Can a Texas school superintendent who has final hiring authority employ a relative of a school board member, or does the nepotism law block it?

TX AG Opinion GA-0794: Can a superintendent hire a school board member's relative?

Plain-English summary

The Commissioner of Education asked whether the school nepotism rules stop a superintendent from hiring relatives of school board members when the board has handed the superintendent final authority to pick personnel. The general nepotism law, chapter 573 of the Government Code, bars a public official from appointing, confirming, or voting to appoint a close relative (within the third degree by blood or second degree by marriage), and also bars a board, legislature, or court member from appointing someone related to another member of that body. Back in 2003, the Attorney General had read that law to mean a board member who delegated final hiring authority to the superintendent was no longer the "public official with appointment authority," so the superintendent could hire a board member's relative.

After that 2003 opinion, the Legislature added section 11.1513(f) of the Education Code. It says that when a board delegates final personnel selection to the superintendent, the superintendent becomes a "public official" under chapter 573 only as to decisions made under that delegation, and that each board member "remains subject to" chapter 573 as to all district employees. The Attorney General concluded this changed the 2003 result. Because board members remain bound by chapter 573 even after delegating, but would no longer be the ones appointing or voting, the only way the provision makes sense is that relatives of board members stay prohibited from employment, which implicitly bars the superintendent from hiring them. The Legislature is presumed to intend a change when it amends a statute, and reading the law to still allow these hires would make the amendment pointless. So a school district, acting through either its board or its delegated superintendent, is generally prohibited from employing people related to board members within the chapter 573 degrees.

There is a size exception. Under section 11.1513(g), subsection (f) does not apply to a district located wholly in a county with fewer than 35,000 residents, or, for a district in more than one county, where the largest portion of the district is in a county under 35,000. In those smaller-county districts, a superintendent with final hiring authority may employ a relative of a board member.

On the third question, penalties, the Attorney General was more cautious. Chapter 573's subchapter E provides for removal from office and a criminal fine for nepotism violations, but those penalties apply to an official who appoints, confirms, or votes for an unauthorized appointment. A superintendent is not a "member of a state or local board," and board members who delegated final authority do not themselves appoint or vote on the hires. Because a penal statute must be explicit enough to tell people what conduct is punishable, and these provisions lacked that clarity, the Attorney General refrained from concluding that either the superintendent or the delegating board members would be subject to the subchapter E penalties, and noted the Legislature could amend the law if it intended otherwise.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Education Code section 11.1513 and chapter 573 of the Government Code have been amended since 2010, including possible changes to the population threshold and penalty provisions. Confirm the current statutes before relying on anything below.

Who this opinion affected (as of 2010)

School superintendents with delegated hiring authority: The opinion told them that, outside small-county districts, they generally could not employ a relative of a board member, reversing the practical effect of the 2003 opinion.

School boards of trustees: The opinion told them they remained subject to the nepotism law as to all district employees even after delegating final hiring authority, so delegation was no longer a way around the rule.

Districts in counties under 35,000: The opinion confirmed the section 11.1513(g) exception, so a delegated superintendent in such a district could still hire a board member's relative.

Anyone facing nepotism penalties: The opinion meant the criminal and removal penalties were of uncertain application to a delegated superintendent or to delegating board members, given the statutes' lack of clarity.

Common questions

Did this change the 2003 rule that let superintendents hire trustees' relatives?
Yes. The opinion concluded that section 11.1513(f), enacted after the 2003 opinion, made clear that relatives of board members remain prohibited from employment even when the board delegates final hiring authority, which implicitly bars the superintendent from hiring them.

Is there any exception?
Yes. Under section 11.1513(g), the prohibition does not apply to a district wholly in a county with fewer than 35,000 people, or, for a multi-county district, where the largest portion is in a county under 35,000.

Who counts as a "relative" under the nepotism law?
Chapter 573 reaches relationships within the third degree by consanguinity (blood) or the second degree by affinity (marriage), as described in Government Code section 573.002.

Would a superintendent or board member be punished for a violation?
The opinion declined to say so. Because the penalty provisions apply to those who appoint, confirm, or vote for an appointment, and a penal statute must be clear, the Attorney General refrained from concluding that a delegated superintendent or the delegating board members would face the subchapter E removal and criminal penalties.

Background and statutory framework

Chapter 573 of the Government Code regulates the appointment or employment of a public official's close relatives. Section 573.041 bars a public official from appointing, confirming, or voting for the appointment of an individual to a compensated position if the individual is related to the official within a degree described by section 573.002, or if the official holds appointment authority as a member of a state or local board, the legislature, or a court and the individual is related to another member of that body. Subchapter E provides that a violator "shall be removed" (section 573.081(a)) and commits an offense punishable by a fine of $100 to $1,000 (section 573.084(a)-(b)). Section 573.061 sets out exceptions, such as certain bus drivers and substitute teachers.

In 2003, the Attorney General had concluded that a board member who delegated final personnel selection to the superintendent was not a public official with appointment authority for purposes of section 573.041, so the superintendent could hire a board member's relative (Tex. Att'y Gen. Op. No. GA-0123 (2003)). The Legislature then enacted Education Code section 11.1513(f), providing that when a board delegates final personnel selection, the superintendent is a public official under chapter 573 only as to decisions under that delegation, and each board member "remains subject to" chapter 573 as to all district employees (section 11.1513(f)(1)-(2)).

Applying ordinary construction (give effect to legislative intent through the plain meaning, reading the statute as a whole, per Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009) and City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010)), the Attorney General reasoned that because a delegating board would not itself be appointing or voting (cf. Hurley v. Tarrant County, 232 S.W.3d 781, 789 (Tex. App.—Fort Worth 2007, no pet.)), the only meaning of subsection (f)(2) was that relatives of board members remain prohibited from employment, implicitly barring the superintendent from hiring them. An amendment is presumed to change existing law (Am. Sur. Co. of N.Y. v. Axtell Co., 36 S.W.2d 715, 719 (Tex. 1931); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 681 (Tex. 1979)), and reading the law to still allow the hires would render section 11.1513(f)(2) unnecessary. Section 11.1513(g) carves out districts in counties under 35,000. On penalties, because a penal statute must be sufficiently explicit (Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)) and the provisions were unclear as applied to a delegated superintendent or delegating board members, the Attorney General declined to conclude that the subchapter E penalties would reach them.

Citations

Statutes:

• Tex. Gov't Code Ann. §§ 573.001(3), 573.002, 573.041, 573.061, 573.081(a), 573.084(a)-(b) (Vernon 2004)
• Tex. Educ. Code Ann. §§ 11.1513(f), 11.1513(f)(1), 11.1513(f)(2), 11.1513(g) (Vernon Supp. 2009)

Cases:

• Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2009)
• City of Waco v. Kelley, 309 S.W.3d 536 (Tex. 2010)
• Hurley v. Tarrant County, 232 S.W.3d 781 (Tex. App.—Fort Worth 2007, no pet.)
• Am. Sur. Co. of N.Y. v. Axtell Co., 36 S.W.2d 715 (Tex. 1931)
• City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979)
• Connally v. Gen. Constr. Co., 269 U.S. 385 (1926)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0794
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0794.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

August 26, 2010

Mr. Robert Scott
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494

Opinion No. GA-0794

Re: Whether section 11.1513 of the Education Code prohibits a school superintendent to whom final selection of personnel is delegated from employing persons related to trustees of his district (RQ-0842-GA)

Dear Mr. Scott:

You ask several questions related to whether subsection 11.1513(f) of the Education Code, when read in conjunction with section 573.041 of the Government Code, prohibits school districts from employing relatives of members of a school district board of trustees when the board has delegated final authority for selection of personnel to the district superintendent. [Footnote 1: Request Letter at 1-2 (available at http://www.texasattorneygeneral.gov).]

Chapter 573 of the Government Code regulates the appointment or employment of a public official's close relatives to positions within the official's appointment or confirmation authority. See TEX. GOV'T CODE ANN. §§ 573.001(3), .041, .061 (Vernon 2004). Section 573.041 of the Government Code states:

A public official may not appoint, confirm the appointment of, or vote for the appointment or confirmation of the appointment of an individual to a position that is to be directly or indirectly compensated from public funds or fees of office if:

(1) the individual is related to the public official within a degree described by Section 573.002; or

(2) the public official holds the appointment or confirmation authority as a member of a state or local board, the legislature, or a court and the individual is related to another member of that board, legislature, or court within a degree described by Section 573.002.

Id. § 573.041 (footnote added). [Footnote 2: Section 573.002 generally describes the individuals affected by section 573.041 as those with "relationships within the third degree by consanguinity or within the second degree by affinity" of a public official. TEX. GOV'T CODE ANN. § 573.002 (Vernon 2004).] [Footnote 3: Section 573.061 of the Government Code establishes certain exceptions to the application of this rule, including certain school district's appointment of bus drivers and the employment of substitute teachers. Id. § 573.061(4), (6).]

As you note, in 2003, this office explained that under the nepotism laws then in place, "a member of a school board that has delegated to the superintendent final authority for personnel selection is not a public official with appointment authority for purposes of section 573.041." Tex. Att'y Gen. Op. No. GA-0123 (2003) at 3. Attorney General Opinion GA-0123 therefore concluded that a superintendent could employ a relative of a board member if the superintendent had been delegated final authority to select personnel. Id. Subsequently, the Legislature enacted subsection 11.1513(f) of the Education Code, which states:

If, under the employment policy, the board of trustees delegates to the superintendent the final authority to select district personnel:

(1) the superintendent is a public official for purposes of Chapter 573, Government Code, only with respect to a decision made under that delegation of authority; and

(2) each member of the board of trustees remains subject to Chapter 573, Government Code, with respect to all district employees.

TEX. EDUC. CODE ANN. § 11.1513(f) (Vernon Supp. 2009).

You first ask "whether, after the enactment of Section 11.1513(f), a superintendent to whom final selection of personnel is delegated continues to have the discretion to employ persons related to board members as [this office] concluded in GA-0123." Request Letter at 1. You explain that "it appears that the intended purpose of Section 11.1513(f) was to prohibit a superintendent from selecting for employment a person who is related to a member of the board of trustees if the board would be prohibited under Chapter 573, Government Code" from doing so. Id. However, due to the specific language of Government Code section 573.041, "a question has been raised as to whether the prohibition . . . might not apply" to a school district's superintendent. Id. Your question arises because a superintendent, as the public official with final authority to select personnel in a school district, "is not 'a member of a state or local board' as contemplated by Subsection 573.041(2)." Id.

In construing statutes, our primary objective is to ascertain and give effect to the Legislature's intent. Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009). We give effect to the legislative intent as it is expressed by the plain meaning of words used in the statute unless the context necessarily requires a different construction. City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010). We must examine the Legislature's words in context of the statute as a whole and not consider words or parts of the statute in isolation. Id.

You are correct that a superintendent does not hold "appointment or confirmation authority as a member of a state or local board." See TEX. GOV'T CODE ANN. § 573.041(2) (Vernon 2004) (emphasis added). A superintendent is not a school board member. Thus, when read in isolation, it may appear that section 573.041 does not prohibit a superintendent, who has been delegated final authority for personnel selection, from employing a relative of a school board member. However, when analyzing this provision from the perspective of a school district superintendent, section 573.041 must not be read in isolation, but instead must be read in conjunction with section 11.1513(f) of the Education Code. By enactment of section 11.1513(f), the Legislature made it clear that "each member of the board of trustees remains subject to Chapter 573, Government Code, with respect to all district employees" even when the board "delegates to the superintendent the final authority to select district personnel." TEX. EDUC. CODE ANN. § 11.1513(f)(2) (Vernon Supp. 2009) (emphasis added).

