Honorable Tom O'Connell       Opinion Wo. JR-861
Criminal District Attorney
Collin County Courthouse      Re: Whether employment as a
McKinney, Texas   75069       substitute  teacher  consti-
                              tutes continuous  employment
                              under the nepotism statute,
                              article 5996a, V.T.C.S.
                              (RQ-1261).

Dear Hr. O'Connell:

     you ask about the application of the nepotism law to
a specific   situation.   You explain that a teacher    was
employed   full-time  for   the school years     1978-1979,
1979-1980 and 1981-1982.     The teacher resigned   in the
spring of 1982 and her name was placed on the substitute
list. She served intermittently as a substitute teacher
until January   of 1987 and then worked as a part-time
teacher   for the remainder    of the    school year.    In
September, 1987, she began work as a full-time teacher and
continues in that capacity.      The teacher's  spouse was
elected to the school board of trustees in April,     1904,
and continues to serve on that board.

     The question is whether the teachergs service as a
substitute satisfies the continuous employment  exception
to the general  prohibition of nepotism found in article
5996a, V.T.C.S.

     At the time that the spouse was elected to the school
board, article 5996a read as follows:1

          No officer of . . . any . . . school dis-
       trict . . . shall appoint, or vote for, or



          Under a 1987 amendment, the requisite  length of
prior iiployment  is only six months   if the officer   is
elected at an election other than the general election for
state and county offices.' m    Acts 1987, 70th Leg., ch.
427, 51, at 3958-59. That change, however, does not affect
the result in this opinion.



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      Honorable Tom O'Connell - Page 2   (JM-861)
                                                                        1




             confirm the appointment to any office, posi-
             tion, clerkship, employment or duty, of any
             person related within   the second degree  by
             affinity.     .    [Plrovided, that nothing
             herein   con;ain;d . . . shall prevent    the
             appointment, voting for, or confirmation   of
             any person who shall have been continuously
             employed   in any such office,      position,
             clerkship, employment or duty for a period
             of two (2) years prior to . . . the election
             or appointment   of the officer or member
             related to such employee in the prohibited
             degree.

      Acts 1951, 52d Leg., ch. 97, 51, at 159.

           This article applies to school board trustees and to
      the employment of teachers.   Attorney General Opinion Nos.
      JM-636 (1987); 374-371 (1985); O-6259 (1945).

           The spouse of an officer to whom the nepotism statute
      applies is related within the first degree of affinity.
 .-   Attorney General Opinion V-785 (1949); see also Attorney      I
      General Opinion Nos. JW-371 (1985); H-993 (1971).

           The information  provided to us indicates that the
      teacher resigned her employment as a full-time teacher and
      her name was added to a list of persons available to serve
      as substitute teachers.  As we understand it, having one's
      name put on this "substitute list" creates      neither  a
      guarantee of being contacted   by the school district   to
      serve as a substitute teacher, nor an obligation to accept
      a teaching assignment if offered one. The teacher about
      whom you inquire was not a party to any continuing
      contract.

           We distinguish the current   situation from that of a
      school district   auditor.   In Attorney. General   Opinion
      JW-45 (1983) this office   found that if a school district
      auditor was continuously   under contract for two consecu-
      tive years prior to the election    of his first cousin to
      the school board, the auditor could continue    his employ-
      ment for the school board after his cousin took office.
/-    The auditor, like the substitute teacher,    was performing
      services on a periodic   basis, but, unlike  the substitute
      teacher, the auditor was employed by the school district
      by virtue of his contract.
 h
           The substitute teacher's status is more analogous to
      that of a court-appointed attorney.  In &an v. State, 691
      S.W.Zd 773 (Tex. APP. - El Paso 1985, pet. ref'd),    the


                               p. 4177
     Honorable Tom O'Connell - Page 3 (JM-861)




     court found that repeated      appointments    to represent
     indigent clients did not constitute continuous employment:
     but rather that "[e]ach appointment represents    a marate
     employment."  &   at 775   (emphasis added).    The same is
     true in this instance. The employment      relationship does
     not exist until the school district   offers temporary work
     to someone on the list of available substitutes,     and the
     person accepts the assignment.2

           Therefore, based on the fact that the teacher was not
     continuously employed for two years before her spouse was
     elected  to the board but served periodically    ona   sub-
     stitute basis, the two year continuous prior employment
     provision was not triggered.   In our opinion, her employ-
     ment as either a full-time, a part-time, or a substitute
     teacher by the school district during her spouse88 tenure
     on the school board violates the nepotism statute.

                             SUMMARY

                 Service as a substitute   teacher  does
            not constitute  continuous employment  under
            the provision of the nepotism statute which
Ip
            allows continued   employment  of a person
            related within the prohibited   degree to a
            school board member.




                                       J )h
                                            Very truly y0   ,


                                                 4
                                            JIM     MATTOX         -~
                                            Attorney General of Texas

     MARYKRLLER
     First Assistant Attorney General

     mu nCcREARY
     Executive Assistant Attorney General




           2.  Hence, when the teacher changed   from substitute
     teaching to part-time   teaching in January 1987, she did
     not terminate her employment   in order to come within the
-    exception to the nepotism statute found in section 2 of
     article 5996g, V.T.C.S.



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Honorable Tom O'Connell - Page 4        (34-861)




JUDGE ZOLLIE STEAKLJZY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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