                    .          .




                                                The Attorney          General of Texas
                                                                  September 19, 1983
     JIM MATTOX
     Attorney General



     Supreme      Court Building              Honorable Dana Ehrlich                   opinion No.   34-72
     P. 0. Box 12546                          Lipscomb County Attorney
     Austin,    TX. 76711. 2546               P. 0. Box 156                            Re: Whether appraisal district
     512/475.2501
                                              Follett, Texas   79034                   may contract with chief appraiser
     Telex    9101674-1367
     Telecopier     5121475.0266
                                                                                       for appraisal services

                                              Dear Mr. Ehrlich:
     714 Jackson,   Suite 700
     Dallas.  TX. 75202-4506
     2141742G3944
                                                   You ask the following four questions regarding            the   proper
                                              administration of the Lipscomb County Appraisal District:

     4624 Alberta        Ave.. Suite    160               1. May the appraisal district enter into an
     El Paso. TX.        79905.2793                    independent contractor relationship with a chief
     915/533&l64
                                                       appraiser for the purpose of appraising property
                                                       in the district for ad valorem tax purposes?
     1001      Texas, Suite 700
,-          ,s,on, TX. 77002-3111                         2. Is such a contract creating an independent
        ~1223.5666                                     contractor relationship subject to competitive
                                                       bidding requirements of section 6.11 of the
                                                       Property Tax Code?
     606 Broadway,         Suite 312
     Lubbock,     TX.     79401.3479
     6061747-5236                                         3. If the contract is invalid, may the wife of
                                                       the chief appraiser be employed by the chief
                                                       appraiser in the appraisal offices as secretary
     4309 N. Tenth. Suite B
                                                       without violating article 5996a?
     McAllen,     TX. 76501-1665
     512/662-4547
                                                           4. If the contract is valid, may the wife of
                                                        the chief appraiser be employed by a private
     200 Main Plaza. Suite 400                          appraisal firm performing appraisal services for
     San Antonio.  TX. 76205.2797
                                                        the district under contract?
     5121225-4191

                                                   In answer to your first question, we conclude that an appraisal
     An Equal        Opportunity/             district may not enter into a contractual relationship with an
     Affirmative       Action     Employer    independent contractor to perform the duties of a chief appraiser. In
                                              answer to your third question, we conclude that the wife of a chief
                                              appraiser may not be employed by the chief appraiser in the appraisal
                                              district offices without violating article 5996a, V.T.C.S. Because we
                                              conclude that an appraisal district may not enter into the contract in
                                              question, we need not address your second and fourth questions.

                                                   First, you ask whether the appraisal district may enter into a
                                              contract with an independent contractor to perform the duties of a
                                              chief appraiser. We answer your question in the negative.



                                                                     p. 305
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Honorable Dana Ehrlich - Page 2   (JM-72)




     The contract at issue contains, inter alia, the following
provisions which define the relationship of the parties in the
following way:

            The   parties   intend  that   an   independent
         contractor-employer relationship will be created
         by this contract. District is interested only in
         the results to be achieved, and the conduct and
         control of the work "ill lie solely with
         Contractor. Contractor is not to be considered an
         agent or employee of District for any purpose. It
         is further understood that Contractor is free to
         contract for other appraisal services while he is
         under contract with District provided that
         Contractor gives precedence to the discharge of
         his responsibilities under this agreement . . . .

            The work to be performed under this contract
         will be performed entirely at Contractor's risk.

     In this instance, the chief appraiser of the district proposed to
resign his official position and be rehired as an independent
contractor. His wife would then be employed by the district as a
secretary.   Subsequently, the former chief appraiser would be
reappointed to his original position.

     Generally, the powers of such governmental agencies as counties,
townshios.
       . _ and school districts are more strictlv construed than those
of incorporated municipalities. Tri-City Fresh-Water Supply District
No. 2 of Harris County v. Mann, 142 S.W.2d 945, 948 (Tex. 1940). For
example, a county has no powers or duties except those which are
clearly set forth and defined by the constitution and the state
statutes. Harrison County v. City of Marshall, 253 S.W.2d 67.       69
(Tex. Civ. App. - Fort Worth 1952, writ ref'd); Wichita County v.
Vance, 217 S.W.2d 702,  JO3  (Tex. Civ. App. - Fort Worth 1949, writ
ref'd n.r.e.). See also Miller v. El Paso County, 150 S.W.2d 1000,
1003 (Tex. 1941). Analogously, we hold that an appraisal district can
exercise only those powers and duties which are clearly set forth in
the constitution and statutes of this state. Section 6.05   of the Tax
Code provides the following:

             (a) Except as authorized by Subsection (b) of
          this section, each appraisal district shall
          establish an appraisal office.

