.
The Attorney General of Texas
June 6, 1986
JIM MAl-fOX
Attorney General
Supreme Cowl Suildlng Hr. Sam ii. Smith Opinion Ac. JM-499
P. 0. Box 12548 Executive Director
Austin, TX. 75711.2549
512l4752501
Board of Tax Profenaiional Rr: Play one individual, cons.ister.tly
Telex 9lWS74.1357 Examiners vith article XVI, section 40, of the
Tdecooier 512147M255 P. 0. Box 15920 Texas Constitution, serve as chief
Austin. Texas 78’161 appraiser in three different apprai-
sal districts and simultaneously
714 Jackson, Suits 700
Dsllsr. TX. 752024505 .as tax assessor-collector in three
2lu742-8944 school districts and a vater control
and improvement district
4524 Alberta Ave.. Suite 150
Dear Mr. Smith:
El Paso. TX. 799C52793
915633.3454
YOU InfOtUi 11s that one individual has been hired as chief
appraiser by three boards of directors of appraisal districts. Be
11 Texas. Suite 700 serves as chief appraiser of Hudspeth County Appraisal District, of
,us,on. TX. 77002.3111 Presidio County Afpraisal District, and of Jeff Davis County Appraisal
7lY223.3886
District. He also serves as Tax Assessor-Collector for Anthony
Independent School District, San Elizario Independent School District,
806 Broadway. Suite 312 and Socorro Independent School District, and for the For: Haxcck
Lubbock. TX. 794014479 Water Control and l~mprovement District.
5Q5i747.5235
Tou ask vhe.:her this individual is prevented by article XVI,
4309 N. Tenth. Suite S section 40 of the Texas Constitution from holding some or all of these
McAllen. TX. 78501-1695 seven positions. Article XVI, section 40 of the Texas Constitution
51Y682-4547 prohibits one pe~‘son from holding or exercising more than one civil
office of emolument at the same time. Thus, we need to cons:Zer
2Qo Main Plrra. Suite 4M) whether any of the positions held by this Individual constitutes a
Ssn Antonio. TX. 782052797 “civil office of emolument” within this provision. This question
5121225.4191 turns on the power and responsibility which the lav has assigned to
each position. Considerations as to whether one individual has encugh
time to perform al.1 such responsibilities are not relevant to article
An Equal OppoRuni!yl
Affirmative Actton Employef
XVI, section 40.
A chief appraiser and a tax assessor-collector are appointed
under the taxing provisions enacted by the legislature pursuant to
article VIII, section 18 of the Texas Constitution. This const itu-
tional provision s:tetes in part:
(b) A single appraisal within each county of
all property subject to ad valorem taxation by the
p. 2289
Xr. Sam II. Smith - Page 2 (Jl4-499)
.
county and all other taxing units located therein
shall be provided by general law. . . .
. . . .
(d) The Lcgisaature shall prescribe by general
lav the methods, timing, and administrative
process for implementing the requirements of this
section.
Tex. Const. art. VIII, 5I.S. The quoted provisions were added to
article VIII, section 16, by amendment in 1980. -See H.J.R. No. 98,
91, Acts 1979, 66th Leg.. 8.t 3229.
The Property Tax Code. codified as Title I of the Tax Code,
contains the statutes vhiclr implement article VIII, section 18, of the
Texas Constitution. An appraisal district Is established in each
county and given respons,lbility for appraising property in the
district of each taxing unit that imposes ad valorem taxes on property
within the district. Tax Code 56.01. “Taxing unit” includes a
county, a city, a school district, and a district created under the
Water Code. Tax Code 51.04(12). The appraisal district is governed
by a board of five dirc:c,tors. Tax Code 16.03(s). The board of
directors is required to establish an appraisal office and to appoint
as chief administrator of the appraisal office a chief appraiser who
serves at the pleasure of the board. Tax Code 56.05.
Achief appraiser has numerous ministerial functions necessary to
performing the district’!; duty to appraise property. See. e.g., Tax
Code $11.44, 125.01. See
--- also Attorney General Opinion MW-450 (1982).
The chief appraiser submits a proposed budget to the district board of
directors, subject to the: board’s power to amend it and give it final
approval. Tax Code §6.01j, Re may employ and compensate personnel as
provided in the budget. Tax Code 16.05(d). Attorney General Opinion
JN-72 (1983) determined that the chief appraiser was an “officer”
within the nepotism statute, article 5996a. V.T.C.S.. because he had
authority to employ perwunel. This opinion did not determine whether
the chief appraiser was a.n officer under article XVI, section 40. of
the Texas Constitution. See also Attorney General Opinion W-450
(1982). The chief apprs.iser may delegate authority to his employees.
Tax Code 56.05(e).
He has some respowibility to determine a taxpayer’s right to tax
exemptions. Section Il.45 of the Tax Code provides in part:
(a) The chief appraiser shall determine
separately eas:h applicant’s right to an exemption.
After consider-ing the application and all relevant
p. 2290
* . nr. Sam 11. Smith - Peg. 3 (*RI-499)
,
information, the chief appraiser shall, as the law
and facts warrant:
(1) approve the application and allow the
exemption;
(2) modify the exemption applied for and
allow the exemnt.lon as modified;
(3) disapp::ove the application and request
additional informatioo from the applicant In
support of the claim: or
(4) deny the application.
(c) The chief appraiser shall determine the
validity of each application for exemption filed
with him before he submits the appraisal records
for review and determination of protests as
provided by Chspc:e:r 41 of this code.
He has similar authority to determine whether individuals are
entitled to have property ;lppraised according to the special appraisal
provisions codified in ch.,pter 23 of the Tax Code. See, e.g., Tax
Code 523.44 (agricultural use designation .of land); 523.57
(agricultural land); 523.79 (timber land); 523.85 (recreational, park,
and scenic land). he has #authority to “establish procedures for the
equitable and uniform appraisal of inventory for taxation.” Tax Code
523.12.
Chapter 41 of the T,ax Code provides that the appraisal review
board vi11 review the chief appraiser’s records acd determine taxpayer
protests. See. e.g., Tax Code 5941.01, 41.41. The appraisal review
board consists of three wmbers cppointed for two year terms by the
appraisal district board of directors. Tax Code 56.41. Members of
the district board may not serve on the appraisal revies board. The
beard examines the appraisal records to determine vhether (1) the
appraisals are substantially uniform; (2) an exemption is improperly
granted; (3) land is improperly granted a special appraisal; or (4)
the records do not conform to the requirements of lav in any ocher
respect. Tax Code 541.01. A taxing unit ray challenge various
aspects of the appraisal before the appraisal review board. Tax Code
g41.03. The chief appraiser Is required to make the appraisals and
other corrections ordered by the appraisal reviev board. Tax Code
541.08.
p. 2291
Mr. Sam A. Smith - Psgr 5 (~14-499)
Property owners may protest to the appraisal reviev board any
determination of the chief ,spprriser vhich adverse!y affects then.
including denisl of an exemption or determirwion that land does not
qualify for special appraisal as land designated for agricultural use,
agricultural land, or timber land. Tax Code 541.41. See Brooks v.
Bachus, 661 S.W.Zd 288 (Tex. App. - Eastland 1983, writ rcf’d n.r.e.).
The chief appraiser represents the appraisal office at each protest
hearing. Tax Code 141.45(c). If the board finds that the appraisal
records are incorrect ic sow respect raised by the protest, it makes
the necessary changes in tht: records. Tax Code 141.L7.
Based on this examinrtion of the chief appraiser’s statutory
authority, ve conclude that he is not an officer vlthin article XVVI,
section 40 of the Texas Constitution. The determining factor which
distinguishes a public ofiicer from an employee is “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 contrcl of others.” Aldine Independent School
District v. Standley, 280 j.W.Zd 578, 583 (Tex. 1955); see also Green
v. Stevart, 516 S.W.2d 133 (Tex. 1974); Dunbar v. graxorla County=
S.W.Zd ‘738 (Tex. Civ. App. - Galveston 1949. vrit raf’d); but see,
Pruitt v. Glen Rose Independent School District. 86 S.W.td 1004 (Tex.
1935) effectively overruled by Green v. Stevart, supra. Some of his
responsibilities derive d:lrectly from statute and not by delegation
from the board of d1rector.s. Re exercises some initial discretion in
tk,e area of tax exemptlow end special valuations. Nonetheless, he
exercises his appraisal functions subject to reviev and correction by
the appraisal reviev board, and he serves at the pleasure of the
appraisal board of direct’,%. The appraisal functions conferred upon
him are not exercised “la,cgely independent of the control of others.”
Aldine Inxpendent School District v. Standley, w.
The chief appraiser does have authority to hire employees, vithin
the limits of the budget imposed by the board of directors. For this
reason, he is an “of f%:er” vithln the Nepotism Act, art. 5996a.
V.T.C.S. ; Attorney General Opinion J?l-72 (1983). The statutory
definition of “officer” g:ven in the Nepotism Act is not necessarily
identical with the definitdon of officer applicable to article XVI,
section 40 of the Texas Constitution. See Attorney General Opinion
JM-72 (1963); Letters Mvisory Ros. 156, 152 (1978). The chief
appraiser needs to hire G:mployees to carry out his primary function of
apprti,sing property, vhl,ch is exercised subject to the control and
supervision of others. Although he has some independence in hiring
decisions, this paver is incidental to and subordinate to his primary
role as agent and employee of the appraisal district board of
directors. The chief zppraiser does not, in our opinion, hold an
office within article XVI, section &O of the Texas Constitution. This
provision therefore does not prohibit one person from serving as chief
appraiser of three different appraisal districts.
p. 2292
8,. I
nr. Sam R. Smith - Page 5 (JM-499)
We next look to thd: responsibilities of the tax assassot-
collector of a school distr,ict and of a water control and improvement
district:
The Tu Coda defines “asses8or” as
the officer or employee responsible for assessing
property taxes as provided by Chaptcr 2b of this
code for a taxi>p unit by whatever title he Is
designated. (Eml)hasis added).
