JIM MATTOX Attorney General

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas

June 13, 1984

Mr. Ron Patterson ExecutiveDirector StatePropertyTax Board 9501North Ill-35 Austin, Texas 78761 OpinionNo. 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 theTax 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 theboard of directors,au individualmust be a residentof the district and must have resided in the district for at least two years immediately preceding the date he takes the office. An individualwho is otherwise eligible to serve on the board is not ineligiblebecause of membership on the governingbody of a taxingunit. However, not more than one employee of a taxing unit may serve on theboard 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-numberedyears. (c) Members of the board of directors are appointedby vote of the governing bodies of the

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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 determinedby dividing the total dollar amount of property taxes imposed in the district by the taxingunit for thepreceding 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 quotientby 1,000,andby rounding the product to the nearest whole number. That number is multiplied by the number of directorships to be filled. A taxing unit participatingin two ormore districts is entitled tovote in each district inwhich it participates, but only the taxes imposed in a district are used to calculatevoting entitlementin thatdistrict.
(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 itsvoting entitlementbefore October 1 of each odd-numberedyear. (f) Each taxing unit that is entitled tovote -Y nominate by resolution adopted by its governingbody 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 thenames of theunit'snominees 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 shalldelivera copyof theballot to the presiding officer of the governing body of each taxingunit that is entitled tovote. (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 thevotes, declare the five candidateswho receive the largest cumulative vote totals elected, and submit the results before .December 1 to the b

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- governingbody of each taxingunit in the district and to the candidates. The county clerk shall resolvea tievote by anymethod 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 governingbody 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 existenceof thevacancy, and the county clerk shall prepare and deliver to the board of directorswithin 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 thevacancy.
You ask, first, "[ils the selectionprocess 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 "[mlembersof theboard 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 (Emphasisadded). A court of appeals has referred to an appraisaldistrictboard of directorsas "a board consistingof 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. - FortWorth 1982,writ ref'dn.r.e.). See alsoWallingv. 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 governingbody of conservationand reclamationdistrict 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 governmentnor 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 appointedrather than elected, theprocedure for selectingthemembers isnot governedby the ElectionCode. Second,you ask the following:

Are any or all of the followingdates 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 tobe?

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(a) BeforeOctober 15 -- the date for theunit tohave submittedthenames of theunit'snominees 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 taxingunit.
(c) Before November 15 -- the date for the taxing [unit] to have voted by resolution and submittedit to the county clerk.

We conclude that theprescribeddates are directoryand notmandatory. The determination of the particular deadline involves a matter of substantialcompliance. Generally, statutoryprovisionswhich regulate theduty of public officers and specify the time for performance of such duties are directoryunless the statute forbids the exercise of such Dower after that time. Markowsky v. Newman, 136 S.W.2d 808 (Tex. 1940). Federal Crude Oil Companyv. Yount-Lee Oil Company, 52 S.W.2d 56 (Tex. 1932). As the Texas Supreme Court declared in Cbisholmv. 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 consequencesof failure to act within the time specified, may be considered as a circumstance tending to support a directory construction. (Emphasisadded).

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h

It is clear that the legislature intended that each taxing unit

entitled to appointmembers of the board of directors of an appraisal districthave a voice in the selectionof the appraisaldistrictboard of directors. See Colony Municipal Utility District No. 1 of Denton Countyv. 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 themanifest intent of the Legislaturewhen it established the complex and elaborate appointing procedure in section 6.03, we hold that the provisions are directory andnot 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 taxingunits merely called in theirvotes by telephone. Section 6.03(f) specificallyprovides 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 governingbody of theunit shall submit the names of the unit's nominees to the county clerk before October 15. (Emphasisadded).
Section 6.03(g)declares that
[tlhegoverningbody of each taxing unit entitled tovote shalldetermine itsvote by resolutionand submit it to the county clerkbefore November 15. (Emphasisadded).

In Civil Service Coam~issionof 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 fundamentalruleof constructionthatwhen an affirmative statutewhich is introductiveof a new law, such as this [alct,directsa thing tobe done in a certain manner and the procedure for doing it, the statutoryproceduremust be followed exclusively.

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In this instance,we believe the statute contemplates that a written communicationregardingthevotes be provided the clerk. Furnishinga copy of the resolutions would, in our opinion, best effectuate the intentof the statute. Fourth,you ask:

Does the county clerk have any authority or duty to investigate or act upon the qualifications of thenominees 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. Thepowers and dutiesof public officersare 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 electionballot. Where the certificate is regular on its face, the county clerk has neither the duty nor authority officially to determine questionsof regularityor irregularity,a processwhich 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 GeneralOpinionsH-1261 (countyclerkmust fileproposed plat of a new subdivisionwhich is clearlynot defectiveon its face); H-1155 (1978) (clerkmust 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 determinewhether board nominees complywith the qualifications for office set forth in section 6.03(g). Accordingly, we conclude that the county clerkmay not so officiallyact. 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 thatvote be countedby the county clerk in declaring the results of the election?

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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 suchvote in declaring the resultsof the election.

SUMMARY
The selectionprocess for appointingmembers 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 directoryand notmandatory. 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 thanonenominatedand named on theballot. The countyclerk iswithout authority to include any suchvote in declaring the results of the election.

Very rulyyour 

# d-/k

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JIM MATTOX AttorneyGeneralof Texas
TOM GREEN FirstAssistant.AttorneyGeneral

DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby JimMoellinger AssistantAttorneyGeneral

APPROVED: OPINIONCOMMITTEE
RickGilpin, Chairman Colin Carl SusanGarrison JimMoellinger Nancy Sutton
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