                        January 16, 1989




Mr. Sam Ii. Smith              Opinion No. JM-1008
 Executive Director
.Board of Tax Professional     Re: Whether appraisers employed
    Examiners                  by the State Property Tax Board
 P. 0. Box 15920               must register with the Board of
Austin, Texas     78761-5920   Tax Professional Examiners
                               (RQ-1495)

Dear Mr. Smith:

     Article 7244b, V.T.C.S., the Property Taxation  Profes-
sional Certification Act, creates the Board of Tax Profes-
sional Examiners    [hereinafter the BTPE], V.T.C.S.     art.
7244b, S 4, and reposes in the BTPE the duty, inter alia, to
"insure strict compliance with and enforce all provisions of
this Act." &      5 7. The act requires certain persons    to
register with the BTPE and to proceed toward certification.
You ask whether    field appraisers employed by the State
Property Tax Board for the purpose of conducting the annual
property value studies   for appraisal districts and school
districts must register with your board.     We answer your
question in the negative.

     Section 11 of article 7244b, V.T.C.S.,     lists     those
persons who are required to register with the board:

             (1) all    chief   appraisers,   appraisal
         supervisors   and  assistants,  property   tax
         appraisers, appraisal   engineers,  and other
         persons with authoritv to render iudcment on,
         recommend. or certifv aDDraised values to the
         aooraisal   review board    of an    anoraisal
         district;

             (2) the   tax   assessor-collector,    tax
         collector, or other person designated by the
         governing body of a taxing unit as the chief
         administrator  of   the   unit's    assessment
         functions, collections  functions, or both:
         and other persons who perform assessment    or
         collections functions for the unit whom the



                               p. 5183
Mr. Sam H. Smith - Page 2




        chief~administrator of the unit's tax    office
        requires to register; and

            (3) all oersons   enaaaed in aooraisals  of
        real or oersonal nrovertv for ad valorem    tax
        puruoses   for an avvraisal di~strict or a
        faxina unit.    (Emphasis added.)1

     You point out that the act was passed prior to the
addition of field appraisers to the staff of the State
Property Tax Board and accordingly does not address directly
whether these persons   should register. Though you do not
indicate which subsection   of section 11 requires, in your
opinion, the registration of the State Property Tax Board's
field appraisers, we assume that you base your request upon
either the underscored language of subsection (1) or subsec-
tion (3).2   In other words, we understand you to assert



      1. In addition, section 15 of the act sets forth     the
qualifications of applicants and provides:

           An applicant must be at least 18 years of
        age, a resident of the State of Texas,     a
        person of good moral character and activelv
        enaaaed in aooraisal. assessment. or collec-
        tion for a taxina unit.  (Emphasis added.)


      2. Subchapter A of chapter 24 of the Tax Code confers
on the State Property Tax Board the responsibility           of
appraising   the intangible value of the        transportation
operation in this state of certain     listed transportation
businesses.   Additionally, subchapter B of chapter 24 of the
Tax Code confers on the State Property Tax Board the
responsibility of appraising railroad rolling stock.        The
State Property Tax Board annually certifies to each county
tax assessor-collector the property values, apportioned      to
each county, of the~businesses appraised pursuant to chapter
24 that operate in each county. We have been informed that
those employees of the State Property Tax Board who conduct
such appraisals register with the BTPE pursuant to subsec-
tion (1) of section      11 because they are "persons with
authority to render judgment on, recommend,        or certify
appraised values to the appraisal       review board of an
appraisal district."   No other provisions of the code confer
                                          (Footnote Continued)




                              p. 5184
Mr. Sam H. Smith - Page 3




that, by virtue of the valuation and ratio studies that the
State Property Tax Board annually conducts,       the field
appraisers of the State Property Tax Board are either
"persons with authority to render judgment on, recommend, or
certify appraised values to the appraisal review board of an
appraisal district"  or "persons engaged in appraisals    of
real or personal property for ad valorem tax purposes for an
appraisal district or a taxing unit."

     The Tax Code created the State Property Tax Board and
conferred upon it a wide variety of duties, most of which do
not even arguably  fall within the ambit of section 11 of
article 7244b, V.T.C.S.    We will turn to each Tax Code
provision that does arguably    fall within  section  11 to
examine whether that section confers authority on .the State
Property Tax Board or its employees to perform duties that
would require persons performing those duties to register
with the BTPE.

     First, section 5.08 of the Tax Code authorizes    the
State Property Tax Board to provide certain assistance  to
appraisal districts and appraisal review boards:

            (a) The board may provide professional and
        technical assistance on request in appraising
        prope~yI   installing or updating tax maps,
        purchasing   equipment,   developing    record-
        keeping systems, or performing other apprais-
        al act~ivities.   The board may also provide
        professional and technical assistance on re-
        guest to an appraisal     review board.     The
        board may require reimbursement for the costs
        of providing the assistance.

            (b) The board may provide information  to
        and consult with persons actively engaged  in
        appraising property   for tax purposes  about
        any matter    relating to property   taxation
        without charge.

     Next, section 11.86 of the Education Code requires the
State Property Tax Board to conduct an annual study to


(Footnote Continued)
authority on employees  of the State Property Tax Board to
appraise property directly for appraisal districts or taxing
units.




                             p. 5185
Mr. Sam H. Smith - Page 4




determine the total taxable value of property in each school
district in the state.    Subsection  (a) of section   11.86
provides in part:

           (a) The board shall conduct an annual
        study using comparable     sales and     other
        generally accepted techniques   to determine
        the total value of all taxable property     in
        each school district.      The study     shall
        determine the taxable value of all property
        and of each class of property within       the
        district and the productivity   value of all
        land that qualifies   for appraisal   on the
        basis of its productive    capacity and for
        which the owner has applied for and received
        ;tEa;zctivity  appraisal.  In conducting   the
                  the board shall use appropriate
        standard valuation, statistical  compilation,
        and analysis techniques.

Section 11.86 'requires the State Property Tax Board to
publish its preliminary findings, listing values by school
district, and to deliver the findings to each school dis-
trict. The section further confers on each school district
a right of administrative appeal of the findings, as well as
a right of appeal to a state district court, of the results
of the administrative appeal.    The findings of the State
Property Tax Board are utilized by the Commissioner       of
Education in determining the local fund assignment under the
Foundation School Program. m    Educ. Code, § 16.252.

     Next, section 5.10 of the Tax Code imposes on the State
Property Tax Board the duty to conduct annually what are
termed "ratio studies":

            (a) The board shall conduct an annual
        study in each appraisal district to determine
        the degree of uniformity of and the median
        level of appraisals by the appraisal district
        within each major kind of property.       The
        board shall publish a report of the findings
        of the study, including   in the report the
        median levels of appraisal for each major
        kind of property, the coefficient of disper-
        sion around the median level of appraisal for
        each major kind of property,   and any other
        standard statistical measures that the board
        considers   appropriate.  In conducting   the




                             p. 5186
Mr. Sam H. Smith - Page 5




        study, the board     shall use    appropriate
        standard statistical analysis techniques.

           (b) The published   findings of a ratio
        study conducted by the State Property Tax
        Board shall be distributed to all members   of
        the legislature  and to all appraisal     dis-
        tricts.

We note here that chapters 41 and 42 of the Tax Code afford
various remedies to both aggrieved taxpayers and aggrieved
taxing units.   For example, section 41.03 of the code
permits a taxing unit to appear before an appraisal   review
board and challenge, inter alla the level of appraisals   of
any category of property in the'district or in any territory
within the district.  Section 41.41 of the Tax Code. permits
a taxpayer to appear before the appraisal review board and
protest, infer  lia   unequal appraisal of his property   in
comparison to Ehe 'median level of appraisals      of other
property in the appraisal district.

     Finally, section 5.12 of the Tax Code authorizes     the
State Property Tax Board, under certain circumstances,     to
conduct performance audits of appraisal districts that may
comprise either Itageneral audit of the performance of the
appraisal district" or "an audit of only one or more partic-
ular duties, practices,    functions, departments,  or other
appraisal district matters,"    i.e. a limited audit.     Tax
Code, 5s 5.12(a),   (b)-3  Subsection  (a) authorizes  either
the governing  bodies of a majority     of the taxing units
participating in an appraisal district or a majority of the
taxing units entitled to vote on'the appointment of apprais-
al district directors to request an audit. Subsection     (b)
authorizes property   owners under certain circumstances   to
request an audit.




      3. Section 5.12 of the Tax Code specifically was made
effective
 .. .     on January
               - _   1 of the first.._ state- fiscal
                                                 __. year for
                                                           .
wnicn state funos     are appropriatea      ror runaing   tne
administration of the section. Acts 1987, 70th Leg., ch.
860, § 3, at 2928.   The legislature appropr.iated funds for
the implementation of this section in the appropriations act
adopted in 1987.   Acts 1987,' 70th Leg., 2d C.S., ch. 78,
art. I, at 504.




                             p. 5187
Mr. Sam H. Smith - Page 6




     Subsection (c) of section    5.12 governs limited     audits
and provides in part:

        The board may not be required to audit the
        financial condition of an appraisal  district
        or to audit a district's tax collections.   If
        the request is for an audit limited to one or
        more particular  matters, the board's    audit
        must be limited to those matters.

Subsection   (d) governs general audits and provides:

           In conducting a general audit, the      board
        shall consider and report on:

           (1) The extent to which the. district
        complies with applicable law or generally
        accepted  standards of appraisal or other
        relevant practice;

            (2) the uniformity and level of appraisal
        of major kinds of property and the cause of
        any significant deviations from ideal unifor-
        mity and equality of appraisal of major kinds
        of property;

           (3) duplication of    effort and   efficiency
        of operation:

           (4) the general efficiency,   quality  of
        service,  and   qualification of   appraisal
        district personnel; and

            (5) except as    otherwise provided    by
        Subsection (c) of this section, any other
        matter included in the request for the audit.

The issue is whether the statutory duties of the State
Property Tax Board fall within the ambit of section 11 of
article 7244b, V.T.C.S.

     First, section 2(l) of article 7244b, V.T.C.S., defines
"appraisal" in the following way:

           'Appraisal   means those functions     de-
        scribed in Chapters 23 and 25, Tax Code, that
        are performed   by employees   of   political
        subdivisions or bv versons actina on behalf
        of oolitical subdivisions and that involve an




                                p. 5188
    Mr. Sam H. Smith - Page 7
.




            estimate or vini n of al            of a    orovertv
            interest.  (gmphazis addzd.;

    See also &    6 2(2)   (definition of "assessment").~  Thus,
    subsection ll(3) applies to persons acting on behalf      of
    political subdivisions who perform those functions described
    in chapters 23 and 25 of the Tax Code.

         Section 5.08 of the Tax Code provides that employees of
    the State Property Tax Board, inter alia, may provide "tech-
    nical assistance" to appraisal districts or appraisal review
    boards.   Section 11.86 of the Education   Code requires   the
    State Property Tax Board to conduct annual ratio studies for
    purposes of allocating state and local funds for public
    school purposes.   Section 5.10 of the Tax Code requires   the
    State Property Tax Board to conduct ratio studies for each
    appraisal   district, with the     studies used by' either
    aggrieved taxing units or aggrieved taxpayers seeking rem-
    edies for unlawful taxation.   Section 5.12 of the Tax Code
    permits the State Property Tax Board to conduct "performance
    audits" of appraisal districts    at the written request    of
    either a majority of the taxing units participating in the
    appraisal district or a sufficient number of taxpayers      in
    that district.    In each instance, employees   of the State
    Property Tax Board are required to perform certain    services
    or conduct certain studies, the purpose      of which   is to
    provide a means for evaluating the professional   performance
    of the appraisal districts' or the taxing units'   employees.
    The Tax Code, with the aforementioned exception. set forth in
    chapter 24, does not require the employees of the State
    Property Tax Board to      perform the actual   functions   of
    appraising, assessing, or collecting required by law.      &g
    Tex. Const. art. VIII, § 23.4    Thus, they are not included
    within subsection 11(l) of article 7244b, V.T.C.S.

         Second, even if the actual language of section     11
    fairly could be said to be ambiguous on this question, the



          4. Subsection   (a)   of    section   23     of   article   VIII
    provides:

               There shall be no statewide appraisal  of
            real property  for ad valorem tax purposes;
            however,  this shall not preclude    formula
            distribution of tax revenues to political
            subdivisions of the state.




                                     p. 5189
Mr. Sam H. Smith - Page 8




intent of the legislature     in passing article  7244b,
V.T.C.S., could not be more clear. Section  1 of article
724433, V.T.C.S.  sets forth the purpose of the act and
provides in perCinent part:

        The purpose of the legislature by this Act is
        to assure the people of Texas that the
        responsibility   of assessing   property   for
        taxation is entrusted   only to those persons
        duly registered   and competent  according  to
        the regulations   provided by this Act.    The
        legislature further intends that the assess-
        ing of property for taxation be practiced and
        regulated as a learned profession and that
        the practitioners in this state be account-
        able to the public.

The bill analysis for Senate Bill No. 67, which enacted
article 7244b, V.T.C.S., in 1977, declares    in its "Back-
ground" section:    "This bill would enact new legislation
relating to the registration and certification of persons
engaged in the assessment of property for ad valorem    taxa-
tion." Bill Analysis,     S.B. 67, 65th Leg.   (1977) .   The
stated purpose   of the bill, in addition to creating     the
board, is "to regulate persons engaged in the assessment   of
property  for taxation purposes."     Id.   Section   11 was
amended in 1981 to change the definitions    of persons   re-
quired to register in order 'co conform to language in the
Tax Code. House Bill No. 2189 amended.definitional language
in the act.    Acts 1981, 67th Leg., ch. 848, at 3224.    The
amendment assures that persons performing certain   functions
regardless of the titles by which such persons are designat-
ed register with the board:

           (1) Tax assessor means the person respon-
        sible for assessing property taxes as set
        forth by Chapter 26, Property Tax Code.

           (2) Chief     appraiser  means the    chief
        administrator'   of   the appraisal   district
        office.

           (3) Property tax'appraiser means a person
        duly registered to engage in all or part of
        the appraisal process required to estimate
        the appraised value of property.




                              p. 5190
Mr. Sam H. Smith - Page 9




           (4) Practice of assessing means to engage
        in any or all phases of the assessing process
        including appraisal.

Bill Analysis, H.B. 2189, 67th Leg. (1981).

     It is clear that the legislature intended with the
original enactment of article 7244b, V.T.C.S., to require
the registration and certification of tax assessor-collect-
ors in Texas.   With its subsequent  amendment, it is clear
that the legislature intended those persons to register,
regardless of title, who are engaged in what is now termed
"appraisal," as well as assessing and collecting, as defined
in the code. The purpose of the act is to ensure a suffi-
cient level of competence and professionalism among those
who are involved with the ad valorem taxation system on a
.local level.

     We recognize   that it may seem anomalous   to require
appraisers and collectors who are actually      employed by
appraisal districts   or taxing units to register with the
BTPE and proceed toward certification, while not requiring
to register the field appraisers  of the State Property Tax
Board, whose advice and technical assistance the districts
and taxing units rely upon and whose various ratio studies
are used as a standard in terms of which appraisal      dis-
tricts' and taxing units' performances can be evaluated.
Any such anomaly properly is a concern for the legislature.

     Accordingly, we conclude that the field appraisers
employed by the State Property Tax Board to perform  those
duties imposed upon it by law are not required to register
with and proceed toward certification by the Board of Tax
Professional Examiners.

                      SUMMARY

           The field appraisers employed by the State
        Property Tax Board are not required        to
        register with and to proceed toward certifi-
        cation by the Board of Tax Professional
        Examiners.




                                  JIM     MATTOX
                                  Attorney General of Texas



                            p. 5191
                                        I




Mr. Sam H. Smith - Page.10




MARYKELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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