DAN MORALES 

.ATTORNEV GENERA‘ 

QMfice of the ZWwnep QSeneral 

%tate of QLexarr 

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 of the 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 of u taring 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 of a 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 atbar Jamrary 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 either 
TheHonorableKen 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 we believe 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 a board member or auxiliary board member on the appraisal review 

board, is a fonner member of the governing bo+ or an oficer or employee of 

a taxing unit, or ti a former director, oficer, or employee of the appraisal 

district is ineligible to serve on the appraisal review board:’ 

‘SeeTaxGxle 5 6.41(a). 

‘See id. $5 25.22(a), 41.01; Attorney General Gpinion DM-94 (1992) at 2. 

‘SeeTax Code $5 41.03, .05, .07. 

‘See id. $5 41.41, .45, .47, see also Attorney General Opinion DM-259 (1993) at 1-2 

“See Tax Code. 5 6.41(d). The appraisal district bard and appraisal review board are separate entities. See 

Tome Square Assm. v. Angelim County Appraiwl Dirt., 709 S.W.Zd 776,778 (Tex. App.-B.mamt 1986, no writ); 

Corchine Parbvmhip v. Dallas GWNJJ AppmisalDis~, 695 S.W.2d 734,735 (Tex. App.-Dallas 1985, writ ref d nr.e.). 

%ee Tax Code.§ 6.41 l(a). 

‘SeeTaxCcde 5 6.41(c), as amendezfbyActofMay29,1997,75thLeg., R.S., clClO39, 5 4, 1997 Tex. Seas. 

(continod..) 

p. 2588 
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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 of the 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 as well as member of the governing body. I3 When mad literally, 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) 

Law Sew. 3897,3899 (emphasis added to denote 1997 amendment). 

‘See Act of May 29,1997,75tb Leg., RS., ch. 1039,§ SO(c), 1997 Tex. Sess. Law Serv. 389?,3919. 

%ee id. $5,1997 Tex. Sess. Law Serv. 3897.3899 (am&ing Tax Code 5 6.41 l(c)). 

“Act of&y 19, 1997,75tb Leg., R.S., ch. 691, sec. 2, !j 6.412(c), 1997 Tex. Sess. Law Serv. 2312,2313. 

“See Act of May 19, 1997,75tb Leg., RS., ch 691,s 3(a), 1997 Tex. S&s. Law Serv. 2312,2313. 

‘?rd Tax Code section 6.412(c) “does not prohibit a person who is a member of an appraisal review board on 

the effective date from being reappointed to the board if the person has the qualifications required for a member 

under the Tax Code as amended by this Act.” Id. 

“We received a letter from Representative Todd Smith specifically raising this issue. Representative Smith 

is not an authorized requestor. See Gov’t Code $5 402.042, .043, .044. To nsolve your questions, however, we must 

resolve the. very issue Representative Smith raises. 

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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. . . .” In this pbrase, the adjectiveformer appears to modify only member of the 

governing body, not o#icer or employee. The immediately preceding sentence, however, deems 

ineligible for review 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 adjective former 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 of the 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 a more 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 a populous 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) (en bmc); while v. State, 930 S.W.2d 

673,676 (Tex. App.--Waco 1996, no wit). 

‘%ee Gov’t Code 5 3 11.026(a). 

‘6The 1998-1999 Texas Almanac Lists eleven counties as having populations bigher than 300,ooO. See THE 

(continoed...) 

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The 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 taxing unit 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, for purposes 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 another political 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 OF THE CENSUS, U.S. DEP’T OF COMMERCE, 1990 CENSUS OF POPULATION: GENERAL 

POPULKTlON CHARACTERISTICS: TEXAS 2 (1992) @oputation 2,818,199). 

“Id. (population: 17,205). 

‘Tax Code section 1.04 de- temx for the whole of Tax Code title 1. Se&oons 6.41 and 6.412 both are part 

of tide 1. 

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The Honorable Michael P. Fleming 

(D~-462) 

from which to choose. By excluding only former directors, officers, and employees of taxing units 

for which the appraisal district appraises property, the legislature, we believe, 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, for purposes of section 6.41(c) and 6.412(c), the detlnition of taxing unit found at Tax 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 Before the Seoate Comm. on Inte~ovemmcn tal Relations, 75th Leg., RS. 

(Mar. 26, 1997) (statement of Senator Patterson) (tape available fxom Senate Staff services) (indicating that bill’s 

p~istoensllrethatappI;lisalreviewprocessisfairandthatmembnsofappraisalreviewboardbeneutralarbitcrs 

of property tax disputes); id. (testimony of Breck Bostwick, qrescnting Texas Ass’n of Property Ownas) (stating that 

small monties have ditlicult the finding people to serve on appraisal review boards); cf Hearings on S.B. 841 Before 

the House Comm. on Revenue and Public Education, 75th Leg., R.S. (May 1, 1997) (testimony of Mark Rose, 

representing self) (tape available from House Video/Audio Services Office) (reflecting public perception that, because 

appraisal district board appoints board members’ friends and cronies to appraisal review board, taxpayer protesting 

decision can do nothing to get fair hearing from review board); cf: also CITIZENSCOMM. ’ ON PROPEIUY TAX RELIEF, 

FINAL REPORT 21-22 (Nov. 8, 1996) (s unmaking public sentiment that review process ‘undcmorratic” becase, 

according to those who testified, appraisal review board cannot offer unbiased review of appraisal district’s work). 

l’As we have stated, Tax Code section 6.412(c) became effective September 1,1997. See Act of May 19.1997, 

75th Log., RX, ch. 691,1997 Tex. Sess. Law Serv. 2312,2312-13. The. amendmento section 6.41(c), ontbe other 

hand, will take effect January 1, 1998. See Act of May 29, 1997,75th Leg., RS., ch. 1039,§ SO(a), 1997 Tex. Sss. 

Law Serv. 3897,3919. We believe, tberefore, that Mr. Flemiog refers to section 6.41(c) io this qoestion, not section 

6.412(c), as he states. 

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The 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 of these 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 

Independent School District 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. at 583 (quoting Dunbar v. Brawti County, 224 S.W.Zd 738,740 cfex. Civ. App.--Galveston 1949, writ 

ref d)) (emphasis in original). 

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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 of local public 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 of the 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); 

Local Gov’t Code $j 158.001(2). 

Yk Letter Opinion No. 96-OSl(l996) at 2. 

‘ssee Aldine; 280 S.W.2d at 583 (quoting Dunbar v. Brazoti C’aunfy, 224 S.W.Zd 738,740 (Tex. Civ. App.-- 

Gahw.ton 1949, wit ref d)). 

?Tee Letter Opinion No. 96-08 l(l996) at 2. 

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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 of which 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 

82 1 .001(6), does. Government Code chapter 82 1 pertains 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, are not members.” This distinction makes 

sense in the retirement-system context, but we do not think it makea sense here. 

Accordingly, so long as each of the employments about which you ask are with a taxing 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, writ refd 

nr.c.); see also Attorney Getural Opinion DM409 (1996) at S-6. 

‘*See Gov’t Code 5 311.011(a); Attorney General Opinion DM-409 (1996) at 4 (citing Attorney General 

Opinion NH-525 (1986) at 4). 

‘%ee also Local Gov’t Code 5 155.041. 

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

=Id. 5 821.001(6). 

p. 2595 
The Honorable Ken Armbrister - Page 10 

The Honorable Michael P. Fleming 

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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 “‘due course” 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 of whether 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 a court 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 ref d n.r.e.), appeal dismissed, 372 U.S. 25 1 (1963). 

“See, e.g., Attorney General Opinions DM-98 (1992) at 3, H-56 (1973) at 3, M-187 (1968) at 3,0-2911(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)). 

=See supra pp. S-6. 

p. 2596 
The Honorable Ken Armbrister - Page 11 (DM-462) 

The Honorable Michael P. Fleming 

300,000 people a former member of the 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 of the 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) in toto is not 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