                                                                                                                   .




                                The Attorney               General of Texas
                                                        June 6,   1986
JIM MAl-fOX
Attorney General


Supreme Cowl Suildlng           Hr. Sam ii. Smith                             Opinion Ac. JM-499
P. 0. Box 12548                 Executive Director
Austin, TX. 75711.2549
512l4752501
                                Board of Tax Profenaiional                    Rr: Play one individual,      cons.ister.tly
Telex 9lWS74.1357                  Examiners                                  vith article     XVI, section   40, of the
Tdecooier 512147M255            P. 0. Box 15920                               Texas Constitution,       serve as chief
                                Austin. Texas     78’161                       appraiser in three different        apprai-
                                                                               sal   districts     and    simultaneously
714 Jackson, Suits 700
Dsllsr. TX. 752024505                                                         .as tax assessor-collector         in three
2lu742-8944                                                                    school districts    and a vater control
                                                                               and improvement district
4524 Alberta Ave.. Suite 150
                                Dear   Mr.   Smith:
El Paso. TX. 799C52793
915633.3454
                                       YOU InfOtUi 11s that      one individual       has  been hired     as chief
                                 appraiser  by three boards of directors           of appraisal   districts.      Be
    11 Texas. Suite 700          serves as chief     appraiser    of Hudspeth County Appraisal       District,    of
   ,us,on. TX. 77002.3111        Presidio County Afpraisal      District,    and of Jeff Davis County Appraisal
 7lY223.3886
                                 District.    He   also   serves      as Tax Assessor-Collector       for    Anthony
                                 Independent School District,        San Elizario   Independent School District,
 806 Broadway. Suite 312         and Socorro    Independent     School District,       and for the For: Haxcck
 Lubbock. TX. 794014479          Water Control and l~mprovement District.
 5Q5i747.5235
                                       Tou   ask vhe.:her this      individual    is prevented     by article       XVI,
 4309 N. Tenth. Suite S          section   40 of the Texas Constitution        from holding some or all of these
 McAllen. TX. 78501-1695         seven positions.       Article   XVI, section     40 of the Texas Constitution
 51Y682-4547                     prohibits     one pe~‘son from holding or exercising         more than one civil
                                 office    of emolument at the same time.            Thus, we need to cons:Zer
 2Qo Main Plrra. Suite 4M)       whether any of the positions           held by this Individual         constitutes    a
 Ssn Antonio. TX. 782052797      “civil    office   of emolument” within this provision.               This question
 5121225.4191                    turns on the power and responsibility            which the lav has assigned to
                                 each position.      Considerations     as to whether    one individual     has encugh
                                  time to perform al.1 such responsibilities          are not  relevant     to article
  An Equal OppoRuni!yl
  Affirmative Actton Employef
                                  XVI, section 40.

                                         A chief  appraiser     and a tax assessor-collector    are appointed
                                  under the taxing provisions       enacted by the legislature     pursuant to
                                  article   VIII,  section    18 of the Texas Constitution.    This const itu-
                                  tional provision    s:tetes in part:

                                                      (b)   A single  appraisal within each county of
                                                all    property subject to ad valorem taxation by the




                                                                         p.   2289
Xr.    Sam II. Smith - Page 2 (Jl4-499)
                                                                                             .




              county and all other taxing        units    located   therein
              shall be provided by general       law.    . . .

                  .   .   .   .

                  (d) The Lcgisaature    shall prescribe by general
              lav    the methods,     timing,   and administrative
              process for implementing the requirements of this
              section.

 Tex. Const.   art. VIII,    5I.S. The quoted            provisions   were added to
 article VIII,   section  16, by amendment in            1980.   -See H.J.R. No. 98,
 91, Acts 1979, 66th Leg.. 8.t 3229.

        The Property Tax Code. codified            as Title       I of the Tax Code,
 contains     the statutes   vhiclr implement article        VIII, section 18, of the
 Texas Constitution.          An appraisal    district       Is established      in each
 county     and    given   respons,lbility    for    appraising        property   in the
 district     of each taxing unit      that imposes ad valorem taxes on property
 within     the district.        Tax Code 56.01.          “Taxing unit” includes         a
 county,     a city,    a school district,     and a district         created under the
 Water Code.         Tax Code 51.04(12).     The appraisal        district    is governed
 by a board of five dirc:c,tors.             Tax Code 16.03(s).             The board of
  directors     is required to establish      an appraisal       office    and to appoint
  as chief administrator        of the appraisal      office    a chief appraiser      who
  serves at the pleasure of the board.            Tax Code 56.05.

