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                                             The Attorney General of Texas
                                                                 February    23,    1982

    MARK WHITE
    Attorney General

                                            Honorable   Oscar H. Mauzy                            Opinion     No.MW-450
    Supreme   Court Buildinp
                                            Chairman
    P. 0. BOX 12546
    *ustim  TX. 78711. 2548
                                            Senate Committee on Jurisprudence                     ItI?:  Whether duties        of    chief
    512N75-2501                             Texas State Senate                                    tax    appraiser    conflict        with
    Telex 9101674-1367                      Austin,   Texas   78711                               duties     of    member of         state
    Telecopier 512i4750266                                                                        Property    Tax Board


    1607 Main St., Suite 1400
                                            Dear Senator     Mauzy:
    Oaltas. TX. 75201.4709
    21417424944                                    You ask whether the chief         appraiser    of an appraisal     district   may
                                            legally    serve on the State Property        Tax Board.      We understand     that you
                                            are specifically-concerned          about whether      either  article   XVI, section
    4824 Alberta       Ave.. Suite    160
    El Paso. TX.       79335-2793
                                            40    of   the    Texas    Constitution      or    the    common law      doctrine     of
    915/5X3-3464                            incompatibility       prevent    a person     from simultaneously        holding    both
                                            positions.      We'will   focusexclusively       eon ~these questions.

    1220 Oak       Ave., Suite       202
                                                  We first    look to article       XVI,    section  40.   That provision     states
    Houston.    TX. 77002.6966
    713650-0666
                                            in   pertinent       part that,         with     numerous    exceptions     which     are
                                            inapplicable     here:

    606 Broadway.        Suite 312                      No person shall hold or exercise  at the same time,
    Lubbock.     TX.    79401.3479                      more than one civil office  of emolument....
    606i747.5236

                                            The   key    words    in    construing         this   provision       are     "office"     and
    4309 N. Tenth.    Suite 6               "emolument."
    McAlten.    TX. 76501-1665
    5121662-4547
                                                   In the context    of article   XVI, section  40, the term "emolument"
                                            signifies   a pecuniary     profit, gain or advantage.       Irwin v. State,   177
    200 Main Plaza. Suite 400               S.W.2d 970 (Tex. Crim. App. 1944).          Section  5.01(i)      of the Property
    San Antonio.  TX. 78205.2797            Tax Code provides     that:
    512!225-4191

                                                         A member of the [State Property            Tax Board] may not
     An Equal Opportunltyl
                                                         receive   compensation      for his service      on the board
     Attirmative Action  Employer                        but is entitled        to reimbursement       for actual     and
                                                         necessary      expenses.     as provided      by legislative
                                                         appropriation,      incurred     while on travel     status   in
                                                         the performance      of official      duties.

                                            Because    a board     member receives     no   compensation,    but  is   only
                                            reimbursed   for certain  expenses  incurred   during the performance    of his
                                            official    duties,   we conclude   that   no "profit,      gain or advantage"
                                            inures   to him by virtue     of his position.      Accordingly,   he does not




                                                                            p.     1550
Honorable     Oscar   H. Mauzy - Page 22.         (Mw-450)




hold    an office     “of    emolument” within   the meaning of article    XVI,
section   40.     See. e.g.,   Attorney  General Opinions MW-81, MW-21 (1979);
compare Willis      v. Potts,    377 S.W.Zd 622 (Tex. 1964).

        We therefore    conclude  that article  XVI. section   40 does not                 bar    a
chief    appraiser   from serving   on the State Property    Tax Board.

       We next       consider    the common law doctrine                of   incompatibility.
There is a dearth ~of Texas cases dealinn                  with this doctrine.             In the
few cases       that have been decided,            see,    e.g.,      Ehlinger    v. Clark,       8
S.W.2d      666   (Tex.     1928);    Pruitt    v.      Glen     Rose    Independent       School
District      Number 1, 84 S.W.2d 1004 (Tex.                 1935);    Thomas v. Abernathy
County Line Independent             School   District,       290 S.W. 152 (Tex.            Cosun’n
APP.     1927),    the courts      have merely      concluded,        without    applying      any
particular      test,   that based on the facts           before    them, the positions         in
question      either    were or were not incompatible.                     This approach       has
resulted      in a lack of clear         guidance      as to how to determine            whether
particular      positions     are in fact incompatible.

       Cases from other jurisdictions      are more helpful.       In particular,
Haskins v. Harrington.       516 P.2d 1171 (Wyo. 1973),     which was relied         on
in Letter    Advisory No. 114 (1975),    contains  a useful    discussion      of the
doctrine    of incompatibility.      Among other  authorities,      Haskins      cited
volume 63, section    74 of American Jurisprudence      2d Public     Officers      and
Employees:

              One of the most important             tests    as to whether
              offices    are incompatible    is found in the principle
              that    the incompatibility       is    recognized      whenever
              one is subordinate        to the other       in some of its
              important     and principal      duties,     and subject       in
              some degree     to the other’s      revisory     power.     Thus,
              two offices     are incompatible        where the incumbent
              of the one has the power of appointment                   to the
              other office     or the power to remove its incumbent,
              even though the contingency         on which the power may
              be exercised     is remote.

The court also quoted from O’Connor v. Calandrillo,  285 A.2d                           275.     277
(N.J. Super. 1971). affirmed, 296 A.2d 326 (N.J. Super. 1972):

              . ..the   common law doctrine          of incompatibility          has
              developed     as a matter of public           policy    in order to
              insure that there be the appearance                 as well as the
              actuality      of impartiality        and undivided         loyalty.
              [citation     omitted].      Incompatibility         exists    ‘where
              in the established         governmental        scheme one office
              is    subordinate       to   another,      or    subject      to   its
              supervision       or    control,      or    the     duties     clash,
              inviting     the incumbent to prefer           one obligation        to
              another.‘...       If the duties        of the two offices         are




                                           p.   1551
                                                 %.- *
Honorable     Oscar    H. Mauzy - Page 3 (MW-450)




              such that when 'placed          in one person         they might
              disserve       the      public    interests,       or    if    the
              respective      offices    might or will     conflict     even on
              rare occasions,         it is sufficient       to declare     them
              legally    incompatible.'       [citation     omitted].

A shorthand   formulation           of   these      principles     can    be   found    in   Letter
Advisory  No. 62 (1973):

              Offices    are legally    incompatible   when the faithful
              and independent      exercise    of one would necessarily
              interfere     with     or    control   the   faithful    and
              independent     exercise    of the other.      (Emphasis in
              original).

See also     Letter    Advisory     No. 86 (1974).

       Sections     6.01 et seq.   of   the Property      Tax Code provide       for
appraisal     districts.   Each district      is governed    by a board of five
directors.       96.03.  The chief    appraiser   of an appraisal      district    is
appointed     by, and serves   at the pleasure      of,   the district     board of
directors.      56.05.

       The duties       of    chief     appraisers       are   spelled      out    in various
sections     scattered      throughout       the Property       Tax Code.         Among other
things,    chief   appraisers       prepare    a proposed     budget for the operations
of their     appraisal      district     for each succeeding          year.      86.06.      They
perform various       administrative        duties    in connection      with applications
for tax exemptions.            §11.44.     They prepare       appraisal      records    listing
all    taxable    property       in their      district      and its     appraised        value.
525.01.     They also prepare and certify              to the assessor       for each taxing
unit participating         in their     district     that part of the appraisal              roll
for the district         that lists       property      which is taxable        by the unit.
526.01.

        The duties      and responsibilities             of the State Property            Tax Board
 are    numerous,     but      may be generally             sumnisrized       as' ~follows:         (1)
 promulgate     rules establishing          minimum standards           for the administration
 and operation         of     appraisal       district        offices      and uniform          record
 systems,     Property       Tax Code sections               5.03(a),      5.07,     5.07(c);       (2)
 conduct    a valuation         study    for     school     district      financing,       Cduc~ricn
 Code section      11.80;     (3) publish      general      and special       appraisal     manuals,
 a newsletter,       and pamphlets         discussing        taxpayers'      remedies,       Property
 Tax Code sections          5.05(a),     5.06;     (4) apportion        the appraised        value ot
 railroad    rolling      stock and appraise            the intangible         values    of certain
 transportation       businesses,        Property       Tax Code sections            24.37,     24.01;
 see also     section       31.09;    and (5)        develop       educational      materials       and
 training    programs:      conduct,     sponsor,      or approve courses           of instruction
 and training;        and provide         technical        assistance,       Property       Tax Code
 sections    5.05(b),      5.04(a).     5.08(a).      5.08(b).
Honorable    Oscar    H. Mauzy - Page 4 (l+fW-450)




       Our     analysis     of     the  duties        and     responsibilities        of    chief
appraisers      and members of the State              Property     Tax Board convinces          us
that under the tests          set forth     above,     these positions         are not legally
incompatible.         Chief    appraisers       are    subject       to the direction          and
control     of    their    appraisal     district’s         board    of directors        and the
appraisal      review board,       not the Property         Tax Board.       The Property      Tax
Board has no authority             to appoint       or remove chief          appraisers.       The
duties    of the two positions         do not clash,         in our opinion,        and are not
such that “when placed            in one person         they might disserve          the public
interests.”         Haskins    V. Harrington.          supra.        Put another       way,    the
faithful       and     independent      exercise         of    one     position      would     not
necessarily       Interfere     with or control            the faithful        and independent
exercise     of the other.       -See  Letter    Advisory       Nos.   86  (1974);   62 (1973).

       Our conclusion       is not altered     by the fact that section          5.03(a)     of
the Property       Tax Code directs       the Property       Tax Board to adopt rules
establishing      minimum standards      for the administration          and operation       of
appraisal     districts,     and that because      of this a chief       appraiser     who is
a member of the board will           participate       ln developing      standards      which
he will     then follow      when functioning       as chief     appraiser.      First,    the
board of directors        of the appraisal      district,      not the chief     appraiser,
is charged with the responsibility               of implementing       rules    promulgated
by the Property        Tax Board.    Second.    as we have noted,        chief   appraisers
are answerable        to the appraisal      district      board of directors,        not the
Property     Tax Board.       Third,   the Property        Tax Board has no power to
enforce    its own rules;       on the contrary,        the power to force       compliance
with the rules of the Property             Tax Board lies        in the hands of taxing
units,    not the board itself.         Property     Tax Code 943.01.

        We therefore    conclude  that the positions     of chief   appraiser  of an
appraisal     district    and member of the State Property        Tax Board are not
legally    incompatible     under the present  statutory    scheme.

                                         SUMMARY

                    Article      XVI,       section     40    of    the    Texas
              Constitution      does not prohibit          a chief    appraiser
              of a” appraisal       district      from serving    on the State
              Property      Tax    Board.        The   positions      of   chief
              appraiser     and member of the Property           Tax Board are
              not legally     incompatible.




                                                         MARK        WHITE
                                                         Attorney   General of     Texas

JOHN W. FAINTER, JR.
First Assistant Attorney           General




                                             D.   1553
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    Honorable   Oscar   H. Mauzy - Page 5        (Mw-450)
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    RICHARD E. GRAY III
    Executive Assistant     Attorney   General

    Prepared    by Jon Bible
    Assistant    Attorney  General

    APPROVED:
    OPINION COMMITTEE

    Susan L. Garrison,     Chairman
    Jon Bible
    Rick Gilpin
    Jim Moellinger




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