Who is disqualified from serving on a Texas county appraisal review board?

Plain-English summary

The El Paso County Attorney asked whether a sitting member of the El Paso appraisal review board could continue to serve. The Attorney General concluded he could not, and that he had not even been eligible to be appointed in the first place. The cleanest ground was a contract bar. At the time of his appointment, the member was serving as paid legal counsel to the El Paso Central Appraisal District. An attorney-client relationship is a contract, so he was a party to a contract with the district, and section 6.413(a) of the Tax Code says a person who is a party to a contract with the appraisal district (or with a taxing unit that participates in it) cannot be appointed to or serve on the board. His appointment was therefore invalid, and the opinion did not need to decide the separate question of whether his work as the board's paid lawyer counted as an "appearance before the board for compensation."

The opinion also worked through the eligibility rules in section 6.412(d), which apply to appraisal districts in counties over 100,000 in population. That subsection lists several disqualifications, including having served all or part of three previous terms and having ever appeared before the board for compensation. A 1997 version of the statute had included a grandfather clause protecting members already serving, but a 1999 amendment (House Bill 79) reenacted the provision without that clause. The County Attorney pointed to a letter from the bill's author, Senator David Cain, saying the grandfather clause had been deleted by mistake. The opinion held that one legislator's stated intent, even the principal author's, does not control over the words the full Legislature actually enacted. Because the current statute has no grandfather clause, the disqualifications reach members already serving on the amendment's effective date, June 18, 1999.

A connected point was timing. The statute speaks of being "eligible to serve," not just "eligible to be appointed," and the opinion read that, with prior opinions and the Code Construction Act, to impose a continuing eligibility requirement that must be met throughout a member's term. So a member who, by June 18, 1999, had served three terms, or who had ever appeared before the board for pay, became ineligible to keep serving. Finally, the opinion addressed the fallout: because the ineligible member was still a de facto officer, neither his acts nor the board's acts during his tenure were open to collateral attack, so his ineligibility did not invalidate anything the board did.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 6.41 of the Tax Code sets up an appraisal review board for each appraisal district, with members appointed by a majority of the appraisal district's board of directors for two-year terms. Section 6.412 adds disqualifications for boards in counties over 100,000: a person is ineligible if they have served all or part of three previous terms, are a former director, officer, or employee of the district, served as an official of a taxing unit the district appraises for (until the fourth anniversary of leaving), or have ever appeared before the board for compensation. The question was whether those limits spared members already serving.

On the grandfather issue, the opinion compared the statute's versions. The 1997 enactment expressly let members serving immediately before its effective date finish their terms and applied the new qualifications only to members appointed afterward. The 1999 amendment carried no such clause. Applying the rule that a statute's intent comes from its language, and that language left out of a statute is presumed left out on purpose, the opinion relied on the Texas Supreme Court's decisions in Jones v. Del Andersen & Associates, Laidlaw Waste Systems, Inc. v. City of Wilmer, and Cameron v. Terrell and Garrett, Inc. A letter from Senator David Cain calling the deletion inadvertent did not change the result, because, as the Texas Supreme Court held in General Chemical Corp. v. De La Lastra, an individual legislator's intent is not controlling legislative history.

On continuing eligibility, the opinion read "eligible to serve" in its ordinary sense, with help from the Code Construction Act's rule that the present tense includes the future (section 311.012(a)), and from prior opinions that relied on Phagan v. State to treat even an "eligible for appointment" statute as imposing an ongoing requirement. So the disqualifications had to be satisfied throughout a member's tenure, and a member who crossed the three-term line or had appeared for pay became ineligible on June 18, 1999.

On the contract bar in section 6.413(a), the opinion treated the attorney-client relationship as a contract, citing Yaklin v. Glusing, Sharpe & Krueger and Simpson v. James, so even without a written contract for legal services the member, plainly not an employee, was a party to some kind of contract with the district, which disqualified him at appointment. On the effect of ineligibility, the opinion applied the de facto officer doctrine from Rivera v. City of Laredo and prior Opinion JM-874: the acts of an ineligible member and of the board are not subject to collateral attack on the basis of that ineligibility.

