Untitled Texas Attorney General Opinion ( 1971 )

THE ATIXBWNEIY GENERAL
&F TEXAS
Ron. J. w. Edgar Opinion No. M-862
Commissioner of Education
Texas Education Agency Re: Construction of Article
201 Eaet Eleventh Street 432, Texas Penal Code.
Austin, Texas 78701
Dear Dr..Edgar:
Your recent letter requesting the opinion of this
office concerning the referenced matter states, in part, as
follows: i
*A teacher was first employed by the school
district for the 1969-70``schoolterm commencing
her employment about August 22, 1969. She will
fulfill her second one-year contract on May 31,
1971. The teacher's brother was elected trustee
of the district on~Apri1 3. 1971, and qualified
for the office on April 7.
"The Board of Trustees has requested that
this Agency obfdin an opinion from the Office of
Attorney General on the following question re-
quiring a consideration of the nepotism law:
"under the facts submitted, may the
teacher be contracted, be proffered a con-
tract for the 1971-72 school term by the
school district board on which her brother
serve8 as mmber?"
Article 432, Texas Penal Code, provides,,in part, as
followe:
-4185-
. . -.
Hon. J. W. Edgar, page 2 (M-062)
nNo . . s member . . . of any ~. . . school
district . . s board . . . shall appoint, or vote
for, or confirm the appointment to any . * .
position, ,clerkship, employment or duty, of any
person related within the " I D third degree by
consanguinity to the person so appointing or so
voting, or to any other member of such board . . .
of which such person so appointing or voting may be
a member, when the salary . . U of such appointee
is to be paid for, directly or indirectly, out of
or from public funds . . .; provided that nothinq
herein contained 0 0 0 shall orevent the aoooint-
ment. votinq for, or confirmation of any person who
shall have been continuously emDlwed in any such
, . . oosition. clerkshio, emnlovment. or duty for
a wriod of-.-twom vears wior S . e to the election
or aooointme~t of the
-.-officer or member related to
. 7 such emplovee.in the orohibited decree." (Emphasis added.)
Attorney General's Opinion No. V-1142 (1951) held that
Article 432, supra, did not apply to persons holding offices or
positions for at least two years prior to the time the related
board member takes office.
In the instant situation, the teacher coarnencedher
employment on or about August 22, 1969. When her brother quali-
fied as a trustee of the district on April 7. 1971, she then
could not have held the position nor served as a teacher continu-
ously for at least two years immediately preceding either the
election of her brother to the school board or his assumption of
such position. The facts submitted clearly show that the teacher
has not even completed teaching at the school district through a
second annual school term.
We hold that the exemption prwiso of Article 432,
underscored supra, does not except from its provisions persons
who are contracted for two or more years prior to a kinsman's
being elected to an office, but who have continuously performed
services for a period of less than two years immediately prior to
their kinsman's assumption of office.
-4186-
Bon. J. W. Edgar, page 3 (M-662)'
You are, therefore, advised that the prohibition of
Article 432, eupra, is applicable to the instant situation and
that such Article prohibits the teacher's employment by the
school district for so long as her brother remeine a trustee of
the district.
SUMMARY
Article 432, Texas Penal Code, prevents- ..
renewal of a contract with a teacher who has not
taught for two or more years prior to the teacher';
brother's being elected to the school board.
v& 3 truly yours,
General of Texee
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
.
APPROVED:
OPINION CCUMITTEB '
Kerns Teylor. Chairmen
W. E. Allen, Co-Chairmen
ma% Plusshe
A. J. Gallerano
Dyer woore
Srendon eickett
MEADE F. GRIFFIN
Staff Legal Assistant
ALFREDWALKER
Executive Aeeietent
NOLAUHITE
First Aeeietant
-4187-