If a board has delegated final authority to select district personnel to the superintendent, its members will not be in the position of appointing, voting for, or confirming individuals for employment. Cf. Hurley v. Tarrant County, 232 S.W.3d 781, 789 (Tex. App.—Fort Worth 2007, no pet.) (explaining that because a county civil service commission has "final authority" over the decision to demote, suspend or terminate an employee, "[n]o other county official or body has authority over the commission's employment decisions"). Thus, the only meaning to be derived from subsection 11.1513(f)(2) is that, despite the board's delegation, relatives of board members continue to be prohibited from employment, implicitly prohibiting the superintendent from employing them. It is presumed that the Legislature, in adopting amendments to statutes, intended to make some change in the existing law. Tex. Att'y Gen. Op. No. GA-0395 (2006) at 4 (citing Am. Sur. Co. of N.Y. v. Axtell Co., 36 S.W.2d 715, 719 (Tex. 1931)). Prior to the Legislature's enactment of subsection 11.1513(f)(2), this office interpreted the law to allow superintendents with final authority for personnel selection to hire the relative of a board member. Tex. Att'y Gen. Op. No. GA-0123 (2003) at 3. Therefore, interpreting section 573.041 of the Government Code to allow superintendents with final authority for personnel selection to hire the relative of a board member would render the Legislature's subsequent enactment of subsection 11.1513(f)(2) unnecessary. By amending the statute, it is clear that the Legislature intended to change the law, and we must give meaning to this change. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 681 (Tex. 1979) ("It is apparent in amending the statute, the legislature intended some change in the existing law, and this court will endeavor to effect the change."). Thus, pursuant to Education Code section 11.1513(f), the Legislature has generally prohibited a school district, either through its board of trustees or superintendent to whom final selection of personnel is delegated, from employing persons related to board members within the degrees described in chapter 573 of the Government Code. [Footnote 4: Multiple state organizations interpreting section 11.1513 of the Education Code have similarly concluded that a superintendent would be prohibited from employing persons related to board members within the degrees of affinity and consanguinity described in chapter 573 of the Government Code. See TEXAS ASS'N OF SCH. BDS., LEGAL SERVICES, "Conflicts of Interest: Nepotism" at 2-3 (July 2008); TEXAS EDUC. AGENCY, OFFICE OF LEGAL SERVICES, "School Board Questions."]

You next ask whether the limitation "applies only if the district or the majority of the territory of the district is located in a county with a population of at least 35,000." Request Letter at 2. When it adopted section 11.1513(f), the Legislature made an exception for school districts located in smaller counties:

Subsection (f) does not apply to a school district that is located:

(1) wholly in a county with a population of less than 35,000; or

(2) in more than one county, if the county in which the largest portion of the district territory is located has a population of less than 35,000.

TEX. EDUC. CODE ANN. § 11.1513(g) (Vernon Supp. 2009). Based on the plain language of this statute, it seems apparent that the Legislature intended to avoid applying the restrictions found in subsection (f) to those school districts described in subsection (g). Thus, subsection 11.1513(f) of the Education Code and section 573.041 of the Government Code do not prohibit a superintendent who has been delegated final authority for personnel selection and whose school district is located in an area described by subsection 11.1513(g) from employing a relative of a member of the school district board of trustees.

Your final question asks whether a violation of the nepotism prohibition in section 573.041 "subjects the superintendent to penalties under Subchapter E, Chapter 573, Government Code and whether such a violation by the superintendent subjects members of the board to penalties under Subchapter E, Chapter 573, Government Code, even though the board did not make the employment decision." Request Letter at 2. Under subchapter E, "[a]n individual who violates [the nepotism prohibitions] shall be removed from the individual's position" and "commits an offense involving official misconduct . . . punishable by a fine not less than $100 or more than $1,000." TEX. GOV'T CODE ANN. §§ 573.081(a) (Vernon 2004) ("Removal in General"), 573.084(a)-(b) ("Criminal Penalty").

With respect to a superintendent who has been delegated final authority to select district personnel, the Legislature has defined that position as "a public official for purposes of Chapter 573, Government Code, only with respect to a decision made under that delegation of authority." TEX. EDUC. CODE ANN. § 11.1513(f)(1) (Vernon Supp. 2009). Under section 573.041, "[a] public official may not appoint, confirm the appointment of, or vote for the appointment or confirmation of the appointment of an individual if . . . the public official holds the appointment or confirmation authority as a member of a state or local board, the legislature, or a court and the individual is related to another member of that board, legislature, or court within a degree described by Section 573.002." TEX. GOV'T CODE ANN. § 573.041 (Vernon 2004). We have concluded above that Education Code subsection 11.1513(f)(2) and Government Code section 573.041 prohibit a school district, either through its board of trustees or superintendent to whom final selection of personnel is delegated, from employing relatives of the school board.

