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 autho-
rizes the governing body of a taxing unit other than a
county to contract, as provided by the Interlocal co-
operation 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
I
Honorable Toby C. Wilkinson - Page 2 (JM-1157)
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 Attorney General opinions MW-450
(1982); MW-81 (19%):' 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 constitu-
tional 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 inconsis-
tent 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, thereby,
overrides it.3 Therefore, the common law rule of incompati-
bility is not applicable in the factual situation that you
describe.
Finally, we understand you to ask whether any addition-
al 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 pro-
hibits 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 artici-
1
pates 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. ioint-
stock 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 subsec-
tion (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 Co-
operation Act contract with the commissioners
court of a county for the collection of taxes
in an instance in which the county assessor-
collector is a member of the board of
directors of the appraisal district in which
the independent school district participates.
J /aiii;c
Very truly yo
JIM
A
MATTOX
r ,
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
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Honorable Toby C. Wilkinson - Page 6 (JM-1157)
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