Dr. J. W. Edgar                Opinion No. M-857
Commissioner of Education
Texas Education Agency         Re:    Application of nepotism
201 East 11th Street                  statute where.a school
Austin', Texas 70701                  trustee related to a pro-
                                      spective teacher has been
                                      elected but proposes de-
                                      laying qualifying until
                                      after date customary for
                                      board action on teacher
Dear Commissioner Edgar:              contracts.

          You have requested the opinion of this office on the
question raised by the following fact situation'.

          An independent school district employs its teachers on
a one year term contract basis. Section 23.28, Texas Education
Code. Normally it reemploys teachers (with less than 3-year
tenure) in Hay (this year, Nay 13,~1971) for the ensuing school
term, 1971-72, beginning in the Fall.

          Teacher X is currently under contract with this district
for the current school term, 1970-71. She has been employed there
less than a year. ff she is to be reemployed for the ensuing year,
1971-72, the district board would normally contract vith her at
its May meeting (May 13, 1971).

          At the recent regular school trustee election held on
April 3, 1971, Mr. Y was elected a trustee for a three-year term.
Returns were canvassed and Y duly declared elected on April 15,
1971. Teacher X is Mr. Y's first cousin, so X and Y are related
in the second degree by consanguinity.

           Mr. Y was present at the canvass of the election returns
 and the declaration of his election. At that time two other


                             -4156-
Dr . J. 0s. Edgar, page 2                       (M-857)



trustees elected at the same election qualified by taking the
official oath of office and were given their certificates of
election. (Section 23.1Ob and 23.19, Texas Education Code).

          Mr. Y did not take the oath and did not accept a cer-'
tificate of election when present at the canvass of the returns.
Be currently declines to qualify by taking the oath until at a
time after the school board awards contracts for the 1971-72
school term, which will normally bs done on Hay 13. His position
is that by so waiting to take office and Teacher X being co&acted
before he qualifies as trustee, his first cousin legally may teach
in the 1971-72 term.

           You have submitted for our~opinion the following queationl

           'Under the submitted facts and situation.
      would a school district board bs in violation of
      the nepotiem law to employ or reemploy ea teacher
      $ubsequent to the April 1971 truatee election (say
      in mid-May), a person related in second degree by
      blood to a trustee then elected and who is not
      covered by the law's Z-year exception--where the
      trustee declines to qualify for the office by
      taking oath until after the teacher relative is
      contracted for ensuing year(s) by the school districtl"

            Tt is clear that under the stated facts that Article 432,
 Texas Penal Code, would apply to prohibit the appointment of Teacher
 x if pl.r.Y should qualify as a m-emberof the board before such time
 as a contract might be entered into with Teacher X. A contract
 so entered would be void and all members of the board approving
 the contract would be in violation of Article 432 even if Mr. Y
 did not participate. Attorney General's Opinions NO. D-793 (1939)
 and No. O-3016 (1941).

           We are of the opinion, however, that under a fact situa-
 tion whereunder Mr. Y does not qualify for the office until after
 a binding contract is entered into between the other members of
 the Board and Teacher X, the contract would not be prohibited by
 Article 432, which must be strictly construed as a penalty statute.


                             -4157-
                 ,.         ..:   .:




Dr. s. VI. Edgar, page 3                        (M-857)



This statement is predicated upon the execution of a binding con-
tract by the parties as contrasted with a mere unilateral decision
on the part of the Board to employ the teacher. (Article 23.28 of
the Education Code provides that all 12 month contracts shall be-
gin on July 1 and end on June 30).

          Article XVI, Section 17, Constitution of Texas, provides
as follows:

          "All officers within this State shall continue
     to perform the duties of their offices until their
     successors shall be duly qualified."

          This section applies to public school trustees. Art-
icles 432 and 433, Texas Penal Code. It is self-executing, and
is mandatory. Common School District No. 1 of Yoakum County v.
Havhurst, 122 S.W.Zd 322 (Tex.Civ.App. 1938, no writ).

