                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT



                                                 April 12,2004



Shirley J. Neeley, Ed. D.                              Opinion No. GA-O 177
Commissioner of Education
Texas Education Agency                                 Re: Whether a school district may honor the current
1701 North Congress Avenue                             employment contract of a superintendent’s relative
Austin, Texas 7870 1- 1494                             whose original hiring violated chapter 573 of the
                                                       Government Code (RQ-0175-GA)

Dear Commissioner       Neeley:

         You ask whether, in light of Attorney General Opinion GA-01 23, a school district may honor
the current employment contract of a superintendent’s relative whose original hiring violated chapter
573 of the Government Code.’

         Under section 573.041, no public official may appoint to a position compensated from public
funds an individual related to the public official within the third degree by consanguinity or the
second degree by affinity. See TEX. GOV’T CODE ANN. §§ 573.002, .041 (Vernon 1994); see also
id. $9 573.02 l-.025 (Vernon 1994 & Supp. 2004) (defining prohibited relationships by consanguinity
and affinity). Based on a 1995 amendment to section 11.163 of the Education Code that authorized
a school board to delegate to the superintendent “final authority” for personnel selection decisions
(for personnel other than the superintendent), Attorney General Opinion GA-0123 concluded that,
with respect to personnel selection, a school district superintendent to whom the school board has
delegated such “final authority” is a “‘public official’ with appointment authority” for the purposes
of section 573.041. Tex. Att’y Gen. Op. No. GA-0123 (2003) at 3; see TEX. EDUC. CODE ANN. 0
11.163(a)(l) (V emon 1996). Thus, a school district superintendent with final authority for personnel
selection decisions may not appoint a person related to the superintendent within the third degree by
consanguinity or the second degree by affinity. See Tex. Att’y Gen. Op. No. GA-0123 (2003) at 3.

        You indicate that, before opinion GA-01 23 was issued, some school district superintendents
with final authority to select personnel under section 11.163 of the Education Code “hired relatives
within the prohibited degrees.” Request Letter, supra note 1, at 1. School districts generally enter
written probationary, term, or continuing contracts with their employees. See id. at l-2 (footnotes


         ‘See Letter from Shirley J. Neeley, Ed. D., Commissioner of Education, Texas Education Agency, to Honorable
Greg Abbott, Texas Attorney General, at 1 (Jan. 27, 2004) ( on f 11e with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
Shirley J. Neeley, Ed. D. - Page 2                    (GA-0177)




omitted); see TEX. EDUC. CODE ANN. 0 2 1.002 (Vernon 1996) (requiring school districts to employ
classroom teachers, principals, librarians, nurses, and counselors under three types of contracts); id.
subchs. C, D, E (Vernon 1996 & Supp. 2004) (providing for probationary contracts, continuing
contracts, and term contracts). You ask whether these school districts may “honor” these “current
written employment contracts” with superintendents’ relatives. See Request Letter, supra note 1,
at 1.

         When a superintendent exercising final authority selects a relative, the resulting employment
contract violates section 573.041 of the Government Code and is, consequently, void ab initio.
“Contracts made in direct violation of statutes are void.” Tex. Att’y Gen. Op. No. O-793 (1939) at
3; see McCreary v. Bay Area Bank & Trust, 68 S.W.3d 727,733 (Tex. App.-Houston               [ 14th Dist.]
2001, pet. dism’d). Opinions of this office concluding that an employee whose contract did not
violate the anti-nepotism statute when it was entered do not apply to the relatives of superintendents
with final authority to select personnel under section 11.163 of the Education Code at the time the
relatives were selected. See, e.g., Tex. Att’y Gen. Op. Nos. DM-132 (1992) at 6-7; JM-91 (1983)
at 3; MW-286 (1980) at 2; Tex. Att’y Gen. .LO-96-052, at 3; Tex. Att’y Gen. LA-70 (1973) at 2.*
Consequently, the school districts may not honor the contracts.

         Nevertheless, one point merits mention: if an employee hired in violation of Government
Code section 573.041 has served out the term of the original contract, and the school board has
renewed the contract, the renewal contract may be valid if the superintendent did not have final
authority for the renewal decision. Section 11.163 of the Education Code suggests that a school
board’s delegation of final authority to the superintendent may be limited and that some employment
decisions, such as renewals, may remain within the board’s final authority. See TEX. EDUC. CODE
ANN. 0 11.163(a)(l) (V emon 1996). Consequently, with respect to those employment actions, the
board members, not the superintendent, may be the relevant public officials for nepotism purposes.

        You also ask us generally to determine “the effective date that the superintendent           is
‘appointed’ as . . . a ‘public official”’ for the purposes of determining the applicability of section
573.062 of the Government Code, the “continuous employment” exception. Request Letter, supra
note 1, at 2; see TEX. GOV’T CODE ANN. $573.062 (Vernon 1994). You state:               ’

                  We have assumed that the continuous employment exception that is
                  applicable to superintendents is the 30-day provision i[n] Subsection
                  573.062(a)(2)(A) . . . . However, different parties have proposed to
                  make that determination from the day of the superintendent’s initial
                  employment with the district, the date of a delegation to make final
                  hiring decisions, the date of [GA-01231, or . . . some combination of
                  those dates.




         ‘See also Letter from Christopher B. Gilbert, Bracewell & Patterson, L.L.P., to Honorable Greg Abbott, Texas
Attorney General, at 5-6 (Mar. 2,2004) (on file with the Opinion Committee); Letter from Joey W. Moore, Texas State
Teachers Association, to Honorable Greg Abbott, Texas Attorney General, at 3 (Mar. 12,2004) (on file with the Opinion
Committee).
Shirley J. Neeley, Ed. D. - Page 3                (GA-0177)




Request Letter, supra note 1, at 2.

