Can a Texas school district keep employees hired under the small-county nepotism exception after the county grows past 35,000?

Plain-English summary

Michael Williams, the Texas Commissioner of Education, asked the Attorney General a narrow timing question about school-district nepotism. Texas law generally forbids a public official from hiring a close relative, and that prohibition reaches members of a school district's board of trustees. The Education Code carves out an exception: in a small county, one with fewer than 35,000 people, a superintendent who has been delegated hiring authority may make appointments that the nepotism rule would otherwise block. The Commissioner described a district that had used this exception to hire several at-will employees who are related to board members, and then saw the county's population climb above 35,000. He wanted to know whether those employees could stay.

The AG said yes. The key was the wording of the nepotism statute. Section 573.041 of the Government Code prohibits the "appointment" of a relative; it does not speak to the ongoing employment of a person who has already been appointed. Because the employees were lawfully hired when the county was under 35,000, the later jump in population did not retroactively void those hires or require the district to let them go. The AG also pointed to the general rule that a statute is presumed to operate prospectively unless it is expressly made retroactive. The bottom line was that an independent school district may continue to employ a person whose initial hiring was exempt under subsection 11.1513(g) even after the county's population meets or passes 35,000.

The opinion stayed within that question. It did not address new hires made after the county crossed the threshold, and it noted that "population" here means the figure from the most recent federal decennial census, assuming the Commissioner's account was based on that count.

Currency note

This opinion was issued in 2014. 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

The Commissioner of Education and the Texas Education Agency (as the opinion described it): The opinion answered that an independent school district may keep employing an individual whose initial hiring was lawful under the subsection 11.1513(g) exception, even after the county's population reaches or exceeds 35,000, because the nepotism prohibition addresses appointment rather than continued employment.

School districts in counties that have grown past 35,000 (as the opinion described it): The opinion described a population increase beyond 35,000 as not rendering invalid a prior legal hiring made under the exception, and as not affecting the ongoing employment of such an individual, relying on the prospective-operation presumption for statutes.

Relatives of board members already employed under the exception (as the opinion described it): The opinion treated these workers as lawfully hired and able to remain in the same positions, drawing the line at "appointment," which the statute prohibits, rather than at staying employed.

Common questions

Does a school district have to fire relatives of board members once the county grows past 35,000?
No, according to this opinion. The AG concluded that the nepotism statute bars the appointment of a relative, not the continued employment of someone already lawfully hired, so the district may keep those employees.

Why does the population change not undo the hiring?
The AG explained that section 573.041 prohibits "appointment," and the employees were already appointed when the county qualified for the exception. The AG also cited the rule that statutes are presumed to apply prospectively unless made retroactive.

What is the under-35,000 nepotism exception?
The Education Code's subsection 11.1513(g) lets a superintendent with delegated hiring authority make appointments in a school district located wholly in a county with a population of less than 35,000 that the nepotism prohibition would otherwise block.

Which population count controls?
The AG noted that "population" in subsection 11.1513(g) means the population shown by the most recent federal decennial census, and assumed the Commissioner's statement was based on that census.

Did the opinion say new relatives could be hired after the county passed 35,000?
No. The opinion addressed only the continued employment of people lawfully hired under the exception, not new appointments made after the county crossed the threshold.

Background and statutory framework

Texas law generally prohibits nepotism (Tex. Gov't Code Ann. §§ 573.001-.084 (West 2012)). The core prohibition bars a public official from appointing, confirming, or voting for the appointment of a relative within a prohibited degree (id. § 573.041; id. § 573.041(1); id. § 573.002 (degrees of relationship)), and a school district board member is a "public official" for this purpose (id. § 573.001(3)(B)). When a board delegates hiring authority to the superintendent, the Education Code makes the superintendent a public official under chapter 573 only as to decisions made under that delegation, while each board member remains subject to chapter 573 as to all district employees (Tex. Educ. Code Ann. § 11.1513(f) (West 2012); Tex. Att'y Gen. Op. No. GA-0794 (2010) at 3). Subsection 11.1513(g) creates an exception for a district located wholly in a county with a population of less than 35,000 (id. § 11.1513(g)).

The AG read section 573.041 to bar "appointment," not ongoing employment, so a post-hire increase in population beyond 35,000 would not invalidate a prior lawful hire or affect continued employment, consistent with the presumption that a statute operates prospectively unless expressly made retrospective (Tex. Gov't Code Ann. § 311.022 (West 2013)). The opinion noted that "population" in subsection 11.1513(g) means the figure from the most recent federal decennial census (id. § 311.005(3) (West 2013)).

Citations

Statutory provisions:

• Tex. Gov't Code Ann. §§ 573.001-.084 (West 2012) (general nepotism law)
• Tex. Gov't Code Ann. § 573.041 (West 2012) (nepotism prohibition on appointment)
• Tex. Gov't Code Ann. § 573.041(1) (appointment of a related individual)
• Tex. Gov't Code Ann. § 573.002 (prohibited degrees of relationship)
• Tex. Gov't Code Ann. § 573.001(3)(B) (school board member as "public official")
• Tex. Educ. Code Ann. § 11.1513(f) (West 2012) (superintendent as public official under delegated authority)
• Tex. Educ. Code Ann. § 11.1513(g) (West 2012) (under-35,000-county nepotism exception)
• Tex. Gov't Code Ann. § 311.022 (West 2013) (statutes presumed prospective)
• Tex. Gov't Code Ann. § 311.005(3) (West 2013) ("population" means most recent federal decennial census)

Cases:

• None cited.

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0794 (2010)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1064
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1064.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

June 4, 2014

Mr. Michael Williams Opinion No. GA-1064
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 county'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 of the Government Code (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. Id. § 573.041(1); see id. § 573.002 (establishing degrees of relationship to which the nepotism prohibition applies). This prohibition applies to members of a school district board of trustees. See id. § 573.001(3)(B) (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(f) of the Education Code provides that "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 "each member of the board of trustees remains subject to Chapter 573 ... with respect to all district employees." TEX. EDUC. CODE ANN. § 11.1513(f) (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 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 prohibited 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 of those 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.

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.

Very truly yours,

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

[1] Letter from Mr. Michael Williams, Comm'r of Educ., Tex. Educ. Agency, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Nov. 26, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[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.