                              QMficeof the ZWwnep QSeneral
                                     %tate of QLexarr
DAN MORALES
 .ATTORNEV
       GENERA‘                             December 19,1997


   The Honorable Ken Armbrister                      Opinion No. DM-462
   Chair, Committee on State Affairs
   Texas State Senate                                Re: Whether a former member of the governing
   P.O. Box 12068                                    body or an officer or employee of a taxing unit is
   Austin, Texas 78711                               eligible for appointment to an appraisal review
                                                     board, and related questions (RQ-1008)
   The Honorable Michael P. Fleming
   Harris County Attorney
   1001 Preston, Suite 634
   Houston, Texas 77002-1891




            Both Tax Code section 6.41(c) and section 6.412(c) deem ineligible for membership on an
   appraisal review board a former director, former officer, or former employee of the appraisal district
   board. Tax Code 6.4l(c)‘s restriction, however, applies only to an appraisal review board in an
   appraisal district established for a county with a population that exceeds 300,000, while section
   6.412(c) applies to any appraisal review board, regardless of the size of the county with which the
   review board is aftiliated. More importantly, section 6.41(c) deems ineligible for membership a
   former member of the governing body, a former officer, or a former employee of u taring unit. By
   cormast, Tax Code section 6.412(c) deems ineligible for membership only a former member of the
   governing body, a former officer, or a former employee of a taring unit for which the appraisal
   district appraises property. You. both ask about the eligibility of certain former officers or
   employees of the government to’serve on an appraisal review board. Senator Armbrister asks
   generally about “the breadth of the application” of section 6.41(c)‘s restriction. Mr. Fleming asks
   how these two limitations on eligibility intertace, and he asks speoifically how to detine taxing unit
   in section 6.41(c). We conclude generally that, on and atbar Jamrary 1,1998, section 6.41(c) limits
   appraisal review board membership on an appraisal review board tiliated with a county that has
   over 300,000 people, while section 6.412(c) applies to appraisal review boards affiliated with the
   mmaining, smaller counties. We tInther conclude that section 6.41(c) applies to former officers and
   former employees of any taxing unit, as Tax Code section 1.04(12) defines that term, while section
   6.412(c) is limited to former officers and employees only of taxing units for which the appraisal
   district appraises property.

           Mr. Fleming asks several other questions as well. He asks how to distinguish a taxing unit
   officer t?om a taxing unit employee. We understand his real concern to be how to distinguish an
   individual who serves a taxing unit and who is therefore ineligible for appointment under either
TheHonorableKen Armbrister - Page 2                         (DM-462)
The Honorable Michael P. Fleming



section 6.41(c) or section 6.412(c) from a similarly situated individual who is not ineligible under
those sections. We conclude, based upon the language of the statutes, that the sections deem
ineligible all former officers and employees, including part-time employees, but they do not deem
ineligible volunteers who are not officers. Mr. Fleming further suggests that the prohibition on
appointing former officers and employees violates Texas Constitution article I, section 19, an
argument we believe is without merit. Finally, Mr. Fleming contends that the prohibitions constitute
specisl laws and are thus unconstitutional under Texas Constitution article III, section 56. We find
this contention without merit as well.

        We begin by examinin g the appraisal review process. In each appraisal district, sn appraisal
review board’ reviews the appraisal records of the county’s chief appraiser.* As part of its review
function, the review board is required to hear and determine taxing units’ challenges to the records,
as well as property owners’ protests regarding the records.4 Review board members are appointed
by the appraisal district board of directors? The appraisal district board also may appoint auxiliary
members to the appraisal review board to hear taxpayer protests and to assist the review board in
performing its other duties.6

        In 1997 the Seventy-fifth Legislature added two provisions pertaining to the eligibility of
review board members. By the passage of Senate Bill 841, the legislature amended Tax Code
section 6.41(c) to restrict membership on an appraisal review board affiliated with a county having
a population greater than 300,000:

           In an appraisal district established for a county having a population of more
           than 300,000, an individual who has served for all or part of tbree previous
           terms as a board member or auxiliary board member on the appraisal review
           board, is a fonner member of the governing bo+ or an oficer or employee of
           a taxing unit, or ti a former director, oficer, or employee of the appraisal
           district is ineligible to serve on the appraisal review board:’


        ‘SeeTaxGxle 5 6.41(a).

        ‘See id. $5 25.22(a), 41.01; AttorneyGeneralGpinionDM-94 (1992) at 2.

        ‘SeeTax Code $5 41.03, .05, .07.

        ‘See id. $5 41.41, .45, .47, see also AttorneyGeneralOpinionDM-259 (1993) at 1-2

         “See Tax Code.5 6.41(d). The appraisaldistrictbard andappraisalreviewboardareseparateentities. See
Tome Square Assm. v. Angelim County Appraiwl Dirt., 709 S.W.Zd 776,778 (Tex. App.-B.mamt 1986, no writ);
Corchine Parbvmhip v. Dallas GWNJJ AppmisalDis~, 695 S.W.2d 734,735 (Tex. App.-Dallas 1985, writref d nr.e.).

        %ee Tax Code.§ 6.41 l(a).

        ‘SeeTaxCcde 5 6.41(c), as amendezfbyActofMay29,1997,75thLeg., R.S., clClO39, 5 4, 1997 Tex. Seas.
                                                                               (continod..)


                                                p.   2588
The Honorable Ken Armbrister - Page 3                  (DM-462)
The Honorable Michael P. Fleming



This new restriction on eligibility, signified by the italicized language, applies only to the review
board members appointed on or atIer January 1, 1998.* The restriction on eligibility also applies to
auxiliary review board membexxp In addition, by the adoption of Senate Bill 1017, the legislature
added to Tax Code section 6.412 a new subsection (c), which similarly restricts membership on an
appraisal review board:

                  A person is ineligible to serve on the appraisal review board if the person
            is:

                  (1) a former officer or employee of the appraisal district or a taxing unit
                  for which the appraisal district appraises property;

                  (2) a former member of the board of directors of the appraisal district; or

                  (3) a former member of the governing body of a taxing unit for which the
                  appraisal district appraises property.”

Although section 6.412(c) became effective September 1, 1997, it does not affect review board
members sitting on the board on that date. ” Rather, they may “continue to serve on the board and
to participate in board hearings for the remainder of [their terms]. Thenchanges in law apply only
to a member appointed on or after the effective date . . . .“I*

         As a preliminary matter, we construe section 6.41(c) so that the adjectiveformer modifies
om      and employee as well as member of the governing body. I3 When mad literally, the eligibility
limitation in section 6.41(c) that is at issue in this opinion appears to deem ineligible a former
governing board member, a current officer, or a current employee of a taxing unit: “an individual



       ‘(...continued)
Law Sew. 3897,3899 (emphasisaddedto denote1997 amendment).

        ‘See Act of May 29,1997,75tb Leg., RS., ch. 1039,§ SO(c), 1997 Tex. Sess. Law Serv. 389?,3919.

        %ee id. $5,1997 Tex. Sess. Law Serv.3897.3899 (am&ing Tax Code 5 6.41 l(c)).

        “Act of&y     19, 1997,75tb Leg., R.S., ch. 691, sec. 2, !j 6.412(c), 1997 Tex. Sess. Law Serv. 2312,2313.

        “See Act of May 19, 1997,75tb Leg., RS., ch 691,s 3(a), 1997 Tex. S&s. Law Serv. 2312,2313.

         ‘?rd Tax Code section6.412(c) “doesnotprohibita personwho is a memberof an appraisalreviewboardon
the effective date  from being reappointed  to theboardif thepersonhas the qualificationsrequiredfor a member
undertheTax Code as amendedby thisAct.” Id.

          “We receiveda letterfrom Representative   Todd Smithspecificallyraisingthisissue. Representative
                                                                                                         Smith
is not an authorized requestor. See Gov’t Code $5 402.042, .043, .044. To nsolve your questions,however,we must
resolvethe.very issueRepresentative    Smithraises.


                                                  p.   2589
The Honorable Ken Armbrister - Page 4                  (DM-462)
The Honorable Michael P. Fleming



who . . . is a former member of the governing body or sn officer or employee of a taxing unit . . is
ineligible to serve. . . .” In this pbrase, the adjectiveformer appears to modify only member of the
governing body, not o#icer or employee. The immediately preceding sentence, however, deems
ineligible for review board membership (in any county, regardless of population) a current appraisal
district board member or a current officer or employee of the comptroller, the appraisal office or a
taxing unit. If the adjective former does not modify officer or employee, the two sentences are
largely redundsnt, and we presume that the legislature did not intend the redundancy.”

        The two provisions about which you ask differ in several respects. Mr. Fleming points out
two differences, which he contends render the provisions inconsistent. First, section 6.41(c) applies
only to review board members in an appraisal district established for a county having a population
greater than 300,000, while section 6.412(c) applies, ostensibly, to review board members in any
appraisal district, regardless of the affiliated county’s population. Second, while both section 6.41(c)
and 6.412(c)(l), (2) deem ineligible a former member, offtcer, or employee of the appraisal district
board, they set different standards for former taxing unit officers or employees. Specifically, section
6.41(c) deems ineligible a former officer or employee of “a taxing unit,” while section 6.412(c)
deems ineligible a former officer or employee of “a taxing unit for which the appraisal district
appraises property.” Likewise, section 6.41(c) deems ineligible a former member of the goveming
body of “a taxing unit,” while section 6.412(c) deems ineligible a former member of the goveming
body of “a taxing unit for which the appraisal district appraises property.” We note a third
diffbrence: section 6.412(c) became effective September 1,1997, while the amendments to section
6.41(c) will become effective January 1,199s.

        We disagree that sections 6.41(c) and 6.412(c) are irreconcilably inconsistent; instead, we
believe the differences may be harmonized. Where a general provision wntlicts with a more specific
provision, we are to wnstrue the two, if possible, to effectuate both.t5 Clearly, before Jsnuary 1,
1998, there is no wntlict: every appointment to an appraisal review board must comply with Tax
Code section 6.412(c), the only effective provision at this time. But even when both provisions are
effective, on Janusry 1,1998, we do not tind irreconcilable conflict.

          On and after January 1,1998, we believe the eligibility restriction in section 6.41(c) will
apply only to an appraisal review board affiliated with a populous wunty, while section 6.412(c) will
apply to an appraisal review board affiliated with a smaller county. By its terms, the restriction in
section 6.41(c) applies only to appointments to an appraisal review board affiliated with a county
with a population higher thsn 300,000, which to be concise we will denominate a “populous
WUllt)t’*‘6  Section 6.412(c), by contrast, is not explicitly limited. We interpret it, consequently, to


          “See Statev. Edmond, 933 S.W.2d 120, 124 (Tex. Grim App. 1996) (en bmc); whilev. State,930 S.W.2d
673,676   (Tex. App.--Waco 1996, no wit).

          ‘%ee Gov’t Code 5 3 11.026(a).

          ‘6The 1998-1999 Texas Almanac Lists eleven counties as having populationsbigherthan300,ooO. See THE
                                                                                                 (continoed...)



                                                 p.   2590
The Honorable Ken Armbrister - Page 5                  (DM-462)
The Honorable Michael P. Fleming



apply to all nonpopulous wunties, to which the restriction in section 6.41(c) does not apply. Thus,
on January 1, 1998, Mr. Fleming’s county, Harris, a populous county,” will be subject to the
eligibility restriction in section 6.41(c), although it is currently subject to section 6.412(c). On the
other hand, Gonzales County, one of the wunties Senator Armbrister represents, is and on January
1,1998, will remain subject to section 6.412(c) because it is a nonpopulous ~unty.‘~

         In addition, we construe section 6.41(c) to deem ineligible for appointment to an appraisal
review board that is affiliated with a populous county a former governing board member, former
officer, or former employee of any taxing unit, whether or not the taxing unit’s property is appraised
by the appraisal review board’s appraisal district. Under section 6.41(c), an appraisal district in a
populous county camtot appoint a former member of the governing body, officer, or employee of
a taring unit. The term taxing unit in section 6.41(c) is unrestricted. By contrast, the legislature has
chosen explicitly to limit the term in section 6.412(c) to include only those taxing units for which
the appraisal district appraises property. The term taring unit, for purposes of both sections 6.41(c)
and 6.412(c), is detined in Tax Code section 1.04(12):

                   ‘Taxing tit” means a wunty, an incorporated city or town (including a
               home-rule city), a school district, a special district or authority (including a
               junior college district, a hospital district, a district created by or pursuant to
               the Water Code, a mosquito control district, a fire prevention district, or a
               noxious weed control district), or any other political unit of this state,
               whether created by or pursuant to the constitution or a local, special, or
               general law, that is authorized to impose and is imposing ad valorem taxes
               on property even if the governing body of another political tit determines
               the tax rate for the unit or otherwise governs its affairs.‘p

        Indeed, the fact that section 6.41(c) applies to former officers and employees of any taxing
tit, while section 6.412(c) applies to former officers and employees only of those taxing units for
which the appraisal district appraises property appears to us to follow logically from the population
difference. In a populous wunty, the appraisal district has a larger pool of citizens from which to
select appointees to the appraisal review board, the legislature may, therefore, exclude a larger
number of people without seriously impacting the appraisal district’s ability to tind competent
appointees. But in a smaller county, the appraisal district has a smaller pool of possible appointees




DAM     MORNINGNEWS,
                   1998-1999 TEXASALMANAC143-292 (1997),

        “‘See BUREAUOF THECENSUS,U.S. DEP’T OF COMMERCE,1990 CENSUSOF POPULATION:GENERAL
POPULKTlON CHARACTERISTICS: TEXAS 2 (1992)
                                       @oputation2,818,199).

        “Id.   (population: 17,205).

          ‘Tax Code section1.04 de-     temx for thewholeof Tax Code title1. Se&oons6.41 and6.412 both arepart
of tide 1.



                                                  p.    2591
TheHonorableKen Armbrister - Page 6                       (D~-462)
The Honorable Michael P. Fleming



from which to choose. By excluding only former directors, officers, and employees of taxing units
for which the appraisal district appraises property, the legislature, we believe, attempted to maximize
the number of people eligible for appointment while still accomplishing the intent of the
limitation-to reduce cronyism in the appointment process.20

        We turn now to your specific questions. We begin with Mr. Fleming’s first question: how
to reconcile what he perceives as irreeoncilsble differences between the limitation in section 6.41 (c)
and section 6.412(c). We have concluded that until January 1, 1998, section 6.412(c) applies to
appointments to appraisal review boards in all counties. On and after January 1, we have concluded,
section 6.41(c)‘s limitation applies to appraisal review boards aftiliatcd with populous counties,
while section 6.412(c) applies to all other counties.

        Mr. Fleming’s second question concerns the definition of taxing unit. Unlike section
6.412(c), section 6.41(c), we have concluded, pertaim to former officers and employees of all taxing
units, whether or not the appraisal district appraises propem for that taxing unit. Further, we have
adopted, for purposes of section 6.41(c) and 6.412(c), the detlnition of taxing unit found at Tax Code
section 1.04(12), which describes a political subdivision that is authorized to and is imposing ad
valorem taxes. Mr. Fleming, however, asks about former directors, officers, or employees of taxing
unita that have either ceased to exist or that do not or did not impose taxes:

            [I]s an [appointee] ineligible to serve on the appraisal review board if he or
            she wasformerly au officer or employee of. . . :

                1. A taxing unit that ceased to exist prior to January I,1998 (effective
                   date of legislative changes to [Tax Code section] 6.412?*’




        %z Hearingson S.B. 1017 Before the Seoate Comm. on Inte~ovemmcntal Relations,75th Leg., RS.
(Mar. 26, 1997) (statementof SenatorPatterson)(tape availablefxom SenateStaff services) (indicatingthatbill’s
p~istoensllrethatappI;lisalreviewprocessisfairandthatmembnsofappraisalreviewboardbeneutralarbitcrs
of propertytaxdisputes);id. (testimonyof BreckBostwick,qrescnting TexasAss’n of PropertyOwnas) (statingthat
smallmontieshaveditlicultthe findingpeopleto serveon appraisalreviewboards);cf Hearingson S.B. 841 Before
the House Comm. on Revenueand Public Education,75th Leg., R.S. (May 1, 1997) (testimonyof Mark Rose,
representingself) (tapeavailablefromHouseVideo/AudioServicesOffice) (reflectingpublicperceptionthat,because
appraisaldistrictboardappointsboardmembers’friendsandcroniesto appraisalreviewboard,taxpayerprotesting
decisioncan do nothingto get fairhearingfromreviewboard);cf: also CITIZENS’COMM.ONPROPEIUY      TAX RELIEF,
FINALREPORT21-22 (Nov. 8, 1996) (sunmaking public sentimentthatreviewprocess‘undcmorratic”becase,
accordingto thosewho testified,appraisalreviewboardcannotoffer unbiasedreviewof appraisaldistrict’swork).

         l’As we havestated,Tax Codesection6.412(c) becameeffectiveSeptember1,1997. See Act of May 19.1997,
75th Log., RX, ch. 691,1997 Tex. Sess. Law Serv. 2312,2312-13. The.amendmentto section6.41(c), ontbe other
hand,will takeeffect January1, 1998. See Act of May 29, 1997,75th Leg., RS., ch. 1039,§ SO(a),1997 Tex. Sss.
Law Serv. 3897,3919. We believe,tberefore, thatMr. Flemiogrefersto section6.41(c) io thisqoestion,not section
6.412(c), as he states.




                                                  p.   2592
The Honorable Ken Armbrister - Page 7            (DM-462)
The Honorable Michael P. Fleming



                 2.   A taxing unit that ceased to exist prior to January 1,1982 (effective
                      date of [Tax Code])?

                 3.   A taxing unit that ceased to exist prior to May 31,1993 (effective date
                      of changes to [Tax Code section 1.04(12), which defines taxing
                      unit])?

                 4. A taxing unit that ceases to exist before the appraisal review board
                    member takes office?

                 5. A taxing unit that is in existence but otherwise ceases to impose an ad
                    valorem tax before the appraisal review board member takes office?

                 6. A taxing unit that is in existence but did not impose an ad valorem tax
                    (although authorized to do so) during the time that the appraisal
                    review board [appointee] was an employee or officer?

         In our opinion, the critical question in unraveling all of these hypothetical situations is
whether the appointee served a political subdivision that was, at the time the appointee served it,
authorized to impose and was imposing ad valorem taxes. Thus, it makes no difference that the
taxing unit ceased to exist before some arbitrary date. Nor does it matter that the taxing unit ceased
imposing ad valorem taxes after the appointee’s tenure. It is relevant, however, that a political
subdivision was authorized to but did not collect ad valorem taxes during the appointee’s tenure.
Under the Tax code’s deli&ion, two factors set a political subdivision apart as a taxing unit: tirst,
the political subdivision is authorized to collect ad valorem taxes; and second, the political
subdivision in fact imposes ad valorem taxes. Where. one of these factors is not present, the political
subdivision is not a taxing unit. Consequently, in response to the first five of Mr. Fleming’s
hypotheticals, we believe the appointee is ineligible to serve on an appraisal review board.
Conversely, in response to Mr. Fleming’s sixthhypothetical, we believe neither section 6.41(c) nor
section 6.412(c) precludes the appointee Ikom service on an appraisal review board because the
political subdivision was not a taxing unit at the time the appointee served it.

        You both question the scope of the terms oficer and employee for purposes of sections
6.41(c) and 6.412(c). Mr. Fleming first cites the opinion of the Texas Supreme Court in Aldine
Independent School District v. StundZey,” distinguishing an officer t?om an employee on the basis
of “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 control of others.“23




        980   S.W.2d 578 (Tex. 1955).

          “Id. at 583 (quotingDunbar v. Brawti County,224 S.W.Zd 738,740 cfex. Civ. App.--Galveston 1949, writ
ref d)) (emphasisin original).


                                                p.   2593
The Honorable Ken Armbrister - Page 8              (~~-462)
The Honorable Michael P. Fleming



Mr. Fleming then cites several statutory definitions of employee:’ and he closes with one,
Government Code section 821.001(6), that defines the term to include only full-time workers. He
also cites a statutory detinition of local public official, Local Government Code section 171.OOl, and
a previous opinion of this office that an individual who serves as an alternate election judge in a
single municipal election is not an officer of a taxing unit. *’ He finally lists specific positions and
asks whether an individual who currently or formerly has held one of the positions is eligible for
appointment to an appraisal review board:

             .         part-time instructor for a community college (which, Mr. Fleming
                       states, is a taxing unit);

             .         alternate election judge or clerk for a taxing unit for one or more
                       elections:

             .         substitute teacher for a school district (which, Mr. Fleming states, is
                       a taxing unit);

             .         summer employee for a municipal parks and recreation program
                       (Mr. Fleming states that a municipality is a taxing unit).

Senator Armbrister asks, in addition, about a former city driver education teacher or a retired taxing
unit employee.

        In our view, all of the positions about which you ask are employments. None are offices, we
believe, because none of the position holders exercises a sovereign governmental function
independently of others’ control. 26 Indeed, this office previously has concluded that an alternate
election judge or clerk is not an officer. a7 Rather, all of the positions sre subject to the control of
others and all are compensated, both of which are characteristics of employment.

       We believe, for purposes of Tax Code sections 6.41(c) and 6.412(c), the term employee
encompasses any individual who is appointed to serve the government under a contract of hire,
express or implied, oral or written, where the employer has the power or right to control and direct
the employee in the material details of how the work is to be performed, and who is wmpensated




        %?e Civ. Pmt. &Rem. Code $5 101.001(2), 102.001(l); Gov’t Code $5 606.021(l), 607.001,613.001(3);
Local Gov’t Code $j 158.001(2).

        Yk       LetterOpinionNo. 96-OSl(l996) at 2.

       ‘sseeAldine; 280 S.W.2d at 583 (quotingDunbar v. Brazoti   C’aunfy,224 S.W.Zd 738,740 (Tex. Civ. App.--
Gahw.ton 1949, wit ref d)).

        ?Tee LetterOpinionNo. 96-08 l(l996) at 2.




                                                  p.   2594
The Honorable Ken Armbrister - Page 9               (un-462)
The Honorable Michael P. Fleming



for his or her work.28 Because we find no statutory definition of employee expressly applicable to
Tax Code sections 6.41(c) and 6.412(c), we detine the term in context and wnsistently with wmmon
usage. 29 Some, but not all, of the statutory definitions Mr. Fleming cites coincide with our
definition. For example, Civil Practice and Remedies Code section 101.001 distinguishes an
employee from an independent contractor, an agent or employee of an independent contractor, or
another person who performs tasks the details of which the wntracting govemment has no legal right
to wntrol.30 Others were adopted to provide the term employee with a connotation useful in that
context and do not apply in the context we are considering here. Civil Practice and Remedies Code
section 102.001(l), for example, defines employee to include volunteers. We believe, however, that
section 102.001(l) relates only to the specific context in which it was adopted-a local government’s
liability for tort claims against those under its control-and we see no reason to extend the meaning
ofthe term employee in Tax Code sections 6.41(c) and 6.412(c) to include vohmteers. Likewise, we
see no reason to distinguish between full- and part-time employees, as Government Code section
82 1.001(6), does. Government Code chapter 82 1 pertains to membership in the Teacher Retirement
System. Full-time employees are members,” and consequently, they receive retirement benefits
tiom the system. Part-time employees, on the other hand, are not members.” This distinction makes
sense in the retirement-system context, but we do not think it makea sense here.

       Accordingly, so long as each of the employments about which you ask are with a taxing unit,
in a populous county, or a taxing unit for which the appraisal district appraises property, in a
nonpopulous county, the former employee is ineligible for appointment to the appraisal review
board Whether a particular political subdivision is a taxing unit in the context of sections 6.41(c)
and 6.412(c) depends, as we have said, upon whether the subdivision satisfies the detinition in Tax
Code section l&4(12). This question of fact must be examined on a caseby-case basis.

         We proceed to address the wnstitutional issues Mr. Fleming raises. Mr. Fleming first avers
that sections 6.41(c) and 6.412(c) violate Texas Constitution article I, section 19, insofar as they
impose a lifetime bar on appointees to appraisal review boards while appointees to other governing
boards are not similarly barred. Similarly, Mr. Fleming points out, “[alssuming that the legislature
believed that former taxing unit employees and officers were biased against property owners who
protest their appraised values [sic], it failed to prohibit other individuals who may be similarly biased
such as property tax wnsultants.” Both of these distinctions, Mr. Fleming argues, are irrational.



          5%~ Riverbend Country Club v. Patterson, 399 S.W.2d 382,383 (Tex. Civ. App.-Eastland 1965, writrefd
nr.c.); see also AttorneyGeturalOpinionDM409 (1996) at S-6.

       ‘*See Gov’t Code 5 311.011(a); AttorneyGeneralOpinion DM-409 (1996) at 4 (citing AttorneyGeneral
OpinionNH-525 (1986) at 4).

        ‘%ee also Local Gov’t Code 5 155.041.

        “See Gov’t Code 5 821.001(6), 822.001(a).

        =Id. 5 821.001(6).



                                                p.    2595
The Honorable Ken Armbrister - Page 10                      (DM-462)
The Honorable Michael P. Fleming



         We do not believe a court would agree with Mr. Fleming’s argument. Article I, section 19
of the Texas Constitution, referred to as the “‘due course” clause, like the due process clause of the
United States Constitution and the equal protection clauses of the federal and state constitutions,
allows the legislature to distinguish among individuals so long as the distinction rationally furthers
a legitimate state interest, unless the classification warrants heightened review.” Mr. Fleming does
not appear to contend that the classification at issue here warrants heightened review, and indeed,
we do not imagine that he could. Thus, we believe a court would apply the rationality standard.

        We think it likely a wurt would find that the classification the legislature has established in
sections 6.41(c) and 6.412(c) rationally relates to the state’s interest in providing an unbiased system
by which a property owner may contest his or her property’s appraised value. Nevertheless, the
question, to be fmally determined, requires the resolution of fact questions and is, therefore, beyond
the scope of an attorney general’s opinion.34

         For the same reason, we believe a court would disagree with Mr. Fleming’s tinal wntention,
that the amendment to section 6.41(c) and section 6.412(c) in toto are special laws and wnsequently
unwnstitutional under article III, section 56 of the Texas Constitution. “The primary and ultimate
teat of whether a law is general or special is whether there is a reasonable basis for the classification
made by the law, and whether the law operates equally on all within the claa~.‘“~ As we determined
above, we believe a court would find that the legislature had a reasonable basis to classify appointees
to appraisal district review boards differently than others. Further, as we have explained above, we
believe the fact that the legislature has chosen to set stricter eligibility standards for appointees to
appraisal review boards affiliated with populous counties than for appointees to such boards in
nonpopulous counties flows logically from the population difference.)~ Moreover, sections 6.41(c)
and 6.412(c) operate, we believe, equally on all within their respective scopes.

                                           SUMMARY

                 Between September 1, 1997, and Jamuuy 1, 1998, an appointee’s
            eligibility for service on an appraisal review board is determined in
            accordance with Tax Code section 6.412(c). On and after January 1,1998,
            Tax Code section 6.41(c) deems ineligible for appointment to an appraisal
            review board in an appraisal district affiliated with a county that has over


        “Cf Hurt v. Cooper, 110 S.W.2d 896.900-01 (Tex. 1937); Patterson v. City of Dallas, 355 S.W.2d 838,
843-44 (Tex. Civ. App.--Dallas 1962, wit ref d n.r.e.),appeal dismissed, 372 U.S. 25 1 (1963).

        “See, e.g., AttorneyGeneralOpinionsDM-98 (1992) at3, H-56 (1973) at 3, M-187 (1968) at 3,0-2911(1940)
at2.

         544aple Run at Austin Mm. CM. Dirt. v. Monaghan, 931 S.W.2d 941,945 (Tex. 1996) (quotingRodriguez
v. Gonzales, 227 S.W.Zd 791,793 (Tex. 1950)).

        =See supra pp. S-6.


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The Honorable Ken Armbrister - Page 11            (DM-462)
The Honorable Michael P. Fleming



           300,000 people a former member of the governing board, former officer, or
           former employee of any taxing unit, as taxing unit is defined in Tax Code
           section 1.04(12). On and after January 1,1998, Tax Code section 6.412(c)
           deems ineligible for appointment to an appraisal review board affiliated with
           a smaller wunty a former member of the governing board, former officer, or
           former employee of a taxing unit for which the appraisal district appraises
           property. Whether the political subdivision the appraisal review board
           appointee served has ceased to be a taxing unit since the appointee’s tenure
           is irrelevant.

               For purposes of sections 6.41(c) and 6.412(c), an officer is an individual
           upon whom a sovereign, governmental function is wnferred, to be exercised
           by him or her for the benefit of the public largely independent of others’
           control. An employee, on the other hand, is an individual who works, under
           an express or implied contra& for the employer at the employer’s direction
           and control and who is compensated for his or her service. Employee
           includes both full- and part-time workers, but it does not include a volunteer
           who is not an officer.

               A court probably would conclude that the 1997 amendment to section
           6.41(c) and section 6.412(c) in toto is not unwnstitutional, either under Texas
           Constitution article I, section 19 or article JIJ, section 56.




                                              DAN MORALES
                                              Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General




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