Attorney General Opinion JM-0499

. JIM MAl-fOX Attorney General Supreme Cowl Suildlng P. 0. Box 12548 Austin, TX. 75711. 2549 512l4752501 Telex 9lWS74.1357 Tdecooier 512147M255 714 Jackson, Suits 700 Dsllsr. TX. 752024505 2lu742-8944 4524 Alberta Ave.. Suite 150 El Paso. TX. 799C52793 915633.3454 11 Texas. Suite 700 ,us,on. TX. 77002.3111 7lY223.3886 806 Broadway. Suite 312 Lubbock. TX. 794014479 5Q5i747.5235 4309 N. Tenth. Suite S McAllen. TX. 78501-1695 51Y682-4547 2Qo Main Plrra. Suite 4M) Ssn Antonio. TX. 782052797 5121225.4191 An Equal OppoRuni!yl Affirmative Actton Employef The Attorney General of Texas June 6, 1986 Hr. Sam ii. Smith Executive Director Board of Tax Profenaiional Examiners P. 0. Box 15920 Austin. Texas 78’161 Opinion Ac. JM-499 Rr: Play one individual, cons.ister.tly vith article XVI, section 40, of the Texas Constitution, serve as chief appraiser in three different apprai- sal districts and simultaneously .as tax assessor-collector in three school districts and a vater control and improvement district Dear Mr. Smith: YOU InfOtUi 11s that 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, of Presidio County Afpraisal District, and of Jeff Davis County Appraisal District. He also serves as Tax Assessor-Collector for Anthony Independent School District, San Elizario Independent School District, and Socorro Independent School District, and for the For: Haxcck Water Control and l~mprovement District. Tou ask vhe.:her this individual is prevented by article XVI, section 40 of the Texas Constitution from holding some or all of these seven positions. Article XVI, section 40 of the Texas Constitution 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 whether any of the positions held by this Individual constitutes a “civil office of emolument” within this provision. This question 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 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. A chief 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 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