. 

JIM MAl-fOX 

Attorney General 

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 

The Attorney General of Texas 

June 6, 1986 

Hr. Sam ii. Smith 

Executive Director 

Board of Tax Profenaiional 

Examiners 

P. 0. Box 15920 

Austin. Texas 78’161 

Opinion Ac. JM-499 

Rr: Play one 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 and a vater control 

and improvement 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, and of Jeff Davis County Appraisal 

District. He also serves as Tax Assessor-Collector for Anthony 

Independent School District, San Elizario Independent School District, 

and Socorro Independent School District, and for the For: Haxcck 

Water Control and l~mprovement District. 

Tou ask vhe.:her this individual is prevented by article XVI, 

section 40 of the Texas Constitution from holding some or 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 const itutional provision s:tetes in part: 

(b) A single appraisal within each county of 

all property subject to ad valorem taxation by the 

p. 2289 
Xr. Sam II. Smith - Page 2 (Jl4-499) 

. 

county and all other taxing units located therein 

shall be provided by general law. . . . 

. . . . 

(d) The Lcgisaature 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 amendment in 1980. See H.J.R. No. 98, 

- 

91, Acts 1979, 66th Leg.. 8.t 3229. 

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 ad valorem taxes on property 

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 an appraisal 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. 

A chief appraiser has numerous ministerial 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 amend it and give it final 

approval. Tax Code §6.01j, Re may employ and compensate personnel as 

provided in the budget. Tax Code 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 employ perwunel. This opinion did not determine whether 

the chief appraiser was a.n officer under article XVI, section 40. of 

the Texas Constitution. See also Attorney General Opinion W-450 

(1982). The chief apprs.iser may delegate authority to his employees. 

Tax Code 56.05(e). 

He has some respowibility to determine a taxpayer’s right to tax 

exemptions. Section Il.45 of the Tax Code provides in part: 

(a) The chief appraiser shall determine 

separately eas:h applicant’s right to an exemption. 

After consider-ing the application and all relevant 

p. 2290 
* . nr. Sam 11. Smith - Peg. 3 (*RI-499) 

, 

information, the chief appraiser shall, as the law 

and facts warrant: 

(1) approve the application and allow the 

exemption; 

(2) modify the exemption applied for and 

allow the exemnt.lon as modified; 

(3) disapp::ove the application and request 

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 by Chspc:e:r 41 of this code. 

He has similar authority to determine whether individuals are 

entitled to have 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 and uniform appraisal of inventory for taxation.” Tax Code 

523.12. 

Chapter 41 of the T,ax Code 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 two year terms by the 

appraisal district board of directors. Tax Code 56.41. Members of 

the district board may not 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. 

p. 2291 
Mr. Sam A. Smith - Psgr 5 (~14-499) 

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. Tax Code 141.L7. 

Based on this examinrtion of the chief appraiser’s statutory 

authority, ve conclude that he is not an officer 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, 280 j.W.Zd 578, 583 (Tex. 1955); see also Green 

v. Stevart, 516 S.W.2d 133 (Tex. 1974); Dunbar v. graxorla County= 

S.W.Zd ‘738 (Tex. Civ. App. - Galveston 1949. vrit raf’d); but see, 

Pruitt v. Glen Rose Independent School District. 86 S.W.td 1004 (Tex. 

1935) effectively overruled by Green v. Stevart, supra. Some of his 

responsibilities derive d:lrectly from statute and not by delegation 

from the board of d1rector.s. Re exercises some initial 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 

him are not exercised “la,cgely independent of the control of others.” 

Aldine Inxpendent School District v. Standley, w. 

The chief 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 “of f%: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:mployees to 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 and subordinate 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 &O of the Texas Constitution. This 

provision therefore does not prohibit one person from serving as chief 

appraiser of three different appraisal districts. 

p. 2292 
8,. I 

nr. Sam R. Smith - Page 5 (JM-499) 

We next look to thd: responsibilities of the tax assassotcollector of a school distr,ict and of a water control and improvement 

district: 

The Tu Coda defines “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 by whatever title 

he is designated. (Emphasis added). 

Tax Code 51.04(15). 

The Tax Code direct); US to look to the lav creating a school 

district or a water distr:.ct to determine vho shall assess and collect 

taxes for it. Tax Code! 16.2?(a). The board of trustees of an 

independent school distrlc:t may appoint 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 may require the county to assess 

and collect taxes for t’w district). The board of directors of a 

water control and imprownent district may appoint one person to the 

off ice of tax assessor-collector, or it may order an election to fill 

that office. Water Code: 051.085. See also Tax Code I§6.:Zic), 

6.23(a)(3) (governing body of a water control and assessment district 

may require county to as:,ess and collect its taxes). 

Chapter 2b of the Tax Code sets out the tax assessor-collector’s 

assessment duties. The iwsessor-collector receives the appraisal roll 

from the chief appraise!:., and determines the total eppraised value, 

total assessed value, ar.d total 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 amount of tax determined according to statute and 

submits it to the governin? body of the appraisal unit. Tax Code 

126.09(e). The appraisal roll vith amounts of tax entered becomes the 

tax roll after it ts approved by the governing body. Id. The 

governing body, on motion of the assessor or of a property owner, may 

p. 2293 
Mr. su R. Smith - Paga 6 (Jn-499) 

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 , and interest 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 a Water control and improvement district. The Tax &de gives the tax assessor-collector ministerial duties which may require a certain degree of skill, but do not 

vest in him any sovereigil 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 and not 

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. We have determined that a chief 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 from holding 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 

p. 2294 
Hr. Sam R. Smith - Page 7 (JK-499) 

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 a water 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, the Tax Code do not 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, 280 S.W.td 578 (Tex. 1955). 

JIM BATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney Gweral 

MARY KELLER 

Executive Assistant Attornlty General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

P. 2295