Can a Texas county attorney also serve as legal counsel for the county's appraisal district?

Plain-English summary

The Starr County Attorney had been serving as legal counsel for the Starr County Appraisal District when he was appointed to fill a vacancy in the county attorney's office. He asked whether Tax Code subsection 6.43(c) authorized him to hold both roles at once. The AG worked through the statute and concluded it did not, while declining to decide whether his particular continued service was otherwise proper.

The key is a distinction the statute draws. Tax Code section 6.43 governs the appraisal review board's employment of personnel. The appraisal review board is a body the Tax Code establishes for each appraisal district to review appraisal records and hear challenges; it is not the same thing as the appraisal district itself, which appraises property for ad valorem tax purposes. Subsection 6.43(a) lets the review board employ its own legal counsel or "use the services of the county attorney." Subsection 6.43(b) bars an attorney from serving as the board's counsel in certain conflict situations, and subsection 6.43(c) carves the county attorney out of some of those conflicts, letting the county attorney serve the board even though the county attorney represents or has represented the appraisal district.

On its face, the AG noted, section 6.43 authorizes the county attorney to provide legal services only to the board, not to the appraisal district. The county attorney's argument was that because subsection 6.43(c) refers to his representing the district, the statute must also authorize that representation. The AG read it the other way. The word "notwithstanding" means "in spite of," so subsection 6.43(c) lets the county attorney serve the board in spite of also representing the district; it assumes such district representation might exist but contains no language creating authority for it. A county attorney's authority to represent an appraisal district must be expressly granted by some other law or necessarily implied from it (State v. Hollins). For example, Civil Practice and Remedies Code section 65.016 lets a county attorney seek an injunction enforcing a tax-rendition duty for an appraisal district. Because that kind of authority comes from outside section 6.43(c), the AG concluded a court would likely find subsection 6.43(c) assumes whatever district-representation authority exists elsewhere rather than creating it. The bottom line: a court would likely conclude subsection 6.43(c) does not authorize the county attorney to serve as legal counsel to the tax appraisal district.

What this means for you

If you are a county attorney asked to represent an appraisal district

Based on this opinion, Tax Code section 6.43(c) is not your source of authority to serve as the appraisal district's lawyer; it only lets you serve the separate appraisal review board despite a district conflict. Any authority to represent the district itself has to come from another statute. The AG did not decide whether the requestor's specific service was proper, because he did not identify its nature or another grant of authority.

If you sit on an appraisal review board or run an appraisal district

The opinion underscores that the board and the district are distinct, and that section 6.43 addresses only the board's legal counsel. The opinion does not address how the district itself may obtain counsel, beyond noting that any county-attorney authority to represent the district must rest on a separate legal grant.

If you advise local officials on these roles

The decisive reading is of the word "notwithstanding" in subsection 6.43(c): it shields the county attorney's service to the board from a district conflict, but it does not itself authorize representing the district. The opinion also declined to address compliance with the Texas Disciplinary Rules of Professional Conduct, calling that a fact question outside an opinion's scope.

Common questions

Q: Can a Texas county attorney be the appraisal district's lawyer?
A: Tax Code section 6.43(c) does not authorize it, the AG concluded. That subsection lets the county attorney serve the appraisal review board despite representing the district; authority to represent the district itself must come from another law.

Q: Isn't the appraisal review board the same as the appraisal district?
A: No. The appraisal district appraises property for tax purposes. The appraisal review board is a separate body that reviews appraisal records and hears challenges. Section 6.43 governs the board's hiring of counsel, not the district's.

Q: What does "notwithstanding" do in section 6.43(c)?
A: It means "in spite of." It lets the county attorney serve the board in spite of also representing the appraisal district, but it does not create authority to represent the district.

Q: Did the AG say the Starr County Attorney could keep both roles?
A: No, and it did not say he could not. Because he did not specify the nature of his service or point to another grant of authority, the AG declined to rule on whether his continued service was proper.

Background and statutory framework

The Tax Code establishes an appraisal district in each county to appraise property for ad valorem taxation (section 6.01) and an appraisal review board for each district to review appraisal records and hear challenges (section 6.41; sections 41.01-.71). Section 6.43 governs the board's employment of personnel: subsection (a) lets the board employ counsel or use the county attorney's services, subsection (b) bars counsel with certain conflicts, and subsection (c) excepts the county attorney from some of those conflicts so the county attorney may serve the board despite representing the district.