          Mr. Y, prior to taking the oath necessary to qualify,
is not a member of the board, the place to which he was elected
being held by his predecessor. Attorney General's Opinions No.
V-760 (1949) and V-868 (1949). and cases cited therein. The
trustee who holds over until his successor is duly qualified is
not merely a de facto trustee, but is held to be a de jure officer
under Article XVI, Section 17. Attorney General's Opinion No.
O-17 (1939). citing Cowan v. Caoos, 278 S-W.283 (Tex.Civ.App.
1925, rev. on other grounds, Comm.App. 1926, 286 S.W. 161) and
State v. Jordan, 28 S.W.2d 921 (Tex.Civ.App. 1930, error dism).

          If Mr. Y does qualify after the Eoard enters into a
contract with Teacher X, then a consideration of Article 435,
Texas Penal Code is in order: it provides as follows:

           “Noofficer or other person included within
     the third preceding article shall approve any ac-
     count or draw or authorize the drawing of any war-
     rant or order to pay any salary, fee or compensation
     of such ineligible officer or person, knowing him to
     be so ineligible."



                            -4158-
DS. J. w. Edgar, page 4                     (M-857)


          We are of the opinion that if Mr. Y does qualify after
the Board has entered into a year's contract with Teacher X,
then the Board may legally order payment of her salary.

          Attorney General's Opinion No. O-361 (19391,   considers
both Article 432 and 435, and holds that when a school   superin-
tendent married a trustee's daughter subsequent to the   making of
his contract of employment his contract remained valid   and he
could legally be paid his salary.

          Attorney General's Opinion No. O-667 (1939) concluded
that a teacher's contract continued valid when during the term of
her contract her relative was elected to the Board of Trustees.
The opinion made no mention of Article 435.

          In Attorney General's Opinion No. O-6330 (1945), this
office expressed the opinion that a teacher's contract was not
invalidated when after her contract was made she married a relative
of a board member.  No mention was made of Article 435.

          Attorney General's Opinion No. v-184 (1947) held that
a teacher's contract remained valid when her relative was elected
to the Board after her contract was made. The opinion did not
mention Article 435, but the inquiry expressly raised the question
of legality of salary payments. We think it a valid assumption
that the publisher of each of these opinions considered payment
to be legal when th,econtracts were held to remain valid.

          On the other hand, three Attorney General's Opinions,
Numbers O-1408 (1939). O-6406 (1945), and O-7516 (1946) held
that a county employee legally on the county payroll could not
remain on that payroll subsequent to the date that by marriage
or the election of a new commrssioner a relationship prohibited
by Article 432 arose.

          We are of the opinion, however, that these last three
opinions should be distinguished on the grounds that in each case
the employee appears to be hired on a month to month basis, where-
by a new contract was in effect entered :nto each month by mutual
consent. As these new contracts would postdate the date of the
relationship, continued employment would be prohibited. This
     Dr. J. w. Edgar. page 5                                  (M-857)



     prohibition would not apply to a teachers annual contract entered
     into before the date that the prohibited relationship arose.

                                    SUMMARY

               A school board may legally enter into an
          annual contract with a teacher whose first cousin
          has been elected to the Board, provided that on
          the date the contract is made the trustee elect
          has not taken the required oath and qualified.

               The contract remains valid and the Board may
          legally order payment of the teacher's salary even
          though the trustee elect qualifies subsequent to
          the date of the contract.

                                              Very truly yours,



                                          'CP.AWF%RDC. MARTIN
                                           Attorney General of Texas

     Prepared by James S. Swearingen
     Assistant Attorney General
'\
     APPROVED:
     OPINION COMMITTEE

     Kerns Taylor, Chairman
     W. E. Allen, Co-Chairman
     Jack Sparks
     James 'N1j.d:
     I-ia;: Iztta :icGregor Payne
     Dick Chote

     KE3DE F. GRIFFIN
     Staff Legal Assistant

     ALFRED WALKER
     Executive Assistant

      KOLA WHITE                         -4160-
      First Assistant
