Pena v. Rio Grande City Consol. Independent School Dist.

• Decision Date: 16 April 1981
• Docket Number: No. 5577,5577
• Citation: 616 S.W.2d 658
• Parties: Eduardo PENA v. RIO GRANDE CITY CONSOLIDATED INDEPENDENT SCHOOL DISTRICT et al.
• Court: Texas Court of Appeals

Page 658

616 S.W.2d 658

Eduardo PENA v. RIO GRANDE CITY CONSOLIDATED INDEPENDENT SCHOOL DISTRICT et al.

No. 5577.

Court of Civil Appeals of Texas, Eastland.

April 16, 1981.

Roger H. Reed, Texas Rural Legal Aid, Rio Grande City, for appellant.

Glenn H. Ramey, Rio Grande City, Joe Hairston and John Aldridge, Staff Attys., Texas Ass'n of School Boards, Austin, for appellee.

McCLOUD, Chief Justice.

At issue is whether the Superintendent of the Rio Grande City Consolidated Independent School District is an officer of the school district subject to the prohibition against official nepotism found in Tex.Rev.Civ.Stat.Ann. art. 5996a (Vernon Supp.1980-81). Eduardo Pena brought suit against the District, its Board of Trustees the Superintendent of Schools, Antonio Garcia, and Garcia's wife, who had been employed by the District as a teacher. Plaintiff alleged in his original petition that Garcia was hired as Superintendent of Schools on or about July 15, 1974, and as "chief administrative officer" of the District, he subsequently appointed his wife to a teaching position within the District. Defendants excepted to plaintiff's petition, asserting that plaintiff failed to allege a cause of action. Defendants' special exception urged that the Superintendent of Schools is merely an employee of the District and not an officer within the meaning of Article 5996a. The court sustained defendants' special exception, and upon plaintiff's refusal to amend, dismissed the suit with prejudice. Plaintiff appeals. We affirm.

Tex.Rev.Civ.Stat.Ann. art. 5996a (Vernon Supp.1980-81) provides in part:

No officer of this State nor any officer of any district, county, city, precinct, school district, or other municipal subdivision of this State, nor any officer or member of any State district, county, city, school district or other municipal board, or judge of any court, created by or under authority of any General or Special Law of this State, nor any member of the Legislature, 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 or within the third degree by consanguinity to the person so appointing or so voting, or to any other member of any such board, the Legislature, or court of which such person so appointing or voting may be a member, when the salary, fees, or compensation of such appointee is to be paid for, directly or indirectly, out of or from public funds or fees of office of any kind or character whatsoever....

Article 5996b provides:

The inhibitions set forth in this law shall apply to and include the Governor, Lieutenant Governor, Speaker of the House of Representatives, Railroad Commissioners, head of departments of the State government, judges and members of any and all Boards and courts established by or under the authority of any general or special law of this State, members of the Legislature, mayors, commissioners, recorders, aldermen and members of school boards of incorporated cities and towns, public school trustees, officers and members of boards of managers of the State University and of its several branches, and of the various State educational institutions and of the various State eleemosynary institutions, and of the penitentiaries. This enumeration shall not be held to exclude from the operation and effect of this law any person included within its general provisions.

Tex.Educ.Code Ann. § 23.26 provides in part:

(b) THe trustees shall have the exclusive power to manage and govern the public free schools of the district.

Tex.Educ.Code Ann. § 23.28(a) provides:

(a) The board of trustees of any independent school district may employ by contract a...