          Achief appraiser has numerous ministerial          functions necessary to
  performing    the district’!;    duty to appraise property.         See. e.g.,    Tax
  Code $11.44, 125.01.        See
                              --- also  Attorney   General   Opinion  MW-450  (1982).
  The chief appraiser submits a proposed budget to the district              board of
  directors,    subject to the: board’s      power to amend it and give it final
  approval.     Tax Code §6.01j,     Re may employ and compensate personnel as
  provided in the budget.         Tax Code 16.05(d).     Attorney    General Opinion
  JN-72 (1983) determined that the chief              appraiser    was an “officer”
  within the nepotism statute,         article   5996a. V.T.C.S..     because he had
   authority   to employ perwunel.        This opinion did not determine whether
   the chief appraiser was a.n officer         under article    XVI, section     40. of
   the Texas Constitution.          See also Attorney General Opinion W-450
   (1982).    The chief apprs.iser may delegate authority to his employees.
   Tax Code 56.05(e).

           He has some respowibility      to determine a taxpayer’s  right         to tax
      exemptions.  Section Il.45 of     the Tax Code provides in part:

                    (a)  The    chief   appraiser     shall   determine
                separately eas:h applicant’s    right to an exemption.
                After consider-ing the application     and all relevant




                                             p. 2290
    * .   nr.     Sam 11. Smith       - Peg.        3       (*RI-499)
,




                          information, the chief                     appraiser      shall,     as the law
                          and facts warrant:

                                 (1)   approve                 the    application        and allow     the
                              exemption;

                                      (2)     modify the exemption applied                       for   and
                               allow        the exemnt.lon as modified;

                                  (3)    disapp::ove the application                          and request
                               additional     informatioo from the                           applicant  In
                               support of the claim: or

                                      (4)         deny the      application.



                                (c)         The     chief      appraiser         shall   determine     the
                           validity    of each application   for exemption filed
                           with him before he submits the appraisal records
                           for    review   and determination     of protests    as
                           provided by Chspc:e:r 41 of this code.

                       He has similar      authority  to determine whether individuals        are
                entitled   to have property ;lppraised according to the special        appraisal
                provisions    codified    in ch.,pter 23 of the Tax Code.       See, e.g.,    Tax
                Code     523.44     (agricultural    use   designation   .of    land);     523.57
                (agricultural     land); 523.79 (timber land); 523.85 (recreational,        park,
                and scenic     land).    he has #authority to “establish    procedures   for the
                equitable    and uniform appraisal of inventory for taxation.”          Tax Code
                523.12.

                       Chapter 41 of the T,ax Code provides               that the appraisal       review
                board   vi11   review the chief appraiser’s          records acd determine taxpayer
                protests.      See.    e.g.,    Tax Code 5941.01,      41.41.     The appraisal    review
                board consists       of three wmbers cppointed for two year terms by the
                appraisal     district       board of directors.       Tax Code 56.41.       Members of
                the district      board may not serve on the appraisal revies board.                   The
                beard examines the appraisal             records     to determine vhether        (1)   the
                appraisals      are substantially      uniform;     (2) an exemption is improperly
                granted;     (3) land is improperly granted a special                appraisal;    or (4)
                 the records      do not conform to the requirements of lav in any ocher
                 respect.      Tax Code 541.01.          A   taxing     unit ray challenge        various
                 aspects of the appraisal before the appraisal                 review board.    Tax Code
                 g41.03.     The chief appraiser        Is required to make the appraisals             and
                 other corrections          ordered by the appraisal          reviev board.     Tax Code
                 541.08.




                                                                        p.   2291
Mr. Sam A. Smith - Psgr         5   (~14-499)




      Property owners may protest           to the appraisal        reviev board any
determination      of the chief     ,spprriser     vhich  adverse!y     affects    then.
including    denisl of an exemption or determirwion               that land does not
qualify   for special appraisal       as land designated      for agricultural       use,
agricultural     land, or timber land.           Tax Code 541.41.       See Brooks v.
Bachus, 661 S.W.Zd 288 (Tex. App. - Eastland 1983, writ rcf’d n.r.e.).
The chief     appraiser  represents      the appraisal     office     at each protest
hearing.     Tax Code 141.45(c).        If   the   board finds    that   the   appraisal
records are incorrect      ic sow respect         raised by the protest,        it makes
 the necessary changes in tht: records.            Tax Code 141.L7.

       Based on this examinrtion             of    the   chief   appraiser’s      statutory
 authority,     ve conclude that he is not an officer                vlthin article      XVVI,
 section    40 of the Texas Constitution.               The determining factor          which
 distinguishes      a public      ofiicer     from     an employee is “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 contrcl        of others.”         Aldine Independent         School
 District    v. Standley, 280 j.W.Zd 578, 583 (Tex. 1955); see also Green
 v. Stevart,     516 S.W.2d 133 (Tex. 1974); Dunbar v. graxorla County=
 S.W.Zd ‘738 (Tex. Civ. App. - Galveston 1949. vrit raf’d);                        but see,
 Pruitt v. Glen Rose Independent School District.                  86 S.W.td 1004 (Tex.
  1935) effectively      overruled by Green v. Stevart, supra.                 Some of his
 responsibilities       derive d:lrectly       from statute      and not by delegation
  from the board of d1rector.s.           Re exercises      some initial     discretion     in
  tk,e area of tax exemptlow           end special       valuations.      Nonetheless,      he
  exercises    his appraisal     functions      subject to reviev and correction            by
  the appraisal      reviev board,        and he serves at the pleasure               of the
  appraisal    board of direct’,%.         The appraisal functions conferred upon
  him are not exercised       “la,cgely independent of the control              of others.”
  Aldine Inxpendent       School District        v. Standley, w.

          The chief appraiser does have authority to hire employees,                    vithin
  the   limits of the budget imposed by the board of directors.                       For this
  reason,     he is an “of f%:er” vithln            the Nepotism Act,           art.    5996a.
  V.T.C.S. ; Attorney        General     Opinion     J?l-72 (1983).           The statutory
  definition     of “officer”    g:ven in the Nepotism Act is not necessarily
  identical     with the definitdon        of officer      applicable      to article       XVI,
  section     40 of the Texas Constitution.             See Attorney        General    Opinion
  JM-72 (1963);       Letters    Mvisory      Ros.     156, 152 (1978).             The chief
  appraiser needs to hire G:mployees to carry out his primary function of
  apprti,sing     property,   vhl,ch is exercised         subject    to the control           and
   supervision     of others.     Although    he has some independence in hiring
   decisions,    this paver is incidental         to and subordinate to his primary
   role    as agent and employee of             the appraisal         district       board of
   directors.      The chief    zppraiser     does not,        in our opinion,         hold an
   office   within article    XVI, section &O of the Texas Constitution.                    This
   provision    therefore does not prohibit one person from serving as chief
   appraiser of three different         appraisal     districts.




                                                p. 2292
                                                8,. I
nr.     Sam R.   Smith   -   Page   5     (JM-499)




        We next look    to thd: responsibilities               of the tax assassot-
 collector  of a school   distr,ict and of a water             control and improvement
 district:

          The Tu    Coda defines         “asses8or”     as

                 the officer or employee responsible    for assessing
                 property taxes as provided by Chaptcr 2b of this
                 code for a taxi>p unit     by whatever   title he Is
                 designated.   (Eml)hasis added).

 Tax Code 11.04(14).

           “Collector”       is defiwi      as

                 the officer  or employee responsible  for collecting
                 property taxes for a taxing unit by whatever title
                 he is designated.   (Emphasis added).

  Tax Code 51.04(15).

             The Tax Code direct);       US to look to the lav creating         a school
      district    or a water distr:.ct    to determine vho shall assess and collect
      taxes    for it.     Tax Code! 16.2?(a).        The board of trustees         of an
      independent school distrlc:t       may appoint aI: assessor-collector      of taxes
      for the district,       for a term not to exceed three (3) years.              Educ .
      Code 123.93(a).       See alsc, Tax Code 1$6.22(c);      6.23(a)(3)   (taxing unit
      other than county or home! rule city may require the county to assess
      and collect      taxes for t’w district).         The board of directors        of a
      water control and imprownent district            may appoint one person to the
       off ice of tax assessor-collector,       or it may order an election        to fill
       that office.       Water Code: 051.085.        See also Tax Code I§6.:Zic),
       6.23(a)(3)    (governing body of a water control        and assessment district
       may require county      to as:,ess and collect    its taxes).

              Chapter 2b of the Tax Code sets out the tax assessor-collector’s
       assessment duties.        The iwsessor-collector    receives the appraisal    roll
       from the chief appraise!:.,       and determines    the total eppraised     value,
       total    assessed value, ar.d total taxable value of property         taxable by
       the taxing unit.        Tax Code 5526.01, 26.04.       After the governing body
       adopts     the tax rate fcr       the current    tax year,   the tax assessor-
       collector     is to calculate      the tax imposed on each property        on the
       appraisal     roll   according   to the formulas supplied by statute.           Tax
       Code $26.09(a).        See al% Tax Code 1526.10-26.14.         He enters in the
       appraisal     roll the amount of tax determined according to statute            and
        submits it to the governin?          body of the appraisal     unit.   Tax Code
        126.09(e).      The appraisal   roll vith amounts of tax entered becomes the
        tax roll      after   it   ts approved by the governing body.          Id.     The
        governing body, on motion of the assessor or of a property owner, may




                                                   p.   2293
Mr. su    R. Smith - Paga 6              (Jn-499)




order    changes     in   the    tax    roll  to correct   errors   Ia the mathematical
computation        of the tax.         Tax Code 126.15(c).

      Chapter    31 of the Ta:r Code governs tax collections.          The tax
assessor    malls out tax bil’ls     vhich includa   information   set out by
statute.      Tax Cddc 431.01,      He may issue certificates     showing the
amount of delinquent      taxes, penalties , and interest due on a property
according     to the taxing un!.t.a records,  Tax Code 531.08(s).     He is to
file   reports accounting for his collections      to the governing body and
remit taxes to its depositc’ry.       Tax Code 131.10.

        These provisions    give the tax assessor-collector        duties that are
 clerical    and ministerial.       In Aldine Independent School District          v.
 Standley,    the court considlzred     vhether the assessor-collector       of taxes
 appointed     by a school board was a public officer.              280 S.W.2d 578
 (Tex. 1955).     The court    described    the assessor-collector     as follows:

              He is but an a;ient or employee of the Board to
              discharge  the clerical  duties necessary to carry
              out the school  Eoard’s powers of taxation.

  280 S.V.Zd at 583.

        This characterization     also applies    to the assessor-collector      of
  taxes appointed by a school district         or a Water control   and improve-
  ment district.    The Tax &de gives the tax assessor-collector          ministe-
  rial duties which may require        a certain   degree of skill,    but do not
  vest in him any sovereigil     function    of the government to be exercised
  largely   independent of - t’he control      of others.    Aldine Independent
  School District   v. Standley,    s_upr;r.

          In our opinion,      the tax assessor-collector          is a employee and not
   an officer       of the school         districts      and the water        control    and
   improvement district          vh:.ch hired him.        He does not occupy a civil
   office    vithin article       XVI, section     40 of the Texas Constitution,         ar.d
   this provision       does not bar him from simultaneously               serving    as tax
   assessor-collector        for     the three      school   districts     and one vater
   control district.         We have determined that a chief appraiser dces not
   hold a civil       office      wit,hin article      XVI, section     40 of the Texas
   Constitution;      thus this provision          does not prohibit       the tax asses-
    sor-collector      for    the taxing       units    from also      serving     as chief
    appraiser of the three county appraisal             districts.

          We conclude     that   article     XVI,    section    40 of    the   Texas
    Constitution    does not prohibit    this individual     from holding the seven
    employments about which you inquire.          This opinion is limited     to the
    specific   legal question you asked, and our answer is based on appli-
    cation of the legal st,lndard to the facts you provided us.              Whether




                                                    p. 2294
Hr.     Sam R.   Smith   -   Page   7    (JK-499)




additional        facts might raise         other    legal    issues   is a question   outside
the scope        of  this opinion.

                                            :SUMl4ARY

                     The chief      appraiser    of   a county     appraisal
                 district     and the tax assessor-collector           of   an
                 independent school district        or a water control    and
                 improvement district       are public employee6      and not
                 “officers”     within article     XVI, secticn    40 of the
                 Texas Constituticn.          The functions     assigned     to
                 these positions      b7, the Tax Code do not confer upon
                 them “any sovereign         function   of the government
                  . . . to be exerc:ised . . . largely indeper.dent of
                  the control    of others.”     Aldine Independent School
                 District   v. Standby,       280 S.W.td 578 (Tex. 1955).




                                                             JIM     BATTOX
                                                             Attorney General   of Texas

  JACK HIGHTOWER
  First Assistant Attorney              Gweral

      MARYKELLER
      Executive Assistant       Attornlty    General

      ROBERTGRAY
      Special Assistant       Attorney    General

      RICK GILPIN
      Chairman, Opinion       Committee

      Prepared by Susan L. Garrison
      Assistant Attorney General




                                                    P. 2295
