THE ATTORNEY GENERAL 

OF TEXAS 

Honorable Mark W. Stiles Opinion No. JM-1060 

Chairman 

County Affairs Committee Re: May an attorney who 

Texas House of Representatives serves on the board of 

P. 0. Box 2910 directors of an appraisal 

Austin, Texas 78769 district contract with a 

participating taxing unit 

to collect delinquent taxes 

(RQ-1650) 

Dear Representative Stiles: 

You ask whether a private attorney who is a director.of 

an appraisal district may contract to collect delinquent 

taxes for a taxing unit that participates in the appraisal 

district. We will first consider whether the attorney would 

be disqualified by statute frcm serving on the appraisal 

district board. 

An appraisal district is established in each county to 

appraise property for ad valorem tax purposes of the taxing 

units in the district, which include the county, cities, 

school districts, and any other political unit that imposes 

ad valorem taxes on property. Tax Code 5 6.01: seeid. 

F, 1.04(12) (defining "taxing unit"). The five member board 

of directors of the appraisal district is elected by the 

governing bodies of the county, the cities, and the school 

districts in the appraisal district. Id. § 6.03. Section 

6.03 of the Tax Code, which sets out the eligibility 

requirements for directors of the app~raisal district, 

includes the following restriction: 

An individual . . . is not ineligible because 

of membership on the governing body of a 

taxing unit or because the individual is an 

r 

elected official. However, an emolovee of a 

taxing unit that narticioates in the district 

is not elisible to serve on the board unless 

the individual is also a member of the 

governing body or an elected official of 

a taxing unit that participates in the 

district. (Emphasis added.) 

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Honorable Mark W. Stiles - Page 2 (JM-1060) 

Id. 5 6.03(a). 

Section 6.30(c) of the Tax Code authorizes contracts 

between a taxing unit and an attorney to enforce the 

collection of delinquent taxes. In our opinion, an attorney 

who contracts under this provision is an independent 

contractor and not an employee of the taxing unit. An 

independent contractor contracts to do a specific piece of 

work for another, furnishes and controls his assistants, and 

does the work without being subject to the other's orders on 

its details. Halliburton v. Texas Indemnitv Ins. co., 213 

S.W.2d 677 (Tex. 19481. refers to the 

attorney as ‘a "privatei 

Section 6.30(a) 

attorney. See'aenerally Attorney 

General Opinion JM-14 (1983) (county may not contract with 

county attorney under section 6.30(a) of the Tax Code).' 

Attorney General Opinion V-137 (1947) determined that 

the predecessor of section 6.30 did not authorize a commissioners court to hire individuals v to 

collect delinquent taxes on a commission basis. The county 

had authority to arrange for delinquent tax collections on 

a commission basis only by contract pursuant to the predecessor of section 6.30. &at 2. An attorney who 

contracts to collect delinquent taxes for a taxing unit is 

not an employee of that unit and is therefore not disqualified from service on the board of directors under the 

quoted provision of section 6.03(a). 

You ask whether the contract creates a conflict of 

interest .for the director of the appraisal district, because 

the board of directors establishes policy for the chief 

appraiser's determinations of taxable values and exemptions 

and the contracting attorney may eventually derive a fee 

based on those values. We will outline the process of tax 

appraisal and collections to provide a context for our 

discussion of your question. 

The Tax Code contemplates a three-step process: 

appraisal, assessment, and collection of taxes. See 

Attorney General Opinion JM-35 (1983). The appraisal 

district participates in this process only during the first 

step. The district board of directors establishes an 

appraisal office and appoints a chief appraiser who 

determines the value of property and decides whether 

applicants for exemptions are entitled to them. Tax Code 

s 6.05, chs. 11, 22, 23, 25; see cenerally Attorney General 

Opinion JM-499 (1986). The appraisal district board also 

appoints the board which reviews the appraisal records 

prepared by the chief appraiser. Tax Code 55 6.41, 25.22, 

41.01. If the appraisal review board finds that the 

appraisals do not comply with law, it directs the chief 

p. 5521 
Honorable Mark'w. Stiles - Page 3 (JM-1060) 

appraiser to make the necessary corrections. Id. 55 41.01, 

41.02; see Attorney General Opinion JM-981 (1988). 

When the appraisal records have been approved by the 

appraisal review board, they constitute the appraisal roll 

for the district. Id. 5 25.24. The chief appraiser 

certifies the relevant part of the appraisal role to the 

assessor for each taxing unit participating in the district. 

Id. 5 26.01. The governing body adopts a tax rate, and the 

assessor computes the tax owed on each property and sends a 

tax bill to the property owner. Id. 55 26.05, 26.09, 31.01. 

If the tax is not paid on time, the taxing unit may 

file suit to collect it. Id. s 33.41. The governing body 

of the taxing unit may contract with an attorney to enforce 

the collection of its delinquent taxes for a total compensation not to exceed 20 percent of the amount of delinquent 

tax, penalty, and interest collected. Tax Code § 6.30(c). 

Chapter 171 of the Local Government Code1 deals with 

conflicts of interest of "local public officials," including 

directors of an appraisal district. Local Gov't Code 

§ 171.001(1). A local public official commits an offense if 

he knowingly participates in a vote or decision on a matter 

involving a business entity in which he has a substantial 

interest if "the action on the matter will have a special 

economic effect on the business entity that is distinguishable from the effect on the public." Acts 1987, 70th Leg., 

ch. 362, § 4, at 1799 (amending article 988b, section 4, 

V.T.C.S., now codified as section 171.004 of the Local Gov't 

Code.)2 A local public official who has such an interest.in 

1. Former article 98833, V.T.C.S., was recodified as 

chapter 171 of the Local Government Code by the 70th session 

of the Legislature. Acts 1987, 70th Leg., ch. 149. The 

same session of the legislature adopted amendments to former 

article 988b, V.T.C.S., without reference to the repeal and 

recodification of that provision. The amendments are 

preserved and given effect as part of the code provision. 

Gov't Code 5 311.031(c). 

2. Section 171.003 (a)(l) of the Local Government Code 

bars a local public official from knowing participation in a 

vote or decision "on a matter involving a business entity" 

in which he has 'Ia substantial interest if it is reasonably 

forseeable that an action on the matter would confer an 

(Footnote Continued) 

P. 5522 
Honorable Mark W. Stiles - Page 4 (JM-1060) 

a business entity must file an affidavit describing that 

interest and abstain from participation in the matter. 

Local Gov't Code 5 171.004. 

The attorney's law firm is a business entity within 

chapter 171 of the Local Government Code. Id. 5 171.001. 

Presumably, he has a *'substantial interest" in his firm. 

Chapter 171 of the Local Government Code will apply to the 

attorney's participation in decisions of the appraisal 

district if action by the board on a matter "will have a 

special economic effect on the business entity that is 

distinguishable from the effect on the public." The issue 

before us is whether the appraisal district board's actions 

in establishing appraisal policy will have a special 

economic effect on the law firm of the attorney who holds 

the delinquent tax collection contract because tax bills are 

based on property values and tax rates and the attorney's 

fee is usually a percent of the amount of delinquent tax, 

penalty, and interest collected. Tax Code 5 6.30; see also 

Attorney General Opinion JM-857 (1988). 

Our summary .of the tax appraisal and collections 

process shows that officials and boards other than the 

appraisal district board make decisions~that affect property 

valuation. You indicate that the board establishes policy 

implemented by the chief appraiser in determining taxable 

values and exemptions, but the board's policy and the chief 

appraiser's determinations must also comply with Tax Code 

provisions. See oenerallv Attorney General Opinion JM-499 

(1986). The chief appraiser's decisions are reviewed by the 

appraisal review board, which may order him to make changes. 

Members of the appraisal review board are appointed by the 

appraisal district board for two year terms of office. Tax 

Code § 6.41. Directors of the appraisal district and 

employees of the appraisal office are among the persons 

disqualified from service on the appraisal review board. 

Id. The county appraisal district and the appraisal review 

(Footnote Continued) 

economic benefit to the business entity." Senate Bill 1131 

of the 70th Legislature inserted the language " or real 

property" after "business entity" in this provision. Acts 

1987, 70th Leg., ch. 323, § 1, at 1733. House Bill 1948 of 

the 70th Legislature adopted a new standard for the circumstances which barred a local public official with a substantial interest in a matter from participating in board 

action. Acts 1987, 70th Leg., ch. 362, at 1799. These 

amendments can be harmonized by adopting the standard of 

House Bill 1948, which also applies to real property. w 

Gov't Code 55 311.025(b), 311.031(c). 

P. 5523 
Honorable Mark W. Stiles - Page 5 (JM-1060) 

board are separate and distinct bodies. To&e Sauare 

&.soc. v. Anoelina Countv Aonraisal Dist., 709 S.W.2d 776, 

778 (Tex. App. - Beaumont 1986, no writ) (notice of appeal 

served on the district board does not constitute notice to 

the review board). The appraisal district board does not 

control the property values submitted to the taxing units. 

The appraisal board's participation in the taxing 

process ends when the chief appraiser certifies the 

appropriate part of the appraisal roll to each taxing unit 

in the district. Thus, it has no part in establishing the 

second main determinant of tax bills -- the tax rate adopted 

by the governing body of each taxing unit. Moreover, the 

board's appraisal policies must necessarily be consistent 

with law, and the board would seem to lack power to increase 

appraised values in order to increase fees for collecting 

delinquent taxes. Board actions in adopting appraisal 

policies should have only a minor and predictable effect on 

the value of tax collections contracts within the district. 

We conclude, as a matter of law, that under the Tax Code 

provisions we have discussed, the board's actions in establishing policies for property appraisals do not "have a 

special economic effect" on an attorney who has contracted 

under section 6.30 of the Tax Code to collect delinquent 

taxes for a local taxing unit. Therefore, chapter 171 of 

the Local Government Code does not require the director to 

recuse himself from the board's decisions on appraisal 

policy. 

Under other circumstances, however, the attorney's 

interest in a contract for delinquent tax collections might 

require him to recuse .himself. For example, if the 

appraisal district board of directors contracts with a 

taxing unit to collect its taxes under section 6.24 of the 

Tax Code, a director who collects delinquent taxes for the 

same taxing unit may have to recuse himself from some board 

actions related to the district's contract. See also Tax 

Code 5 6.26 (election to require that appraisal district 

collect property taxes for all taxing units). 

You ask whether the office of director of an appraisal 

district is incompatible with the duties, loyalties, and 

responsibilities of a private attorney collecting delinquent 

taxes for a participating taxing unit. In Letter Advisory 

No. 87 (1974), this office stated that the common law 

doctrine of incompatibility does not apply to an independent 

contractor who works for a public agency pursuant to contract. Moreover, our discussion of chapter 171 of the Local 

Government Code is relevant to your question about incompatility. The lack of connection between the functions of 

the appraisal district board and the taxing unit's collection of delinquent taxes would probably also prevent the two 

P. 5524 
Honorable Mark W. Stiles - Page 6 (JM-1060) 

positions from being incompatible. See oenerallv Attorney. 

General Opinion JM-203 (1984) (discussing common law 

doctrine of incompatibility). 

The attorney is subject to the Texas Code of Professional Responsibility, which includes provisions relevant to 

the conflicting loyalties which might arise in cases like 

the one you present. Disciplinary Rule 2-103 provides in 

part: 

(A) A lawyer shall not recommend employment, as a private practitioner, of himself, 

his partner, or associate to a non-lawyer who 

has not sought his advice regarding employment of a lawyer, except as follows: [Exceptions omitted.] 

Supreme Court of Texas, Rules Governing the State Bar of 

Texas art. X, 5 9 (Code of Professional Responsibility) DR 

2-103 (1982). Disciplinary Rule E-101, which relates to 

action as a public official, provides in part: 

(A) A lawyer who holds public office 

shall not: 

. . . . 

(3) Accept any thing of value from 

any person when the lawyer knows or it is 

obvious that the offer is for the purpose 

of influencing his action. as a public 

official. 

Id. DR E-101 (1971). 

Finally, section 39.03 of the Penal Code provides: 

(a) A public servant commits an offense 

if, in reliance on information to which he 

has access in his official capacity and which 

has not been made public, he: 

(1) acquires or aids another to 

acquire a pecuniary interest in any 

property, transaction, or enterprise that 

may be affected by the information. 

Neither the disciplinary rules nor the Penal Code provision 

prohibit the dual service you inquire about, but they are 

directed at curtailing the abuses that might arise under 

those circumstances. 

P. 5525 
C Honorable Mark W. Stiles - Page 7 (JM-1060) 

SUMMARY 

An attorney who has contracted with a 

taxing unit to collect its delinquent taxes 

is not an lVemployee" under section 6.03(a) of 

the Tax Code and is not ineligible under that 

provision to be a director of the appraisal 

district which includes that taxing unit. 

An appraisal district director's 

contract to collect delinquent taxes for a 

local taxing unit does not require him to 

recuse himself pursuant to chapter 171 of the 

Local Government Code from participation in 

board actions establishing policy to be 

implemented by the chief appraiser. 

The common law doctrine of incompatibility 

does not bar a director of an appraisal 

district from contracting under section 6.30 

of the Tax Code with a local political 

subdivision to collect its delinouent taxes. 

JIM MATTOX 

Attorney.General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLHY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

P- 5526