintain that “the only person to whom the nepotism statutes apply in the normal course of
board action would be the president of the college, who is responsible for employing faculty and
other employees.” Request Letter, supra note 1, at 2.

        Education Code section 130.082 vests employment      authority in the board. It provides in part
that:

               Said board shall be authorized to appoint or employ such agents,
               employees, and officials as deemed necessary or advisable to carry
               out any power, duty, or function of said board; and to employ a
               president, dean, or other administrative   officer, and upon the
               president’s recommendation to employ faculty and other employees
               of the junior college.

TEX. EDUC. CODE ANN. 0 130.082(d) (Vernon 2002).

        Section 130.082(d), read in connection with the decision in Pena v. Rio Grande City
Consolidated Independent School District, answers your question. See Pena v. Rio Grande City
Consol. Indep. Sch. Disk, 616 S.W.2d 658 (Tex. Civ. App.-Eastland         198 1, no writ). In Pena, the
school district superintendent’s wife had been employed by the school district, and at issue was
whether the superintendent was a school district official subject to the nepotism prohibition. See
Pena, 6 16 S. W .2d 658, The court noted that the trustees had exclusive statutory authority to manage
and govern the school and to employ teachers and administrators. It continued as follows:
The Honorable Carlos Valdez          - Page 3          (GA-0415)




                           We think it is apparent from the above quoted sections of the
                  Texas Education Code2 that the board of trustees has the exclusive
                  right and sole legal authority to appoint or employ teachers . . . . A
                  superintendent’s recommendation to the school board concerning the
                  appointment of teachers, even when consistently followed, cannot
                  abrogate or limit the exclusive authority granted by statute to the
                  board of trustees.

Pena, 616 S. W.2d at 659. Moreover, “[a] superintendent is merely an employee or agent of the
school board, and is not an ‘officer”’ under the nepotism provisions. Id. The superintendent “merely
performs functions delegated to him by the trustees who do not by such delegation abdicate their
statutory authority or control.” Id. at 660.

         Pena establishes generally that the nepotism statute applies to the officials with final statutory
authority over employment decisions. As stated in Pena, the nepotism law applies to a “public
official,” defined to include “an officer or member of a board of this state or of a district, county,
municipality, school district, or other political subdivision of this state.” TEX. GOV’T CODEANN.
$573.00 1(3)(B) (Vernon 2004). A member of a junior college board of trustees holds a public office
and is thus a “public official” within the nepotism law. See TEX. EDUC. CODE ANN. 8 130.082(e)
(Vernon 2002) (election of board members to six year term); 130.084 (junior college district board
shall be governed by law governing independent school districts to the extent applicable); see also
Tex. Att’y Gen. LO-92-43 (junior college trustees are subject to the nepotism law).

         In contrast to the junior college trustees, the president is an employee or agent of the board
and not a “public official” within the nepotism law. See Tex. Att’y Gen. LO-92-43. Like the
superintendent in Pena, the junior college president has no statutory authority to hire faculty or other
employees absent board approval. Section 130.082(d) vests authority to employ faculty and other
employees in the board. See TEX. EDUC. CODE ANN. $ 130.082(d) (Vernon 2002). The board
members’ delegation of employment authority to the college president does not “abdicate their
statutory authority or control.” See Pena, 616 S.W.2d at 660; Tex. Att’y Gen. Op. No. GA-0073
(2003) at 3 (because a university board of regents has exclusive hiring authority, the board members
are public officials subject to the nepotism statute); DM-2 (1991) at 1 (applicability of the nepotism
law depends on whether the officer may exercise control over hiring decisions); see also Tex. Att’y
Gen. Op. No. GA-0123 (2003) at 4 (nepotism provisions do not apply to school board that has




            2Pena cited Education Code sections 23.26(b) and 23.28(a), which were adopted in 1969 and repealed in 1995.
See Act of June 2, 1969, 61stLeg., R.S., ch. 889, Q 23.28, 1969 Tex. Gen. Laws 2735, 2954 (adopting the Texas
Education Code). See also Act of May 27, 1995,74th Leg., R.S., ch. 260, 5 58(a)(l), 1995 Tex. Gen. Laws 2207,2498
(repealing Education Code chapters 1 through 3 1 and 36). Section 23.26(b) was reenacted as Education Code section
1 I. 15 l(b) and section 23.28 was revised and reenacted in part as section 11.20 l(b). See Act of May 27, 1995, supva,
3 1, 1995 Tex. Gen. Laws 2207,2227,2230.

         ‘Because of changes in the Education Code since Pena was handed down, its reasoning        and conclusion   no
longer apply in all school districts. See generally Tex. Att’y Gen. Op. No. GA-0123 (2003).
The Honorable Carlos Valdez     - Page 4      (GA-0415)




delegated final hiring authority to superintendent pursuant to express statutory authority). Although
the board may not actually vote on employing the adjunct instructor, the nepotism statute applies as
if it does.

        Because the legislature has vested in the Board of Del Mar College final authority to employ
faculty members and other employees, the state nepotism law prohibits the board from hiring as an
adjunct instructor an individual related to a board member within a prohibited degree. See TEX.
GOV’T CODEANN. $573.041 (Vernon 2004).
The Honorable Carlos Valdez        - Page 5    (GA-0415)




                                          SUMMARY

                         A nepotism provision, Government Code section 573.041,
               prohibits Del Mar College from employing an adjunct instructor who
               is related within a prohibited degree to a member of the college
               district’s Board of Regents. The board’s delegation of employment
               authority to the college president does not insulate the board from the
               application of the nepotism law.




                                              Attorn&%neral      of Texas



BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
