                                    ATTORNEY GENERAL OF TEXAS
                                                 GREG        ABBOTT




                                                      May 21,2003



Mr. Kenneth James                                                   Opinion No. GA-0073
Chair, Board of Regents
Stephen F. Austin State University                                  Re: Whether chapter 573 of              the Texas
P.O. Box 6078                                                       Government Code precludes the          Stephen F.
SFA Station                                                         Austin State University Board          of Regents
Nacogdoches, Texas 75962                                            from employing the university          president’s
                                                                    spouse (RQ-0004-GA)

Dear Mr. James:

         Your predecessor asked whether the Stephen F. Austin State University Board of Regents
may hire the university president’s spouse as an employee or independent contractor without
violating the nepotism provisions in chapter 573 ofthe Texas Government Code.’ As we understand
it, the board has not considered the spouse as a candidate for a specific position, but she might be
considered for a faculty, administrative, or professional position.*

         As the Request Letter notes, noncompliance with the nepotism statutes may subject the
appointing officer to severe consequences including removal from office and criminal sanctions.
See TEX. GOV'T CODE ANN. §§ 573.081,573.084        (Vernon 1994); Bean v. State, 691 S.W.2d 773,
776 (Tex. App.-El Paso 1985, writ refd); Tex. Att’y Gen. Op. No. JC-0558 (2002); Request Letter,
supra note 1, at 2. The nepotism statutes apply to “public officials,” defined as:

                    (A) an officer of this state or of a district, county, municipality,
                    precinct, school district, or other political subdivision of this state;

                    (B) 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; or

                    (C) a judge of a court created by or under a statute of this state.


           ‘See Letter from Michael W. Enoch, Board Chair, Stephen F. Austin State University    Board of Regents (Nov.
25,2002)    (on file with Opinion Committee) [hereinafter Request Letter].

           2Telephone   interview   with R. Yvette Clark, General Counsel, Stephen F. Austin State University   (Mar. 13,
2003).
Mr. Kenneth James        - Page 2                      (GA-0073)




TEX. GOV’T CODE ANN. 0 573,001(3)(A)-(C) (V emon 1994). The code proscribes                              nepotism    by
public officials, whether acting individually or as a member of a board:

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

Id. 8 573.041. By its terms, then, the nepotism statute applies only to officials with appointment or
confirmation power. See id.; Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658,
659-60 (Tex. Civ. App.-Eastland     1981, no writ).

         We examine the Education Code to determine whom the legislature empowered with hiring
authority at Stephen F. Austin State University (“SFA”). See Tex. Att’y Gen. Op. No. DM-163
(1992) (authority granted under enabling act of municipal housing authority determined executive
director’s status as a public official subject to nepotism laws). Chapter 101 of the Education Code
establishes SFA and governs its affairs. TEX. EDUC. CODE ANN. 98 101 .Ol-.42 (Vernon 2002). The
code vests the control and management of the university in a board of regents, appointed by the
governor with the senate’s advice and consent. Id. 5 101.11. The legislature gave the SFA board
the same powers and duties that the board of regents of the Texas State University System possesses.
Id. § 101.4L3 Consequently,         the code gives the board the following general authority and
responsibility:

                    (a) The board is responsible for the general control and management
                  of the universities in the system and may . . . employ and discharge
                  presidents or principals, teachers, treasurers, and other employees; fix
                  the salaries of the persons employed; and perform such other acts as
                  in the judgment of the board contribute to the development of the
                  universities in the system or the welfare of their students.




           3Section 101.4 1 refers to the Texas State University System’s former name, the State Senior Colleges System.
See Act of May 29, 1975, 64th Leg., R.S., ch. 434, 1975 Tex. Gen. Laws 1159 (changing name). The Texas State
University System presently includes Sul Ross State University, Angelo State University, Southwest Texas State
University, SamHouston State University, and Lamar University. TEX. EDUC. CODE ANN. $6 96.01-.707 (Vernon.2002).
Mr. Kenneth James - Page 3                          (GA-0073)




                   (b) The board has authority to promulgate and enforce such rules,
                 regulations, and orders for the operation, control, and management of
                 the university system and its institutions as the board may deem either
                 necessary or desirable. When a power is vested in the board, the
                 board may adopt a rule, regulation, or order delegating such power to
                 any officer, employee, or committee as the board may designate.

