Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

June 4, 2014

Mr. Michael Williams Opinion No. GA-l 064
Commissioner of Education
Texas Education Agency Re: Application of the nepotism exception in
1701 North Congress Avenue Education Code subsection 11.1513(g) to a
Austin, Texas 78701-1494 school district when the county's population
increases to exceed 35,000 (RQ-1172-GA)

Dear Mr. Williams:

You ask whether employees hired under the nepotism exception found in subsection
11.1513(g) of the Education Code, which applies to independent school districts in counties with
a population of less than 35,000, may continue to be employed by the district after the cmmty s
population surpasses 35,000. 1 State law generally prohibits nepotism. See generally TEX. Gov T
CODE ANN.§§ 573.001-.084 (West 2012). Under section 573.041 oftbe Government C de (the
"nepotism prohibition"), a public official may not appoint an individual to a position that is
compensated through public funds if the individual is related to the public official within a
prohibited degree. Jd § 573.041(1); see id § 573.002 (establishing degrees of relationship to
which the nepotism prohibition applies). This prohibition a_pplies to members of a school clistrkt
board of trustees. See id § 573.001(3)(8) (providing that a school district board member is a
"public official" for purposes of chapter 573). In instances when the board of trustees of an
independent school district delegates hiring authority to the superintendent subsection
11.1513(£) of the Education Code provides that "the superintendent is a public official for
purposes of Chapter 573, Government Code, only with respect o a decision made under that
delegation of authority," and "each member of the board of trustees remains subject to Chapter
573 ... with respect to all district employees." TEX. Eouc. CoDE ANN. § 11.1513(£) (West
2012). Thus, despite the board's delegation, relatives of board members continue to be
prohibited from appointment under the nepotism prohibition, implicitly prohibiting the
superintendent from appointing them. Tex. Att'y Gen. Op. No. GA-0794 (2010) at 3.

Subsection 11.1513(g), about which you ask, creates an exception to subsection (f) by
providing in part that subsection (f) "does not apply to a school district that is located ... wholly

1
Letter from Mr. Michael Williams, Comm'r ofEduc., Tex. Educ. Agency, to Honorable Greg Abbott, Tex.
Att'y Gen. at 1 (Nov. 26, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
Mr. Michael Williams - Page 2 (GA-1064)

in a county with a population of less than 35,000." TEX. EDUC. CODE ANN. § 11.1513(g) (West
2012). Subsection 11.1513(g) thus permits a superintendent with hiring authority to make
appointments that would otherwise be prohibit ted under section 573.041 in counties with a
population of less than 35,000. You explain that several at-will employees of a school district,
who are related to district board members within a prohibited degree, were hired by the school
district superintendent under the exception provided by subsection 11.1513(g) and have been
"continuously employed in the same position for which they were legally hired when the county
population was less than 35,000." Request Letter at 1-2. You state that the population of the
county has since risen above 35,000 and therefore ask whether subsection 11.1513(g) still
applies to the continued employment ofthose employees. 2 Id. at 1.

The nepotism prohibition in section 573.041 provides that "[a] public official may not
appoint, confirm the appointment, or vote for the appointment or confirmation of the
appointment of' an individual related to the public official within a prohibited degree. TEX.
Gov'T CODE ANN. § 573.041 (West 2012); TEX. EDUC. CODE ANN. § 11.1513(f) (West 2012);
see Tex. Att'y Gen. Op. No. GA-0794 (2010) at 3-4 (construing subsection 11.1513(f)). The
plain terms of section 573.041 prohibit the "appointment" of certain persons, not the ongoing
employment of someone already appointed. Thus, an increase in population beyond 35,000
would not render invalid a previous legal hiring made under subsection 11.1513(g), nor would it
affect the ongoing employment of such an individual. Cf TEX. Gov'T CODE ANN. § 311.022
(West 2013) (providing that "[a] statute is presumed to be prospective in its operation unless
expressly made retrospective"). An independent school district may therefore continue to
employ an individual whose initial hiring was exempt under subsection 11.1513(g) after the
population of the county in which the school district is located meets or surpasses 35,000.

2
In subsection 11.1513(g), "population" means "the population shown by the most recent federal decennial
census." TEX. Gov'T CODE ANN. § 311.005(3) (West 2013). For purposes of this opinion, we assume that your
statement is based on the most recent federal decennial census for the county to which you refer.
Mr. Michael Williams - Page 3 (GA-1064)

SUMMARY

An independent school district may continue to employ an
individual legally hired under the nepotism exception found in
Education Code subsection 11.1513(g) after the population of the
county in which the school district is located meets or surpasses
35,000.

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GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee