                         April 17, 1990



Honorable Toby C. Wilkinson       Opinion No.   JM-1157
Hunt County Attorney
4th Floor Courthouse              Re:      Whether the board of
P. 0. Box 1097                    trustees of an independent
Greenville, Texas 75401           school district may contract
                                  for tax collection with the
                                  county    when    the   county
                                  assessor-collector    is also
                                  a member   of the board of
                                  directors of the appraisal
                                  district    (RQ-1943)
 Dear Mr. Wilkinson:

      Subsection (a) of section 6.24 of the Tax Code autho-
 rizes the governing body of a taxing unit other than a
 county to contract,     as provided   by the Interlocal    co-
 operation Act,1 with the governing body of another taxing
 unit in the county to perform duties relating to the
 assessment or collection of taxes.2 YOU ask whether        the
 governing   body of an independent      school district    may
 contract for the collection of taxes with the county in an
 instance in which the county assessor-collector     is also a
 member of the board of directors of the appraisal     district
 in which the school        district participates.    YOU   ask
.specifically    whether    the   doctrines   of   common   law



       1.   V.T.C.S. art. 4413(32c).

       2. In Attorney General Opinion JM-833       (1987), we
 concluded that insofar as subsection (b) of section 6.24 of
 the Tax Code permitted    the county commissioners   and the
 county assessor-collector   to contract duties reposed by
 section 14 of article VIII of the Texas Constitution in the
 constitutional  office of county assessor-collector,      the
 subsection   is unconstitutional.    Because your    question
 involves a fact situation in which a taxing unit is seeking
 to have the county perform   collection duties for it rather
 than a situation involving a county seeking to have a taxing
 unit perform collection   duties for the county, subsection
 (b) of section 6.24 is not relevant.     Instead, subsection
 (a) of section 6.24 is the provision that controls.



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Honorable Toby C. Wilkinson - Page 2     (JM-1157)




incompatibility and of constitutional    dual office holding
are violated   in such a situation.     See. e.a., Attorney
General Opinion JM-203 (1984). In addition, it is suggested
that section 6.036 of the Tax Code may be violated under the
facts you describe.   We conclude that neither the common law
doctrine of incompatibility    nor the dual office holding
prohibition is implicated in the factual situation that you
present.   In addition, section 6.036 of the Tax Code is not
violated.

     Section 40 of article XVI of the Texas Constitution
prohibits, except in certain specified instances, one person
from holding two offices of emolument.      In order for this
dual office holding prohibition       to be triggered,      the
positions involved must both be offices and each must be an
office of emolument.   For purposes of section 40 of article
XVI of the Texas       Constitution,   the term    l'emolument'l
signifies a pecuniary profit, gain, or advantage.    Irwin v.
State, 177 S.W.2d 970'(Tex. Crim. App. 1944). The office of
county tax assessor-collector is an office of emolument.
Attorney General Opinion JM-833 (1987). Appraisal      district
board members are unpaid. Tax Code § 6.03. The office of
appraisal district board member, then, is not an office of
emolument.    See.   a    Attorney   General opinions    MW-450
(1982); MW-81   (19%):' Therefore,    if a person who is an
officer that occupies an office of emolument is elected to         -,
serve as an appraisal   district board member, the constitu-
tional dual office holding prohibition      of section   40 of
article XVI is not triggered.

     The common law doctrine of incompatibility prevents one
person from holding two offices if the duties are inconsis-
tent or in conflict, or if one office is subordinate to the
other. Thomas v. Abernathv Countv Line IndeD. School Dist.,
290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted); &g&
v. Glen Rose IndeD. School Dist. No. 1, 50 S.W.Zd 375   (Tex.
Civ. App. - Waco 1932), rev'd on other arounds sub nom.
Pruitt v. Glen Rose Ind D     School Dist. No. 1, 84 S.W.Zd
1004 (Tex. 1935). The ed&trine      has been held to bar a
public employee from holding a public office that appoints,
supervises, and controls the employee.      See Ehlinaer v.
Clark, 8 S.W.Zd 666   (Tex. 1928); Attorney General Opinions
JM-862   (1988): JM-519   (1986): Attorney   General  Letter
Advisory No. 114 (1975).

     The common law rule would govern in this situation    and
prohibit a county tax assessor-collector from serving as an
appraisal district board member were it not for subsection
6.03(a) of the Tax Code.      Section 6.03 of the Tax Code
governs,  inter alia, the eligibility  of persons to serve as
members of the board of directors     of appraisal  districts.
Subsection (a) of section 6.03 provides in relevant part:


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    Honorable Toby C. Wilkinson - Page 3   (JM-1157)




-           An individual who is otherwise eligible to
            serve on the board is not ineligible because
            of membership  on the governing   body of a
            taxing unit or because the individual is an
            elected official.

    Subsection (a) of section 6.03 of the Tax Code constitutes a
    general law exception to the common law rule and, thereby,
    overrides it.3 Therefore, the common law rule of incompati-
    bility is not applicable in the factual situation that you
    describe.

         Finally, we understand you to ask whether any addition-
    al statutory provision  governing conflicts  of interest  is
    violated in the situation that you describe.  Section  6.036
    of the Tax Code was added by the 71st Legislature and pro-
    hibits certain individuals from entering into contracts with
    appraisal districts or taxing units under certain  specified
    conditions.  Acts 1989, 71st Leg., ch. 796, § 5 at 3592.4
    It provides:



          3. Section 5.001 of the   Civil Practice and   Remedies
    Code provides:

               The rule of decision in this state consists
          of those portions  of the common law of England
          that are not inconsistent with the constitution
          or the laws of this state, the constitution   of
          this state, and the laws of this state.

          4. Attorney General Opinion JW-1060 (1989) held that
    an attorney who had entered into a contract with a taxing
    unit to enforce the collection  of delinquent taxes was not
    barred from serving as a member of the board of directors of
    the appraisal    district    in which    that  taxing   unit
    participates.   That opinion   was    issued prior to    the
    effective date of section 6.036 of the Tax Code. As of the
    effective date of that section, that opinion is no longer
    controlling.  We note that subsections (b), (c), and (d) of
    section 49 of the bill enacting section 6.036 of the Tax
    Code provides the following:

           (b) The change in law made by Sections 5 and
        13 of this Act does not affect the validity of a
        contract executed before the effective   date of
        those sections.

            (c) The change in law made by Sections 4, 5,
         11, 12, and 13 of this Act does not affect the
                                          (Footnote Continued)



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Honorable Toby C. Wilkinson - Page 4    (JM-1157)




            (a) An individual is not eligible to be
        appointed to or to serve on the board of
        directors of an appraisal district    if the
        individual or a business entity in which the
        individual has a substantial   interest is a
        party to a contract with:

              (1)   the appraisal district; or

              (2)  a taxing unit that participates in
           the appraisal  district, if the contract
           relates to the performance of an activity
           governed by this title.

           (b) An appraisal district may not enter
        into a contract with a member of the board of
        directors of the appraisal district or with a
        business entity in which a member     of the
        board has a substantial interest.

            (c) A taxina unit mav not enter into a
        )
        cant ct e t'n
        1
        act'vi     ove
        of the board of directors of. an annraisal
        trl
        dis   'ct 'n                  unit   artici-
        1
        pates  or w'    a
        member   of the   board has a    substantial
        interest.

           (d) For purposes   of this section,  an
        individual has a substantial interest in a
        business entity if:

              (1) the combined ownership     of   the
           individual and the individual's spouse  is



(Footnote Continued)
     eligibility of a director of an appraisal district
     or an appraisal  review board member to complete
     the term being served on the effective date of
     those sections.

         (d) The change in law made by Sections 4 and 5
     of this Act does not affect the eligibility of an
     individual nominated or appointed to an appraisal
     district board of directors before the effective
     date of those sections to be appointed to or to
     serve for the term to which the individual     was
     nominated or appointed before the effective   date
     of those sections.



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Honorable Toby C. Wilkinson - Page 5        (JM-1157)




           at least 10 percent of the voting stock or
           shares of the business entity: or

              (2) the individual or the individual's
           spouse is a partner, limited partner,  or
           officer of the business entity.

            (e) In this section.    'business entitv'
        means a sole DroDrietorshiD.      Da*nershiD.
        firm. coNoration.   holdina comDanv.    ioint-
        stock COmDanv. receivershiD. trust. or other
        entitv recoanized bv law.

           (f) This section does not limit        the
        application of any other law, including the
        common law relating to conflicts of interest,
        to an appraisal district.  (Emphasis added.)

     In this instance, a county clearly does not fall within
the definition of "business entity," as set forth in subsec-
tion (e). Nor is the Interlocal Cooperation Act contract
permitted by subsection 6.24 of the Tax Code a contract
entered  into with the county assessor-collector      as an
individual, even in her official capacity.  It is a contract
entered into with the commissioners court. We conclude that
section 6.036 of the Tax Code is not applicable.    We have
found no other statutory provision, nor have you directed us
to one, that would prohibit the school district          from
entering into the contract that you describe. See Local
Gov't Code ch. 171 (regulating conflicts    of interest of
officers of local government).

                       SUMMARY

             The trustees of an independent    school
        district may enter into an Interlocal      Co-
        operation Act contract with the commissioners
        court of a county for the collection of taxes
        in an instance in which the county assessor-
        collector  is a member of the board         of
        directors of the appraisal district in which
        the independent school district participates.



                                 J /aiii;c
                                   Very truly yo



                                   JIM
                                        A
                                           MATTOX
                                                        r ,




                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General




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Honorable Toby C. Wilkinson - Page 6    (JM-1157)




JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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