. i


# TheAttorneyGeneralofTexas February 23, 1982 MARKWHITE Attorney General

Supreme Court Buildinp P.0. BOX12546 *ustim TX. 78711. 2548 512N75-2501 Telex 9101674-1367 Telecopier512i4750266

1607 Main St., Suite 1400 Oaltas. TX. 75201.4709 21417424944
4824Alberta Ave.. Suite 160 ElPaso. TX. 79335-2793 915/5X3-3464

1220 Oak Ave., Suite 202 Houston. TX. 77002.6966 713650-0666

606 Broadway. Suite 312 Lubbock. TX. 79401.3479 606i747.5236

4309 N.Tenth. Suite 6 McAlten. TX. 76501-1665 5121662-4547

200 Main Plaza. Suite 400 San Antonio. TX. 78205.2797 512!225-4191

AnEqual Opportunltyl Attirmative Action Employer Honorable Oscar H.Mauzy Chairman Opinion No.MW-450 Senate Committee onJurisprudence Texas State Senate Austin, Texas 78711 ItI?: Whether duties of chief tax appraiser conflict with duties of member of state Property TaxBoard Dear Senator Mauzy: You askwhether the chief appraiser of anappraisal district may legally serve onthe State Property TaxBoard. Weunderstand that you are specifically-concerned about whether either article XVI, section 40 of the Texas Constitution or the common law doctrine of incompatibility prevent a person from simultaneously holding both positions. We'will focusexclusively eon~thesequestions. Wefirst look toarticle XVI, section 40. That provision states in pertinent part that, with numerous exceptions which are inapplicable here:

No person shall hold or exercise at the sametime, morethan onecivil office of emolument.... The key words in construing this provision are "office" and "emolument." In the context of article XVI, section 40, the term "emolument" signifies apecuniary profit, gain or advantage. Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944). Section 5.01(i) of the Property TaxCodeprovides that:

Amemberof the [State Property TaxBoard] maynot receive compensation for his service on the board but is entitled to reimbursement for actual and necessary expenses. as provided by legislative appropriation, incurred while on travel status in theperformance of official duties. Because a board member receives no compensation, but is only reimbursed for certain expenses incurred during the performance of his official duties, we conclude that no "profit, gain or advantage" inures to himby virtue of his position. Accordingly, he does not

p. 1550Honorable Oscar H.Mauzy- Page 22. (Mw-450)

hold an office “of emolument” within the meaning of article XVI, section 40. See. e.g., Attorney General Opinions MW-81, MW-21(1979); compare Willis v. Potts, 377S.W.Zd 622 (Tex. 1964). Wetherefore conclude that article XVI. section 40does not bar a chief appraiser from serving onthe State Property TaxBoard. We next consider the common law doctrine of incompatibility. There is adearth ~ofTexas cases dealinn with this doctrine. In the few cases that have been decided, see, e.g., Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928); Pruitt v. Glen Rose Independent School District Number 1, 84 S.W.2d 1004 (Tex. 1935); Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Cosun’n APP. 1927), the courts have merely concluded, without applying any particular test, that based onthe facts before them, the positions in question either were or were not incompatible. This approach has resulted in a lack of clear guidance as to howto determine whether particular positions are in fact incompatible. Cases from other jurisdictions are morehelpful. In particular, Haskins v. Harrington. 516P.2d 1171 (Wyo. 1973), which was relied on in Letter Advisory No. 114 (1975), contains auseful discussion of the doctrine of incompatibility. Amongother authorities, Haskins cited volume 63, section 74of American Jurisprudence 2dPublic Officers and Employees: One of the most important tests as to whether

offices are incompatible is found in the principle that the incompatibility is recognized whenever one is subordinate to the other in some of its important and principal duties, and subject in somedegree to the other’s revisory power. Thus, two offices are incompatible where the incumbent of the one has the power of appointment to the other office or the power to remove its incumbent, even though the contingency onwhich the power may beexercised is remote. The court also quoted from O’Connor v. Calandrillo, 285A.2d 275. 277 (N.J. Super. 1971). affirmed, 296A.2d 326 (N.J. Super. 1972):

...the commonlaw doctrine of incompatibility has developed asamatter of public policy in order to insure that there be the appearance aswell as the actuality of impartiality and undivided loyalty. [citation omitted]. Incompatibility exists ‘where in the established governmental scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent toprefer one obligation to another.‘

... If the duties of the twooffices are

p. 1551%. -* Honorable Oscar H.Mauzy- Page 3(MW-450)

such that when 'placed in one person they might disserve the public interests, or if the respective offices might or will conflict even on rare occasions, it is sufficient to declare them legally incompatible.' [citation omitted]. A shorthand formulation of these principles can be found in Letter Advisory No. 62 (1973):

Offices are legally incompatible whenthe faithful and independent exercise of one would necessarily interfere with or control the faithful and independent exercise of the other. (Emphasis in original). Seealso Letter Advisory No. 86 (1974). Sections 6.01 et seq. of the Property Tax Code provide for appraisal districts. Each district is governed by a board of five directors. 96.03. The chief appraiser of an appraisal district is appointed by, and serves at the pleasure of, the district board of directors. 56.05. The duties of chief appraisers are spelled out in various sections scattered throughout the Property Tax Code. Among other things, chief appraisers prepare aproposed budget for the operations of their appraisal district for each succeeding year. 86.06. They perform various administrative duties in connection with applications for tax exemptions. §11.44. They prepare appraisal records listing all taxable property in their district and its appraised value. 525.01. Theyalso prepare andcertify to the assessor for each taxing unit participating in their district that part of the appraisal roll for the district that lists property which is taxable by the unit. 526.01. The duties and responsibilities of the State Property Tax Board are numerous, but may be generally sumnisrized as'~follows: (1) promulgate rules establishing minimumstandards for the administration and operation of appraisal district offices and uniform record systems, Property Tax Code sections 5.03(a), 5.07, 5.07(c); (2) conduct a valuation study for school district financing, Cduc~ricn Codesection 11.80; (3) publish general andspecial appraisal manuals, anewsletter, and pamphlets discussing taxpayers' remedies, Property TaxCodesections 5.05(a), 5.06; (4) apportion the appraised value ot railroad rolling stock and appraise the intangible values of certain transportation businesses, Property Tax Code sections 24.37, 24.01; see also section 31.09; and (5) develop educational materials and training programs: conduct, sponsor, or approve courses of instruction and training; and provide technical assistance, Property Tax Code sections 5.05(b), 5.04(a). 5.08(a). 5.08(b).Honorable Oscar H.Mauzy- Page 4 (l+fW-450)

Our analysis of the duties and responsibilities of chief appraisers and members of the State Property TaxBoard convinces us that under the tests set forth above, these positions are not legally incompatible. Chief appraisers are subject to the direction and control of their appraisal district’s board of directors and the appraisal review board, not the Property TaxBoard. TheProperty Tax Board has no authority to appoint or remove chief appraisers. The duties of the twopositions donot clash, in our opinion, and are not such that “when placed in one person they might disserve the public interests.” Haskins V. Harrington. supra. Put another way, the faithful and independent exercise of one position would not necessarily Interfere with or control the faithful and independent exercise of the other. See Letter Advisory Nos. 86(1974); 62 (1973). - Ourconclusion is not altered by the fact that section 5.03(a) of the Property Tax Code directs the Property Tax Board to adopt rules establishing minimumstandards for the administration andoperation of appraisal districts, andthat because of this achief appraiser whois amemberof the board will participate ln developing standards which he will then follow when functioning as chief appraiser. First, the board of directors of the appraisal district, not the chief appraiser, is charged with the responsibility of implementing rules promulgated by the Property TaxBoard. Second. aswehave noted, chief appraisers are answerable to the appraisal district board of directors, not the Property Tax Board. Third, the Property Tax Board has no power to enforce its ownrules; on the contrary, the power to force compliance with the rules of the Property Tax Board lies in the hands of taxing units, not the board itself. Property TaxCode943.01. Wetherefore conclude that the positions of chief appraiser of an appraisal district andmemberof the State Property TaxBoard are not legally incompatible under the present statutory scheme. SUMMARY Article XVI, section 40 of the Texas Constitution does not prohibit a chief appraiser of a” appraisal district from serving onthe State Property Tax Board. The positions of chief appraiser andmemberof the Property TaxBoard are not legally incompatible.

MARK WHITE Attorney General of Texas JOHNW.FAINTER,JR. First Assistant Attorney General

D. 1553. Honorable Oscar H.Mauzy - Page 5 (Mw-450)

.

RICHARDE. GRAYIII Executive Assistant Attorney General Prepared byJonBible Assistant Attorney General APPROVED: OPINIONCOMMITTEE Susan L. Garrison, Chairman Jon Bible Rick Gilpin JimMoellinger

p. 1554