JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin, TX. 76711. 2546 

512/475-2501 

Telex 910/674-1367 

Telecopier 51214750266 

714 Jackson, Suite 700 

Dallas. TX. 75202.4506 

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El Paso, TX. 79905.2793 

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Lubbock, TX. 794013479 

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San Antonio. TX. 762052797 

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An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

June 13, 1984 

Mr. Ron Patterson 

Executive Director 

State Property Tax Board 

9501 North Ill-35 

Austin, Texas 78761 

Opinion No. JM- 166 

Re: Selection process for 

members of an appraisal 

district board of directors 

under section 6.03 of the 

Tax Code 

Dear Mr. Patterson: 

You ask us a series of questions regarding section 6.03 of the 

Tax Code which governs the method of selection for members of an 

appraisal district board of directors. We will answer each of your 

questions in turn. 

Section 6.03 of the Tax Code contains the following: 

86.03. Board of Directors 

(a) The appraisal district is governed by a 

board of five directors. To be eligible to serve 

on the board of directors, au individual must be a 

resident of the district and must have resided in 

the district for at least two years immediately 

preceding the date he takes the office. An 

individual who is otherwise eligible to serve on 

the board is not ineligible because of membership 

on the governing body of a taxing unit. However, 

not more than one employee of a taxing unit may 

serve on the board at one time. If more than one 

employee is appointed to the board, the employee 

receiving the highest vote total serves, and the 

taxing unit that nominated each of the other 

employees appointed to the board shall name a 

replacement who is not an employee of a taxing 

unit. 

(b) Members of the board of directors serve 

two-year terms beginning on January 1 of 

even-numbered years. 

(c) Members of the board of directors are 

appointed by vote of the governing bodies of the 

p. 729 
Mr. Ron Patterson - Page 2 (JM-166) 

incorporated cities and towns and the school 

districts that participate in the district and of 

the county. A governing body may cast all its 

votes for one candidate or distribute them among 

candidates for any "umber of directorships. 

(d) The voting entitlement of a taxing unit 

that is entitled to vote for directors is 

determined by dividing the total dollar amount of 

property taxes imposed in the district by the 

taxing unit for the preceding tax year by the sum 

of the total dollar amount of property taxes 

imposed in the district for that year by each 

taxing unit that is entitled to vote, by 

multiplying the quotient by 1,000, and by rounding 

the product to the nearest whole number. That 

number is multiplied by the number of 

directorships to be filled. A taxing unit 

participating in two or more districts is entitled 

to vote in each district in which it participates, 

but only the taxes imposed in a district are used 

to calculate voting entitlement in that district. 

(e) The county clerk shall calculate the 

number of votes to which each taxing unit is 

entitled and shall deliver written notice to the 

presiding officer of the governing body of each 

unit of its voting entitlement before October 1 of 

each odd-numbered year. 

(f) Each taxing unit that is entitled to vote 

-Y nominate by resolution adopted by its 

governing body one candidate for each position to 

be filled on the board of directors. The 

presiding officer of the governing body of the 

unit shall submit the names of the unit's nominees 

to the county clerk before October 15. Before 

October 30, the county clerk shall prepare a 

ballot, listi"g the candidates alphabetically 

according to the first letter in each candidate's 

surname, and shall deliver a copy of the ballot to 

the presiding officer of the governing body of 

each taxing unit that is entitled to vote. 

(g) The governing body of each taxing unit 

entitled to vote shall determine its vote by 

resolution and submit it to the county clerk 

before November 15. The county clerk shall count 

the votes, declare the five candidates who receive 

the largest cumulative vote totals elected, and 

submit the results before .December 1 to the 

b 

p. 730 
Mr. Ron Patterson - Page 3 (JM-166) 

- 

governing body of each taxing unit in the district 

and to the candidates. The county clerk shall 

resolve a tie vote by any method of chance. 

(h) If a vacancy occurs on the board of 

directors, each taxing unit that is entitled to 

vote by this section may nominate by resolution 

adopted by its governing body a candidate to fill 

the vacancy. The unit shall submit the name of 

its nominee to the county clerk within 10 days 

after notification from the board of directors of 

the existence of the vacancy, and the county clerk 

shall prepare and deliver to the board of 

directors within the next five days a list of the 

nominees. The board of directors shall elect by 

majority vote of its members one of the nominees 

to fill the vacancy. 

You ask, first, "[ils the selection process contained in section 

6.03 of the Property Tax Code governed by the Texas Election Code?" 

We conclude that it is not. By its very terms, subsection (c) of 

section 6.03 of the Tax Code provides that "[mlembers of the board of 

directors are appointed by vote of the governing bodies . . . ." 

(Emphasis added). See also Tax Code 16.031. Article 1.01 of the 

Election Code, on the other hand, provides that "the provisions of 

this code shall apply to all elections and primaries held in this 

[sltate . . . .u (Emphasis added). A court of appeals has referred 

to an appraisal district board of directors as "a board consisting of 

appointees" and declared that equal protection of the law is not 

denied where such board members do not represent equal numbers of 

people. Colony Municipal Utility District No. 1 of Denton County v. 

Appraisal District of Denton County. 626 S.W.2d 930, 932 (Tex. Civ. 

APP. - Fort Worth 1982, writ ref'd n.r.e.). See also Walling v. North 

Central Texas Municipal Water Authority, 359 S.W.2d 546 (Tex. Civ. 

APP. - Eastland 1962, writ ref'd n.r.e.) (method of selecting 

governing body of conservation and reclamation district substantially 

similar to that set forth in section 6.03 of the Tax Code held not to 

be a denial of a republican form of government nor a violation of the 

rule set forth in Baker v. Carr, 369 U.S. 186 (1962)). Because the 

members of the boards of directors for appraisal districts are 

appointed rather than elected, the procedure for selecting the members 

is not governed by the Election Code. 

Second, you ask the following: 

Are any or all of the following dates included in 

section 6.03(f) and (g) mandatory deadlines? If 

any of these dates are not mandatory, what should 

the county clerk consider the deadline for 

performance to be? 

p. 731 
Mr. Ron Patterson - Page 4 (m-166) 

(a) Before October 15 -- the date for the unit 

to have submitted the names of the unit's nominees 

to the county clerk. 

(b) Before October 30 -- the date for the 

coun<y clerk to have prepared a ballot and 

delivered a copy of the ballot to the presiding 

officer of [the governing body of] each voting 

taxing unit. 

(c) Before November 15 -- the date for the 

taxing [unit] to have voted by resolution and 

submitted it to the county clerk. 

We conclude that the prescribed dates are directory and not mandatory. 

The determination of the particular deadline involves a matter of 

substantial compliance. 

Generally, statutory provisions which regulate the duty of public 

officers and specify the time for performance of such duties are 

directory unless the statute forbids the exercise of such Dower after 

that time. Markowsky v. Newman, 136 S.W.2d 808 (Tex. 1940). Federal 

Crude Oil Company v. Yount-Lee Oil Company, 52 S.W.2d 56 (Tex. 1932). 

As the Texas Supreme Court declared in Cbisholm v. Bewley Mills, 287 

S.W.2d 943, 945 (Tex. 1956): 

There is no absolute test by which it may be 

determined whether a statutory provision is 

mandatory or directory. The fundamental rule is 

to ascertain and give effect to the legislative 

intent. Although the word 'shall' is generally 

construed to be mandatory, it may be and 

freauentlv is held to be merely directorv. In 

essence of the thing to be done, but which are 

included for the purpose of promoting the proper, 

orderly and prompt conduct of business, are not 

generally regarded as mandatory. If the statute 

directs, authorizes or cormnands an act to be done 

within a certain time, the absence of words 

restraining the doing thereof afterwards or 

stating the consequences of failure to act within 

the time specified, may be considered as a 

circumstance tending to support a directory 

construction. (Emphasis added). 

p. 732 
Mr. Ron Patterson - Page 5 (JM-166) 

h 

It is clear that the legislature intended that each taxing unit 

entitled to appoint members of the board of directors of an appraisal 

district have a voice in the selection of the appraisal district board 

of directors. See Colony Municipal Utility District No. 1 of Denton 

County v. AppraGl District of Denton County, supra. If we were to 

conclude that the appointment procedures were mandatorv. we would 

doubtless promote the proper, -orderly 

_ 

and prompt conduct of the 

process. However, such a construction could have the effect of 

denying the opportunity to be represented to those appointing taxing 

units which fail to comply timely with the provisions. Because we 

conclude that such a result is contrary to the manifest intent of the 

Legislature when it established the complex and elaborate appointing 

procedure in section 6.03, we hold that the provisions are directory 

and not mandatory. 

Third, you ask 

What constitutes a valid subqission of the names 

of a unit's nominees under section 6.03(f) and a 

valid submission of a unit's vote under section 

6.03(g)? 

You inform us that several taxing units merely called in their votes 

by telephone. Section 6.03(f) specifically provides that 

[e]ach taxing unit that is entitled to vote may 

nominate by resolution adopted by its govern= 

body one candidate for each position to be filled 

on the board of directors. The presiding officer 

of the governing body of the unit shall submit the 

names of the unit's nominees to the county clerk 

before October 15. (Emphasis added). 

Section 6.03(g) declares that 

[tlhe governing body of each taxing unit entitled 

to vote shall determine its vote by resolution and 

submit it to the county clerk before November 15. 

(Emphasis added). 

In Civil Service Coam~ission of the City of Texarkana v. Carter, 344 

S.W.2d 225, 227 (Tex. Civ. App. - Texarkana 1960, no writ), the court 

declared that 

it is a fundamental rule of construction that when 

an affirmative statute which is introductive of a 

new law, such as this [alct, directs a thing to be 

done in a certain manner and the procedure for 

doing it, the statutory procedure must be followed 

exclusively. 

p. 733 
Mr. Ron Patterson - Page 6 (JM-166) 

- 

In this instance, we believe the statute contemplates that a written 

communication regarding the votes be provided the clerk. Furnishing a 

copy of the resolutions would, in our opinion, best effectuate the 

intent of the statute. 

Fourth, you ask: 

Does the county clerk have any authority or duty 

to investigate or act upon the qualifications of 

the nominees or candidates? 

Generally, a public officer has no authority to perform an act not 

authorized or required of him by law. Duncan v. State, 67 S.W. 903 

(Tex. Civ. App. 1902, uo writ). 

All public offices and officers are creatures of 

law. The powers and duties of public officers are 

defined and limite$ by law. By being defined and 

limited by law, we mean the act of a public 

officer must be expressly authorized by law, or 

implied therefrom. 

Fort Worth Cavalry Club v. Sheppard, 83 S.W.2d 660, 663 (Tex. 1935). 

This office has repeatedly held that a county clerk acts in a 

ministerial capacity in receiving certificates of nomination and in 

placing names of nominees on the general election ballot. Where the 

certificate is regular on its face, the county clerk has neither the 

duty nor authority officially to determine questions of regularity or 

irregularity, a process which would depend upon an ascertsinment and 

determination of facts extraneous to the certificate. Attorney 

General Opinions WW-1359 (1962); WW-908 (1960); V-1529 (1952). See 

also Attorney General Opinions H-1261 (county clerk must file proposed 

plat of a new subdivision which is clearly not defective on its face); 

H-1155 (1978) (clerk must file pleadings even though not certified); 

H-426 (1974) (clerk may reject instrument clearly defective on its 

face); C-695 (1966) (clerk must file deed referring to plat not 

recorded pursuant to article 974a. V.T.C.S.). Neither the Tax Code 

nor any other statute confers the authority nor imposes a duty upon 

the county clerk to determine whether board nominees comply with the 

qualifications for office set forth in section 6.03(g). Accordingly, 

we conclude that the county clerk may not so officially act. 

Finally, you ask: 

May a unit cast its voting entitlement for a 

person other than one nominated and named on the 

ballot? If so, should that vote be counted by the 

county clerk in declaring the results of the 

election? 

p. 734 
Mr. Ron Patterson - Page 7 (JM-166) 

P 

For the reasons set forth in answer to your third and fourth 

questions, we conclude that a taxing unit may not cast its voting 

entitlement for a person other than one nominated and named on the 

ballot and that a county clerk is without authority to include any 

such vote in declaring the results of the election. 

SUMMARY 

The selection process for appointing members of 

the appraisal districts' boards of directors set 

forth in section 6.03 of the Tax Code is not 

governed by the Texas Election Code. The dates 

set forth in subsections 6.03(f) and (g) are 

directory and not mandatory. A written communication regarding the votes of the taxing unit must 

be submitted to the county clerk. The county 

clerk has neither the duty nor the authority to 

determine the qualifications of nominees. A 

taxing unit nay not cast its voting entitlement 

for a person other than one nominated and named on 

the ballot. The county clerk is without authority 

to include any such vote in declaring the results 

of the election. 

Very ruly your d-/k - 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant.Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Jim Moellinger 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

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p. 735