.

JIMMAl-fOX AttorneyGeneral

**Supreme Cowl** **Suildlng P.** **0. Box** **12548 Austin,** **TX. 75711.** **2549 512l4752501**  **Telex 9lWS74.1357**  **Tdecooier 512147M255** 

**714 Jackson,** **Suits 700**  **Dsllsr. TX.** **752024505 2lu742-8944** 

**4524 Alberta** **Ave.. Suite** **150 El** **Paso. TX.** **799C52793 915633.3454** 

**11 Texas.** **Suite 700**  **,us,on. TX.** **77002.3111 7lY223.3886** 

**806 Broadway.** **Suite 312**  **Lubbock. TX.** **794014479 5Q5i747.5235** 

**4309 N.** **Tenth. Suite** **S McAllen.** **TX. 78501-1695**  **51Y682-4547**

**2Qo Main** **Plrra. Suite** **4M) Ssn** **Antonio. TX.** **782052797 5121225.4191** 

**An Equal** **OppoRuni!yl Affirmative** **Actton Employef**  

# TheAttorney General ofTexas

June 6, 1986

Hr. Samii. Smith Executive Director Boardof TaxProfenaiional Examiners P. 0. Box 15920 Austin. Texas 78’161 Opinion Ac. JM-499 Rr: Playone individual, cons.ister.tly vith article XVI, section 40, of the Texas Constitution, serve as chief appraiser in three different appraisal districts and simultaneously .as tax assessor-collector in three school districts anda vater control andimprovement district Dear **Mr. Smith:** 

**YOU** InfOtUi 11s **that** one individual **has** been hired as chief appraiser by three boards of directors of appraisal districts. Be serves as chief appraiser of Hudspeth County Appraisal District, of Presidio **County Afpraisal**  **District,** andof Jeff Davis County Appraisal **District. He**  **also serves**  as Tax Assessor-Collector for Anthony Independent School District, SanElizario Independent School District, and Socorro Independent School District, and for the For: Haxcck WaterControl and l~mprovementDistrict. Tou ask vhe.:her this individual is prevented by article XVI, **section** 40of the Texas Constitution fromholding someor all of these seven positions. Article XVI, section 40 of the Texas Constitution prohibits one pe~‘son from holding or exercising more than one civil office of emolument at the same time. Thus, we need to cons:Zer whether any of the positions held by this Individual constitutes a
“civil office of emolument” within this provision. This question turns on the power and responsibility which the lav has assigned to each position. Considerations **as to**  **whether** one individual **has encugh**  time to perform al.1 such responsibilities **are not**  **relevant** to article XVI, section 40.
A chief appraiser and a tax assessor-collector are appointed under the taxing provisions enacted by the legislature pursuant to article VIII, section 18 of the Texas Constitution. This constitutional provision s:tetes in part:

(b) A single appraisal **within each**  **county** of all property subject to advalorem taxation by the

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county andall other taxing units located therein shall be provided by general law.

. . .

. . . . (d) TheLcgisaature shall prescribe by general lav the methods, timing, and administrative process for implementing the requirements of this section. Tex. Const. art. VIII, 5I.S. The quoted provisions were added to article VIII, section 16, by amendmentin 1980. See H.J.R. No. 98, - 91, Acts 1979, 66thLeg.. 8.t3229. The Property Tax Code. codified as Title I of the Tax Code, contains the statutes vhiclr implement article VIII, section 18, of the Texas Constitution. An appraisal district Is established in each county and given respons,lbility for appraising property in the district of each taxing unit that imposes advalorem taxes onproperty within the district. Tax Code 56.01. “Taxing unit” includes a county, a city, a school district, and a district created under the Water Code. Tax Code 51.04(12). The appraisal district is governed by a board of five dirc:c,tors. Tax Code 16.03(s). The board of directors is required to establish anappraisal office and to appoint as chief administrator of the appraisal office a chief appraiser who serves at the pleasure of the board. Tax Code 56.05.
Achief appraiser has numerousministerial functions necessary to performing the district’!; duty to appraise property. See. e.g., Tax Code $11.44, 125.01. See also Attorney General Opinion MW-450(1982). --- The chief appraiser submits a proposed budget to the district board of directors, subject to the:board’s power to amendit andgive it final approval. TaxCode §6.01j, Remayemploy andcompensate personnel as provided in the budget. TaxCode 16.05(d). Attorney General Opinion JN-72 (1983) determined that the chief appraiser was an “officer” within the nepotism statute, article 5996a. V.T.C.S.. because he had authority to employperwunel. This opinion did not determine whether the chief appraiser was a.nofficer under article XVI, section 40. of the Texas Constitution. See also Attorney General Opinion W-450 (1982). Thechief apprs.iser maydelegate authority to his employees. Tax Code 56.05(e). Hehas somerespowibility to determine a taxpayer’s right to tax exemptions. Section Il.45 of the TaxCodeprovides in part:

(a) The chief appraiser shall determine separately eas:happlicant’s right to anexemption. After consider-ing the application andall relevant

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information, the chief appraiser shall, asthe law andfacts warrant: (1) approve the application and allow the exemption; (2) modify the exemption applied for and allow the exemnt.lonas modified; (3) disapp::ove the application andrequest additional informatioo from the applicant In support of the claim: or (4) deny the application.

(c) The chief appraiser shall determine the validity of each application for exemption filed with him before he submits the appraisal records for review and determination of protests as provided byChspc:e:r41of this code. He has similar authority to determine whether individuals are entitled tohave property ;lppraised according to the special appraisal provisions codified in ch.,pter 23 of the Tax Code. See, e.g., Tax Code 523.44 (agricultural use designation .of land); 523.57 (agricultural land); 523.79 (timber land); 523.85 (recreational, **park, and**  scenic land). he has #authority to “establish procedures for the equitable anduniform appraisal of inventory for taxation.” Tax Code 523.12. Chapter 41 of the T,axCode provides that the appraisal review **board vi11**  review the chief appraiser’s records acd determine taxpayer **protests. See.**  **e.g.,** Tax Code 5941.01, 41.41. The appraisal review board consists of **three** wmbers cppointed for twoyear terms by the appraisal district board of directors. Tax Code 56.41. Members of the district board maynot serve on **the** appraisal revies board. The beard examines the appraisal records to determine vhether (1) the appraisals are substantially uniform; (2) an exemption is improperly granted; (3) land is improperly granted a special appraisal; or (4) the records do not conform to the requirements of lav in any ocher respect. Tax Code 541.01. **A** taxing unit ray challenge various aspects of the appraisal before the appraisal review board. Tax Code g41.03. The chief appraiser Is required to make the appraisals and other corrections ordered by **the** appraisal reviev board. Tax Code 541.08.

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Property owners may protest to the appraisal reviev board any determination of the chief ,spprriser vhich adverse!y affects then. including denisl of an exemption or determirwion that land does not qualify for special appraisal as land designated for agricultural use, agricultural land, or timber land. Tax Code 541.41. See Brooks v. Bachus, 661 S.W.Zd 288 (Tex. App. - Eastland 1983, writ rcf ’d n.r.e.). The chief appraiser represents the appraisal office at each protest hearing. Tax Code 141.45(c). If the board finds that the appraisal records are incorrect ic sow respect raised by the protest, it makes the necessary changes in tht: records. TaxCode 141.L7. Based on this examinrtion of the chief appraiser’s statutory authority, ve conclude that he is not anofficer vlthin article XVVI, section 40 of the Texas Constitution. The determining factor which distinguishes a public ofiicer from an employee is “whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the contrcl of others.” Aldine Independent School District v. Standley, 280j.W.Zd 578, 583 (Tex. 1955); see also Green v. Stevart, 516S.W.2d 133 (Tex. 1974); Dunbarv. graxorla County= S.W.Zd‘738 (Tex. Civ. App. - Galveston 1949. vrit raf ’d); but see, Pruitt v. Glen Rose Independent School District. 86S.W.td 1004 (Tex. 1935) effectively overruled by Green v. Stevart, supra. Someof his responsibilities derive d:lrectly from statute and not by delegation from the board of d1rector.s. Reexercises someinitial discretion in tk,e area of tax exemptlow end special valuations. Nonetheless, he exercises his appraisal functions subject to reviev and correction by the appraisal reviev board, and he serves at the pleasure of the appraisal board of direct’,%. The appraisal functions conferred upon himare not exercised “la,cgely independent of the control of others.” Aldine Inxpendent School District v. Standley, w. Thechief appraiser does have authority to hire employees, vithin the limits of the budget imposed by the board of directors. For this reason, he is an “off%:er” vithln the Nepotism Act, art. 5996a. V.T.C.S. ; Attorney General Opinion J?l-72 (1983). The statutory definition of “officer” g:ven in the Nepotism Act is not necessarily identical with the definitdon of officer applicable to article XVI, section 40 of the Texas Constitution. See Attorney General Opinion JM-72 (1963); Letters Mvisory Ros. 156, 152 (1978). The chief appraiser needs to hire G:mployeesto carry out his primary function of apprti,sing property, vhl,ch is exercised subject to the control and supervision of others. Although he has some independence in hiring decisions, this paver is incidental to andsubordinate to his primary role as agent and employee of the appraisal district board of directors. The chief zppraiser does not,

in our opinion, hold an office within article XVI, section &Oof the Texas Constitution. This provision therefore does not prohibit oneperson fromserving as chief appraiser of three different appraisal districts.

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We next look to thd: responsibilities of the tax assassotcollector of a school distr,ict and of a water control and improvement district: TheTu Codadefines “asses8or” as the officer or employee responsible for assessing property taxes as provided by Chaptcr 2b of this code for a taxi>p unit by whatever title he Is designated. (Eml)hasis added). Tax Code 11.04(14).

“Collector” is defiwi as
the officer or employee responsible for collecting property taxes for a taxing unit bywhatever title heis designated. (Emphasis added). Tax Code 51.04(15). The Tax Code direct); USto look to the lav creating a school district or awater distr:.ct to determine vho shall assess andcollect taxes for it. Tax Code! 16.2?(a). The board of trustees of an independent school distrlc:t mayappoint aI:assessor-collector of taxes for the district, for a term not to exceed three (3) years. Educ

. Code 123.93(a). See alsc, Tax Code 1$6.22(c); 6.23(a)(3) (taxing unit other than county or home!rule city mayrequire the county to assess and collect taxes for t’w district). The board of directors of a water control and imprownent district mayappoint one person to the office of tax assessor-collector, or it mayorder an election to fill that office. Water Code: 051.085. See also Tax Code I§6.:Zic), 6.23(a)(3) (governing body of awater control andassessment district mayrequire county to as:,ess andcollect its taxes). Chapter 2b of the Tax Code sets out the tax assessor-collector’s assessment duties. Theiwsessor-collector receives the appraisal roll from the chief appraise!:., and determines the total eppraised value, total assessed value, ar.dtotal taxable value of property taxable by the taxing unit. Tax Code 5526.01, 26.04. After the governing body adopts the tax rate fcr the current tax year, the tax assessorcollector is to calculate the tax imposed on each property on the appraisal roll according to the formulas supplied by statute. Tax Code $26.09(a). See al% Tax Code 1526.10-26.14. He enters in the appraisal roll the amountof tax determined according to statute and submits it to the governin? body of the appraisal unit. Tax Code 126.09(e). Theappraisal roll vith amounts of tax entered becomes the tax roll after it ts approved by the governing body. Id. The governing body, onmotion of the assessor or of aproperty owner, may

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order changes in the tax roll to correct errors Ia the mathematical computation of the tax. Tax Code 126.15(c). Chapter 31 of the Ta:r Code governs tax collections. The tax assessor malls out tax bil’ls vhich includa information set out by statute. Tax Cddc 431.01, He may issue certificates showing the amount of delinquent taxes, penalties , andinterest due on a property according to the taxing un!.t.a records, Tax Code 531.08(s). He is to file reports accounting for his collections to the governing body and remit taxes to its depositc’ry. Tax Code 131.10. These provisions give the tax assessor-collector duties that are clerical and ministerial. In Aldine Independent School District v. Standley, the court considlzred vhether the assessor-collector of taxes appointed by a school board was a public officer. 280 S.W.2d 578 (Tex. 1955). The court described the assessor-collector as follows:

He is but an a;ient or employee of the Board to discharge the clerical duties necessary to carry out the school Eoard’s powers of taxation. 280 S.V.Zd at 583. This characterization also applies to the assessor-collector of taxes appointed by a school district or aWatercontrol and improvement district. TheTax &de gives the tax assessor-collector ministerial duties which may require a certain degree of skill, but do not vest in himanysovereigil function of the government to be exercised largely independent - of t’he control of others. Aldine Independent School District v. Standley, s_upr;r. In our opinion, the tax assessor-collector is a employee andnot an officer of the school districts and the water control and improvement district vh:.ch hired him. He does not occupy a civil office vithin article XVI, section 40 of the Texas Constitution, ar.d this provision does not bar him from simultaneously serving as tax assessor-collector for the three school districts and one vater control district. Wehave determined that achief appraiser dces not hold a civil office wit,hin article XVI, section 40 of the Texas Constitution; thus this provision does not prohibit the tax assessor-collector for the taxing units from also serving as chief appraiser of the three county appraisal districts. We conclude that article XVI, section 40 of the Texas Constitution does not prohibit this individual fromholding the seven employments about which you inquire. This opinion is limited to the specific legal question you asked, and our answer is based on application of the legal st,lndard to the facts you provided us. Whether

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additional facts might raise other legal issues is a question outside the scope of this opinion. :SUMl4ARY

The chief appraiser of a county appraisal district and the tax assessor-collector of an independent school district or awater control and improvement district are public employee6 and not

“officers” within article XVI, secticn 40 of the Texas Constituticn. The functions assigned to these positions b7,theTaxCodedonot confer upon them “any sovereign function of the government

. . . to be exerc:ised

. . . largely indeper.dent of the control of others.” Aldine Independent School District v. Standby, 280S.W.td 578 (Tex. 1955).

JIM BATTOX Attorney General of Texas JACKHIGHTOWER First Assistant Attorney Gweral MARY KELLER Executive Assistant Attornlty General ROBERT

GRAY Special Assistant Attorney General RICKGILPIN Chairman, Opinion Committee Prepared by Susan L. Garrison Assistant Attorney General

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