Common questions

Can a lawyer who works for the appraisal district sit on its appraisal review board?
No. The opinion concluded that being the district's paid legal counsel makes the person a party to a contract with the district, and section 6.413(a) of the Tax Code bars appointing or seating anyone who is a party to such a contract.

Does the three-term limit apply to members who were already serving?
Yes. The opinion held that the 1999 amendment dropped the earlier grandfather clause, so the limits in section 6.412(d) apply to members serving on the effective date, June 18, 1999.

A senator said the grandfather clause was deleted by mistake. Doesn't that matter?
No. The opinion concluded that one legislator's stated intent, even the bill's author's, does not override the language the full Legislature enacted, so the statute is read as written, without a grandfather clause.

Is eligibility checked only at appointment, or for the whole term?
For the whole term. The opinion read "eligible to serve" as a continuing requirement, so a member who later crosses a disqualification, like serving a third term or appearing before the board for pay, becomes ineligible to keep serving.

If an ineligible person served on the board, are the board's decisions void?
No. The opinion concluded the ineligible member was a de facto officer, so neither his acts nor the board's acts during his tenure are subject to collateral attack on the ground of his ineligibility.

Citations

Statutes: Tex. Tax Code Ann. §§ 6.41(d), (e), 6.412, 6.412(d), and 6.412(d)(3) (Vernon Supp. 2000), and § 6.413(a) (Vernon 1992); Tex. Gov't Code Ann. § 311.012(a) (Vernon 1998). The opinion construed House Bill 79 (Act of May 17, 1999, 76th Leg., R.S., ch. 639, effective June 18, 1999) against the prior Act of May 19, 1997, 75th Leg., R.S., ch. 691, § 3(a), and relied on prior Attorney General Opinions H-578 (1975), H-1065 (1977), and JM-874 (1988).

Cases: Jones v. Del Andersen & Assocs., 539 S.W.2d 348 (Tex. 1976); Laidlaw Waste Systems, Inc. v. City of Wilmer, 904 S.W.2d 656 (Tex. 1995); Cameron v. Terrell and Garrett, Inc., 618 S.W.2d 535 (Tex. 1981); General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (Tex. 1993); Phagan v. State, 510 S.W.2d 655 (Tex. Civ. App.-Fort Worth, writ ref'd n.r.e.); Yaklin v. Glusing, Sharpe & Krueger, 875 S.W.2d 380 (Tex. App.-Corpus Christi 1994, no writ); Simpson v. James, 903 F.2d 372 (5th Cir. 1990); Rivera v. City of Laredo, 948 S.W.2d 787 (Tex. App.-San Antonio 1997, writ denied).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0192
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0192.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, including the request number in the caption; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

March 9, 2000

The Honorable Jose R. Rodriguez
El Paso County Attorney
County Courthouse
500 E. San Antonio, Room 203
El Paso, Texas 79901

Opinion No. JC-0192

Re: Eligibility for service on an appraisal review board (RQ-0108-JC)

Dear Mr. Rodriguez:

You have requested our opinion regarding the eligibility to serve of a current member of the board of directors of the El Paso Appraisal Review Board (the "EPARB"). For the reasons set forth below, we conclude that he is ineligible to continue to serve on the board.

Section 6.41 of the Tax Code establishes an appraisal review board for each appraisal district. Members "are appointed by resolution of a majority of the appraisal district board of directors." TEX. TAX CODE ANN. § 6.41(d) (Vernon Supp. 2000). "A vacancy on the board is filled in the same manner for the unexpired portion of the term." Id. "Members of the board hold office for terms of two years beginning January 1." Id. § 6.41(e).

Section 6.412(d) of the Tax Code provides:

(d) A person is ineligible to serve on the appraisal review board of an appraisal district established for a county having a population of more than 100,000:

(1) if the person:

(A) has served for all or part of three previous terms as a board member or auxiliary board member on the appraisal review board; or

(B) is a former member of the board of directors, officer, or employee of the appraisal district; or

(2) if the person served as a member of the governing body or officer of a taxing unit for which the appraisal district appraises property, until the fourth anniversary of the date the person ceased to be a member or officer; or

(3) if the person has ever appeared before the appraisal review board for compensation.

TEX. TAX CODE ANN. § 6.412 (Vernon Supp. 2000) (emphasis added).

You first ask whether a member of an appraisal review board appointed prior to the effective date of House Bill 79,[1] which enacted the present version of subsection 6.412(d), is ineligible to serve if he or she has previously served at least three terms on the board. The issue here is whether subsection 6.412(d) implicitly contains a grandfather clause, so that the three-term limit is inapplicable to members serving on June 18, 1999. The bill that enacted the prior version of subsection (c) [current subsection (d)], contained the following provision:

The changes in law made by this Act in the qualifications of members of an appraisal review board do not affect the entitlement of a member serving on a board immediately before the effective date of this Act to continue to serve on the board and to participate in board hearings for the remainder of the member's term. The changes in law apply only to a member appointed on or after the effective date of this Act.

Act of May 19, 1997, 75th Leg., R.S., ch. 691, § 3(a), 1997 Tex. Gen. Laws 2312, 2313.

The 1999 revision of what is now subsection (d) does not contain a grandfather clause. As the Supreme Court has declared, the intent of a statute must be determined by examining the statutory language. Jones v. Del Andersen & Assocs., 539 S.W.2d 348, 350 (Tex. 1976). Language excluded from a statute "must be presumed to have been excluded for a purpose." Laidlaw Waste Systems, Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995) (citing Cameron v. Terrell and Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)). Senator David Cain indicates that the grandfather clause "was inadvertently deleted from the final version of House Bill 79." Letter from Honorable David Cain, Senator, to Honorable John Cornyn, Attorney General, at 1 (Nov. 5, 1999) (on file with Opinion Committee). The intent of an individual legislator, however, even the statute's principal author, does not constitute legislative history controlling the construction to be given a statute. General Chemical Corp. v. De La Lastra, 852 S.W.2d 916, 923 (Tex. 1993). Despite the intent of Senator Cain, we have no basis on which to conclude that the language adopted by the full legislature does not reflect the legislature's collective intent. Thus, we must construe the current version of section 6.412(d) as lacking a grandfather clause.

Subsection 6.412(d) speaks in terms of "eligible to serve" rather than "eligible to be appointed." When used as an intransitive verb, "serve" means, inter alia, "to perform official duties, hold office (e.g., as sheriff or M.P., or on a jury)." XV OXFORD ENGLISH DICTIONARY 29 (2d ed. 1989). According to the Code Construction Act, "[w]ords in the present tense include the future tense." TEX. GOV'T CODE ANN. § 311.012(a) (Vernon 1998). Prior opinions of this office, relying on Phagan v. State, 510 S.W.2d 655 (Tex. Civ. App.-Fort Worth, writ ref'd n.r.e.), have held that, even when a statute is couched in terms of "eligible for appointment," it imposes a continuing eligibility requirement. Tex. Att'y Gen. Op. Nos. H-1065 (1977) at 2; H-578 (1975) at 2. In our opinion, there can be no doubt that "eligible to serve" requires that a board member retain that eligibility throughout his tenure. Accordingly, a member of an appraisal review board who, on June 18, 1999, had served all or part of three terms prior to the term he was then serving, became ineligible for continued service on the board.

You next ask whether a current member of an appraisal review board who was appointed prior to June 18, 1999, becomes ineligible to serve if the member appeared before the board for compensation prior to the effective date of the statute. We have previously determined that, because subsection (d) does not contain a grandfather clause, it is applicable to all persons serving on the effective date of that provision's latest amendment, i.e., June 18, 1999. Similarly, since the statutory language speaks in terms of eligibility to serve, it imposes a continuing requirement. Thus, a member of the board is ineligible for further service after June 18, 1999, if, prior to that date, he "ever appeared before the appraisal review board for compensation." TEX. TAX CODE ANN. § 6.412(d)(3) (Vernon Supp. 2000).

Your third question is premised on the role of the individual who is the principal focus of your request. According to the attorney for the El Paso Central Appraisal District ("EPCAD"), the individual in question was appointed to the Board of Directors of the El Paso Appraisal Review Board ("EPARB") on March 4, 1999, but was not sworn in until May 21, 1999. You indicate that, until May 13, 1999, he served as counsel to both the EPCAD and EPARB, providing "legal advice and representation" to both these entities. Letter from Honorable Jose R. Rodriguez, El Paso County Attorney, to Honorable John Cornyn, Attorney General, at 1 (Dec. 15, 1999) (on file with Opinion Committee). You ask whether his presence as a paid legal adviser to either the EPCAD or the EPARB constituted an "appearance before the board for compensation" for purposes of the disqualification of subdivision (3) of subsection 6.412(d). We need not address that matter, however, because the circumstances of the appointment of this particular individual require the conclusion that he was otherwise ineligible to be appointed to the EPARB.

At the time of his appointment, the individual at issue was ineligible to be appointed to the EPARB pursuant to section 6.413 of the Tax Code, which provides, in relevant part:

(a) An individual is not eligible to be appointed to or to serve on the appraisal review board established for 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 the appraisal district or with a taxing unit that participates in the appraisal district.

TEX. TAX CODE ANN. § 6.413(a) (Vernon 1992) (emphasis added). While the attorney for the EPCAD asserts that the person of whom you inquire did not have a written contract to perform legal services for the appraisal district, see Letter from Robert Mott, Attorney at Law, to Honorable Jose R. Rodriguez, El Paso County Attorney (Nov. 22, 1999) (on file with Opinion Committee), he was clearly not an employee, and the only possible conclusion is that he was, in his capacity as attorney, a party to some kind of contract with the district. See Yaklin v. Glusing, Sharpe & Krueger, 875 S.W.2d 380, 383 (Tex. App.-Corpus Christi 1994, no writ) (attorney-client relationship is a contractual relationship, whereby the attorney agrees to render professional services for the client); see also Simpson v. James, 903 F.2d 372, 376 (5th Cir. 1990). Furthermore, as EPCAD's attorney acknowledges, the individual in question was appointed to the EPARB on March 4 (although not sworn in until May 21) and continued to perform the duties of counsel until May 13, 1999. Letter from Robert Mott, Attorney at Law, to Honorable John Cornyn, Attorney General (Jan. 28, 2000) (on file with Opinion Committee). Unlike its counterpart in section 6.412, which relates to restrictions on eligibility for service on an appraisal review board, section 6.413 makes clear that a person may not be appointed to the board if, at the time of his appointment, he is "a party to a contract" with the appraisal district. Since the individual in question was "a party to a contract" for legal services at the time of his appointment on March 4, it follows that he was ineligible for such appointment.

Finally, you ask about the effect of the member's ineligibility on actions taken by the EPARB. Even an ineligible individual is a de facto officer. See Rivera v. City of Laredo, 948 S.W.2d 787 (Tex. App.-San Antonio 1997, writ denied). Furthermore, the acts of neither the individual board member nor the board as a whole are subject to collateral attack on the ground that the particular member was ineligible for continued service. See Tex. Att'y Gen. Op. No. JM-874 (1988). We therefore conclude that, since the individual in question occupied the status of a de facto officer, his ineligibility did not affect any actions taken by the board during his tenure.

SUMMARY

An individual who served as legal counsel to the El Paso Central Appraisal District was not eligible to be appointed to the El Paso Appraisal Review Board, pursuant to section 6.413 of the Tax Code. Section 6.412 thereof does not contain a grandfather clause, and is thus applicable to all members of an appraisal review board on the effective date of the statutory amendment. The ineligibility of a board member does not affect actions taken by the board during his tenure.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee

[1] Act of May 17, 1999, 76th Leg., R.S., ch. 639, 1999 Tex. Gen. Laws 3209 (effective June 18, 1999).