         Section 573.062(a) provides that section 573.041 “does not apply to an appointment . . . of
an individual to a position” if the individual had been continuously employed in that position for a
certain period of time “immediately before the . . . appointment of the public official to whom the
individual is related in a prohibited degree.” TEX. GOV’T CODEANN. $573.062(a) (Vernon 1994).
The prior continuous employment must have been for

                         (A) [thirty] days, if the public official is appointed;

                        (B) six months, if the public official is elected at an election
                other than the general election for state and county officers; or

                        (C) one year, if the public official is elected at the general
                election for state and county officers.

Id. 0 573.062(a)(2). If an individual continues in a position under section 573.062(a), “the public
official to whom the individual is related in a prohibited degree may not participate in any
deliberation or voting on the . . . employment, reemployment, change in status, compensation, or
dismissal of the individual if that action applies only to the individual.” Id. 8 573.062(b).

         We agree that the continuous-employment        time frame that applies to relatives of school
district superintendents is the thirty-day period set out in subsection (A). A superintendent is not
elected, so neither subsection (B) nor (C) applies. Rather, a superintendent is appointed by the
school board, and subsection (A) applies to an appointed officer by its plain terms. See id. 0
573.062(a); see also id. 6 3 11 .Ol l(a) (Vernon 1998) (directing that statutory words and phrases
“shall be . . . construed according to the rules of. . . common usage”).

         The date from which the thirty-day period must be calculated is, according to the statute, the
“appointment of the public official to whom the individual is related.” Id. 8 573.062(a)(l) (Vernon
1994). The date is not the date opinion GA-0123 was issued, November 18, 2003. See Request
Letter, supra note 1, at 2. As GA-0123 indicates, section 11.163 was amended in 1995 to permit a
school board to delegate final personnel-selection    authority. See Tex. Att’y Gen. Op. No. GA-0123
(2003) at 4. That amendment, not the opinion of this office, changed the applicability of the
nepotism laws for those school districts that elect, in accordance with statutory authority, to delegate
such authority to their superintendents.       Cf: Tex. Att’y Gen. Op. Nos. GA-0159 (2004) at 5
(suggesting that enacting legislation is “typically the province of the legislature, not this office); JC-
0550 (2002) at 5 (stating, with respect to statutory registration requirements for the owners of
perpetual care cemeteries and crematories, “it is the province ofthe legislature to make exceptions”).

        Nor does this office have authority to waive the application of the anti-nepotism statute,
extended in 1995 to all superintendents with final personnel-selection authority, to smaller, more
Shirley J. Neeley, Ed. D. - Page 4                  (GA-0177)




rural counties, as one brief urges. 3 The Legislature has opted for statewide application of its anti-
nepotism statute, impacting large and small political subdivisions alike, and has enacted no across-
the-board exception for smaller subdivisions. It is true that the Legislature has expressly said that
the nepotism prohibitions of section 573.041 do not apply to the “appointment or employment of a
bus driver” by a district located in a less populated county---or, for that matter, to the “appointment
or employment of a substitute teacher” in any district, regardless of population-but       the exception
 for bus drivers in less populated counties is, by its terms, inapplicable to all other school district
personnel.    See TEX. GOV’T CODE ANN. 0 573.061(4), (6) (Vernon Supp. 2004). In short, the
Legislature has determined to limit these safe harbors to certain employees, and such legislative
judgments, unless unconstitutional, must be honored.

         With respect to a school district superintendent, the date of appointment contemplated in
section 573.062(a)( 1) of the Government Code applies only if the superintendent’s position was that
of a “public official” when the superintendent was appointed. If, when the superintendent was
appointed, the school board had already delegated final authority to select personnel under section
11.163 of the Education Code, the superintendent was a public official at that moment. An employee
related to such a superintendent (other than an employee whose position is excepted under section
573.061 of the Government Code) must have been continuously employed for thirty days prior to
that date to qualify for the continuous-employment   exception. On the other hand, if the school board
delegated final authority to select personnel to the superintendent          at some time after the
superintendent’s appointment, the superintendent became a public official for purposes of chapter
573 of the Government Code only when he or she received that final authority and thereby became
a public official.     In that case, an employee related to the superintendent       must have been
continuously employed for thirty days prior to the date the superintendent received the final authority
to select personnel under section 11.163 of the Education Code.




        3See Letter from Kristopher Alan Mathis, Administrative Assistant, Snook Independent School District, to
Nancy S. Fuller, Chair, Opinion Committee, Offlice of the Attorney General, at 3 (Feb. 23, 2004) (on file with the
Opinion Committee).
Shirley J. Neeley, Ed. D. - Page 5             @A-0177)




                                        SUMMARY

                       An original, unrenewed contract between a school district and
               an employee appointed by a superintendent with final authority to
               select personnel under section 11.163 of the Education Code and
               related to the superintendent within a prohibited degree violated
               section 573.041 of the Government Code at the time it was made and
               is void. With respect to renewed contracts, however, the school
               board members may be the relevant public officials for nepotism
               purposes.

                       For the purposes of calculating the appropriate date for the
               applicability of the continuous-employment exception to section
               573.04 1, a school district superintendent with final authority to select
               personnel is an appointed public official. See TEX. GOV'T CODE
               ANN. 5 573.062(a)(2)(A) (V emon 1994). Thus, an employee related
               to the superintendent within a prohibited degree must have been
               continuously employed in that position for thirty days immediately
               prior to the superintendent’s appointment, if the superintendent had
               the final authority upon appointment, or, if not, for thirty days prior
               to the date on which the superintendent received that authority.




                                               kt&mey General of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
