DAN MORALES

.ATTORNEV GENERA‘ 

## QMfice

of the ZWwnep QSeneral %tate ofQLexarr December 19,1997
The Honorable Ken Armbrister Chair, Committee on State Affairs Texas State Senate P.O. Box 12068 Austin, Texas 78711 The Honorable Michael P. Fleming Harris County Attorney 1001 Preston, Suite 634 Houston, Texas 77002-1891 Opinion No. DM-462 Re: Whether a former member of the governing body or an officer or employee of a taxing unit is eligible for appointment to an appraisal review board, and related questions (RQ-1008)

Both Tax Code section 6.41(c) and section 6.412(c) deem ineligible for membership on an appraisal review board a former director, former officer, or former employee ofthe appraisal district board. Tax Code 6.4l(c)‘s restriction, however, applies only to an appraisal review board in an appraisal district established for a county with a population that exceeds 300,000, while section 6.412(c) applies to any appraisal review board, regardless of the size of the county with which the review board is aftiliated. More importantly, section 6.41(c) deems ineligible for membership a former member of the governing body, a former officer, or a former employee ofutaring unit. By cormast, Tax Code section 6.412(c) deems ineligible for membership only a former member of the governing body, a former officer, or a former employee ofa taring unit for which the appraisal district appraises property. You. both ask about the eligibility of certain former officers or employees of the government to’serve on an appraisal review board. Senator Armbrister asks generally about “the breadth of the application” of section 6.41(c)‘s restriction. Mr. Fleming asks how these two limitations on eligibility intertace, and he asks speoifically how to detine taxing unit in section 6.41(c). We conclude generally that, on and atbarJamrary 1,1998, section 6.41(c) limits appraisal review board membership on an appraisal review board tiliated with a county that has over 300,000 people, while section 6.412(c) applies to appraisal review boards affiliated with the mmaining, smaller counties. We tInther conclude that section 6.41(c) applies to former officers and former employees of any taxing unit, as Tax Code section 1.04(12) defines that term, while section 6.412(c) is limited to former officers and employees only of taxing units for which the appraisal district appraises property. Mr. Fleming asks several other questions as well. He asks how to distinguish a taxing unit officer t?om a taxing unit employee. We understand his real concern to be how to distinguish an individual who serves a taxing unit and who is therefore ineligible for appointment under eitherTheHonorableKen Armbrister - Page 2

The Honorable Michael P. Fleming (DM-462)

section 6.41(c) or section 6.412(c) from a similarly situated individual who is not ineligible under those sections. We conclude, based upon the language of the statutes, that the sections deem ineligible all former officers and employees, including part-time employees, but they do not deem ineligible volunteers who are not officers. Mr. Fleming further suggests that the prohibition on appointing former officers and employees violates Texas Constitution article I, section 19, an argument webelieve is without merit. Finally, Mr.Fleming contends that the prohibitions constitute specisl laws and are thus unconstitutional under Texas Constitution article III, section 56. We find this contention without merit as well. We begin by examinin g the appraisal review process. In each appraisal district, sn appraisal review board’ reviews the appraisal records of the county’s chief appraiser.* As part of its review function, the review board is required to hear and determine taxing units’ challenges to the records, as well as property owners’ protests regarding the records.4 Review board members are appointed by the appraisal district board of directors? The appraisal district board also may appoint auxiliary members to the appraisal review board to hear taxpayer protests and to assist the review board in performing its other duties.6 In 1997 the Seventy-fifth Legislature added two provisions pertaining to the eligibility of review board members. By the passage of Senate Bill 841, the legislature amended Tax Code section 6.41(c) to restrict membership on an appraisal review board affiliated with a county having a population greater than 300,000:

In an appraisal district established for a county having a population of more than 300,000, an individual who has served for all or part of tbree previous terms as aboard member or auxiliary board member on the appraisal review board,isa

fonner memberofthegoverning bo+ oranoficer or employee of a taxing unit, or ti a

former director, oficer, or employee ofthe appraisal district is ineligible to serve on the appraisal review board:’

‘SeeTaxGxle 5 6.41(a).

‘Seeid. $5 25.22(a), 41.01; Attorney General Gpinion

DM-94 (1992) at2.

‘SeeTax Code $5 41.03, .05, .07.

‘Seeid. $541.41, .45, .47, seealsoAttorney General

Opinion

DM-259 (1993) at 1-2

“SeeTaxCode.5 6.41(d). Theappraisal district bard andappraisal

review boardareseparate

entities.See Tome Square Assm. v.Angelim County Appraiwl Dirt., 709 S.W.Zd776,778 (Tex.App.-B.mamt 1986,nowrit); Corchine Parbvmhip v. Dallas GWNJJAppmisalDis~, 695 S.W.2d 734,735 (Tex.App.-Dallas 1985,writ refdnr.e.). %ee Tax Code.§ 6.41l(a).

‘SeeTaxCcde 5 6.41(c),asamendezfbyActofMay29,1997,75thLeg., R.S., clClO39, 54, 1997Tex. Seas. (continod..)

p. 2588The Honorable Ken Armbrister - Page 3

The Honorable Michael P. Fleming (DM-462)

This new restriction on eligibility, signified by the italicized language, applies only to the review board members appointed on or atIer January 1, 1998.* The restriction on eligibility also applies to auxiliary review board membexxp In addition, by the adoption of Senate Bill 1017, the legislature added to Tax Code section 6.412 a new subsection (c), which similarly restricts membership on an appraisal review board:

A person is ineligible to serve on the appraisal review board if the person is: (1) a former officer or employee of the appraisal district or a taxing unit for which the appraisal district appraises property; (2) a former member of the board of directors of the appraisal district; or (3) a former member ofthe governing body of a taxing unit for which the appraisal district appraises property.” Although section 6.412(c) became effective September 1, 1997, it does not affect review board members sitting on the board on that date.” Rather, they may “continue to serve on the board and to participate in board hearings for the remainder of [their terms]. Then changes in law apply only to a member appointed on or after the effective date
. . . .“I* As a preliminary matter, we construe section 6.41(c) so that the adjectiveformer modifies om and employee aswell as member ofthegoverning body.I3 When madliterally, the eligibility limitation in section 6.41(c) that is at issue in this opinion appears to deem ineligible a former governing board member, a current officer, or a current employee of a taxing unit: “an individual

‘(...continued) LawSew. 3897,3899 (emphasis added todenote1997amendment).

‘SeeAct of May 29,1997,75tb Leg.,RS., ch. 1039,§ SO(c),1997Tex. Sess.LawServ.389?,3919. %ee id. $5,1997 Tex. Sess.LawServ.3897.3899 (am&ing Tax Code 5 6.41l(c)). “Act of&y 19, 1997,75tb Leg., R.S., ch. 691, sec.2, !j 6.412(c), 1997Tex. Sess.LawServ.2312,2313.

“See Act ofMay 19, 1997,75tb Leg., RS., ch 691,s 3(a), 1997Tex. S&s. LawServ.2312,2313.

‘?rd TaxCodesection 6.412(c) “doesnotprohibit aperson

whoisamember

of anappraisal

reviewboardon theeffectivedate frombeingreappointed totheboardiftheperson hasthequalifications required

fora member under theTax Codeasamended by thisAct.” Id. “We received

a letter fromRepresentative

ToddSmith

specifically

raising thisissue. Representative Smith is not an authorized requestor. See Gov’t Code $5 402.042, .043, .044. To nsolve yourquestions, however,wemust resolve the. veryissueRepresentative Smith raises.

p. 2589The Honorable Ken Armbrister - Page 4

The Honorable Michael P. Fleming (DM-462)

who
. . .is a former member of the governing body or sn officer or employee of a taxing unit
. . is ineligible to serve. . . .” Inthispbrase, theadjectiveformer appears to modify only memberofthe governing body, not o#icer or employee. The immediately preceding sentence, however, deems ineligible forreview board membership (in any county, regardless of population) a current appraisal district board member or a current officer or employee of the comptroller, the appraisal office or a taxing unit. If the adjectiveformer does not modify officer or employee, the two sentences are largely redundsnt, and we presume that the legislature did not intend the redundancy.” The two provisions about which you ask differ in several respects. Mr. Fleming points out two differences, which he contends render the provisions inconsistent. First, section 6.41(c) applies only to review board members in an appraisal district established for a county having a population greater than 300,000, while section 6.412(c) applies, ostensibly, to review board members in any appraisal district, regardless ofthe affiliated county’s population. Second, while both section 6.41(c) and 6.412(c)(l), (2) deem ineligible a former member, offtcer, or employee of the appraisal district board, they set different standards for former taxing unit officers or employees. Specifically, section 6.41(c) deems ineligible a former officer or employee of “a taxing unit,” while section 6.412(c) deems ineligible a former officer or employee of “a taxing unit for which the appraisal district appraises property.” Likewise, section 6.41(c) deems ineligible a former member of the goveming body of “a taxing unit,” while section 6.412(c) deems ineligible a former member of the goveming body of “a taxing unit for which the appraisal district appraises property.” We note a third diffbrence: section 6.412(c) became effective September 1,1997, while the amendments to section 6.41(c) will become effective January 1,199s. We disagree that sections 6.41(c) and 6.412(c) are irreconcilably inconsistent; instead, we believe the differences may be harmonized. Where a general provision wntlicts with amore specific provision, we are to wnstrue the two, if possible, to effectuate both.t5 Clearly, before Jsnuary 1, 1998, there is no wntlict: every appointment to an appraisal review board must comply with Tax Code section 6.412(c), the only effective provision at this time. But even when both provisions are effective, on Janusry 1,1998, we do not tind irreconcilable conflict. On and after January 1,1998, we believe the eligibility restriction in section 6.41(c) will apply only to an appraisal review board affiliated with apopulous wunty, while section 6.412(c) will apply to an appraisal review board affiliated with a smaller county. By its terms, the restriction in section 6.41(c) applies only to appointments to an appraisal review board affiliated with a county with a population higher thsn 300,000, which to be concise we will denominate a “populous WUllt)t’*‘6 Section 6.412(c), by contrast, is not explicitly limited. We interpret it, consequently, to

“See State

v.Edmond, 933 S.W.2d 120, 124 (Tex. Grim App. 1996) (enbmc); while v.State,930 S.W.2d 673,676 (Tex.App.--Waco 1996,nowit).

‘%ee Gov’t Code 5 3 11.026(a).

‘6The 1998-1999 Texas Almanac Listseleven counties as having populations bigher than 300,ooO. SeeTHE (continoed...)

p. 2590The Honorable Ken Armbrister - Page 5 (DM-462)

The Honorable Michael P. Fleming
apply to all nonpopulous wunties, to which the restriction in section 6.41(c) does not apply. Thus, on January 1, 1998, Mr. Fleming’s county, Harris, a populous county,” will be subject to the eligibility restriction in section 6.41(c), although it is currently subject to section 6.412(c). On the other hand, Gonzales County, one of the wunties Senator Armbrister represents, is and on January 1,1998, will remain subject to section 6.412(c) because it is a nonpopulous ~unty.‘~ In addition, we construe section 6.41(c) to deem ineligible for appointment to an appraisal review board that is affiliated with a populous county a former governing board member, former officer, or former employee of any taxing unit, whether or not the taxing unit’s property is appraised by the appraisal review board’s appraisal district. Under section 6.41(c), an appraisal district in a populous county camtot appoint a former member of the governing body, officer, or employee of a taring unit. The term taxingunit in section 6.41(c) is unrestricted. By contrast, the legislature has chosen explicitly to limit the term in section 6.412(c) to include only those taxing units for which the appraisal district appraises property. The term taring unit,forpurposes of both sections 6.41(c) and 6.412(c), is detined in Tax Code section 1.04(12):

‘Taxing tit” means a wunty, an incorporated city or town (including a home-rule city), a school district, a special district or authority (including a junior college district, a hospital district, a district created by or pursuant to the Water Code, a mosquito control district, a fire prevention district, or a noxious weed control district), or any other political unit of this state, whether created by or pursuant to the constitution or a local, special, or general law, that is authorized to impose and is imposing ad valorem taxes on property even if the governing body of anotherpolitical tit determines the tax rate for the unit or otherwise governs its affairs.‘p Indeed, the fact that section 6.41(c) applies to former officers and employees of any taxing tit, while section 6.412(c) applies to former officers and employees only of those taxing units for which the appraisal district appraises property appears to us to follow logically from the population difference. In a populous wunty, the appraisal district has a larger pool of citizens from which to select appointees to the appraisal review board, the legislature may, therefore, exclude a larger number of people without seriously impacting the appraisal district’s ability to tind competent appointees. But in a smaller county, the appraisal district has a smaller pool of possible appointees

DAM MORNINGNEWS, 1998-1999 TEXAS

ALMANAC

143-292 (1997),

“‘See BUREAU

OFTHECENSUS,

U.S. DEP’TOFCOMMERCE, 1990 CENSUS

OFPOPULATION:

GENERAL POPULKTlON CHARACTERISTICS: TEXAS 2 (1992) @oputation 2,818,199). “Id. (population: 17,205).

‘Tax Codesection1.04de- temx forthewhole ofTaxCodetitle1. Se&oons 6.41 and6.412 botharepart of tide 1.

p. 2591TheHonorableKen Armbrister - Page 6

The Honorable Michael P. Fleming (D~-462)

from which to choose. By excluding only former directors, officers, and employees of taxing units forwhich the appraisal district appraises property, the legislature, webelieve, attempted to maximize the number of people eligible for appointment while still accomplishing the intent of the limitation-to reduce cronyism in the appointment process.20 We turn now to your specific questions. We begin with Mr. Fleming’s first question: how to reconcile what he perceives as irreeoncilsble differences between the limitation in section 6.41(c) and section 6.412(c). We have concluded that until January 1, 1998, section 6.412(c) applies to appointments to appraisal review boards in all counties. On and after January 1,we have concluded, section 6.41(c)‘s limitation applies to appraisal review boards aftiliatcd with populous counties, while section 6.412(c) applies to all other counties. Mr. Fleming’s second question concerns the definition of taxing unit. Unlike section 6.412(c), section 6.41(c), we have concluded, pertaim to former officers and employees of all taxing units, whether or not the appraisal district appraises propem for that taxing unit. Further, we have adopted, forpurposes of section 6.41(c) and 6.412(c), the detlnition oftaxingunitfound atTax Code section 1.04(12), which describes a political subdivision that is authorized to and is imposing ad valorem taxes. Mr. Fleming, however, asks about former directors, officers, or employees of taxing unita that have either ceased to exist or that do not or did not impose taxes:

[I]s an [appointee] ineligible to serve on the appraisal review board if he or she wasformerly au officer or employee of.
. . : 1. A taxing unit that ceased to exist prior to January I,1998 (effective date of legislative changes to [Tax Code section] 6.412?*’

%z Hearings

on S.B. 1017 BeforetheSeoateComm. on Inte~ovemmcn talRelations,75th Leg., RS. (Mar. 26, 1997) (statement of Senator

Patterson)

(tapeavailable

fxomSenate

Staffservices)(indicating thatbill’s p~istoensllrethatappI;lisalreviewprocessisfairandthatmembnsofappraisalreviewboardbeneutralarbitcrs ofproperty

taxdisputes);

id.(testimony

ofBreck

Bostwick,

qrescnting Texas

Ass’n ofProperty

Ownas) (stating

that small monties

haveditlicult

the finding

people toserve onappraisal

review boards);

cf Hearings

onS.B. 841 Before the House Comm. on RevenueandPublicEducation, 75th Leg., R.S. (May 1, 1997) (testimony of Mark Rose, representing

self)(tape

available

from House Video/AudioServices Office) (reflecting

public perception

that, because appraisal

district boardappoints

boardmembers’friends andcronies

to appraisal

review board,taxpayer

protesting decision

candonothing

togetfairhearing

fromreview

board); cf: alsoCITIZENS’

COMM. ON PROPEIUY

TAXRELIEF, FINAL REPORT

21-22 (Nov. 8, 1996) (s unmaking publicsentiment thatreviewprocess‘undcmorratic” becase, according

tothose whotestified,

appraisal

review board cannot offerunbiased

review of appraisal

district’s

work). l’As wehavestated,

TaxCodesection

6.412(c)became

effective

September

1,1997. SeeActofMay 19.1997, 75thLog.,RX, ch.691,1997 Tex. Sess.LawServ.2312,2312-13. The. amendment

osection

6.41(c), ontbe other hand, willtakeeffectJanuary 1, 1998. SeeAct ofMay 29, 1997,75th Leg., RS., ch. 1039,§ SO(a),1997Tex. Sss. LawServ.3897,3919. We believe,tberefore, that Mr. Flemiogrefers

to section

6.41(c) iothisqoestion, notsection 6.412(c), ashestates.

p. 2592The Honorable Ken Armbrister - Page 7 (DM-462)

The Honorable Michael P. Fleming

2. A taxing unit that ceased to exist prior to January 1,1982 (effective date of [Tax Code])?
3. A taxing unit that ceased to exist prior to May 31,1993 (effective date of changes to [Tax Code section 1.04(12), which defines taxing unit])? 4. A taxing unit that ceases to exist before the appraisal review board member takes office? 5. A taxing unit that is in existence but otherwise ceases to impose an ad valorem tax before the appraisal review board member takes office? 6. A taxing unit that is in existence but did not impose an ad valorem tax (although authorized to do so) during the time that the appraisal review board [appointee] was an employee or officer? In our opinion, the critical question in unraveling all of these hypothetical situations is whether the appointee served a political subdivision that was, at the time the appointee served it, authorized to impose and was imposing ad valorem taxes. Thus, it makes no difference that the taxing unit ceased to exist before some arbitrary date. Nor does it matter that the taxing unit ceased imposing ad valorem taxes after the appointee’s tenure. It is relevant, however, that a political subdivision was authorized to but did not collect ad valorem taxes during the appointee’s tenure. Under the Tax code’s deli&ion, two factors set a political subdivision apart as a taxing unit: tirst, the political subdivision is authorized to collect ad valorem taxes; and second, the political subdivision in fact imposes ad valorem taxes. Where.one ofthese factors is not present, the political subdivision is not a taxing unit. Consequently, in response to the first five of Mr. Fleming’s hypotheticals, we believe the appointee is ineligible to serve on an appraisal review board. Conversely, in response to Mr. Fleming’s sixthhypothetical, we believe neither section 6.41(c) nor section 6.412(c) precludes the appointee Ikom service on an appraisal review board because the political subdivision was not a taxing unit at the time the appointee served it. You both question the scope of the terms oficer and employee for purposes of sections 6.41(c) and 6.412(c). Mr. Fleming first cites the opinion of the Texas Supreme Court in Aldine IndependentSchoolDistrict v. StundZey,”distinguishing an officer t?om an employee on the basis of “whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.“23

980 S.W.2d 578 (Tex. 1955). “Id. at583 (quoting

Dunbar v.Brawti County, 224 S.W.Zd 738,740 cfex. Civ. App.--Galveston 1949, writ refd)) (emphasis

inoriginal).

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The Honorable Michael P. Fleming

Mr. Fleming then cites several statutory definitions of employee:’ and he closes with one, Government Code section 821.001(6), that defines the term to include only full-time workers. He also cites a statutory detinition oflocalpublic official,Local Government Code section 171.OOl , and a previous opinion of this office that an individual who serves as an alternate election judge in a single municipal election is not an officer of a taxing unit. *’ He finally lists specific positions and asks whether an individual who currently or formerly has held one of the positions is eligible for appointment to an appraisal review board:

. part-time instructor for a community college (which, Mr. Fleming states, is a taxing unit);

. alternate election judge or clerk for a taxing unit for one or more elections:

. substitute teacher for a school district (which, Mr. Fleming states, is a taxing unit);

. summer employee for a municipal parks and recreation program (Mr. Fleming states that a municipality is a taxing unit). Senator Armbrister asks, in addition, about a former city driver education teacher or a retired taxing unit employee. In our view, all ofthe positions about which you ask are employments. None are offices, we believe, because none of the position holders exercises a sovereign governmental function independently of others’ control. 26 Indeed, this office previously has concluded that an alternate election judge or clerk is not an officer.a7 Rather, all of the positions sre subject to the control of others and all are compensated, both of which are characteristics of employment. We believe, for purposes of Tax Code sections 6.41(c) and 6.412(c), the term employee encompasses any individual who is appointed to serve the government under a contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed, and who is wmpensated

%?e Civ. Pmt. &Rem. Code $5 101.001(2), 102.001(l); Gov’t Code$5 606.021(l), 607.001,613.001(3); LocalGov’t Code$j158.001(2).

Yk Letter

Opinion

No. 96-OSl(l996) at2.

‘ssee Aldine; 280 S.W.2d at583 (quoting Dunbar v.Brazoti C’aunfy, 224 S.W.Zd 738,740 (Tex. Civ. App.-- Gahw.ton 1949,wit refd)).

?Tee Letter

Opinion

No. 96-08l(l996) at2.

p. 2594The Honorable Ken Armbrister - Page 9 (un-462)

The Honorable Michael P. Fleming

for his or her work.28 Because we find no statutory definition of employee expressly applicable to Tax Code sections 6.41(c) and 6.412(c), we detine the term in context and wnsistently with wmmon usage. 29 Some, but not all, of the statutory definitions Mr. Fleming cites coincide with our definition. For example, Civil Practice and Remedies Code section 101.001 distinguishes an employee from an independent contractor, an agent or employee of an independent contractor, or another person who performs tasks the details ofwhich the wntracting govemment has no legal right to wntrol.30 Others were adopted to provide the term employee with a connotation useful in that context and do not apply in the context we are considering here. Civil Practice and Remedies Code section 102.001(l), for example, defines employee to include volunteers. We believe, however, that section 102.001(l) relates only to the specific context in which it was adopted-a local government’s liability for tort claims against those under its control-and we see no reason to extend the meaning ofthe term employee in Tax Code sections 6.41(c) and 6.412(c) to include vohmteers. Likewise, we see no reason to distinguish between full- and part-time employees, as Government Code section 821.001(6), does. Government Code chapter 821pertains to membership in the Teacher Retirement System. Full-time employees are members,” and consequently, they receive retirement benefits tiom the system. Part-time employees, on the other hand, arenot members.” This distinction makes sense in the retirement-system context, but we do not think it makea sense here. Accordingly, so long as each ofthe employments about which you ask are with ataxing unit, in a populous county, or a taxing unit for which the appraisal district appraises property, in a nonpopulous county, the former employee is ineligible for appointment to the appraisal review board Whether a particular political subdivision is a taxing unit in the context of sections 6.41(c) and 6.412(c) depends, as we have said, upon whether the subdivision satisfies the detinition in Tax Code section l&4(12). This question of fact must be examined on a caseby-case basis. We proceed to address the wnstitutional issues Mr. Fleming raises. Mr. Fleming first avers that sections 6.41(c) and 6.412(c) violate Texas Constitution article I, section 19, insofar as they impose a lifetime bar on appointees to appraisal review boards while appointees to other governing boards are not similarly barred. Similarly, Mr. Fleming points out, “[alssuming that the legislature believed that former taxing unit employees and officers were biased against property owners who protest their appraised values [sic], it failed to prohibit other individuals who may be similarly biased such as property tax wnsultants.” Both of these distinctions, Mr. Fleming argues, are irrational.

5%~ Riverbend Country Club v. Patterson, 399 S.W.2d 382,383 (Tex. Civ. App.-Eastland 1965,writrefd nr.c.); seealsoAttorneyGeturalOpinion DM409 (1996) atS-6.

‘*See Gov’t Code 5 311.011(a); AttorneyGeneral OpinionDM-409 (1996) at 4 (citingAttorneyGeneral Opinion

NH-525 (1986) at4).

‘%ee alsoLocalGov’t Code5 155.041.

“See Gov’t Code 5 821.001(6), 822.001(a). =Id. 5 821.001(6).

p. 2595The Honorable Ken Armbrister - Page 10

The Honorable Michael P. Fleming (DM-462)

We do not believe a court would agree with Mr. Fleming’s argument. Article I, section 19 of the Texas Constitution, referred to as the “‘duecourse” clause, like the due process clause of the United States Constitution and the equal protection clauses of the federal and state constitutions, allows the legislature to distinguish among individuals so long as the distinction rationally furthers a legitimate state interest, unless the classification warrants heightened review.” Mr. Fleming does not appear to contend that the classification at issue here warrants heightened review, and indeed, we do not imagine that he could. Thus, we believe a court would apply the rationality standard. We think it likely a wurt would find that the classification the legislature has established in sections 6.41(c) and 6.412(c) rationally relates to the state’s interest in providing an unbiased system by which a property owner may contest his or her property’s appraised value. Nevertheless, the question, to be fmally determined, requires the resolution of fact questions and is, therefore, beyond the scope of an attorney general’s opinion.34 For the same reason, we believe a court would disagree with Mr. Fleming’s tinal wntention, that the amendment to section 6.41(c) and section 6.412(c) in toto are special laws and wnsequently unwnstitutional under article III, section 56 of the Texas Constitution. “The primary and ultimate teat ofwhether a law is general or special is whether there is a reasonable basis for the classification made by the law, and whether the law operates equally on all within the claa~.‘“~As we determined above, we believe acourt would find that the legislature had a reasonable basis to classify appointees to appraisal district review boards differently than others. Further, as we have explained above, we believe the fact that the legislature has chosen to set stricter eligibility standards for appointees to appraisal review boards affiliated with populous counties than for appointees to such boards in nonpopulous counties flows logically from the population difference.)~ Moreover, sections 6.41(c) and 6.412(c) operate, we believe, equally on all within their respective scopes. SUMMARY Between September 1, 1997, and Jamuuy 1, 1998, an appointee’s eligibility for service on an appraisal review board is determined in accordance with Tax Code section 6.412(c). On and after January 1,1998, Tax Code section 6.41(c) deems ineligible for appointment to an appraisal review board in an appraisal district affiliated with a county that has over

“Cf Hurt v. Cooper, 110 S.W.2d 896.900-01 (Tex. 1937);Patterson v. City of Dallas, 355 S.W.2d 838, 843-44 (Tex. Civ.App.--Dallas 1962,wit refd n.r.e.),appeal dismissed, 372 U.S. 25 1 (1963).

“See, e.g.,Attorney

General Opinions

DM-98 (1992) at3, H-56 (1973)at3, M-187 (1968) at3,0-2911(1940) at2. 544aple Run at Austin Mm. CM. Dirt. v. Monaghan, 931 S.W.2d 941,945 (Tex. 1996) (quoting Rodriguez v. Gonzales, 227 S.W.Zd 791,793 (Tex. 1950)).

=Seesupra pp. S-6.
p. 2596The Honorable Ken Armbrister - Page 11 (DM-462)

The Honorable Michael P. Fleming

300,000 people a former member ofthe governing board, former officer, or former employee of any taxing unit, as taxing unit is defined in Tax Code section 1.04(12). On and after January 1,1998, Tax Code section 6.412(c) deems ineligible for appointment to an appraisal review board affiliated with a smaller wunty a former member ofthe governing board, former officer, or former employee of a taxing unit for which the appraisal district appraises property. Whether the political subdivision the appraisal review board appointee served has ceased to be a taxing unit since the appointee’s tenure is irrelevant. For purposes of sections 6.41(c) and 6.412(c), an officer is an individual upon whom a sovereign, governmental function is wnferred, to be exercised by him or her for the benefit of the public largely independent of others’ control. An employee, on the other hand, is an individual who works, under an express or implied contra& for the employer at the employer’s direction and control and who is compensated for his or her service. Employee includes both full- and part-time workers, but it does not include a volunteer who is not an officer. A court probably would conclude that the 1997 amendment to section 6.41(c) and section 6.412(c) intoto isnot unwnstitutional, either under Texas Constitution article I, section 19 or article JIJ, section 56.

DAN MORALES Attorney General of Texas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Kymberly K. Oltrogge Assistant Attorney General

p. 2597