Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS GREG ABBOTT November 18. 2005 The Honorable Rex Emerson Opinion No. GA-0375 Kerr County Attorney 700 Main Street, Suite BA-103 Re: Whether section 6.05(f) ofthe Tax Code bars the Kerrville, Texas 78028 continued employment of a county appraisal district employee after the employee marries the same county’s tax assessor-collec,tor (R~Q-0346-GA) Dear Mr. Emerson: You ask whether section 6.05(f) ofthe Tax Code, which governs the operation ofan appraisal district office, bars the continued employment of a county appraisal district employee after the employee marries the same county’s tax assessor-collector.’ See TEX. TAX CODE ANN. $ 6.05(f) (Vernon 2001). Chapter 6 ofthe Tax Code pertains to the property tax system’s local administration. Under subchapter A, appraisal districts are established as political subdivisions in each county to appraise property in the district for each taxing unit that imposes ad valorem taxes on property in the district. See id. 4 6.01. An appraisal district is governed by its board of directors, which consists of five directors appointed by the taxing units that participate in the appraisal district. See id. 5 6.03(a) (Vernon Supp. 2005). Ifthe county tax assessor-collector is not appointed to serve as one ofthe five directors, the assessor-collector generally serves as a sixth, nonvoting director. See id. Section 6.035(a) restricts a board member’s eligibility if the member’s relative appraises property for pay: An individual is ineligible to serve on an appraisal district board of directors if the individual: (1) is related within the second degree by consanguinity or affinity to an individual who is engaged in the business of appraising property for compensation for use in proceedings under ‘See Brief accompanying letter from Honorable Rex Emerson, Km County .4ttomey, to Honorable Greg Abbott, Texas Attorney General, at 1 (May 20, 2005) (on file with Opinion Committee, aim available ai http:liw~~,.oag.state.~.us) [hereinafterRequestBriefl; see also Zeke MacComack, Kerr o&al’s marriage on hoid over concerns, SANANTONIO Exrmss-NEWS,June 5, 2005, available at http:llw~~~~.mysanantonio.cominews/mehol stories/MYSA060505.7B.ke~~love.2e1844019.hhnl (last visited Nov. 15, ZOOS). The Honorable Rex Emerson - Page 2 (GA-0375) this title or of representing property owners for compensation in proceedings under this title in the appraisal district Id. fi 6.035(a)(l) (Vernon 2001). U~ndersection 6.05, an appraisal district may establish an appraisal office and appoint a chief appraiser. SEZ id. 5 6.05(a), (c). Although the chief appraiser has authority to employ necessary personnel generally, under section 6.05(f) the chief appraiser may not employ a close relative of a board member: [t]he chief appraiser may not employ any individual related to a member of the board of directors within the second degree by affinity or within the third degree by consanguinity A person commits an offense if the person intentionally or knowingly violates this subsection. An offense under this subsection is a misdemeanor punishable by a fine of not less than $100 or more than $1,000. Id. 5 6.05(f); see also id. $6.05(d) (authorizing a chief appraiser to hire personnel). For purposes of sections 6.035(a) and 6.05(f), spouses are related to each other within the first degree by affinity. See TEX. G&T CODE AXN. $5 573.024(a), .025(d) (Vernon 2004). Given sections 6.035 and 6.05(f), you are concerned aboutpossible implications ifthe county assessor-collector marries an employee of the county appraisal district, and you ask whether either of them will forfeit his or her position by virtue of their marriage. See Request Brief, SIL~Y’note YU 1, at 1. In resolving the issue; you ask us to assume certain facts: 1. that the [appraisal district employee’s] primary duty is to appraise property; 2. that the employee is paid a salary to perform his appraisal duties; 3. that the employee has been appraising property for the [appraisal district] since on or about December 18, 2000; 4. that the [tax assessor-collector] and the employee were not acquainted at the time the employee became employed by the [appraisal district]; and 5. that the [assessor-collector] has attempted to resign the position as a nonvoting director of the District, desires no further ofticial relationship with the District as a nonvoting director, and is willing, if helpful or necessary, to appoint a replacement from the County tax office to serve as the nonvoting director. Id. at 1-2 The Honorable Rex Emerson - Page 3 (GA-0375) You ask prelimir~arily whether Tax Code sections 6.035(a) and 6.05(f) apply to a nonvoting member of the appraisal district board. See id. at 2. Section 6.035(a) refers Taoan individual’s eligibility “to serve on au appraisal district board of dit-ec~tors.” .” I EX. T/,x COIIE AUK. 5 6035(a) (Vet-non 2001). Se&on 6.05(f) for-bids the employment of “any individual r-elated to a member of the board of directors.” ICI. 5 6.05(f). Neither section 6.035(a) nor section 6.05(f) facially distinguishes between individuals who serve on the appraisal district board and who have authority to vote and those who do not have such authority. Further, section 6.03(a) plainly states that the assessor-collector serves as a director, albeit a “nonvoting director.” Id. $ 6.03(a) (Vernon Supp. 2005). Reading sections 6.03(a): 6.035(a), and 6.05(f) consistently with their plain language, we conc,lude that the tax assessor-collector, a nonvoting member of the appraisal district board, serves on an appraisal district board for purposes of section 6.035(a) and is a member of the board for purposes of section 6.05(f). We do not believe, however, that section 6.035(a) applies to a board member’s relationship with an appraisal district employee. sunder section 6.035(a), an individual is ineligible to serve on the appraisal district’s board of directors if the individual’s spouse “is engaged in the business of appraising property for compensation for use in proceedings under this title.” Id. $ 6.035(a)(l) (Vernon 2001) (emphasis added). Regarding this provision, you ask whether an appraisal district employee is engaged in the business of appraising property for compensation for use in tax appraisal, assessment, and collection proceedings. See Request Brief. s~pm note 1, at 3. Neither the statute nor any Texas judicial opinion defines the phrase “engaged in the business of appraising property” nor the single word “business.” We are to read statutory words and phrases “in context” and define them “according to common usage.” TEX. GOV’T CODE ANN. 5 311.01 l(a) (Vernon 2005). First, with respect to the context, the term “business” in section 6.03.5(a)(l) is unmodified. CJ. e.g., id. 9 25.003(b) (Vernon 2004), 5 2171.055(e) (Vernon Supp. 2005) (referring to “county business”); TEX. Lot. GOV’T CODI? ANN. $5 24.025(b), 25.029(a) (Vernon 1999) (referring to “municipal business”); id. 5 203.022(a)(2) (referring to “government business”). Additionally, the legislature enacted section 6.05(f) specifically to regulate appraisal district employees. See TEX. TAX CODE ANN. 5 6.05(f) (Vernon 2001). Consequently, it seems unlikely that the legislature also intended section 6.035(a)(l) to apply to appraisal district employees. Second, the unmodified term “business” commonly connotes activity for commercial profit, not governmental activity. See TEX. GOV’T CODE ANN. 5 311.01 l(a) (Vernon 2005) (stating that statutory words must be construed consistently with “common usage”); TI” applies to a tax assessor-collector who serves as a nonvoting member of the board of directors under section 6.03(a) ofthe same code. TEX. TAX CODE ANN. 5 6.035(a)(l) (Vernon 2001~);see &so id. 5 6.03(a) (Vernon Supp. 2005). Similarly, section 6.05(f) ofthe Tax Code, which prohibits a chief appraiser from employing the spouse of “a member ofthe board of directors” applies to a tax assessor-collector who serves as a nonvoting member of the board of directors under section 6.03(a). Id. 5 6.05(f) (Vemon2001). Nevertheless, section 6.035(a) does not apply when an appraisal district board member is married to an employee of the appraisal district. The words in section 6.035(a), “is engaged in the business of appraising property for compensation for use in proceedings under this title,” id. 5 6.035(a)(l), refer to an individual who appraises property for commercial profit. Consequently, a tax assessor-collector is eligible to serve as a nonvoting member of the appraisal district board of directors under 6.03(a) despite her marriage to an appraisal district employee. Ifthe chief appraiser employs the spouse of the local tax-assessor collector, who serves as a member of the appraisal district board, the chief appraiser violates section 6.05(f). The continuous-employment exception to the general anti-nepotism statute, found in Government Code chapter 573, does not apply to section 6.05(f) of the Tax Code. See TEX. Gov’r CODE ANN. $5 573.041, .062(a) (Vernon 2004). Consequently, upon an appraisal district employee’s marriage to the tax assessor-collector, the appraisal district cannot continue to employ him. The employee may retain his employment either until the end ofhis contract with the appraisal district, orifthe employee is employed at-will, he may retain his employment until the end of the pay period during which his marriage occurs. The tax assessor-collector has no authority to either decline to serve as a nonvoting member of the appraisal district board of directors under Tax Code section 6.03(a) or to appoint an agent from her office to serve in her stead. The Honorable Rex Emerson - Page 7 (GA-0375) BARRY R. MCBEE First Assistant Attorney General NAN0 S. FULLER Chair. Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee