                                         GREG
                                               0
                              ATTORNEY GENERAL OF TEXAS
                                                    ABBOTT



                                             January 31, 2014



The Honorable Ryan Guillen                          Opinion No. GA-1040
Chair, Committee on Culture,
    Recreation & Tourism                            Re: The authority of a county appraisal
Texas House of Representatives                      district to place excess funds in a capital
Post Office Box 2910                                improvement fund or to spend excess funds
Austin, Texas 78768-2910                            on a one-time, lump-sum payment to its
                                                    employees (RQ-1143-GA)

Dear Representative Guillen:

        You ask several questions about the authority of a county appraisal district over its
budget. 1 You first ask "[w]hat qualifies as payments that are obligated to be spent in ... Tax
Code Section 6.060)." Request Letter at 1. As part of your first q_uestion you ask: If a County
Appraisal Di.strict Board of Directors votes to spend funds that it knows have not been spent and
are not going to be spent during the ·fiscal year for a 'one-time lump sum merit pay' for its
 mployees has the Board obligated those funds for purposes" of subsection 6.060). Id at 1.
You ask the same question about placing the ftmds in a "'Capital Improvement Fund.,; !d. at 2.

        Section 6.06 of the Tax Code contains budget provisions for appraisal districts. It
requires the chief appraiser each year to prepare a proposed budget for the appraisal district.
TEX. TAX CODE ANN.§ 6.06(a) (West 2008). The propo ed budget shall include "a list showing
each proposed position the proposed salary for the position, aU benefits proposed for the
position, each proposed capital expenditure and an estimate of the amow1t of the budget that will
be allocated to each taxing Lmit. !d. Subsection 6.06(d) provides the formula used to,determine
the proportionate share that each taxing unit participating iu the appraisal district must pay to the
appraisal di trict. Jd. § 6.06(d) (establishing formula involving the proportionate share as the
taxe imposed by a taxing unit in relation to the total taxes imposed in the appraisal district for
all taxing units) · see also Tex. Att y Gen. Op. No. GA-0030 (2003) at 1 ("The appraisal district
i funded by the taxing tlrlits that participate in it.").


        1
          See Letter from Honorable Ryan Guillen, Chair, Comm. on Culture, Rec. & Tourism, to Honorable Greg
Abbott, Tex. Att'y Gen. at , 1-2 (Aug. 2, 2013), http://www.texasattomeygeneral.gov/opin (hereinafter "Request
Letter").
The Honorable Ryan Guillen - Page 2                    (GA-1040)




         Subsection 6.06(j) provides that

                  [i]f the total amount of the payments made or due to be made by
                  the taxing units participating in an appraisal district exceeds the
                  amount actually spent or obligated to be spent during the fiscal
                  year for which the payments were made, the chief appraiser shall
                  credit the excess amount against each taxing unit's allocated
                  payments for the following year [in a proportion enumerated by the
                  subsection.]

TEX. TAX CODE ANN.§ 6.060) (West 2008). The Tax Code does not define the phrase "spent or
obligated to be spent." See generally id § 1.04 ("Definitions"). A common meaning of the term
"obligate" is "to commit (funds, property, etc.) to meet or secure an obligation." BLACK's LAW
DICTIONARY 1178 (9th ed. 2009). Utilizing this definition, we can generally construe subsection
6.06(j) to refer to funds that are committed to meet or secure an obligation. Thus, to the extent
the votes for the two expenditures involve funds that are committed to meet or secure an
obligation, those funds are within the scope of subsection 6.06(j)'s phrase "obligated to be
spent."

         The Comptroller's office has construed subsection 6.06(j) to grant an appraisal district
the authority to obligate unspent funds during a fiscal year when it knows the payment would not
be made in the fiscal year? The Comptroller's office is authorized to periodically review and
audit appraisal districts. See TEX. TAX CODE ANN. §§ 5.102 (West Supp. 2013) (requiring
Comptroller to review appraisal districts), 5.12 (authorizing Comptroller to audit appraisal
districts). The Comptroller's office has issued guidelines to instruct its appraisal district
auditors. 3 These guidelines directly address your concern, noting that where the appraisal district

                  sees it will have unobligated funds left at the end of the budget
                  year, [if i]nstead of refunding or crediting the funds to the entities,
                  the board votes to move the funds into [its] reserves for
                  replacement account, or disaster fund account, or some similar
                  account, then the funds become obligated ....


         2
          Any questions about the propriety of a particular appraisal district board's actions are for a district court to
consider. See Barrington v. Cokinos, 338 S.W.2d 133, 142 (Tex. 1960) (recognizing that where a governmental
body "acts illegally, unreasonably, or arbitrarily, a court of competent jurisdiction may so adjudge"); see also Tex.
Att'y Gen. Op. No. GA-0750 (2009) at 2 (declining to address a question suggesting that a political subdivision
acted intentionally with an improper purpose).
         3
         See    2012-13        METHODS       &    ASSISTANCE       PROGRAM       INSTRUCTIONS         &     CHECKLISTS,
http://www. window .state. tx.us/taxinfo/proptax/map/doc/20 12/20 12...:.3_ MAPGuidelinesTier 1. pdf.
The Honorable Ryan Guillen - Page 3                  (GA-1040)




!d. at 2. Given the Comptroller's oversight authority over appraisal districts, a court would give
this administrative construction of subsection 6.060) serious consideration. See Pruett v. Harris
Cnty. Bail Bond Bd., 249 S.W.3d 447, 452-53 (Tex. 2008) (recognizing that courts will accord
deference to the construction of a statute by the agency charged with the statute's administration
so long as the construction is reasonable and does not contradict the statute); see also TEX. TAX
CODE ANN. §§ 5.03, 5.04-.042 (West 2008 & Supp. 2013) (concerning Comptroller's authority
over appraisal districts).

        Your first question's remaining subpart asks: "Do funds that have been acquired by the
Appraisal District from sources outside its taxing units qualify as excess funds for which the
taxing units must be credited under Section 6.06(j)?" Request Letter at 2. Subsection 6.060)
expressly provides that it is the "total amount of the payments made or due to be made by the
taxing units participating in an appraisal district" that are considered excess funds. TEX. TAX
CoDE ANN. § 6.06(j) (West 2008). By including in subsection 6.06(j) only the payments from
the taxing units, the Legislature excluded other sources of funds. See United Servs. Auto. Ass 'n
v. Brite, 215 S.W.3d 400, 403 (Tex. 2007) (explaining the doctrine of expressio unius est
exclusio alterius, which provides that the express inclusion of one thing excludes other things not
expressly included); see also TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439
(Tex. 2011) (presuming "that the Legislature chooses a statute's language with care, including
each word chosen for a purpose, while purposefully omitting words not chosen"). Thus, funds
received by an appraisal district from sources other than its taxing units do not qualify as excess
funds for which the taxing units must be credited under subsection 6.06(j). 4

        You next ask: "May a County Appraisal District's 'Capital Improvement Fund' be
budgeted for the fiscal year 2014 and onwards if excess funds are being automatically
appropriated into said account and/or if the proposed amount for the 'Capitol Improvement
Fund' was not prepared in the proposed budget by the June 15 deadline?" Request Letter at 2.
You do not explain how "excess funds" are being "automatically appropriated into" the capital
improvement fund in the 2014 fiscal year budget process. If the funds you describe are excess
funds under subsection 6.060), they must be returned or credited to the taxing entities according
to statute. TEX. TAX CODE ANN. § 6.060) (West 2008). With respect to future fiscal years,
subsection 6.06(a) requires a proposed budget to be prepared by the chief appraiser .and to be
submitted to the taxing units and the appraisal district's board of directors prior to June 15. !d.
§ 6.06(a). Subsection 6.06(b) also allows for amendments to the proposed budget with a final

         4
          This office previously concluded that funds received from another appraisal district should be included in
the excess-funds calculation and returned or credited to the taxing entities. Tex. Att'y Gen. L0-94-067 (1994) at 2-
3. The letter opinion did not engage in a considered analysis of subsection 6.060). Id. Instead, it noted that the
subsection did not explicitly provide for the return of funds received from other sources and then used the subsection
as an analogy to conclude that funds from a source other than the taxing units should nevertheless be returned to the
taxing units. !d. Contrary to L0-94-067, the plain language of subsection 6.060) requires the conclusion that the
subsection involves only the payments received from the participating taxing units. Because it incorrectly interprets
subsection 6.060), we overrule L0-94-067 to the extent it is inconsistent with our conclusion here.
The Honorable Ryan Guillen - Page 4          (GA-1040)




budget being approved prior to September 15. !d. § 6.06(b). The statutory process does not
prevent changes to the proposed budget after the public hearing process and as the budget is
finally approved. See id. § 6.06 (a)-(d). Moreover, a new or amended line item could be added
"at any time" to the approved budget pursuant to subsection 6.06(c). !d. § 6.06(c).

