Could a Texas school district promote a teacher to registrar after her husband joined the school board?

Texas AG Opinion JM-371: Teacher Promotion and Nepotism

Plain-English summary

A school district hired a teacher in 1974. Her husband joined the board of trustees in 1978, after she had worked continuously for 45 months, so the nepotism law's grandfather clause allowed her to remain a teacher. The board promoted her to high-school registrar in 1979. The Attorney General concluded that promotion violated the law then in effect. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0371.pdf

The former grandfather clause protected the "office, position, clerkship, employment or duty" held before the relative joined the board. It did not authorize appointment to a different position, even one paying less, or assignment of additional workdays. Because the promotion was unlawful, it did not change her legal status from teacher to registrar. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0371.pdf

Senate Bill 599 amended article 5996a effective May 24, 1985. The new grandfather clause allowed reappointment, employment, reemployment, changes in status or compensation, and dismissal of the grandfathered employee, but barred the related official from deliberating or voting when the action applied only to that person rather than a bona fide class or category of employees. The board could therefore lawfully change her status and compensation under the amended statute without her husband's participation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0371.pdf

Currency note

This opinion was issued in 1985. 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.

Common questions

Why could the teacher keep working after her husband became a trustee?

She had already worked continuously for more than the two years required by the grandfather clause then in effect before her husband joined the board. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0371.pdf

Why was the registrar promotion invalid?

The old clause preserved only the position she already held. It did not permit the board to appoint her to a different job or add workdays after her relative joined the board. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0371.pdf

Did performing registrar duties for years make her legally the registrar?

No. The opinion concluded that an appointment made in violation of the nepotism law was ineffective, so she remained a teacher for purposes of the statute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0371.pdf

What changed in 1985?

The amended grandfather clause expressly allowed a school board to change a protected employee's status and compensation, provided the related board member did not deliberate or vote on an action directed only at that employee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0371.pdf

Could the trustee husband vote on a district-wide teacher pay change?

The opinion quoted an exception for action taken with respect to a bona fide class or category of employees. Its holding specifically barred his participation in an individual action concerning his wife. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0371.pdf

Background and statutory framework

The 1951 version of article 5996a allowed a related employee to remain only if continuously employed in the same office, position, clerkship, employment, or duty for two years before the official's election or appointment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0371.pdf

The 1985 amendment reduced the continuity period to one year and expanded the protected board actions to include changes in status and compensation. It also added the related member's recusal obligation for individual employment decisions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0371.pdf

Citations and references

• V.T.C.S. art. 5996a
• Acts 1951, 52nd Leg., ch. 97, at 159
• Acts 1985, 69th Leg., ch. 152, at 800-01 (Senate Bill 599)
• Fairless v. Cameron County Water Improvement District No. 1, 25 S.W.2d 651 (Tex. Civ. App. - San Antonio 1930, writ ref'd)
• Attorney General Opinions V-785 (1949), M-671 (1970), H-728 (1970), MW-135 (1980), JM-234, JM-288 (1984); Letter Advisory No. 69 (1973)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0371.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0371
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0371.pdf

Original opinion text

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

The Attorney General of Texas

October 29, 1985

Mr. W. N. Kirby
Commissioner of Education
Texas Education Agency
201 East Eleventh Street
Austin, Texas 78701

Opinion No. JM-371

Re: Whether a teacher may be promoted to registrar in a school district where her husband serves on the board of trustees, and related questions

Dear Mr. Kirby:

You request an interpretation of the nepotism law, article 5996a, V.T.C.S., which prohibits a board of school trustees from employing any person related within a prohibited degree to a board member. You state that an individual was originally employed as a teacher by an independent school district in August 1974. Her husband, a relative within the degree of affinity subject to the nepotism law, became a trustee of the district in April 1978. See Attorney General Opinion V-785 (1949). Since the teacher had by that time been employed for forty-five months continuously, she was allowed to continue working for the school district under the grandfather provision of the nepotism law then in effect:

provided, that nothing herein contained . . . shall prevent the appointment, voting for, or confirmation of any person who shall have been continuously employed in any such office, position, clerkship, employment or duty for a period of two (2) years prior to the election or appointment of the officer or member appointing, voting for, or confirming the appointment, or to the election or appointment of the officer or member related to such employee in the prohibited degree;

