Can a county tax assessor-collector also serve on the board of directors of the local appraisal district?

Texas AG Opinion JM-1157: Can an Appraisal Board Member Also Be the County Tax Assessor-Collector?

Plain-English summary

Hunt County's county attorney asked about a specific arrangement: an independent school district wanted to contract with the county, under the Interlocal Cooperation Act, to have the county collect the district's taxes. The complication was that the county's tax assessor-collector also served as a member of the board of directors of the appraisal district in which the school district participated. The county attorney asked whether that overlap violated either the common-law doctrine against holding incompatible offices or the Texas Constitution's ban on holding two offices of "emolument" (paid offices), or ran afoul of a newer statutory conflict-of-interest provision.

The Attorney General concluded none of those problems existed. The constitutional dual-office-holding ban only applies when both positions are offices of emolument, meaning they carry pecuniary profit, gain, or advantage. The tax assessor-collector's office qualifies, but appraisal district board members are unpaid by statute, so a board seat is not an office of emolument, and the constitutional provision was never triggered. Separately, the common-law rule against incompatible offices would normally bar someone from holding two positions with conflicting duties, but the Tax Code contains an explicit exception letting an otherwise-eligible person serve on an appraisal district board even if they hold elected office or sit on a taxing unit's governing body, which overrides the common-law rule here. Finally, a 1989 addition to the Tax Code bars an appraisal board member (or a business entity in which the member has a substantial interest) from contracting with the appraisal district or a participating taxing unit, but that provision did not apply because a county is not a "business entity" as the statute defines it, and the interlocal contract here ran between the school district and the county commissioners court, not with the assessor-collector as an individual.

Currency note

This opinion was issued in 1990. 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.

The Tax Code provisions discussed here, particularly the newly-added conflict-of-interest section, were less than a year old at the time of this opinion and have likely been amended since. Confirm the current text of Tax Code sections 6.03, 6.036, and 6.24 before relying on this analysis.

Who this opinion affected (as of 1990)

County tax assessor-collectors who also served on an appraisal district board: The opinion held that combination did not violate the constitutional dual-office-holding ban or the common-law incompatibility doctrine, because Tax Code section 6.03(a) specifically allowed it.

School districts and counties structuring interlocal tax-collection contracts: The opinion confirmed that such a contract, made under the Interlocal Cooperation Act between a school district and a county commissioners court, was not barred by the newly enacted appraisal-board conflict-of-interest statute, since that statute reaches contracts with board members or their business entities, not contracts with the county itself.

Appraisal district board members generally: The opinion established that board membership is not an "office of emolument," which controlled how the constitutional dual-office-holding provision applied to board members in other contexts as well.

Common questions

Can a person who holds a paid public office also serve on an appraisal district board?
Yes, according to this opinion. Because appraisal district board members are unpaid under Tax Code section 6.03, board membership is not an office of emolument, so the constitutional ban on holding two paid offices does not apply.

Does the common-law rule against incompatible offices stop a county tax assessor-collector from sitting on an appraisal board?
No. The opinion held that Tax Code section 6.03(a) is a specific statutory exception that overrides the common-law incompatibility doctrine for appraisal district board eligibility.

Could the appraisal district's 1989 conflict-of-interest law block this arrangement?
No, in this fact pattern. The opinion explained that law bars contracts between the district (or a participating taxing unit) and a board member or a business entity the member has an interest in, but a county itself is not a "business entity" under the statute, and the contract here was with the county commissioners court, not the assessor-collector personally.

Was there any other statutory bar to the school district's tax-collection contract with the county?
The opinion said it found none, noting Local Government Code chapter 171 (which separately regulates local government officers' conflicts of interest) as the kind of provision it checked but did not find applicable here.

Background and statutory framework

Tax Code section 6.24(a) lets the governing body of a taxing unit other than a county contract, under the Interlocal Cooperation Act (V.T.C.S. art. 4413(32c)), with another taxing unit's governing body to handle tax assessment or collection duties. The opinion noted that a related subsection, 6.24(b), had already been held unconstitutional in a prior opinion (Attorney General Opinion JM-833 (1987)) to the extent it let a county assessor-collector take on a taxing unit's collection duties, but that subsection was not at issue here because the school district was asking the county, not the reverse.

Article XVI, section 40 of the Texas Constitution bars one person from holding two offices of emolument except in specified circumstances, and "emolument" means pecuniary profit, gain, or advantage (citing Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944)). The county tax assessor-collector's office is an office of emolument (Attorney General Opinion JM-833 (1987)), but appraisal district board members are unpaid under Tax Code section 6.03, so board membership is not an office of emolument (citing Attorney General Opinions MW-450 (1982) and MW-81), and the constitutional provision is not triggered by holding both positions.

The common-law doctrine of incompatibility bars one person from holding two offices with conflicting duties, or where one office is subordinate to the other (Thomas v. Abernathy County Line Indep. School Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted); Kugle v. Glen Rose Indep. School Dist. No. 1, 50 S.W.2d 375 (Tex. Civ. App.-Waco 1932), rev'd on other grounds sub nom. Pruitt v. Glen Rose Indep. School Dist. No. 1, 84 S.W.2d 1004 (Tex. 1935); the doctrine has also been applied to bar a public employee from holding an office that supervises the employee, citing Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)). But Tax Code section 6.03(a) provides that an individual otherwise eligible for an appraisal board seat is not made ineligible by membership on a taxing unit's governing body or by holding elected office, which the opinion read as a specific statutory exception overriding the common-law rule for this situation.

Finally, Tax Code section 6.036, added by the 71st Legislature in 1989, bars an individual from serving on an appraisal board if the individual, or a business entity in which the individual has a substantial interest, contracts with the district or a participating taxing unit, and separately bars the district itself from contracting with a board member or the member's business entity. The opinion concluded this section did not apply because a county does not meet the statute's definition of "business entity," and because the interlocal contract at issue was between the school district and the county commissioners court, not a contract with the assessor-collector as an individual.

Citations

Constitution and statutes:

• Tex. Const. art. XVI, § 40
• Tex. Tax Code §§ 6.03, 6.036, 6.24
• V.T.C.S. art. 4413(32c) (Interlocal Cooperation Act)
• Tex. Local Gov't Code ch. 171

Cases:

• Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944)
• Thomas v. Abernathy County Line Indep. School Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)
• Kugle v. Glen Rose Indep. School Dist. No. 1, 50 S.W.2d 375 (Tex. Civ. App.-Waco 1932), rev'd on other grounds sub nom. Pruitt v. Glen Rose Indep. School Dist. No. 1, 84 S.W.2d 1004 (Tex. 1935)
• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)

Related opinions (Texas Attorney General):

• JM-833 (1987); JM-203 (1984); JM-862 (1988); JM-519 (1986); JW-1060 (1989); MW-450 (1982); MW-81; Attorney General Letter Advisory No. 114 (1975)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1157
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1157.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

April 17, 1990

Honorable Toby C. Wilkinson
Hunt County Attorney
4th Floor Courthouse
P. O. Box 1097
Greenville, Texas 75401

Opinion No. JM-1157

Re: Whether the board of trustees of an independent school district may contract for tax collection with the county when the county assessor-collector is also a member of the board of directors of the appraisal district (RQ-1943)

Dear Mr. Wilkinson:

Subsection (a) of section 6.24 of the Tax Code authorizes the governing body of a taxing unit other than a county to contract, as provided by the Interlocal Cooperation Act,[1] with the governing body of another taxing unit in the county to perform duties relating to the assessment or collection of taxes.[2] You ask whether the governing body of an independent school district may contract for the collection of taxes with the county in an instance in which the county assessor-collector is also a member of the board of directors of the appraisal district in which the school district participates. You ask specifically whether the doctrines of common law incompatibility and of constitutional dual office holding are violated in such a situation. See, e.g., Attorney General Opinion JM-203 (1984). In addition, it is suggested that section 6.036 of the Tax Code may be violated under the facts you describe. We conclude that neither the common law doctrine of incompatibility nor the dual office holding prohibition is implicated in the factual situation that you present. In addition, section 6.036 of the Tax Code is not violated.

Section 40 of article XVI of the Texas Constitution prohibits, except in certain specified instances, one person from holding two offices of emolument. In order for this dual office holding prohibition to be triggered, the positions involved must both be offices and each must be an office of emolument. For purposes of section 40 of article XVI of the Texas Constitution, the term "emolument" signifies a pecuniary profit, gain, or advantage. Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944). The office of county tax assessor-collector is an office of emolument. Attorney General Opinion JM-833 (1987). Appraisal district board members are unpaid. Tax Code § 6.03. The office of appraisal district board member, then, is not an office of emolument. See, e.g., Attorney General Opinions MW-450 (1982); MW-81. Therefore, if a person who is an officer that occupies an office of emolument is elected to serve as an appraisal district board member, the constitutional dual office holding prohibition of section 40 of article XVI is not triggered.

The common law doctrine of incompatibility prevents one person from holding two offices if the duties are inconsistent or in conflict, or if one office is subordinate to the other. Thomas v. Abernathy County Line Indep. School Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted); Kugle v. Glen Rose Indep. School Dist. No. 1, 50 S.W.2d 375 (Tex. Civ. App.-Waco 1932), rev'd on other grounds sub nom. Pruitt v. Glen Rose Indep. School Dist. No. 1, 84 S.W.2d 1004 (Tex. 1935). The doctrine has been held to bar a public employee from holding a public office that appoints, supervises, and controls the employee. See Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928); Attorney General Opinions JM-862 (1988); JM-519 (1986); Attorney General Letter Advisory No. 114 (1975).

The common law rule would govern in this situation and prohibit a county tax assessor-collector from serving as an appraisal district board member were it not for subsection 6.03(a) of the Tax Code. Section 6.03 of the Tax Code governs, inter alia, the eligibility of persons to serve as members of the board of directors of appraisal districts. Subsection (a) of section 6.03 provides in relevant part:

An individual who is otherwise eligible to serve on the board is not ineligible because of membership on the governing body of a taxing unit or because the individual is an elected official.

Subsection (a) of section 6.03 of the Tax Code constitutes a general law exception to the common law rule and, thereby, overrides it.[3] Therefore, the common law rule of incompatibility is not applicable in the factual situation that you describe.

Finally, we understand you to ask whether any additional statutory provision governing conflicts of interest is violated in the situation that you describe. Section 6.036 of the Tax Code was added by the 71st Legislature and prohibits certain individuals from entering into contracts with appraisal districts or taxing units under certain specified conditions. Acts 1989, 71st Leg., ch. 796, § 5, at 3592.[4] It provides:

(a) An individual is not eligible to be appointed to or to serve on the board of directors of 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:

(1) the appraisal district; or

(2) a taxing unit that participates in the appraisal district, if the contract relates to the performance of an activity governed by this title.

(b) An appraisal district may not enter into a contract with a member of the board of directors of the appraisal district or with a business entity in which a member of the board has a substantial interest.

(c) A taxing unit may not enter into a contract relating to an activity governed by this title with a member of the board of directors of an appraisal district in which the taxing unit participates or with a business entity in which a member of the board has a substantial interest.

(d) For purposes of this section, an individual has a substantial interest in a business entity if:

(1) the combined ownership of the individual and the individual's spouse is at least 10 percent of the voting stock or shares of the business entity; or

(2) the individual or the individual's spouse is a partner, limited partner, or officer of the business entity.

(e) In this section, "business entity" means a sole proprietorship, partnership, firm, corporation, holding company, joint-stock company, receivership, trust, or other entity recognized by law.

(f) This section does not limit the application of any other law, including the common law relating to conflicts of interest, to an appraisal district. (Emphasis added.)

In this instance, a county clearly does not fall within the definition of "business entity," as set forth in subsection (e). Nor is the Interlocal Cooperation Act contract permitted by subsection 6.24 of the Tax Code a contract entered into with the county assessor-collector as an individual, even in her official capacity. It is a contract entered into with the commissioners court. We conclude that section 6.036 of the Tax Code is not applicable. We have found no other statutory provision, nor have you directed us to one, that would prohibit the school district from entering into the contract that you describe. See Local Gov't Code ch. 171 (regulating conflicts of interest of officers of local government).

SUMMARY

The trustees of an independent school district may enter into an Interlocal Cooperation Act contract with the commissioners court of a county for the collection of taxes in an instance in which the county assessor-collector is a member of the board of directors of the appraisal district in which the independent school district participates.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General

Footnotes

1. V.T.C.S. art. 4413(32c).

2. In Attorney General Opinion JM-833 (1987), we concluded that insofar as subsection (b) of section 6.24 of the Tax Code permitted the county commissioners and the county assessor-collector to contract duties reposed by section 14 of article VIII of the Texas Constitution in the constitutional office of county assessor-collector, the subsection is unconstitutional. Because your question involves a fact situation in which a taxing unit is seeking to have the county perform collection duties for it rather than a situation involving a county seeking to have a taxing unit perform collection duties for the county, subsection (b) of section 6.24 is not relevant. Instead, subsection (a) of section 6.24 is the provision that controls.

3. Section 5.001 of the Civil Practice and Remedies Code provides: The rule of decision in this state consists of those portions of the common law of England that are not inconsistent with the constitution or the laws of this state, the constitution of this state, and the laws of this state.

4. Attorney General Opinion JW-1060 (1989) held that an attorney who had entered into a contract with a taxing unit to enforce the collection of delinquent taxes was not barred from serving as a member of the board of directors of the appraisal district in which that taxing unit participates. That opinion was issued prior to the effective date of section 6.036 of the Tax Code. As of the effective date of that section, that opinion is no longer controlling. We note that subsections (b), (c), and (d) of section 49 of the bill enacting section 6.036 of the Tax Code provides the following: (b) The change in law made by Sections 5 and 13 of this Act does not affect the validity of a contract executed before the effective date of those sections. (c) The change in law made by Sections 4, 5, 11, 12, and 13 of this Act does not affect the eligibility of a director of an appraisal district or an appraisal review board member to complete the term being served on the effective date of those sections. (d) The change in law made by Sections 4 and 5 of this Act does not affect the eligibility of an individual nominated or appointed to an appraisal district board of directors before the effective date of those sections to be appointed to or to serve for the term to which the individual was nominated or appointed before the effective date of those sections.