       You also ask:

               If a County Appraisal District Board of Directors votes to give its
               employees an across-the-board "one-time lump sum merit
               payment" ... not part of the ... employee compensation policy ...
               at the time of such vote, and states that such payment is . . . a
               payment of salary for future services at a temporary rate, does that
               violate Article III, section 53 ofthe Texas Constitution?

Request Letter at 2. Article III, section 53 of the Texas Constitution prohibits the granting of any
extra compensation, fee, or allowance to a public employee for services after the employee has
rendered them. TEX. CoNST. art. III, § 53. A key concern of article III, section 53 is that public
compensation not be increased retroactively. See Tex. Att'y Gen. Op. No. GA-0492 (2006) at 2.
Article III, section 53 does not prohibit payment of additional compensation or benefits under
prospective terms of employment. Tex. Att'y Gen. Op. Nos. GA-0322 (2005) at 5-6, JC-0147
(1999) at 3-4. This office has previously recognized that adoption by a commissioners court of
the necessary budget amendments for prospective salary payments does not offend article III,
section 53. See Tex. Att'y Gen. Op. Nos. JC-0361 (2001) at 3 (considering salary increases for
county employees based on budget authority), JC-0147 (1999) at 3-4 (same). As we have only
limited information about the compensation policy about which you ask and because we cannot
find facts in the opinion process, we do not determine whether this particular payment conforms
to article III, section 53. We advise only that if the payment operates prospectively from its
proper authorization, it is likely not unconstitutional.

         Subsection 6.06(b) gives the participating taxing units a mechanism by which to
disapprove an appraisal district's approved budget. TEX. TAX CODE ANN. § 6.06(b) (West 2008).
In your last question, you ask whether taxing units are able to disapprove budget amendments
that are approved by an appraisal district's board under section 6.10 ofthe Tax Code. Request
Letter at 2. Where the taxing units adopt resolutions that disapprove "an action, other than
adoption of the budget, by the appraisal district board" and file the resolutions with the appraisal
district board within a specified period, section 6.10 provides that the appraisal district board
action is revoked on the specified day. TEX. TAX CODE ANN. § 6.10 (West 2008) (emphasis
added). Section 6.06 distinguishes between the adoption ofthe budget and the amendment of the
budget. Compare id. § 6.06(a)-(b) (concerning adoption of budget), with id. § 6.06(c)
(concerning amendment of the approved budget). The plain language of section 6.10 excludes
only the "adoption of the budget." !d. § 6.1 0; cf id. § 6.06(b) (providing method in budget
process to disapprove the appraisal district's approved budget). No other action of the board is
excluded. Thus, taxing units may avail themselves of the procedures in section 6.1 0 to
disapprove the amendment of a budget by an appraisal district board.
The Honorable Ryan Guillen - Page 5         (GA-1040)



                                     SUMMARY

                      An expenditure an appraisal district has committed during
              the fiscal year to meet or secure an obligation is an expenditure
              that is obligated to be spent under subsection 6.06G) of the Tax
              Code.

                     Only "payments made or due to be made by the taxing
              units" should be included in the excess-funds calculation and
              returned or credited back to the taxing units as required by
              subsection 6.060).

                      Excess funds must be returned or credited to the
              pruticipati11g taxing units as required by subsecti n 6.060). The
              fact that a particular line item is not 'prepared in the proposed
              budget by the .T lille 15 deadline is not by it self fatal to the
              expenditure. The budget process in section 6.06 does not prevent
              amendments to the proposed budget after the public hearing
              process and before the budget is finally approved.

                     A proposed salary increase is likely not unconstitutional
              under Texas Constitution article III, section 53 if it operates
              prospectively from the time of its proper authorization.

                     An appraisal district's participating taxing units may utilize
              section 6.10 of the Tax Code to disapprove the amendment of a
              budget by an appraisal district board.




                                                    1 ABBOTT
                                            Attorney General of Texas


DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