Tax Code 11.04(14).
“Collector” is defiwi as
the officer or employee responsible for collecting
property taxes for a taxing unit by whatever title
he is designated. (Emphasis added).
Tax Code 51.04(15).
The Tax Code direct); US to look to the lav creating a school
district or a water distr:.ct to determine vho shall assess and collect
taxes for it. Tax Code! 16.2?(a). The board of trustees of an
independent school distrlc:t may appoint aI: assessor-collector of taxes
for the district, for a term not to exceed three (3) years. Educ .
Code 123.93(a). See alsc, Tax Code 1$6.22(c); 6.23(a)(3) (taxing unit
other than county or home! rule city may require the county to assess
and collect taxes for t’w district). The board of directors of a
water control and imprownent district may appoint one person to the
off ice of tax assessor-collector, or it may order an election to fill
that office. Water Code: 051.085. See also Tax Code I§6.:Zic),
6.23(a)(3) (governing body of a water control and assessment district
may require county to as:,ess and collect its taxes).
Chapter 2b of the Tax Code sets out the tax assessor-collector’s
assessment duties. The iwsessor-collector receives the appraisal roll
from the chief appraise!:., and determines the total eppraised value,
total assessed value, ar.d total taxable value of property taxable by
the taxing unit. Tax Code 5526.01, 26.04. After the governing body
adopts the tax rate fcr the current tax year, the tax assessor-
collector is to calculate the tax imposed on each property on the
appraisal roll according to the formulas supplied by statute. Tax
Code $26.09(a). See al% Tax Code 1526.10-26.14. He enters in the
appraisal roll the amount of tax determined according to statute and
submits it to the governin? body of the appraisal unit. Tax Code
126.09(e). The appraisal roll vith amounts of tax entered becomes the
tax roll after it ts approved by the governing body. Id. The
governing body, on motion of the assessor or of a property owner, may
p. 2293
Mr. su R. Smith - Paga 6 (Jn-499)
order changes in the tax roll to correct errors Ia the mathematical
computation of the tax. Tax Code 126.15(c).
Chapter 31 of the Ta:r Code governs tax collections. The tax
assessor malls out tax bil’ls vhich includa information set out by
statute. Tax Cddc 431.01, He may issue certificates showing the
amount of delinquent taxes, penalties , and interest due on a property
according to the taxing un!.t.a records, Tax Code 531.08(s). He is to
file reports accounting for his collections to the governing body and
remit taxes to its depositc’ry. Tax Code 131.10.
These provisions give the tax assessor-collector duties that are
clerical and ministerial. In Aldine Independent School District v.
Standley, the court considlzred vhether the assessor-collector of taxes
appointed by a school board was a public officer. 280 S.W.2d 578
(Tex. 1955). The court described the assessor-collector as follows:
He is but an a;ient or employee of the Board to
discharge the clerical duties necessary to carry
out the school Eoard’s powers of taxation.
280 S.V.Zd at 583.
This characterization also applies to the assessor-collector of
taxes appointed by a school district or a Water control and improve-
ment district. The Tax &de gives the tax assessor-collector ministe-
rial duties which may require a certain degree of skill, but do not
vest in him any sovereigil function of the government to be exercised
largely independent of - t’he control of others. Aldine Independent
School District v. Standley, s_upr;r.
In our opinion, the tax assessor-collector is a employee and not
an officer of the school districts and the water control and
improvement district vh:.ch hired him. He does not occupy a civil
office vithin article XVI, section 40 of the Texas Constitution, ar.d
this provision does not bar him from simultaneously serving as tax
assessor-collector for the three school districts and one vater
control district. We have determined that a chief appraiser dces not
hold a civil office wit,hin article XVI, section 40 of the Texas
Constitution; thus this provision does not prohibit the tax asses-
sor-collector for the taxing units from also serving as chief
appraiser of the three county appraisal districts.
We conclude that article XVI, section 40 of the Texas
Constitution does not prohibit this individual from holding the seven
employments about which you inquire. This opinion is limited to the
specific legal question you asked, and our answer is based on appli-
cation of the legal st,lndard to the facts you provided us. Whether
p. 2294
Hr. Sam R. Smith - Page 7 (JK-499)
additional facts might raise other legal issues is a question outside
the scope of this opinion.
:SUMl4ARY
The chief appraiser of a county appraisal
district and the tax assessor-collector of an
independent school district or a water control and
improvement district are public employee6 and not
“officers” within article XVI, secticn 40 of the
Texas Constituticn. The functions assigned to
these positions b7, the Tax Code do not confer upon
them “any sovereign function of the government
. . . to be exerc:ised . . . largely indeper.dent of
the control of others.” Aldine Independent School
District v. Standby, 280 S.W.td 578 (Tex. 1955).
JIM BATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney Gweral
MARYKELLER
Executive Assistant Attornlty General
ROBERTGRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
P. 2295
Untitled Texas Attorney General Opinion
Combined Opinion