Case Information
*1 .
The Attorney General of Texas June 6, 1986 JIM MAl-fOX
Attorney General Hr. Sam ii. Smith Opinion Ac. JM-499
Supreme Cowl Suildlng P. 0. Box 12548 Executive Director Austin, TX. 75711. 2549 Board of Tax Profenaiional Rr: Play one individual, cons.ister.tly 512l4752501 Examiners vith article XVI, section 40, of the Telex 9lWS74.1357 P. 0. Box 15920 Texas Constitution, serve as chief Tdecooier 512147M255 Austin. Texas 78’161 appraiser in three different apprai- sal districts simultaneously 714 Jackson, Suits 700 .as tax assessor-collector in three Dsllsr. TX. 752024505 school districts and a vater control 2lu742-8944 and improvement district 4524 Alberta Ave.. Suite 150 Dear Mr. Smith: El Paso. TX. 799C52793
915633.3454
YOU InfOtUi 11s one individual has been hired as chief
appraiser by three boards of directors of appraisal districts. Be serves as chief appraiser of Hudspeth County Appraisal District, 11 Texas. Suite 700 ,us,on. TX. 77002.3111 Presidio County Afpraisal and of Jeff Davis County Appraisal District, 7lY223.3886 as Tax Assessor-Collector for Anthony District. He also serves Independent School District, San Elizario Independent School District, and Socorro Independent School District, and for the For: Haxcck 806 Broadway. Suite 312 Water Control and l~mprovement District. Lubbock. TX. 794014479 5Q5i747.5235
Tou ask vhe.:her individual is prevented by article XVI, section 40 of the Texas Constitution from holding some or all of these 4309 N. Tenth. Suite S seven positions. Article XVI, section 40 of the Texas Constitution McAllen. TX. 78501-1695 prohibits one pe~‘son from holding or exercising more than one civil 51Y682-4547
office of emolument at the same time. Thus, we need to cons:Zer whether any of the positions held by this Individual constitutes a 2Qo Main Plrra. Suite 4M) “civil of emolument” within this provision. This question Ssn Antonio. TX. 782052797 turns on the power and responsibility which the lav has assigned to 5121225.4191 Considerations as to whether one individual each position. has encugh time to perform al.1 such responsibilities to article are not relevant An Equal OppoRuni!yl XVI, section 40. Affirmative Actton Employef
A and a tax assessor-collector are appointed under the taxing provisions enacted by the legislature pursuant section 18 of the Texas Constitution. article VIII, This const itu- tional provision s:tetes in part: (b) single appraisal within each county
all property subject to ad valorem taxation by the *2 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 timing, and administrative lav the methods, process implementing the requirements of this section. 5I.S. The quoted provisions were added to
Tex. Const. art. VIII, 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 the Tax Code, contains statutes vhiclr implement article VIII, section 18, of the Texas Constitution. An appraisal district Is established in each and given respons,lbility for appraising property county of each taxing unit that imposes ad valorem taxes on property within the district. “Taxing unit” includes a a school district, and a district created under the county, a city, 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 a chief appraiser who serves at the pleasure of the board. Tax Code 56.05. chief appraiser has numerous ministerial functions necessary
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 subject to the: board’s power to amend it and give it final directors, 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 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: shall
(a) The determine separately eas:h applicant’s right to an exemption. After consider-ing the application and all relevant *3 - Peg. 3 (*RI-499) nr. Sam 11. Smith * . ,
information, shall, as the law appraiser and facts warrant:
(1) approve the application and allow 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 shall determine validity of each application for exemption filed with him before he submits the appraisal records review and determination protests provided by Chspc:e:r 41 of 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, he has #authority to “establish procedures and scenic land). 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 See. e.g., Tax Code 5941.01, 41.41. The appraisal review protests. board consists three wmbers cppointed for two year terms by the appraisal board directors. Tax Code 56.41. Members of the district board may not serve on the appraisal revies board.
beard examines the appraisal records to determine vhether (1) 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 taxing unit ray challenge various respect. aspects of the appraisal before review board. Tax Code The chief appraiser Is required make the appraisals g41.03.
other corrections ordered by reviev board. Tax Code 541.08.
Mr. Sam A. Smith - Psgr 5 (~14-499)
Property owners may protest to the appraisal reviev board any determination of ,spprriser adverse!y affects then. vhich including denisl of an exemption or determirwion that land does not qualify for special appraisal as land designated for agricultural use, Tax Code 541.41. agricultural land, or timber land. See Brooks v. Bachus, 661 S.W.Zd 288 (Tex. App. - Eastland 1983, writ rcf’d n.r.e.). the appraisal at each protest
The chief represents If the board finds that the hearing. Tax Code 141.45(c).
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 chief appraiser’s statutory of the authority, ve conclude that he is not an officer vlthin article XVVI, section 40 of the Texas Constitution. The determining factor which a public ofiicer from an employee is “whether any distinguishes sovereign function of the government is conferred upon the individual to be exercised by him benefit of the public largely 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 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 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 definitdon of officer applicable to article XVI, section 40 of the Texas Constitution. General Opinion See Attorney 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 control supervision of others. he has some independence in hiring Although decisions, this paver is incidental to and subordinate his primary role as agent and employee of board of directors. The chief zppraiser does not, 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.
8,. I
nr. Sam R. Smith - Page 5 (JM-499)
We next look thd: responsibilities tax assassot- collector 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 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 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 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 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 taxes). its
Chapter 2b of the Tax Code sets out the tax assessor-collector’s assessment duties. The iwsessor-collector receives 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 the current tax year, tax assessor- fcr 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 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 tax entered becomes the tax roll after it ts approved by the governing body. Id.
governing body, on motion of the assessor or of a property owner, may *6 Mr. su R. Smith - Paga 6 (Jn-499) tax roll to correct errors Ia the mathematical
order changes the Tax Code 126.15(c). computation of the tax. 31 of the Ta:r Code governs tax collections. The tax Chapter assessor malls out tax bil’ls vhich includa information set out by Tax Cddc 431.01, He may issue certificates showing the statute. 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.
These provisions give the tax assessor-collector duties that are clerical and ministerial. In Aldine Independent School District v. Standley, 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 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 skill, but do not vest in him any sovereigil function of the government to be exercised largely - t’he control of others. Aldine Independent School District v. Standley, s_upr;r.
In our opinion, tax assessor-collector is a employee and not an officer school districts and the water control improvement district vh:.ch hired him. He does not occupy a civil vithin article XVI, section 40 of the Texas Constitution, ar.d this provision does not bar him from simultaneously serving as tax assessor-collector 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 taxing units from also serving appraiser of the three county appraisal districts.
We conclude article XVI, section 40 of the Texas Constitution does not prohibit 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 the facts you provided us. Whether *7 (JK-499) Hr. Sam R. Smith - Page 7
additional facts might raise other legal issues is a question outside the scope this opinion.
:SUMl4ARY The chief a county appraisal and the tax assessor-collector an school district or a water control and improvement district are public employee6 and not “officers” within article XVI, secticn 40 of the Texas Constituticn. functions assigned these positions b7, the Tax Code do not confer upon them “any sovereign function the government . . . 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
MARY KELLER
Executive Assistant Attornlty General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
P. 2295