Texas Attorney General Opinion: GA-73 Page: 3 of 5
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Mr. Kenneth James - Page 3
(b) The board has authority to promulgate and enforce such rules,
regulations, and orders for the operation, control, and management of
the university system and its institutions as the board may deem either
necessary or desirable. When a power is vested in the board, the
board may adopt a rule, regulation, or order delegating such power to
any officer, employee, or committee as the board may designate.
Id. 95.21. The code mandates that the SFA board "shall select the president of the university," but
does not state criteria for the office or endow it with any particular powers or responsibilities. Id.
101.16. Other than the board, the code does not invest any office or entity with the authority and
responsibility for hiring employees or contracting for services. Although the board has the authority
to delegate its powers, according to the Request Letter, "the SFA Board of Regents retains statutory
hiring authority for all University employees." Request Letter, supra note 1, at 2.4
Because the legislature has vested hiring authority exclusively in the SFA board, its members
are public officials subject to the nepotism statute. See TEX. GOV'T CODE ANN. 573.001(3)(B)
(Vernon 1994); Tex. Att'y Gen. Op. No. LA-148 (1977). Because the president is not a member of
the board and assuming no board members are related to his spouse, the board may employ her
without violating the nepotism statute. See TEX. GOV'T CODE ANN. 573.041 (Vernon 1994).
The Request Letter does not state whether the president plays a role in the hiring process.
Nonetheless, we conclude that he is not a public official under the nepotism statutes. In Pena, the
court concluded that because the board of trustees had exclusive authority to employ teachers, the
superintendent who made recommendations was not a public official subject to the nepotism statute.
See Pena, 616 S.W.2d at 659-60. The court relied on the standard for determining one's status as
a public officer articulated in Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955), that
is, whether the superintendent could exercise a sovereign function of the government largely
independent of the board's control of others. See Pena, 616 S.W.2d at 659-60. The court concluded
that the superintendent was not a public officer because he "merely perform[ed] functions delegated
to him by the trustees who do not by such delegation abdicate their statutory authority or control."
Id. at 660.
If the president of SFA exercises any role in hiring university employees, he does so only as
an employee and not as a public official. See TEX. EDUC. CODE ANN. 95.21 (Vernon 2002); Tex.
Att'y Gen. LO-96-080, at 2 (chancellor of Texas Tech University, as "chief executive officer,".is not
a "public officer" but acts subject to direction and control of board of regents). And as an employee,
the president is not subject to the nepotism statute with respect to employment decisions about
another employee. See Pena, 616 S.W.2d at 660.
4See STEPHEN F. AUSTIN STATE UNIVERSITY, UNIVERSITY POLICY AND PROCEDURES, D-20.5 (revised Jan. 28,
2003) (stating that SFA Board of Regents retains final approval of appointment and termination of faculty and
administrative or professional staff), available at http://www.sfasu.edu/up/ap/eneral regulations/
items BOR approval.html.(GA-0073)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-73, text, May 21, 2003; (https://texashistory.unt.edu/ark:/67531/metapth274968/m1/3/?q=Lamar+University: accessed June 9, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.