Id. 8 95.2 1. The code mandates that the SFA board “shall select the president of the university,” but
does not state criteria for the office or endow it with any particular powers or responsibilities. Id.
5 101.16. Other than the board, the code does not invest any office or entity with the authority and
responsibility for hiring employees or contracting for services. Although the board has the authority
to delegate its powers, according to the Request Letter, “the SFA Board of Regents retains statutory
hiring authority for all University employees.” Request Letter, supra note 1, at 2.4

        Because the legislature has vested hiring authority       exclusively in the SFA board, its members
are public officials subject to the nepotism statute. See        TEX. GOV’T CODE ANN. 8 573.001(3)(B)
(Vernon 1994); Tex. Att’y Gen. Op. No. LA-148 (1977).              Because the president is not a member of
the board and assuming no board members are related              to his spouse, the board may employ her
without violating the nepotism statute. See TEX. GOV’T           CODE ANN. § 573.041 (Vernon 1994).


         The Request Letter does not state whether the president plays a role in the hiring process.
Nonetheless, we conclude that he is not a public official under the nepotism statutes. In Pena, the
court concluded that because the board of trustees had exclusive authority to employ teachers, the
superintendent who made recommendations was not a public official subject to the nepotism statute.
See Pena, 616 S.W.2d at 659-60. The court relied on the standard for determining one’s status as
a public officer articulated in Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955), that
is, whether the superintendent      could exercise a sovereign function of the government largely
independent of the board’s control of others. See Pena, 616 S.W.2d at 659-60. The court concluded
that the superintendent was not a public officer because he “merely perform[ed] functions delegated
to him by the trustees who do not by such delegation abdicate their statutory authority or control.”
Id. at 660.

         If the president of SFA exercises any role in hiring university employees, he does so only as
an employee and not as a public official. See TEX. EDUC. CODE ANN. 9 95.21 (Vernon 2002); Tex.
Att’y Gen. LO-96-080, at 2 (chancellor of Texas Tech University, as “chief executive officer,“.is not
a “public officer” but acts subject to direction and control of board of regents). And as an employee,
the president is not subject to the nepotism statute with respect to employment decisions about
another employee. See Pena, 616 S.W.2d at 660.



        4SeeSTEPHENF.AUSTMSTATEUNIVERS~,UN~VERSI~POLICYANDPROCEDURES,
                                                                   D-20.5(revisedJan.28,
2003) (stating that SFA Board of Regents    retains final approval of appointment and termination   of faculty and
administrative   or professional  staff),    available    at http://www.sfasu.edu/upp/pap/general     regulations/
items BOR anproval.htrnl.
Mr. Kenneth James - Page 4                                   (GA-0073)




        We confine our opinion to the reach of the nepotism statutes in chapter 573 of the Texas
Government Code.’ We conclude that chapter 573 does not prohibit the Stephen F. Austin State
University Board of Regents from employing the university president’s spouse.




          5We do not consider,    for instance,   whether any hiring decision would violate SFA’s nepotism   policy. See
STEPHENF.AUSTINSTATEUNIVERSITY,
                             UNIVERSITY
                                      POLICYANDPROCEDURES,E-33 (revised Jan. 28,2003),                          available
at http://www.sfasu.edu/upp/pap/personnel         services/nepotism.html.
Mr. Kenneth James    - Page 5               (GA-0073)




                                      SUMMARY

                       Chapter 573 of the Texas Government Code does not preclude
               the Stephen F. Austin State University Board of Regents from
               employing the university president’s spouse.

                                            Very truly yours,




                                            Attory6y Gberal     of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WJLLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