When construing a statute, courts seek legislative intent in the plain language and give effect to all words (Hebner v. Reddy; Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist.). Reading "notwithstanding" by its ordinary meaning, the AG concluded subsection 6.43(c) authorizes service to the board in spite of district representation but does not itself authorize representing the district. A county official's authority is limited to what is expressly granted or necessarily implied (State v. Hollins), and an example of separate authority to represent a district appears in Civil Practice and Remedies Code section 65.016 (Robinson v. Budget Rent-A-Car Sys., Inc.). So the AG concluded subsection 6.43(c) does not authorize the county attorney to serve as the appraisal district's legal counsel.

Citations and references

Statutes:

• Tex. Tax Code § 6.43 — appraisal review board's employment of legal counsel; county-attorney exception
• Tex. Tax Code § 6.41 — establishment of the appraisal review board
• Tex. Civ. Prac. & Rem. Code § 65.016 — county attorney injunction to enforce tax rendition for an appraisal district

Key cases:

• State v. Hollins, 620 S.W.3d 400 (Tex. 2020) — county and county-official authority is limited to what is expressly granted or necessarily implied
• Hebner v. Reddy, 498 S.W.3d 37 (Tex. 2016) — statutory construction seeks legislative intent in the plain language
• Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535 (Tex. 2021) — give effect to all words of a provision

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0432
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2023/kp-0432.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 24, 2023

The Honorable Rene P. Montalvo
Starr County Attorney
401 North Britton Avenue, #405
Rio Grande City, Texas 78582

Opinion No. KP-0432

Re: Whether Tax Code subsection 6.43(c) authorizes a county attorney to also serve as legal counsel to the appraisal district in the same county (RQ-0461-KP)

Dear Mr. Montalvo:

You ask whether Tax Code subsection 6.43(c) authorizes you, as the current Starr County Attorney, to also serve as legal counsel for the Starr County Appraisal District ("District").¹ You explain that you were serving as legal counsel for the District when you were appointed to fill a vacancy in the office of county attorney. See Request Letter at 1.

Tax Code section 6.43 governs an appraisal review board's employment of personnel.

The Tax Code establishes a tax appraisal district in each county and makes it responsible for appraising all property in the district for ad valorem tax purposes. See TEX. TAX CODE § 6.01(a), (b). The Tax Code also establishes for each district an appraisal review board ("board"). See id. § 6.41(a). A board performs a variety of duties, including reviewing district tax appraisal records and rolls and responding to challenges thereto. See generally id. §§ 41.01–.71.

Section 6.43 governs a board's employment of personnel and provides, in relevant part:

(a) The appraisal review board may employ legal counsel as provided by the district budget or use the services of the county attorney.

(b) Except as provided by Subsection (c), an attorney may not serve as legal counsel for the appraisal review board if the attorney or a member of the attorney's law firm has during the year before the date of the appraisal review board's hiring of the attorney represented a property owner who owns property in the appraisal district, a taxing unit that participates in the appraisal district, or the appraisal district in a matter addressed by Section 1.111 or 25.25 of this code, Subtitle F of this title, or Subchapter Z, Chapter 2003, Government Code.

(c) The county attorney for the county in which the appraisal district is established may provide legal services to the appraisal review board notwithstanding that the county attorney or an assistant to the county attorney represents or has represented the appraisal district or a taxing unit that participates in the appraisal district in any matter.

Id. § 6.43(a)–(c). Subsection 6.43(a) authorizes a board to employ legal counsel or "use the services of the county attorney." Id. § 6.43(a). Subsection 6.43(b) prohibits an attorney from serving as legal counsel for a board in specific circumstances, including when the attorney previously represented the appraisal district in certain matters. See id. § 6.43(b). Subsection 6.43(c) excepts the county attorney for the county containing the appraisal district from some of the prohibitions imposed by subsection (b), allowing the county attorney to serve the board despite representation of the district. See id. § 6.43(c).