However, as we noted above, a superintendent does not hold "appointment or confirmation authority as a member of a state or local board." See id. § 573.041(2) (emphasis added). We believe a superintendent with final hiring authority could read Education Code subsection 11.1513(f)(2) and Government Code section 573.041 and reasonably conclude that the provisions do not apply specifically to the superintendent.

Whether the school board members are subject to penalties when they did not make the employment decision is a separate question but raises a similar concern. In amending subsection 11.1513(f), the Legislature stated that "each member of the board of trustees remains subject to Chapter 573, Government Code, with respect to all district employees." TEX. EDUC. CODE ANN. § 11.1513(f)(2) (Vernon Supp. 2009). Such language could be interpreted to mean that the nepotism provisions, including the criminal penalties, continue to apply to board members even if they delegate to the superintendent final authority to select district personnel. However, a public official is subject to the nepotism penalties only by appointing, confirming the appointment of, or voting for the appointment or confirmation of an individual unauthorized to hold the employment. TEX. GOV'T CODE ANN. § 573.041 (Vernon 2004). If the board of trustees has delegated final authority to select district personnel to the superintendent, as the Legislature has expressly authorized it to do, then the board members will not be appointing, confirming the appointment of, or voting for the appointment of employees of the district, as required in order for the nepotism penalties to apply. TEX. EDUC. CODE ANN. § 11.1513(a)(2) (Vernon Supp. 2009); see also Tex. Att'y Gen. Op. No. JC-0184 (2000) at 2 (concluding that because a board member abstained from voting on the appointment of her spouse, she had not violated section 573.041, although the board members voting in favor of his appointment did violate that provision); cf. Tex. Att'y Gen. Op. No. O-793 (1939) at 3 (concluding that a board member who voted against the appointment of a person related to another board member "would not be liable to prosecution" if the other members of the board appointed the unauthorized individual).

It is a long-settled rule of law that a penal statute "must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties." Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). Considering the lack of clarity in these provisions, we refrain from concluding that a superintendent to whom final selection of personnel is delegated and who hires a board member's relative will be subject to the penalties of subchapter E, chapter 573 of the Government Code. Similarly, we refrain from concluding that school board members that have delegated final hiring authority to the superintendent could be subject to the nepotism penalties when they did not appoint, confirm the appointment of, or vote for the appointment or confirmation of an individual unauthorized to hold the employment with the district. If the Legislature intends otherwise, it may expressly amend the statute to so provide.

SUMMARY

Pursuant to subsection 11.1513(f) of the Education Code, the Legislature has generally prohibited a school district, either through its board of trustees or its superintendent to whom final selection of personnel is delegated, from employing persons related to members of the school district's board of trustees within the degrees described in chapter 573 of the Government Code.

Pursuant to Education Code subsection 11.1513(g), a superintendent who has been delegated final authority for personnel selection may employ a relative of a member of the school district board of trustees if the superintendent's school district is located: (1) wholly in a county with a population of less than 35,000; or (2) in more than one county, if the county in which the largest portion of the district is located has a population of less than 35,000.

Under chapter 573 of the Government Code, criminal penalties may be imposed on a public official who appoints, confirms the appointment of, or votes for the appointment or confirmation of the appointment of an individual if the public official holds the appointment or confirmation authority as a member of a state or local board, the legislature, or a court and the individual is related to another member of that board, legislature, or court within a degree described by section 573.002. Section 11.1513(f) of the Education Code is not clear as to whether the criminal penalties would apply to a superintendent with final hiring authority or to board members that delegated that final authority. Due to the long-settled rule of law that a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, we refrain from concluding that the superintendent or the board members could be subject to these penalties. If the Legislature intends otherwise, it may expressly amend the statute to so provide.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee