Attorney General Opinion GA-0627

ATTORNEY GENERAL OF TEXAS GREG ABBOTT May 14, 2008 ~,uII The Honorable A.I. Hartel Liberty County Attorney Post Office Box 9127 Liberty, Texas 77575-9127 Dear Mr. Hartel: Opinion No. GA-0627 Re: Whether, under Tax Code section 6.035 or 6.05(g), the Liberty County Central Appraisal District Board of Directors may contract with an appraisal company that employs the son of the District's chiefappraiser (RQ-0650-GA) You ask whetherthe Liberty County Central Appraisal District (the "District") may contract with an appraisal company that employs the son ofthe District's chiefappraiser.! You explain that the District's board ofdirectors contracts with an independent appraisal companyto appraise certain "unique or complex properties within"the District'sjurisdiction? This year, accordingto yourletter, the District is considering contracting with a for-profit company that employs the son of the District's chiefappraiser. See Request Brief, supra note 2, at 1. You indicate that, although the son is an employee, he does not intend to perform work under the contract: The son is an employee ofthe appraisal company and does not have any ownership interest in the appraisal company at this time. The son does not intend to perform any of the work associated with the contract ifthe company were to get the contract; the contract would be fulfilled by other employees ofthe company. The son does receive a salary from the company and it is safe to assume that the majority ofhis income comes from his salary from the appraisal company. Id. ISee Letter from Honorable A.J. Hartel, Liberty County Attorney, to Honorable Greg Abbott, Attorney General of Texas, at I (received Nov. 27, 2007) (on file with the Opinion Committee, also available at http://www.oag .state.tx.us) [hereinafter Request Letter]. 'Brieffrom Honorable AJ. Hartel, Liberty County Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Nov. 20, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Brief]. The Honorable A.J. Hartel - Page 2 (GA-0627) You state that "two sections of the Tax Code"-sections 6.035(a)(1) and 6.05(g)-"raise possible concerns" in this situation. Request Letter, supra note 1, at 1; see also TEX. TAX CODE ANN. §§6.035(a)(1) (Vernon2001) ("Restrictions onEligibilityand Conduct ofBoard Members and Chief Appraisers and Their Relatives"), 6.05(g) (Vernon Supp. 2007) ("Appraisal Office"). We consider each statute in turn.3 I. Tax Code Section 6.035 Section 6.035(a)(1) ofthe Tax Code disqualifies from employment as an appraisal district's chief appraiser an individual who is related within the second degree by consanguinity or affinity, as determined under Chapter 573, Government Code, to an individual who is engaged in the business ofappraising property for compensation for use in proceedings underthis title or ofrepresenting property owners for compensation in proceedings under this title in the appraisal district .... TEX. TAX CODE ANN. § 6.035(a)(1) (Vernon 2001); see also TEx. GOy'T CODE ANN. ch. 573 (Vernon 2004) ("Degrees ofRelationship; Nepotism Prohibitions"). A chiefappraiser who remains employed knowing that an individual related to the appraiser within the second degree by consanguinity or affinity "is engaged inthe business ofappraising property for compensation for use in proceedings under this title or ofrepresenting property owners for compensation in proceedings under this title in the appraisal district in which the ... chief appraiser is employed" commits a criminal offense. TEx. TAX CODE ANN. § 6.035(b) (Vernon 2001). Under Government Code chapter 573, a parent and son are related to each other within the first degree by consanguinity. See TEx. GOy'T CODEANN. §573.023(c)(1) (Vernon 2004); see also id. § 573.022(a) (stating that two individuals are related by consanguinity if one individual is descended from the other or the two individuals share a common ancestor); id. § 573.022(b) ("An adopted child is considered to be a child ofthe adoptive parent ...."); id. § 573.023(a) ("The degree ofrelationship by consanguinitybetweenan individual and the individual's descendentis determined by the number of generations that separate them."). Consequently, section 6.035(a)(1) disqualifies the chief appraiser from continued employment in that position if the chief appraiser's son "is engaged in the business of appraising propertyfor compensation foruse in proceedings under [Tax Code title 1] or ofrepresenting property owners for compensation in proceedings under [Tax Code title 1] in the appraisal district." TEX. TAX CODE ANN. §6.035(b) (Vernon 2001). The fact that the son would not perform work under his employer's contract with the District is not dispositive if the son is engaged in appraising other 'Your request letter raises only Tax Code sections 6.035 and 6.05. See generally Reqnest Letter, supra note 1. We limit our response to the statutes you raise. The Honorable A.J. Hartel - Page 3 (GA-0627) property "for compensation for use in proceedings under" title 1 or in representing other property owners "for compensation in proceedings under" title 1 "in the appraisal district." You do not explain the nature ofthe work the chief appraiser's son does for the company. See generally Request Letter, supra note 1; Request Brief, supra note 2. Accordingly, we cannot determine whether he is "engaged in the business of appraising property for compensation for use in proceedings under [title 1, Tax Code] or of representing property owners for