. 

i 

The Attorney General of Texas 

February 23, 1982 

MARK WHITE 

Attorney General 

Supreme Court Buildinp 

P. 0. BOX 12546 

*ustim TX. 78711. 2548 

512N75-2501 

Telex 9101674-1367 

Telecopier 512i4750266 

1607 Main St., Suite 1400 

Oaltas. TX. 75201.4709 

21417424944 

4824 Alberta Ave.. Suite 160 

El Paso. 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 

An Equal Opportunltyl 

Attirmative Action Employer 

Honorable Oscar H. Mauzy 

Chairman 

Opinion No.MW-450 

Senate Committee on Jurisprudence 

Texas State Senate 

Austin, Texas 78711 

ItI?: Whether duties of chief 

tax appraiser conflict with 

duties of member of state 

Property Tax Board 

Dear Senator Mauzy: 

You ask whether the chief appraiser of an appraisal district may 

legally serve on the State Property Tax Board. We understand 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 ~these questions. 

We first look to article 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 same time, 

more than one civil 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 a pecuniary profit, gain or advantage. Irwin v. State, 177 

S.W.2d 970 (Tex. Crim. App. 1944). Section 5.01(i) of the Property 

Tax Code provides that: 

A member of the [State Property Tax Board] may not 

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 

the performance 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 him by virtue of his position. Accordingly, he does not 

p. 1550 
Honorable 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, 377 S.W.Zd 622 (Tex. 1964). 

We therefore conclude that article XVI. section 40 does not bar a 

chief appraiser from serving on the State Property Tax Board. 

We next consider the common law doctrine of incompatibility. 

There is a dearth ~of Texas 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 on the 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 how to determine whether 

particular positions are in fact incompatible. 

Cases from other jurisdictions are more helpful. In particular, 

Haskins v. Harrington. 516 P.2d 1171 (Wyo. 1973), which was relied on 

in Letter Advisory No. 114 (1975), contains a useful discussion of the 

doctrine of incompatibility. Among other authorities, Haskins cited 

volume 63, section 74 of American Jurisprudence 2d Public 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 

some degree 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 on which the power may 

be exercised is remote. 

The court also quoted from O’Connor v. Calandrillo, 285 A.2d 275. 277 

(N.J. Super. 1971). affirmed, 296 A.2d 326 (N.J. Super. 1972): 

. ..the common law doctrine of incompatibility has 

developed as a matter of public policy in order to 

insure that there be the appearance as well 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 to prefer one obligation to 

another.‘... If the duties of the two offices 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 when the faithful 

and independent exercise of one would necessarily 

interfere with or control the faithful and 

independent exercise of the other. (Emphasis in 

original). 

See also 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 a proposed 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. They also prepare and certify 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 minimum standards 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 

Code section 11.80; (3) publish general and special appraisal manuals, 

a newsletter, and pamphlets discussing taxpayers' remedies, Property 

Tax Code sections 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 Tax Board 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 Tax Board. The Property Tax 

Board has no authority to appoint or remove chief appraisers. The 

duties of the two positions do not 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). 

- 

Our conclusion 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 minimum standards for the administration and operation of 

appraisal districts, and that because of this a chief appraiser who is 

a member of 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 Tax Board. Second. as we have 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 own rules; 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 Tax Code 943.01. 

We therefore conclude that the positions of chief appraiser of an 

appraisal district and member of the State Property Tax Board 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 on the State 

Property Tax Board. The positions of chief 

appraiser and member of the Property Tax Board are 

not legally incompatible. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

D. 1553 
. 

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

. 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Jim Moellinger 

p. 1554