                                  The Attorney          General of Texas
 JIM MATTOX                                          June 13, 1984
 Attorney General



 Supreme Court Building         Mr. Ron Patterson                          Opinion No. JM- 166
 P. 0. Box 12546
 Austin, TX. 76711. 2546
                                Executive Director
 512/475-2501                   State Property Tax Board                   Re:   Selection process for
 Telex 910/674-1367             9501 North Ill-35                          members of an      appraisal
 Telecopier   51214750266       Austin, Texas   78761                      district board of directors
                                                                           under section 6.03 of the
 714 Jackson, Suite 700                                                    Tax Code
 Dallas. TX. 75202.4506
 21417424944                    Dear   Mr. Patterson:

                                     You ask us a series of questions regarding section 6.03 of the
 4624 Alberta Ave., Suite 160
 El Paso, TX. 79905.2793
                                Tax Code which governs the method of selection for members of an
 913533.3464                    appraisal district board of directors. We will answer each of your
                                questions in turn.

)401    Texas, Suite 700               Section 6.03 of the Tax Code contains the following:
       Mon. TX. 77002.3111
 I 13/223-5666
                                            86.03.   Board of Directors

 606 Broadway, Suite 312                      (a) The appraisal district is governed by a
 Lubbock, TX. 794013479                    board of five directors. To be eligible to serve
 606/747-5238
                                           on the board of directors, au individual must be a
                                           resident of the district and must have resided in
 4309 N. Tenth, Suite B                    the district for at least two years immediately
 McAllen, TX. 76601-1665                   preceding the date he takes the office.         An
 512/682-4547
                                           individual who is otherwise eligible to serve on
                                           the board is not ineligible because of membership
 200 Main Plaza, Suite 400                 on the governing body of a taxing unit. However,
 San Antonio. TX. 762052797                not more than one employee of a taxing unit may
 512/225-4191                              serve on the board at one time. If more than one
                                           employee is appointed to the board, the employee
 An Equal Opportunity/
                                           receiving the highest vote total serves, and the
 Affirmative Action Employer               taxing unit that nominated each of the other
                                           employees appointed to the board shall name a
                                           replacement who is not an employee of a taxing
                                           unit.

                                              (b) Members of the board of directors serve
                                           two-year terms beginning on January 1 of
                                           even-numbered years.

                                              (c) Members of the board of directors are
                                           appointed by vote of the governing bodies of the



                                                            p. 729
Mr. Ron Patterson - Page 2   (JM-166)




          incorporated cities and towns and the school
          districts that participate in the district and of
          the county. A governing body may cast all its
          votes for one candidate or distribute them among
          candidates for any "umber of directorships.

             (d) The voting entitlement of a taxing unit
          that is entitled to vote for directors is
          determined by dividing the total dollar amount of
          property taxes imposed in the district by the
          taxing unit for the preceding tax year by the sum
          of the total dollar amount of property taxes
          imposed in the district for that year by each
          taxing unit that is entitled to vote, by
          multiplying the quotient by 1,000, and by rounding
          the product to the nearest whole number. That
          number   is   multiplied    by   the   number   of
          directorships to be filled.       A taxing unit
          participating in two or more districts is entitled
          to vote in each district in which it participates,
          but only the taxes imposed in a district are used
          to calculate voting entitlement in that district.

             (e) The county clerk shall calculate the
          number of votes to which each taxing unit is
          entitled and shall deliver written notice to the
          presiding officer of the governing body of each
          unit of its voting entitlement before October 1 of
          each odd-numbered year.

             (f) Each taxing unit that is entitled to vote
          -Y   nominate by resolution adopted by its
          governing body one candidate for each position to
          be filled on the board of directors.           The
          presiding officer of the governing body of the
          unit shall submit the names of the unit's nominees
          to the county clerk before October 15. Before
          October 30, the county clerk shall prepare a
          ballot, listi"g the candidates alphabetically
          according to the first letter in each candidate's
          surname, and shall deliver a copy of the ballot to
          the presiding officer of the governing body of
          each taxing unit that is entitled to vote.

             (g) The governing body of each taxing unit
          entitled to vote shall determine its vote by
          resolution and submit it to the county clerk
          before November 15. The county clerk shall count
          the votes, declare the five candidates who receive
          the largest cumulative vote totals elected, and
          submit the results before .December 1 to the
                                                   b

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    Mr.   Ron Patterson - Page 3   (JM-166)




                governing body of each taxing unit in the district
                and to the candidates. The county clerk shall
                resolve a tie vote by any method of chance.

                  (h) If a vacancy occurs on the board of
               directors, each taxing unit that is entitled to
               vote by this section may nominate by resolution
               adopted by its governing body a candidate to fill
               the vacancy. The unit shall submit the name of
               its nominee to the county clerk within 10 days
               after notification from the board of directors of
               the existence of the vacancy, and the county clerk
               shall prepare and deliver to the board of
               directors within the next five days a list of the
               nominees. The board of directors shall elect by
               majority vote of its members one of the nominees
               to fill the vacancy.

         You ask, first, "[ils the selection process contained in section
    6.03 of the Property Tax Code governed by the Texas Election Code?"
    We conclude that it is not. By its very terms, subsection (c) of
    section 6.03 of the Tax Code provides that "[mlembers of the board of
    directors are appointed by vote of the governing bodies . . . ."
    (Emphasis added). See also Tax Code 16.031. Article 1.01 of the
    Election Code, on the other hand, provides that "the provisions of
    this code shall apply to all elections and primaries held in this
    [sltate . . . .u (Emphasis added). A court of appeals has referred
    to an appraisal district board of directors as "a board consisting of
    appointees" and declared that equal protection of the law is not
    denied where such board members do not represent equal numbers of
    people. Colony Municipal Utility District No. 1 of Denton County v.
    Appraisal District of Denton County. 626 S.W.2d 930, 932 (Tex. Civ.
    APP. - Fort Worth 1982, writ ref'd n.r.e.). See also Walling v. North
    Central Texas Municipal Water Authority, 359 S.W.2d 546 (Tex. Civ.
    APP. - Eastland 1962, writ ref'd n.r.e.) (method of selecting
    governing body of conservation and reclamation district substantially
    similar to that set forth in section 6.03 of the Tax Code held not to
    be a denial of a republican form of government nor a violation of the
    rule set forth in Baker v. Carr, 369 U.S. 186 (1962)). Because the
    members of the boards of directors for appraisal districts are
    appointed rather than elected, the procedure for selecting the members
    is not governed by the Election Code.

           Second, you ask the following:

                Are any or all of the following dates included in
                section 6.03(f) and (g) mandatory deadlines? If
                any of these dates are not mandatory, what should
-               the county clerk consider the deadline for
                performance to be?



                                    p. 731
Mr.   Ron Patterson - Page 4   (m-166)




               (a) Before October 15 -- the date for the unit
            to have submitted the names of the unit's nominees
            to the county clerk.

               (b) Before October 30 -- the date for the
            coun<y clerk to have prepared a ballot and
            delivered a copy of the ballot to the presiding
            officer of [the governing body of] each voting
            taxing unit.

               (c) Before November 15 -- the date for the
            taxing [unit] to have voted by resolution and
            submitted it to the county clerk.

We conclude that the prescribed dates are directory and not mandatory.
The determination of the particular deadline involves a matter of
substantial compliance.

     Generally, statutory provisions which regulate the duty of public
officers and specify the time for performance of such duties are
directory unless the statute forbids the exercise of such Dower after
that time. Markowsky v. Newman, 136 S.W.2d 808 (Tex. 1940). Federal
Crude Oil Company v. Yount-Lee Oil Company, 52 S.W.2d 56 (Tex. 1932).
As the Texas Supreme Court declared in Cbisholm v. Bewley Mills, 287
S.W.2d 943, 945 (Tex. 1956):

               There is no absolute test by which it may be
            determined whether a statutory provision is
            mandatory or directory. The fundamental rule is
            to ascertain and give effect to the legislative
            intent. Although the word 'shall' is generally
            construed to be mandatory, it may be and
            freauentlv is held to be merely directorv. In




           essence of the thing to be done, but which are
           included for the purpose of promoting the proper,
           orderly and prompt conduct of business, are not
           generally regarded as mandatory. If the statute
           directs, authorizes or cormnandsan act to be done
           within a certain time, the absence of words
           restraining the doing thereof afterwards or
           stating the consequences of failure to act within
           the time specified, may be considered as a
           circumstance tending to support a directory
           construction. (Emphasis added).



                                  p. 732
    Mr. Ron Patterson - Page 5   (JM-166)


h




         It is clear that the legislature intended that each taxing unit
    entitled to appoint members of the board of directors of an appraisal
    district have a voice in the selection of the appraisal district board
    of directors. See Colony Municipal Utility District No. 1 of Denton
    County v. AppraGl   District of Denton County, supra. If we were to
    conclude that the appointment procedures were mandatorv.  _ we would
    doubtless promote the proper, -orderly and prompt conduct of the
    process. However, such a construction could have the effect of
    denying the opportunity to be represented to those appointing taxing
    units which fail to comply timely with the provisions. Because we
    conclude that such a result is contrary to the manifest intent of the
    Legislature when it established the complex and elaborate appointing
    procedure in section 6.03, we hold that the provisions are directory
    and not mandatory.

        Third, you ask

             What constitutes a valid subqission of the names
             of a unit's nominees under section 6.03(f) and a
             valid submission of a unit's vote under section
             6.03(g)?

    You inform us that several taxing units merely called in their votes
    by telephone. Section 6.03(f) specifically provides that

             [e]ach taxing unit that is entitled to vote may
             nominate by resolution adopted by its govern=
             body one candidate for each position to be filled
             on the board of directors. The presiding officer
             of the governing body of the unit shall submit the
             names of the unit's nominees to the county clerk
             before October 15. (Emphasis added).

         Section 6.03(g) declares that

             [tlhe governing body of each taxing unit entitled
             to vote shall determine its vote by resolution and
             submit it to the county clerk before November 15.
             (Emphasis added).

    In Civil Service Coam~issionof the City of Texarkana v. Carter, 344
    S.W.2d 225, 227 (Tex. Civ. App. - Texarkana 1960, no writ), the court
    declared that

             it is a fundamental rule of construction that when
             an affirmative statute which is introductive of a
             new law, such as this [alct, directs a thing to be
             done in a certain manner and the procedure for
             doing it, the statutory procedure must be followed
             exclusively.




                                    p. 733
                                                                         -


Mr. Ron Patterson - Page 6   (JM-166)




In this instance, we believe the statute contemplates that a written
communication regarding the votes be provided the clerk. Furnishing a
copy of the resolutions would, in our opinion, best effectuate the
intent of the statute.

     Fourth, you ask:

          Does the county clerk have any authority or duty
          to investigate or act upon the qualifications of
          the nominees or candidates?

Generally, a public officer has no authority to perform an act not
authorized or required of him by law. Duncan v. State, 67 S.W. 903
(Tex. Civ. App. 1902, uo writ).

          All public offices and officers are creatures of
          law. The powers and duties of public officers are
          defined and limite$ by law. By being defined and
          limited by law, we mean the act of a public
          officer must be expressly authorized by law, or
          implied therefrom.

Fort Worth Cavalry Club v. Sheppard, 83 S.W.2d 660, 663 (Tex. 1935).
This office has repeatedly held that a county clerk acts in a
ministerial capacity in receiving certificates of nomination and in
placing names of nominees on the general election ballot. Where the
certificate is regular on its face, the county clerk has neither the
duty nor authority officially to determine questions of regularity or
irregularity, a process which would depend upon an ascertsinment and
determination of facts extraneous to the certificate. Attorney
General Opinions WW-1359 (1962); WW-908 (1960); V-1529 (1952). See
also Attorney General Opinions H-1261 (county clerk must file proposed
plat of a new subdivision which is clearly not defective on its face);
H-1155 (1978) (clerk must file pleadings even though not certified);
H-426 (1974) (clerk may reject instrument clearly defective on its
face); C-695 (1966) (clerk must file deed referring to plat not
recorded pursuant to article 974a. V.T.C.S.). Neither the Tax Code
nor any other statute confers the authority nor imposes a duty upon
the county clerk to determine whether board nominees comply with the
qualifications for office set forth in section 6.03(g). Accordingly,
we conclude that the county clerk may not so officially act.

     Finally, you ask:

         May a unit cast its voting entitlement for a
         person other than one nominated and named on the
         ballot? If so, should that vote be counted by the
         county clerk in declaring the results of the
         election?



                             p. 734
    Mr. Ron Patterson - Page 7   (JM-166)



P




    For the reasons set forth in answer to your third and fourth
    questions, we conclude that a taxing unit may not cast its voting
    entitlement for a person other than one nominated and named on the
    ballot and that a county clerk is without authority to include any
    such vote in declaring the results of the election.

                                 SUMMARY

                 The selection process for appointing members of
              the appraisal districts' boards of directors set
              forth in section 6.03 of the Tax Code is not
              governed by the Texas Election Code. The dates
              set forth in subsections 6.03(f) and (g) are
              directory and not mandatory. A written communica-
              tion regarding the votes of the taxing unit must
              be submitted to the county clerk. The county
              clerk has neither the duty nor the authority to
              determine the qualifications of nominees.        A
              taxing unit nay not cast its voting entitlement
              for a person other than one nominated and named on
              the ballot. The county clerk is without authority
              to include any such vote in declaring the results
              of the election.




                                            d-/k
                                            Very   ruly your
                                                    -


                                            JIM     MATTOX
                                            Attorney General of Texas

    TOM GREEN
    First Assistant.Attorney General

    DAVID R. RICHARDS
    Executive Assistant Attorney General

    Prepared by Jim Moellinger
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Rick Gilpin, Chairman
    Colin Carl
    Susan Garrison
    Jim Moellinger
    Nancy Sutton
-




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