   The Attorney              General         of Texas
                     September      12,   1979  md4
                                                                       +4
                                                                        . . .
                                                                 77 tr.e$#g
                                                                   J-IL- II
Honorable M. L. Rrockette                 Opinion No. RW-56
Commissioner of Education
Texas Education Agency                    Re: Whether a school district may
201 East Eleventh Street                  employ relatives of the School
At&in, Texas 78701                        superintendent without violating
                                          th8 nepotism laws.

Dear Commissioner Brockette:

       You have re.quest8d our opinion c0nc8dng the applicability of the
nepotism statute to a school district superintendent and hiring practices Of a
school district. You lmve’asked under what condition8 a school district may
hire ,the superintendentb relatives Who are within the degree9 Of kitWhipset
forth in article 5996a; V.~.C.S. Your question has tien        aa a result of
better Advisory No. 156 (1978) in which it WMsaid the college district could
not employ the president% relatives because the president of a junior college
by statutory authority exercised joint control over the selection of faculty
and other employeea See R&c. Code S 130.082(a) (no one may be hired
except upon the presidenirecommendatindatia3.

     The nepotbm statute provi8es:

           Art. 5996a. Wepotbm’

              No officer of this State nor any officer of any
           district, county, city, prednct, school district, or
           other municipal subdivision of this State, ncr any
           officer or member of any State district, county, eity,
           school district or other munloipal board . . . shall
           appoint, or vote for, oc confirm the appointment to
           any office, position, clerkship employment or duty,
           of any pemon related within the second degree by
           affinity or within the third degree by eonsa@nity   to
           the person so appointing or so votinS . . . when the
           salary, fees, or oompenaation of such appointee is to
           be paid for, directly or indirectly, out of or from
           public fun&. . . .




                               p.   177
Honorable M. L. Brockette     -   PageTwo    (Mw-56)



       For putposes of the nepotism statute we believe that the superintendent is an
0ffiOeh   See Educ. Code S 23.26. The arperintendent, therefore, may not ordbuuKy hire
his kH        Bee Attorney General Opinion R-500 0947). However, if the superintendent
#ma no detert%iii    control over selection of those hired, and they are not considered
employed and are not paid untii some action by the school board, relatives of the
r\paintendent may be hired by the school district. On the other hand, b the extent the
superintendent has been delegated authority under the district policy to hire or appoint
without subsequent action by the school board he ls obvioraly exercish control in the
selection process and may not hire his relatives. Letter Advisory NOS 158,152 tl978).

       We believe that the superintendent may recommend or forward a subordinate’s
recommendation to the school board that his or the subordinate’s relative be hired. The
board is not bound by that recommendation and unlike the facts of Letter Advisory No.
156 tl976), is not limited to those recommended by the superintendent. Ifthe policy of the
rhool ‘district requires the board of trustees to consider for employment only those
persons recommended by the superintendent, we believe that Letter Adviswy No. 156
0978) would be applicable and would preclude the Wperintendent from recommendhq his
relatives    Whether his recommendation &es to the level of de facto control over the
hirii as a matter of custom or practice in violation of the nepotism statute is in each
~caaea factual question which we cennot resolve in the opinion procem.

                                       SUMMARY

           A school district may ~employrelatives of the superintendent wh&e
           he exercises no control over who b selected and does not himself
           appoint cr hire hts reiativea




                                            MARK WHITE
                                            Attorney General of Texas
JOHN W. FAINTER, JR
Pint Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared su David B. Brooks
Assistant Attorney General




                                            p.   178
Honarble M. L. Brockette   -   Page Three (M-56)



APPROVED:
OPINIONCOMMlTFEE

taiFBsb         Chairman
       .
waler Davis
Btmn Garrison
Rick Gilpin
William G Reid
Bruce Youngblood




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