             (b) The board of directors of an appraisal
          district may contract with an appraisal office in
          another district or with a taxing unit in the
          district to perform the duties of the appraisal
          office for the district.




                              p. 306
Honorable Dana Ehrlich - Page 3   (JM-72)




            (c) The    chief   appraiser   is   the   chief
         administrator of the appraisal office. The chief
         appraiser is appointed by and serves at the
         pleasure of the appraisal district board of
         directors. If a taxing unit performs the duties
         of the appraisal office pursuant to a contract,
         the assessor for the unit is the chief appraiser.

             (d) The chief appraiser is entitled to
          compensation as provided by the budget adopted by
          the board of directors.       He may employ and
          compensate professional, clerical, and other
          personnel as provided by the budget.

             (e) The chief appraiser may delegate authority
          to his employees.

Section 25.01(b) of the Tax Code sets forth the following:

          The chief appraiser with the approval of the board
          of directors of the district may contract with a
          private appraisal firm to perform appraisal
          services for the district, subject to his
          approval.   A contract for private appraisal
          services is void if the amount of compensation to
          be paid the private appraisal firm is contingent
          on the amount of or increase in appraised,
          assessed, or taxable value of property appraised
          by the appraisal firm.

Because there is no provision in the Tax Code permitting an appraisal
district to enter into a contract such as that here contemplated, we
conclude that it may not do so.

     You also ask whether the wife of a chief appraiser may be
employed by the chief appraiser as a secretary in the appraisal
district office in the event that we conclude that the contract about
which you ask is improper. We conclude that she may not be employed.
The nepotism statute is article 5996a, V.T.C.S., and provides the
following:

             No officer of this State nor any officer of any
          district, county, city, precinct, school district,
          or other municipal subdivision of this State, nor
          =*Y officer or member of any State district,
          county, city, school district or other municipal
          board, or judge of any court, created by or under
          authority of any General or Special Law of this
          state, nor any member of the Legislature, shall
          appoint, or vote for, or confirm the appointment
          to any office, position, clerkship, employment or
          duty, of any person related within the second




                              p. 307
Honorable Dana Ehrlich - Page 4   (JM-72)




         degree by affinity or within the third degree by
         consanguinity to the person so appointing or so
         voting, or to any other member of any such board,
         the Legislature, or court of which such person so
         appointing or voting may be a member, when the
         salary, fees, or compensation of such appointee is
         to be paid for, directly or indirectly, out of or
         from public funds or fees of office of any kind or
         character whatsoever; provided, that nothing
         herein contained, nor in any other nepotism law
         contained in any charter or ordinance of any
         municipal corporation of this State, shall prevent
         the appointment, voting for, or confirmation of
         any person who shall have been continuously
         employed in any such office, position, clerkship,
         employment or duty for a period of two (2) years
         prior to the election or appointment of the
         officer or member appointing, voting for, or
         confirming the appointment, or to the election or
         appointment of the officer or member related to
         such employee in the prohibited degree. (Emphasis
         added).

Article 5996b, V.T.C.S.. enumerates the officers embraced within the
nepotism statute:

         The inhibitions set forth in this law shall apply
         to and include the Governor, Lieutenant Governor,
         Speaker of the House of Representatives, Railroad
         Commissioners, head of departments of the State
         government, judges and members of any and all
         Boards and courts established by or under the
         authority of any general or special law of this
         State, members of the Legislature, mayors,
         commissioners, recorders, aldermen and members of
         school boards of incorporated cities and towns,
         public school trustees, officers and members of
         boards of managers of the State University and of
         its several branches, and of the various State
         educational institutions and of the various State
         eleemosynary    institutions,    and    of    the
         peniten;iaries. This enumeration shall not be
         held to exclude from the operation and effect of
         this law any person included within its general
         provisions. (Emphasis added).

Clearly, the wife of a chief appraiser falls within the prohibited
degree of affinity. At issue is whether the chief appraiser is an
"officer" for purposes of article 5996a, V.T.C.S. We conclude that he
is.




                              p. 308
Honorable Dana Ehrlich - Page 5   (JM-72)




     We note at the outset of this discussion that we are not
concluding that a chief appraiser is an officer for all purposes. In
Attorney General Opinion MW-450 (1982), this office declared that the
dual office-holding provisions of article XVI, section 40 of the Texas
Constitution are not violated when a chief appraiser of an appraisal
district is appointed to serve on the State Property Tax Board. In
that opinion, we did not discuss whether a chief appraiser is an
officer for purposes of article XVI, section 40 because such a
determination was not necessary in order to resolve the constitutional
question. Such a determination as to whether a chief appraiser is an
officer in any constitutional sense is not necessary in this instance
either.

     In Attorney General Letter Advisory No. 156 (1978), this office
concluded that the nepotism law is applicable to persons hired by a
junior college board of trustees upon the recommendation of the
president to whom the person is related. The letter advisory did not
hold that a junior college president is an officer for purposes of
article XVI, section 40; rather, the letter relied on an education
code provision that reposed joint control over the selection of
employees and faculty in the board and the college president. The
letter concluded that such control is sufficient to make the nepotism
statute applicable to the employment of persons related to the
president. See also Attorney General Letter Advisory No. 152 (1978)
(chief of nolice had influence over retainine. orobationarv
                                               .        ~, em~lovee).
                                                              . , ,~
In Pena v.' Rio Grande City Consolidated Independent School District,
616 S.W.2d 658, 659 (Tex. Civ. App. - Eastland 1981, no writ), it was
held that a school superintendent is not an officer within the meaning
of article 5996a, V.T.C.S., because the exclusive right and sole legal
authority to appoint or employ teachers was reposed by the Education
Code in the board of trustees.

     For purposes of article 5996s. V.T.C.S., the Pena court relied
upon the standard set forth in Aldine Independent School District v.
{tandley, 280 S.W.2d 578 (Tex. 1955), to determine who constitutes an
 officer." We note that the court in Aldine was concerned with who
constitutes an "officer" for purposes of article XVI, section 30 of
the Texas Constitution; Pena was concerned with who constitutes an
officer only for purposes of article 5996a, V.T.C.S. In m,        the
court in discussing Aldine declared:

         The court also stated that status as an officer is
         determined by '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 control of others.'
         See also Green v. Stewart, 516 S.W.2d 133 (Tex.
         1974); Harris County v. Schoenbacher, 594 S.W.2d
         106 (Tex. Cl". App. - Houston [lst Dist.] 1979,
         writ ref'd n.r.e.); City of Groves v. Ponder, 303
         S.W.2d 485 (Tex. Civ. App. - Beaumont 1957, writ
         ref'd n.r.e.). We think the reasoning applied in




                              p. 309
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Honorable Dana Ehrlich - Page 6   (JM-72)




          Standley is appropriate to the instant case. A
          school superintendent merely performs functions
          delegated to him by the trustees who do not by
          such delegation abdicate their statutory authority
          or control. (Emphasis added).

w,    supra. at 658. Under the Pena rationale, we believe that a
court would hold that, in an instance in which an individual possesses
the authority to hire and fire personnel, he does exercise a
“sovereign function of the government . . . exercised by him for the
benefit of the public largely independent of the control of others”
and would be an “officer” for purposes of article 5996a, V.T.C.S.
Under Letter Advisory No. 156 (1978). no recourse was had to any
constitutional test; mere control over the hiring and firing of
personnel was sufficient to trigger article 5996a, V.T.C.S. Without
deciding which rationale is the correct one, we conclude that, under
either test, article 5996a, V.T.C.S., is triggered here.

     In this instance, section 6.05 of the Tax Code expressly confers
authority on the chief appraiser, as the chief administrator of the
appraisal district office, to employ and compensate professional,
clerical and other personnel as provided by the budget and empowers
him to delegate authority to his employees. We conclude that such
control is sufficient to make applicable the nepotism statute and
that, for purposes of article 5996a, V.T.C.S., the chief appraiser is
an officer. He would thereby be prohibited from “appoint[ing], or
vot[ing] for, or confirm[ing] the appointment to any office, position,
clerkship, employment or duty” of his wife. We point you, however, to
the exception set forth in article 5996a, V.T.C.S., which permits the
appointment of any person who shall have been continuously employed in
such position for two years prior to the appointment of the officer so
appointing. Whether the wife of the chief appraiser falls within this
exception is a factual matter about which we can render no decision.

     Because of our answer to your first question, we conclude that it
is unnecessary to consider your second and fourth questions.

                             SUMMARY

             An appraisal district is without authority to
          enter into a contract with an independent
          contractor to perform the duties of chief
          appraiser. The nepotism statutes are applicable
          to a chief appraiser and prohibit his appointing
          or hiring someone within the stated degree of




                                   J k
          affinity or of consanguinity.

                                       Very truly your ,


                                            r;,
                                       JIM     MATTOX
                                       Attorney General of Texas



                             p. 310
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        Honorable Dana Ehrlich - Page 7    (JM-72)




        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
        Jon Bible
        David Brooks
        Colin Carl
        Jim Moellinger
        Nancy Sutton




                                     p. 311