compensation in proceedings under [title 1, Tax Code] in the appraisal district." The decision must be made in the first instance by the District. Ifthe District finds that the chief appraiser's son is "engaged in the business ofappraising property for compensation for use in proceedings under [title 1, Tax Code] or ofrepresenting property owners for compensation in proceedings under [title 1, Tax Code] in the appraisal district," then the chief appraiser is disqualified from employment with the appraisal district. We tum next to Tax Code section 6.05. II. Tax Code Section 6.05 Under section 6.05(g), a chiefappraiser is an officer ofthe appraisal district for purposes of Government Code chapter 573, which prohibits nepotism. TEX. TAX CODEANN. §6.05(g) (Vernon Supp. 2007); see also TEX. GOy'T CODE ANN. ch. 573 (Vernon 2004). This section prohibits an appraisal district from employing or contracting with "an individual ... who is related to the chief appraiser within the first degree by consanguinity or affinity, as determined under chapter 573, Government Code." TEx. TAX CODE ANN. § 6.05(g) (Vernon Supp. 2007). As we have stated in connection with section 6.035, the chiefappraiser and his son are related within the first degree by consanguinity. See supra p. 2; see also TEX. GOy'T CODE ANN. § 573.023(c)(l) (Vernon 2004) (stating that a parent and child are related within the first degree by consanguinity). The issue, therefore, is whether the contract is with "an individual" related to the chiefappraiser withinthe first degree by consanguinity-that is, the chief appraiser's son. Neither section 6.05 nor any relevant definitional section ofthe Tax Code defines the term "individual." See TEx. TAX CODE ANN. § 1.04 (Vernon Supp. 2007) (defining terms for Tax Code title 1); [d. § 6.05. See generally [d. ch. 6 (Vernon 2001 & Supp. 2007) ("Local Administration"). In addition, the Code Construction Act, Government Code chapter 311, does not generally define the term. See TEX. GOY'T CODE ANN. § 311.005 (Vernon 2005) (providing general definitions for the Texas codes). Typically, statutory words must be "read in context and construed according to ... common usage." ld. § 311.01l(a). We deduce from the context of section 6.05(g) itselfthat an individual is someone who can be "related to the chiefappraiser" and can have a spouse. TEX. TAX CODE ANN. §6.05(g) (Vernon Supp. 2007). Various Texas statutes define the term "individual" as "a natural person"·or "a human being." See, e.g., TEx. Bus. ORG. CODE ANN. § 1.002(38) (Vernon 2007); TEX. INS. CODE ANN. §§ 4001.003(5), 6002.002(5), 6003.001(3) (Vernon 2007); TEx. PENAL CODE ANN. § 1.07(26) (Vernon Supp. 2007). This is consistent with the word's common meaning, denoting a single person as opposed to a group or corporate person. See Tex. Liquor Control Bd. v. Canyon Creek Land Corp., 443 S.W.2d 308, 311 (Tex. Civ. App.-Austin 1969) (stating that an individual is a person), rev'd on other grounds, 456 S.W.2d 891 (Tex. 1970); BLACK'S LAW DICTIONARY 777 (7th ed. 1999) (defining "individual" as "[o]for relating to a single person orthing, The Honorable A.J. Hartel - Page 4 (GA-0627) as opposed to a group"); cf Tex. A&M Univ.~Kingsvillev. Lawson, 127 S.W.3d 866, 874 (Tex. App.-Austin 2004, pet. denied) (stating that the University is not an individual); NgJiyen v. Morales, 962 S.W.2d 93, 95 (Tex. App.-Houston [1st Dist.] 1997, no pet.) (stating that an estate cannot be an individual); State v. Bodish, 775 S.W.2d 73,75 (Tex. Civ. App.-Austin 1989, writ denied) (stating that neither the State nor a prosecutor council is an individual). We accordingly conclude that the word "individual" in section 6.05(g) refers to a single natural person. The contract you describe would be entered between the District and the son's employer, an appraisal company. See Request Brief, supra note 2, at 1-2. The contract would not be with an individual. Moreover, even ifthe son's employer is a natural person, the contract would be between the District and the employer. In neither case would the contract be with the son. See id. at 2. In sum, because the contract would not be with an individual who is related to the chief appraiser, section 6.05(g) would not apply. The Honorable A.J. Hartel - Page 5 (GA-0627) SUMMARY Tax Code section 6.035(a) disqualifies from employment as a chief appraiser an individual who is related within the second degree by consanguinity "to an individual who is engaged in the business of appraising property for compensation for use in proceedings under [title I, Tax Code] or of representing property owners for compensation in proceedings under [title I, Tax Code] in the appraisal district." Whether a chief appraiser's son is, in particular circumstances, "engaged in the business of appraising property for compensation for use in proceedings under [title I, Tax Code] or of representing property owners for compensation in proceedings under [title I, Tax Code] in the appraisal district" is a question of fact. Tax Code section 6.05(g) prohibits an appraisal district from employing or contracting with "an individual ... who is related to the chief appraiser within the first degree by consanguinity." An individual for purposes ofsection 6.05(g) is a natural person. Section 6.05(g) does not prohibit a contract with an appraisal company that employs the chief appraiser's son. Very truly yours, KENT C. SULLIVAN First Assistant Attorney General ANDREW WEBER Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee