Does Texas nepotism law stop a school superintendent from reassigning their spouse to another campus?

Plain-English summary

Florence Shapiro, then chair of the Texas Senate Education Committee, asked the Attorney General (taking over a request first made by Senator Hegar) about a nepotism question. A school board had hired a superintendent's spouse as a counselor, and later adopted a policy delegating to the superintendent its authority to select district personnel. The superintendent then reassigned his spouse, a certified academic counselor, to an alternative high school that needed one to sign transcripts. Does the state nepotism law bar that reassignment?

Chapter 573 of the Government Code stops public officials from using their appointment or confirmation power to place close relatives into public jobs. A school superintendent can be a "public official" for this purpose, but the Education Code narrows when. Under section 11.1513(f)(1), when a board delegates final authority to select personnel to the superintendent, the superintendent is a public official under chapter 573 only for decisions made under that delegated selection authority.

The opinion drew a clean line between selecting someone for employment and assigning an already-employed person to a particular campus. The Education Code gives the superintendent, as the district's chief executive, assignment authority in his own right, not by delegation from the board, and the board has no assignment authority to delegate. Because the reassignment was an exercise of the superintendent's own assignment authority, not the board's delegated selection authority, the superintendent was not acting as a public official under chapter 573. So the nepotism law did not bar reassigning his spouse to another campus. The opinion added that the continuing-employment exception in section 573.062 was not relevant, since the superintendent was not a covered public official for the assignment.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Senator Shapiro and the Legislature (as the opinion described it): The opinion gave a direct answer that the nepotism law does not reach a superintendent's campus reassignment of an existing district employee.

School superintendents (as the opinion held for them): The opinion treated campus assignments as the superintendent's own statutory authority under the Education Code, outside chapter 573, and distinct from any delegated authority to select personnel for employment.

School boards of trustees (as the opinion described it): The opinion noted that the board has no assignment authority to delegate; the authority to assign an employee to a particular campus belongs to the superintendent.

Common questions

Can a superintendent reassign a spouse to another campus despite nepotism law?
According to the opinion, yes. Reassignment is an exercise of the superintendent's own assignment authority, not the delegated authority to select personnel, so chapter 573 does not bar it.

When is a superintendent a "public official" under the nepotism law?
The opinion explained that, under section 11.1513(f)(1) of the Education Code, the superintendent is a public official under chapter 573 only when making a decision under delegated authority to select district personnel.

What is the difference between selecting and assigning an employee?
The opinion distinguished selecting a person for district employment from assigning an already-employed person to a particular campus, citing the Education Code's grant of assignment authority to the superintendent.

Does the continuing-employment exception matter here?
The opinion concluded that section 573.062 was not relevant, because the superintendent was not a public official subject to chapter 573 when making the campus assignment.

Background and statutory framework

Chapter 573 of the Government Code bars a public official from using appointment or confirmation authority to select a close relative for public employment, Tex. Gov't Code Ann. § 573.041 (West 2004), and defines "public official" to include a member of a school district board, id. § 573.001(3)(B). The Education Code, however, makes a superintendent a public official under chapter 573 only with respect to decisions made under delegated authority to select district personnel. Tex. Educ. Code Ann. § 11.1513(f)(1) (West Supp. 2011).

The opinion relied on the distinction between selection and assignment drawn in a prior opinion, Tex. Att'y Gen. Op. No. GA-0123 (2003), and on the Education Code's grant of "administrative authority and responsibility for the assignment" of district personnel to the superintendent, Tex. Educ. Code Ann. § 11.201(a), (d)(2) (West Supp. 2011). Because the board has no assignment authority to delegate and the superintendent assigns personnel in his own right, chapter 573 did not apply to the campus reassignment, and the continuing-employment exception in section 573.062 was not relevant. A footnote applied the conflict-of-statutes rule that a specific, later-enacted provision controls. Tex. Gov't Code Ann. § 311.026(b) (West 2005).

Citations

Statutes:

• Tex. Gov't Code Ann. § 573.041 (West 2004)
• Tex. Gov't Code Ann. § 573.001(3)(B) (West 2004)
• Tex. Gov't Code Ann. § 573.062 (West 2004)
• Tex. Educ. Code Ann. § 11.1513(f)(1) (West Supp. 2011)
• Tex. Educ. Code Ann. § 11.201(a), (d)(2) (West Supp. 2011)
• Tex. Gov't Code Ann. § 311.026(b) (West 2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0910
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0910.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

February 7, 2012

The Honorable Florence Shapiro Opinion No. GA-0910
Chair, Committee on Education
Texas State Senate Re: Application of nepotism law, chapter 573,
Post Office Box 12068 Government Code, to a school superintendent's
Austin, Texas 78711-2068 reassignment of his spouse, a school district
counselor (RQ-0991-GA)

Dear Senator Shapiro:

You have asked to receive the opinion originally requested by Senator Hegar about the application of the anti-nepotism law, chapter 573, Government Code, to a school superintendent's reassignment of his spouse, who is also employed by the school district.[1] You inform us that after a school district board of trustees (the "Board") hired a superintendent's spouse as a school counselor, the Board adopted a policy delegating its authority to select district personnel to the superintendent. Request Letter at 1. The superintendent has reassigned his spouse, who is a certified academic counselor, to an alternative high school in need of a certified academic counselor to sign transcripts. Id. You ask if a superintendent who has been delegated final authority to select district personnel is precluded by the nepotism provisions of chapter 573 of the Government Code from reassigning his spouse to another campus in the school. Id. at 1, 7.

Chapter 573 generally prohibits public officials from exercising their appointment or confirmation authority to select close relatives for public employment. See TEX. GOV'T CODE ANN. § 573.041 (West 2004). The chapter's definition of "public official" includes "an officer or member of a board ... of a ... school district ...." Id. § 573.001(3)(B). Thus, the prohibition can apply to a superintendent who possesses the authority to select a person by appointment or confirmation for public employment. Id. §§ 573.001(3)(B), .041; Tex. Att'y. Gen. Op. No. GA-0123 (2003) at 3.

Section 11.1513 of the Education Code requires a board of trustees to adopt a school district policy governing school district employment. TEX. EDUC. CODE ANN. § 11.1513(a) (West Supp. 2011). Unless the policy provides otherwise, a board possesses the authority to select all district personnel, limited to recommendations or alternative recommendations of the superintendent. Id. § 11.1513(a)(2), (b). However, a board may adopt a policy that delegates its final authority to select district personnel for employment to the superintendent, which you inform us has happened here. Id. § 11.1513(a)(2); Request Letter at 1. When a board "delegates to the superintendent the final authority to select district personnel ... 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 ...." TEX. EDUC. CODE ANN. § 11.1513(f)(1) (West Supp. 2011) (emphasis added). Thus, while a superintendent may meet the general definition of a "public official" under section 573.001(3)(B) of the Government Code, under section 11.1513(f)(1) of the Education Code, a school superintendent is a public official subject to nepotism provisions only when making a decision pursuant to delegated authority to select district personnel. Id. § 11.1513(f)(1); TEX. GOV'T CODE ANN. § 573.001(3)(B).[2]

However, the authority to select a person for district employment is different from the authority to assign the person to a particular campus. See Tex. Att'y Gen. Op. No. GA-0123 (2003) at 4 (noting distinction between selection and assignment). The Education Code grants a superintendent, as the chief executive officer of a school district, "administrative authority and responsibility for the assignment" of all district personnel. TEX. EDUC. CODE ANN. § 11.201(a), (d)(2) (West Supp. 2011).[3] The board, on the other hand, possesses no authority to assign a district employee to a particular position and therefore has no assignment authority to delegate. Tex. Att'y Gen. Op. No. GA-0123 (2003) at 4 (observing that the Education Code authorizes the superintendent, not the board, to assign district personnel). Because superintendents possess assignment authority in their own right, rather than by delegation, a superintendent is not a public official subject to chapter 573 of the Government Code when making an assignment under the Education Code. TEX. EDUC. CODE ANN. § 11.1513(f) (West Supp. 2011). Consequently, the nepotism provisions of chapter 573 of the Government Code do not preclude a superintendent from reassigning his spouse to another campus in the school district.

You also ask about the applicability and effect of the continuing employment exception to the anti-nepotism statute in section 573.062 of the Government Code. See Request Letter at 1-3; see also TEX. GOV'T CODE ANN. § 573.062 (West 2004). Because the superintendent is not a public official subject to the anti-nepotism provisions of chapter 573 of the Government Code when assigning an employee to a particular campus, section 573.062 is not relevant to your question. Tex. Att'y Gen. Op. No. GA-0123 (2003) at 4.

SUMMARY

A superintendent of an independent school district is not a public official subject to the anti-nepotism provisions of the Government Code when assigning an employee to a particular district campus.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from the Honorable Glenn Hegar, Texas Senate, to the Honorable Greg Abbott, Attorney General of Texas at 7 (Aug. 1, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] When statutes irreconcilably conflict, a specific provision prevails as an exception to the general provision, unless the general statute is the later enacted and legislative intent indicates it is to prevail. See TEX. GOV'T CODE ANN. § 311.026(b) (West 2005); see also id. § 311.025(a) (providing that "if statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails"). As the more specific and most recently enacted, Education Code section 11.1513(f) prevails over Government Code section 573.041. See Act of May 25, 2007, 80th Leg., R.S., ch. 1244, § 4, 2007 Tex. Gen. Laws 4188, 4190-91 (amending Education Code section 11.1513); Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 643 (codifying Government Code section 573.041).

[3] Although the superintendent's authority would include assigning a person to a particular campus, the school's principal is required to "assign, evaluate, and promote personnel assigned to the campus." TEX. EDUC. CODE ANN. § 11.202(b)(5) (West 2006).