Acts 1951, 52nd Leg., ch. 97, at 159 (former article 5996a, V.T.C.S.). See Acts 1985, 69th Leg., ch. 152, at 800-01 (amendment by Senate Bill No. 599 to quoted language effective May 24, 1985). This provision allowed the teacher to continue her employment in the district but did not allow the board of trustees to transfer her to a different position. Attorney General Opinions JM-288 (1984); M-671 (1970); Letter Advisory No. 69 (1973).

In July of 1979, the board of trustees promoted the teacher to high school registrar. According to the information you have submitted, she was given the registrar position at her teacher's daily salary rate plus an additional ten days of employment. Her contract and the school records placed her at pay grade eight, although the registrar position is customarily classified as a grade 10B position.

The trustees' action in promoting this individual to registrar violated the nepotism statute. The two year proviso of the former nepotism statute, quoted above, allowed the teacher to keep the "office, position, clerkship, employment or duty" in which she had been continuously employed for at least two years before her husband became a trustee. Attorney General Opinion JM-234 (1984); Letter Advisory No. 69 (1973). It did not authorize the board to appoint her to a different position, even a less remunerative one, or to assign her additional days of work. Attorney General Opinion MW-135 (1980); Letter Advisory No. 69 (1973). The Texas Education Agency has concluded that her promotion to registrar violated article 5996a, V.T.C.S., and we agree with this conclusion.

The school district wishes to continue this employee as registrar. You ask whether the district may return her to a pay status identical to that which she maintained before the promotion but allow her to continue to perform her duties as registrar.

Your question about potential action by the school trustees requires us to interpret article 5996a, V.T.C.S., as amended by Senate Bill No. 599 of the Sixty-ninth Legislature. Senate Bill No. 599 became effective on May 24, 1985, and the grandfather clause of article 5996a, V.T.C.S., now reads as follows:

provided, that nothing herein contained . . . shall prevent the appointment, voting for, or confirmation of any person who shall have been continuously employed in any such office, position, clerkship, employment or duty for a period of one (1) year prior to the election or appointment of the officer or member appointing, voting for, or confirming the appointment, or to the election or appointment of the officer or member related to such employee in the prohibited degree; or prevent the reappointment, employment, confirmation, reemployment, change in status, compensation, or dismissal of such person. If such action applies only to such person and is not taken with respect to a bona fide class or category of employees, the officer or member related to such person in the prohibited degree may not participate in the deliberation or vote on such action. (Emphasis added).

The employee in question was continuously employed for forty-five months as a teacher before her husband became a board member in 1978. The nepotism law prohibited the school board from promoting her to registrar in 1979; she was ineligible for that position. See Attorney General Opinion H-728 (1970). The board's action was ineffective to change her legal status from teacher to registrar. See Fairless v. Cameron County Water Improvement District No. 1, 25 S.W.2d 651 (Tex. Civ. App. - San Antonio 1930, writ ref'd). In our opinion the employee is still a teacher for purposes of interpreting the nepotism statute even though she has performed the duties of registrar since 1979. Under the recently amended grandfather provision of article 5996a, V.T.C.S., the school board may change her employment status and compensation, but the trustee to whom she is related may not participate in the deliberation or vote thereon.

SUMMARY

Under article 5996a, V.T.C.S., as amended by the Sixty-ninth Legislature, a school teacher with one year of continuous employment prior to her husband's election as school trustee may continue to serve the district as a teacher. The school board may change her employment status and compensation, but her relative may not deliberate or vote thereon.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
Bruce Youngblood