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
amember of the board of directors of the appraisal district (RQ-1943) DearMr. Wilkinson:
Subsection (a)of section 6.24 of the Tax Code authorizes the governing body of ataxing 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 askwhether the governing body of an independent school district may contract for the collection of taxeswith the county in an instance inwhich the county assessor-collector isalso a member of theboard 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. InAttorney 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 14of 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 inwhich a taxing unit is seeking tohave the county perform collection duties for it rather than a situation involving acounty seeking tohave a taxing unit perform collection duties for the county, subsection (b)of section 6.24 isnot relevant. Instead, subsection (a)of section 6.24 istheprovision that controls.

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incompatibility and of constitutional dual office holding
areviolated in such a situation. See. e.a., Attorney General Opinion JM-203 (1984). Inaddition, it is suggested that section 6.036 of the Tax Code may beviolated under the factsyou 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. Inaddition, section 6.036 of the Tax Code is not violated.
Section 40 

### ofarticle XVI of the Texas Constitution prohibits, except incertain specified instances, one person fromholding two offices of emolument. Inorder for this dual office holding prohibition to be triggered, the positions involved must both be offices and eachmust be an office of emolument. Forpurposes of section 40 of article XVI of the Texas Constitution, the term l'emolument'l signifies apecuniary 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, isnot an office of emolument. See. a (1982);MW-81 (19%):' Attorney General opinions MW-450 Therefore, ifa 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 isnot triggered.

The common lawdoctrine of incompatibility prevents one person fromholding two offices if theduties are inconsistent or inconflict, or ifone 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 fromholding apublic office that appoints, supervises, and controls the employee. See Ehlinaer v. Clark, 8S.W.Zd 666 (Tex.1928);Attorney General Opinions JM-862 (1988): JM-519 (1986): Attorney General Letter Advisory No. 114 (1975).

The common law rulewould govern inthis situation and prohibit acounty tax assessor-collector from serving as an appraisal district board member were itnot for subsection 6.03(a) of the Tax Code. Section 6.03 of the Tax Code governs, inter alia, the eligibility ofpersons to serve as members of the board ofdirectors ofappraisal districts. Subsection (a)of section 6.03provides inrelevant part: -,

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- An individual who is otherwise eligible to serve on theboard isnot ineligible because ofmembership on the governing body of a taxing unit orbecause 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 isnot applicable in describe. the factual situation that you

Finally, we understand you to askwhether any additional statutory provision governing conflicts of interest is violated in the situation that you describe. Section 6.036 of the Tax Codewas added by the 71st Legislature and prohibits certain individuals fromentering into contracts with appraisal districts ortaxing units under certain specified conditions. Acts 1989, 71st Leg., ch. 796, § 5at 3592.4 Itprovides:

3. Section 5.001 of the Civil Practice and Remedies Codeprovides:

The rule ofdecision inthis state consists of those portions of the common lawof England that arenot 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 intoa contract with a taxing unit to enforce the collection ofdelinquent taxes was not barred from serving as amember of theboard ofdirectors 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 isno longer controlling. We note that subsections (b), (c),and (d) of section 49of thebill enacting section 6.036 of the Tax Code provides the following:

(b) The change in law made by Sections 5 and 13of thisAct does not affect thevalidity of a contract executed before the effective date of those sections.
(c) The change in law made by Sections 4, 5, 11, 12,and 13of thisAct does not affect the (Footnote Continued)

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(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 orabusiness entity inwhich the individual has a substantial interest is a party to acontract with:

(1) the appraisal district; or
(2) a taxing unit that participates in the appraisal district, if the contract relates to theperformance of an activity governed by this title.
(b) An appraisal district may not enter into a contract with amember of theboard of directors of the appraisal district orwith 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 orw' 1 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 adirector ofan 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 lawmade by Sections 4and 5 of this Act does not affect the eligibility of an individual nominated orappointed to an appraisal district board of directors before the effective date of those sections tobe appointed to or to serve for the term towhich the individual was nominated or appointed before the effective date of those sections.

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at least 10percent of thevoting stock or shares ofthebusiness entity: or
(2) the individual or the individual's spouse isa partner, limited partner, or officer of thebusiness entity.
(e) Inthis 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 anappraisal district. (Emphasis added.)

Inthis instance, acounty clearly does not fallwithin 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 inher official capacity. It isa contract entered intowith the commissioners court. We conclude that section 6.036 of the Tax Code is not applicable. We have foundno other statutory provision, norhave 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 ofan independent school district may enter intoan Interlocal Cooperation Act contract with the commissioners court of acounty forthe collection of taxes inan instance inwhich 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/aiii;c

A JIM MATTOX Attorney General of Texas

MARY KELLER FirstAssistant Attorney General

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JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byJim Moellinger Assistant Attorney General

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