April 17, 1990 

Honorable Toby C. Wilkinson Opinion No. JM-1157 

Hunt County Attorney 

4th Floor Courthouse Re: Whether the board of 

P. 0. Box 1097 trustees of an independent 

Greenville, Texas 75401 school district may contract 

for tax collection with the 

county when the county 

assessor-collector is also 

a member of the board of 

directors of the appraisal 

district (RQ-1943) 

Dear Mr. Wilkinson: 

Subsection (a) of section 6.24 of the Tax Code authorizes the governing body of a taxing unit other than a 

county to contract, as provided by the Interlocal cooperation Act,1 with the governing body of another taxing 

unit in the county to perform duties relating to the 

assessment or collection of taxes.2 YOU ask whether the 

governing body of an independent school district may 

contract for the collection of taxes with the county in an 

instance in which the county assessor-collector is also a 

member of the board of directors of the appraisal district 

in which the school district participates. YOU ask 

.specifically whether the doctrines of common law 

1. V.T.C.S. art. 4413(32c). 

2. In Attorney General Opinion JM-833 (1987), we 

concluded that insofar as subsection (b) of section 6.24 of 

the Tax Code permitted the county commissioners and the 

county assessor-collector to contract duties reposed by 

section 14 of article VIII of the Texas Constitution in the 

constitutional office of county assessor-collector, the 

subsection is unconstitutional. Because your question 

involves a fact situation in which a taxing unit is seeking 

to have the county perform collection duties for it rather 

than a situation involving a county seeking to have a taxing 

unit perform collection duties for the county, subsection 

(b) of section 6.24 is not relevant. Instead, subsection 

(a) of section 6.24 is the provision that controls. 

P. 6104 
Honorable Toby C. Wilkinson - Page 2 (JM-1157) I 

incompatibility and of constitutional dual office holding 

are violated in such a situation. See. e.a., Attorney 

General Opinion JM-203 (1984). In addition, it is suggested 

that section 6.036 of the Tax Code may be violated under the 

facts you describe. We conclude that neither the common law 

doctrine of incompatibility nor the dual office holding 

prohibition is implicated in the factual situation that you 

present. In addition, section 6.036 of the Tax Code is not 

violated. 

Section 40 of article XVI of the Texas Constitution 

prohibits, except in certain specified instances, one person 

from holding two offices of emolument. In order for this 

dual office holding prohibition to be triggered, the 

positions involved must both be offices and each must be an 

office of emolument. For purposes of section 40 of article 

XVI of the Texas Constitution, the term l'emolument'l 

signifies a pecuniary profit, gain, or advantage. Irwin v. 

State, 177 S.W.2d 970'(Tex. Crim. App. 1944). The office of 

county tax assessor-collector is an office of emolument. 

Attorney General Opinion JM-833 (1987). Appraisal district 

board members are unpaid. Tax Code § 6.03. The office of 

appraisal district board member, then, is not an office of 

emolument. See. a 

(1982); MW-81 (19%):' 

Attorney General opinions MW-450 

Therefore, if a person who is an 

officer that occupies an office of emolument is elected to 

serve as an appraisal district board member, the constitutional dual office holding prohibition of section 40 of 

article XVI is not triggered. 

The common law doctrine of incompatibility prevents one 

person from holding two offices if the duties are inconsistent or in conflict, or if one office is subordinate to the 

other. Thomas v. Abernathv Countv Line IndeD. School Dist., 

290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted); &g& 

v. Glen Rose IndeD. School Dist. No. 1, 50 S.W.Zd 375 (Tex. 

Civ. App. - Waco 1932), rev'd on other arounds sub nom. 

Pruitt v. Glen Rose Ind D School Dist. No. 1, 84 S.W.Zd 

1004 (Tex. 1935). The ed&trine has been held to bar a 

public employee from holding a public office that appoints, 

supervises, and controls the employee. See Ehlinaer v. 

Clark, 8 S.W.Zd 666 (Tex. 1928); Attorney General Opinions 

JM-862 (1988): JM-519 (1986): Attorney General Letter 

Advisory No. 114 (1975). 

The common law rule would govern in this situation and 

prohibit a county tax assessor-collector from serving as an 

appraisal district board member were it not for subsection 

6.03(a) of the Tax Code. Section 6.03 of the Tax Code 

governs, inter alia, the eligibility of persons to serve as 

members of the board of directors of appraisal districts. 

Subsection (a) of section 6.03 provides in relevant part: 

-, 

P. 6105 
Honorable Toby C. Wilkinson - Page 3 (JM-1157) 

- An individual who is otherwise eligible to 

serve on the board is not ineligible because 

of membership on the governing body of a 

taxing unit or because the individual is an 

elected official. 

Subsection (a) of section 6.03 of the Tax Code constitutes a 

general law exception to the common law rule and, 

overrides it.3 

thereby, 

Therefore, the common law rule of incompatibility is not applicable in 

describe. 

the factual situation that you 

Finally, we understand you to ask whether any additional statutory provision governing conflicts of interest is 

violated in the situation that you describe. Section 6.036 

of the Tax Code was added by the 71st Legislature and prohibits certain individuals from entering into contracts with 

appraisal districts or taxing units under certain specified 

conditions. Acts 1989, 71st Leg., ch. 796, § 5 at 3592.4 

It provides: 

3. Section 5.001 of the Civil Practice and Remedies 

Code provides: 

The rule of decision in this state consists 

of those portions of the common law of England 

that are not inconsistent with the constitution 

or the laws of this state, the constitution of 

this state, and the laws of this state. 

4. Attorney General Opinion JW-1060 (1989) held that 

an attorney who had entered into a contract with a taxing 

unit to enforce the collection of delinquent taxes was not 

barred from serving as a member of the board of directors of 

the appraisal district in which that taxing unit 

participates. That opinion was issued prior to the 

effective date of section 6.036 of the Tax Code. As of the 

effective date of that section, that opinion is no longer 

controlling. We note that subsections (b), (c), and (d) of 

section 49 of the bill enacting section 6.036 of the Tax 

Code provides the following: 

(b) The change in law made by Sections 5 and 

13 of this Act does not affect the validity of a 

contract executed before the effective date of 

those sections. 

(c) The change in law made by Sections 4, 5, 

11, 12, and 13 of this Act does not affect the 

(Footnote Continued) 

P. 6106 
Honorable Toby C. Wilkinson - Page 4 (JM-1157) 

(a) An individual is not eligible to be 

appointed to or to serve on the board of 

directors of an appraisal district if the 

individual or a business entity in which the 

individual has a substantial interest is a 

party to a contract with: 

(1) the appraisal district; or 

(2) a taxing unit that participates in 

the appraisal district, if the contract 

relates to the performance of an activity 

governed by this title. 

(b) An appraisal district may not enter 

into a contract with a member of the board of 

directors of the appraisal district or with a 

business entity in which a member of the 

board has a substantial interest. 

(c) A taxina unit mav not enter into a 

) cant ct e t'n 

1 act'vi ove 

of the board of directors of. an annraisal 

trl dis'ct 'n unit articipates 1 or w' a 

member of the board has a substantial 

interest. 

(d) For purposes of this section, an 

individual has a substantial interest in a 

business entity if: 

(1) the combined ownership of the 

individual and the individual's spouse is 

(Footnote Continued) 

eligibility of a director of an appraisal district 

or an appraisal review board member to complete 

the term being served on the effective date of 

those sections. 

(d) The change in law made by Sections 4 and 5 

of this Act does not affect the eligibility of an 

individual nominated or appointed to an appraisal 

district board of directors before the effective 

date of those sections to be appointed to or to 

serve for the term to which the individual was 

nominated or appointed before the effective date 

of those sections. 

P. 6107 
Honorable Toby C. Wilkinson - Page 5 (JM-1157) 

at least 10 percent of the voting stock or 

shares of the business entity: or 

(2) the individual or the individual's 

spouse is a partner, limited partner, or 

officer of the business entity. 

(e) In this section. 'business entitv' 

means a sole DroDrietorshiD. Da*nershiD. 

firm. coNoration. holdina comDanv. iointstock COmDanv. receivershiD. trust. or other 

entitv recoanized bv law. 

(f) This section does not limit the 

application of any other law, including the 

common law relating to conflicts of interest, 

to an appraisal district. (Emphasis added.) 

In this instance, a county clearly does not fall within 

the definition of "business entity," as set forth in subsection (e). Nor is the Interlocal Cooperation Act contract 

permitted by subsection 6.24 of the Tax Code a contract 

entered into with the county assessor-collector as an 

individual, even in her official capacity. It is a contract 

entered into with the commissioners court. We conclude that 

section 6.036 of the Tax Code is not applicable. We have 

found no other statutory provision, nor have you directed us 

to one, that would prohibit the school district from 

entering into the contract that you describe. See Local 

Gov't Code ch. 171 (regulating conflicts of interest of 

officers of local government). 

SUMMARY 

The trustees of an independent school 

district may enter into an Interlocal Cooperation Act contract with the commissioners 

court of a county for the collection of taxes 

in an instance in which the county assessorcollector is a member of the board of 

directors of the appraisal district in which 

the independent school district participates. 

Very truly yo r , J A /aiii;c JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

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Honorable Toby C. Wilkinson - Page 6 (JM-1157) 

I 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 6109