            THE     ATIXBWNEIY  GENERAL
                       &F TEXAS




Ron. J. w. Edgar                      Opinion No. M-862
Commissioner of Education
Texas Education Agency                Re:   Construction of Article
201 Eaet Eleventh Street                    432, Texas Penal Code.
Austin, Texas 78701

Dear Dr..Edgar:

          Your recent letter requesting the opinion of this
office concerning the referenced matter states, in part, as
follows:            i

           *A teacher was first employed by the school
     district for the 1969-70~~schoolterm commencing
     her employment about August 22, 1969. She will
     fulfill her second one-year contract on May 31,
     1971. The teacher's brother was elected trustee
     of the district on~Apri1 3. 1971, and qualified
     for the office on April 7.

          "The Board of Trustees has requested that
     this Agency obfdin an opinion from the Office of
     Attorney General on the following question re-
     quiring a consideration of the nepotism law:

              "under the facts submitted, may the
           teacher be contracted, be proffered a con-
           tract for the 1971-72 school term by the
           school district board on which her brother
           serve8 as mmber?"

           Article 432, Texas Penal Code, provides,,in part, as
followe:




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    . .   -.




          Hon. J. W. Edgar, page   2                       (M-062)



                      nNo . . s member . . . of any ~. . . school
                 district . . s board . . . shall appoint, or vote
                 for, or confirm the appointment to any . * .
                 position, ,clerkship, employment or duty, of any
                 person related within the " I D third degree by
                 consanguinity to the person so appointing or so
                 voting, or to any other member of such board . . .
                 of which such person so appointing or voting may be
                 a member, when the salary . . U of such appointee
                 is to be paid for, directly or indirectly, out of
                 or from public funds . . .; provided that nothinq
                 herein contained 0 0 0 shall orevent the aoooint-
                 ment. votinq for, or confirmation of any person who
                 shall have been continuously emDlwed   in any such
                 , . . oosition. clerkshio, emnlovment. or duty for
                 a wriod of-.-twom   vears wior S . e to the election
                 or aooointme~t of the
                                     -.-officer or member related to
.              7 such emplovee.in the orohibited decree." (Emphasis added.)

                    Attorney General's Opinion No. V-1142 (1951) held that
          Article 432, supra, did not apply to persons holding offices or
          positions for at least two years prior to the time the related
          board member takes office.

                    In the instant situation, the teacher coarnencedher
          employment on or about August 22, 1969. When her brother quali-
          fied as a trustee of the district on April 7. 1971, she then
          could not have held the position nor served as a teacher continu-
          ously for at least two years immediately preceding either the
          election of her brother to the school board or his assumption of
          such position. The facts submitted clearly show that the teacher
          has not even completed teaching at the school district through a
          second annual school term.

                    We hold that the exemption prwiso of Article 432,
          underscored supra, does not except from its provisions persons
          who are contracted for two or more years prior to a kinsman's
          being elected to an office, but who have continuously performed
          services for a period of less than two years immediately prior to
          their kinsman's assumption of office.


                                        -4186-
Bon. J. W. Edgar, page 3                            (M-662)'



          You are, therefore, advised that the prohibition of
Article 432, eupra, is applicable to the instant situation and
that such Article prohibits the teacher's employment by the
school district for so long as her brother remeine a trustee of
the district.

                          SUMMARY

          Article 432, Texas Penal Code, prevents- ..
     renewal of a contract with a teacher who has not
     taught for two or more years prior to the teacher';
     brother's being elected to the school board.

                                v& 3 truly yours,




                                         General of Texee

Prepared by Austin C. Bray,   Jr.
Assistant Attorney General
                         .
APPROVED:
OPINION CCUMITTEB     '

Kerns Teylor. Chairmen
W. E. Allen, Co-Chairmen
ma% Plusshe
A. J. Gallerano
Dyer woore
Srendon eickett

MEADE F. GRIFFIN
Staff Legal Assistant

ALFREDWALKER
Executive Aeeietent

NOLAUHITE
First Aeeietant

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