Did intermittent service as a substitute teacher count as continuous employment under Texas's school-board nepotism exception?

Texas AG Opinion JM-861: Substitute Teacher Nepotism

Plain-English summary

The Collin County Criminal District Attorney asked whether intermittent substitute teaching satisfied the continuous-employment exception to Texas's nepotism law. The Attorney General concluded that substitute service "does not constitute continuous employment." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0861.pdf

Being placed on the substitute list created neither "a guarantee of being contacted" nor an obligation to accept an assignment. The teacher also had no continuing contract with the district. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0861.pdf

The AG treated each substitute assignment as separate employment. Because the teacher had not been continuously employed for the required period before her spouse joined the school board, her later full-time, part-time, or substitute work during his tenure violated the nepotism statute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0861.pdf

Currency note

This opinion was issued in 1988. 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

Did being on a substitute-teacher list create continuous employment?

No. The opinion said the list created neither a guaranteed assignment nor an obligation to accept work, and the teacher was "not a party to any continuing contract." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0861.pdf

Was periodic substitute teaching enough for the nepotism exception?

No. The AG concluded that the teacher "was not continuously employed for two years" before her spouse's election because she served only periodically as a substitute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0861.pdf

Why did the opinion treat each assignment separately?

It said the employment relationship did not arise until the district offered temporary work and the person accepted it. The opinion compared that arrangement to the rule that "each appointment represents a separate employment." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0861.pdf

Could the teacher work full-time or part-time after her spouse joined the board?

The opinion said her employment "as either a full-time, a part-time, or a substitute teacher" during her spouse's board tenure violated the nepotism statute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0861.pdf

Background and statutory framework

The teacher had previously worked full-time, resigned in 1982, served intermittently as a substitute, returned part-time in January 1987, and resumed full-time work in September 1987. Her spouse had joined the school board in April 1984. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0861.pdf

At the spouse's election, article 5996a protected a related employee only if that person had been "continuously employed" for two years before the officer's election or appointment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0861.pdf

Citations and references

• V.T.C.S. art. 5996a
• V.T.C.S. art. 5996g, § 2
• Bean v. State, 691 S.W.2d 773 (Tex. App. - El Paso 1985, pet. ref'd)
• Attorney General Opinions O-6259 (1945), V-785 (1949), H-993 (1971), JM-45 (1983), JM-371 (1985), and JM-636 (1987)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0861.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0861
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0861.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

February 19, 1988

JIM MATTOX
ATTORNEY GENERAL

Honorable Tom O'Connell
Criminal District Attorney
Collin County Courthouse
McKinney, Texas 75069

Opinion No. JM-861

Re: Whether employment as a substitute teacher constitutes continuous employment under the nepotism statute, article 5996a, V.T.C.S. (RQ-1261)

Dear Mr. O'Connell:

You ask about the application of the nepotism law to a specific situation. You explain that a teacher was employed full-time for the school years 1978-1979, 1979-1980 and 1981-1982. The teacher resigned in the spring of 1982 and her name was placed on the substitute list. She served intermittently as a substitute teacher until January of 1987 and then worked as a part-time teacher for the remainder of the school year. In September, 1987, she began work as a full-time teacher and continues in that capacity. The teacher's spouse was elected to the school board of trustees in April, 1984, and continues to serve on that board.

The question is whether the teacher's service as a substitute satisfies the continuous employment exception to the general prohibition of nepotism found in article 5996a, V.T.C.S.

At the time that the spouse was elected to the school board, article 5996a read as follows:1

No officer of . . . any . . . school district . . . shall appoint, or vote for, or confirm the appointment to any office, position, clerkship, employment or duty, of any person related within the second degree by affinity. . . . [P]rovided, 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 related to such employee in the prohibited degree.

Acts 1951, 52d Leg., ch. 97, § 1, at 159.

1. Under a 1987 amendment, the requisite length of prior employment is only six months if the officer is elected at an election other than the general election for state and county offices. See Acts 1987, 70th Leg., ch. 427, § 1, at 3958-59. That change, however, does not affect the result in this opinion.

This article applies to school board trustees and to the employment of teachers. Attorney General Opinion Nos. JM-636 (1987); JM-371 (1985); O-6259 (1945).

The spouse of an officer to whom the nepotism statute applies is related within the first degree of affinity. Attorney General Opinion V-785 (1949); see also Attorney General Opinion Nos. JM-371 (1985); H-993 (1971).

The information provided to us indicates that the teacher resigned her employment as a full-time teacher and her name was added to a list of persons available to serve as substitute teachers. As we understand it, having one's name put on this "substitute list" creates neither a guarantee of being contacted by the school district to serve as a substitute teacher, nor an obligation to accept a teaching assignment if offered one. The teacher about whom you inquire was not a party to any continuing contract.

We distinguish the current situation from that of a school district auditor. In Attorney General Opinion JM-45 (1983) this office found that if a school district auditor was continuously under contract for two consecutive years prior to the election of his first cousin to the school board, the auditor could continue his employment for the school board after his cousin took office. The auditor, like the substitute teacher, was performing services on a periodic basis, but, unlike the substitute teacher, the auditor was employed by the school district by virtue of his contract.

The substitute teacher's status is more analogous to that of a court-appointed attorney. In Bean v. State, 691 S.W.2d 773 (Tex. App. - El Paso 1985, pet. ref'd), the court found that repeated appointments to represent indigent clients did not constitute continuous employment; but rather that "[e]ach appointment represents a separate employment." Id. at 775 (emphasis added). The same is true in this instance. The employment relationship does not exist until the school district offers temporary work to someone on the list of available substitutes, and the person accepts the assignment.2

2. Hence, when the teacher changed from substitute teaching to part-time teaching in January 1987, she did not terminate her employment in order to come within the exception to the nepotism statute found in section 2 of article 5996g, V.T.C.S.

Therefore, based on the fact that the teacher was not continuously employed for two years before her spouse was elected to the board but served periodically on a substitute basis, the two year continuous prior employment provision was not triggered. In our opinion, her employment as either a full-time, a part-time, or a substitute teacher by the school district during her spouse's tenure on the school board violates the nepotism statute.

SUMMARY

Service as a substitute teacher does not constitute continuous employment under the provision of the nepotism statute which allows continued employment of a person related within the prohibited degree to a school board member.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General