On its face, section 6.43 expressly authorizes the county attorney to provide legal services only to a board, not a tax appraisal district. See id. § 6.43(a) (referring to the authority of the "appraisal review board"), (c) (authorizing legal services "to the appraisal review board"); cf. Tex. Att'y Gen. Op. No. GA-0556 (2007) at 5 (discussing section 6.43). However, because subsection 6.43(c) alludes to the county attorney's representation of the appraisal district, you ask whether it also provides authority for the county attorney to serve as legal counsel for the District. See TEX. TAX CODE § 6.43(c); Request Letter at 1. Thus, we discuss that subsection.

Tax Code subsection 6.43(c) does not authorize the county attorney to serve as legal counsel to the tax appraisal district.

When interpreting a statute, a court's primary goal is to effectuate the Legislature's intent. See Hebner v. Reddy, 498 S.W.3d 37, 41 (Tex. 2016). A court "look[s] for that intent first and foremost in the plain language of the . . . statutory provision" giving "effect to all words of a provision and avoid[ing] constructions that would render any part of it meaningless." Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535, 540 (Tex. 2021).

Subsection 6.43(c) authorizes the county attorney to provide legal services to the board "notwithstanding that the county attorney or an assistant to the county attorney represents or has represented the appraisal district . . . ." TEX. TAX CODE § 6.43(c) (emphasis added). The term "notwithstanding" in common usage means "without obstruction from" or "in spite of." See Tex. Att'y Gen. Op. No. KP-0287 (2020) at 4. Thus, subsection 6.43(c) authorizes the county attorney to provide legal services to the board in spite of the county attorney's representation of the appraisal district. See TEX. TAX CODE § 6.43(c). Subsection 6.43(c) itself contains no language authorizing the county attorney to serve as legal counsel to the appraisal district. See id. However, this subsection assumes the possibility that a county attorney or an assistant to a county attorney could represent an appraisal district. See id.

A county attorney has authority to provide legal services to a tax appraisal district only as expressly granted by law or necessarily implied therefrom. See State v. Hollins, 620 S.W.3d 400, 406 (Tex. 2020) (explaining "[t]he authority vested in Texas counties—and county officials—is limited" to that which is expressly granted or necessarily implied); Tex. Att'y Gen. Op. No. GA-0709 (2009) at 2 ("Public officers, such as a county attorney, possess only such powers as are expressly conferred upon them by law or are necessarily implied from the powers so conferred."). For instance, Civil Practice and Remedies Code section 65.016 authorizes a county attorney to seek an injunction to enforce Tax Code section 22.01 on behalf of an appraisal district. See Robinson v. Budget Rent-A-Car Sys., Inc., 51 S.W.3d 425, 431–32 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (finding Civil Practice and Remedies Code section 65.016 is an enforcement mechanism for rendering under Tax Code section 22.01). Accordingly, a county attorney or an assistant to a county attorney is expressly granted authority to represent an appraisal district in at least a limited capacity. Because this express grant of authority exists outside of Tax Code subsection 6.43(c), a court would likely conclude that Tax Code subsection 6.43(c) contemplates a county attorney's or an assistant to a county attorney's authority to represent a tax appraisal district only to the extent that authority is elsewhere expressly granted by law, and not that subsection 6.43(c) implies the creation of such authority. See Hollins, 620 S.W.3d at 406.

You neither specify the exact nature of your legal service to the District nor refer us to any other potential grant of authority for such service. See Request Letter at 1–2. Therefore, we cannot opine as a matter of law on the propriety of your continued service² as legal counsel to the District.

S U M M A R Y

Tax Code section 6.43 governs an appraisal review board's employment of personnel and expressly authorizes an appraisal review board, not a tax appraisal district, to utilize the legal services of the county attorney. A court would likely conclude that subsection 6.43(c) does not authorize the county attorney to serve as legal counsel to the tax appraisal district.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

CHRISTY DRAKE-ADAMS
Assistant Attorney General, Opinion Committee

¹ See Letter from Honorable Rene P. Montalvo, Starr Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (May 9, 2022), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2022/RQ0461KP.pdf ("Request Letter").

² Nor do we opine on whether such service complies with the Texas Disciplinary Rules of Professional Conduct, an issue that involves the investigation and resolution of fact questions which is beyond the scope of an Attorney General opinion. See Tex. Att'y Gen. Op. No. KP-0400 (2022) at 4.