Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEYGENERAL OF TEXAS
GREG ABBOTT
May 12,2004
The Honorable James L. Keffer Opinion No. GA-0187
Chair, Committee for Economic Development
Texas House of Representatives Re: Whether the exception for continuous
Post Office Box 2910 employment in the general nepotism statute,
Austin, Texas 78768-2910 Government Code chapter 573, applies to an
employment relationship prohibited by section
6.05(f) of the Tax Code (RQ-013%GA)
Dear Representative Keffer:
You ask whether the exception for continuous employment in the general nepotism statute,
Government Code chapter 573, applies to an employment relationship prohibited by section 6.05(f)
of the Tax Code.’
I. Leeal and Factual Background
Chapter 6 of the Tax Code establishes in each county an appraisal district “responsible for
appraising property for ad valorem tax purposes of each taxing unit that imposes ad valorem
taxes on property in the district.” TEX. TAX CODE ANN. 5 6.01 (Vernon 2001). Each appraisal
district is governed by a board of directors, five of whom are appointed by the participating taxing
units. Id. 5 6.03(a) (Vernon Supp. 2004). Section 6.05 requires each appraisal district to establish
an appraisal office and provides that the chief appraiser, who is appointed by the board and serves
at the board’s pleasure, “is the chief administrator ofthe appraisal office.” Id. 5 6.05(a), (c) (Vernon
2001). The chief appraiser “may employ and compensate professional, clerical, and other personnel
as provided by the budget.” Id. $6.05(d).
Your question involves an employment prohibition applicable to chief appraisers, Tax Code
section 6.05(f). That provision prohibits a chief appraiser from hiring certain relatives of appraisal
district directors. See id. $6.05(f). Chapter 573 ofthe Government Code, which applies to all state
and local public officials, prohibits public officials from employing their close relatives, see TEX.
GOV’TCODEANN. $5 573.001(3), .002, ,041 (Vernon 1994), butprovides anexceptionforarelative
who has been continuously employed in a position for some time before the public official’s election
or appointment, see id. 5 573.062. You explain that a school district has nominated a school board
‘SeeLetter from Honorable James L. Keffer, Chair, Committee for Economic Development, Texas House of
Representatives, to Honorable Greg Abbott, Texas Attorney General (Nov. 20, 2003) (on tile with the Opinion
Committee, also ovoilable at http://www.oag.state.tx.us)[hereinafterRequest Letter].
The Honorable James L. Keffer - Page 2 (GA-01 87)
member as a candidate for the Grimes County Tax Appraisal District Board of Directors. See
Request Letter, supra note 1, at 1. The candidate is the son of an appraisal district employee. She
is employed by the chief appraiser and has served in her position for over 15 years. On behalf of the
school district, you askwhether the chapter 573 continuous-employment exception, section 573.062,
applies to an employment relationship prohibited by section 6.05(f) of the Tax Code. Id. Ifit does,
the employee may retain her job in the event her son becomes an appraisal district director.
II. Analysis
In construing Government Code section 573.062 and Tax Code section 6.05(f), we attempt
to give effect to the legislature’s intent. See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436,
438 (Tex. 1997). To do that, we construe the statutes according to their plain language. See id. (“We
endeavor to discover what the Legislature intended from the actual language it employed.“);
RepublicBank Dallas, N.A. v. Inter&l, Inc., 691 S.W.2d 605, 607-08 (Tex. 1985). Words and
phrases that have acquired a technical or particular meaning, whether by legislative definition or
otherwise, must be construed accordingly. See TEX. GOV’TCODEANN. $3 11 .Ol l(b) (Vernon 1998)
(Code Construction Act). Furthermore, in ascertaining the intent of the legislature, all laws bearing
on the same subject are to be considered and given effect. See Jessen Assocs., Inc. v. Bullock, 531
S.W.2d 593,600 (Tex. 1975).
Chapter 573 prohibits a “public official” from appointing, confirming the appointment of,
or voting for the appointment of the public official’s relative and, if the public official serves on a
board, a relative of another board member.’ Under chapter 573, a “public official” is an officer of
a state or local entity, an offtcer or member of a state or local board, or a judge. See TEX. GOV’T
CODE ANN. $573.001(3) (Vernon 1994). The term “public official,” as used in chapter 573, “has
been interpreted to designate only an officer who may exercise authority over a governmental entity’s
appointment or employment decisions.” Tex. Att’y Gen. Op. Nos. GA-01 23 (2003) at 2 (citingpena
v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658,660 (Tex. Civ. App.-Eastland 1981,
no writ)), JC-0193 (2000) at 3.
Section 6.05(g) of the Tax Code expressly makes chief appraisers subject to chapter 573:
The chief appraiser is an officer of the appraisal district for
purposes of the nepotism law, Chapter 573, Government Code. An
appraisal district may not employ or contract with an individual or the
spouse of an individual who is related to the chief appraiser within
the first degree by consanguinity or affinity, as determined under
Chapter 573, Government Code.
‘See TEX.GOV’TCODE ANN.p 573.041 (Vernon 1994) (“A public oft%% may not appoint, confirm the
appomtment of, or vote for the appointment or confiition of the appointment of an individual to a position that is to
be directly cn indirectly compensated from public funds or fees of office if: (1) the individual is related to the public
ofticial within a degree described by Section 573.002; OI(2) the public offkial holds the appointment or continuation
authority as a member of a state OIlocal board, the legislature,or a court and the individual is related to another member
of that board, legislature, or court within a degree described by Section 573.002.“).
The Honorable James L. Keffer - Page 3 (GA-0187)
TEX. TAX CODEANN. 5 6.05(g) (Vernon 2001); see also Tex. Att’y Gen. Op. No. JM-72 (1983)
at 4 (holding that a chief appraiser is an officer under statutory predecessor to chapter 573).
Section 6.05(g) does not address a chief appraiser’s authority to employ appraisal district
directors’ relatives. Furthermore, section 573.041 of the Government Code, the general nepotism
statute’s operative provision, prohibits a public official from employing or voting on the employment
ofhis or her close relative, see TEX. GOV’T CODEANN. 573.041(l) (Vernon 1994), and prohibits a
public official who exercises employment authority as a board member from employing or voting
on the employment of an individual who is closely related to other board members, see id.
5 573.041(2):
A public official may not appoint, confirm the appointment of, or
vote for the appointment or confirmation of the appointment of an
individual to a position that is to be directly or indirectly compensated
from public fUnds or fees of office if:
(1) the individual is related to the public official within a
degree described by Section 573.002; or
(2) the public official holds the appointment or confirmation
authority as a member of a state or local board, the legislature, or a
court and the individual is related to another member of fhat b&d,
legislature, or court within a degree described by Section 573.002.
Id. 5 573.041. But chapter 573 does not prohibit an executive administrator, who is a public official
but does not exercise employment authority as amember of the entity’s board, from employing board
members’ relatives. See id. 5 573.041(2). Thus, chapter 573 does not prohibit a chief appraiser from
employing appraisal district directors’ relatives. However, the legislature addressed that possibility
in section 6.05(f), which expressly prohibits a chief appraiser from employing directors’ relatives:
The chief appraiser may not employ any individual related to
a member of the board of directors within the second degree by
affinity or within the third degree by consanguinity, as determined
under Chapter 573, Government Code. Apersoncommits an offense
if the person intentionally or knowingly violates this subsection. An
offense under this subsection is a misdemeanor punishable by a fine
ofnot less than $100 or more than $1,000.
TEX. TAX CODEANN. 5 6.05(f) (Vernon 2001).
You ask about the chief appraiser’s authority to employ a relative of a director under Tax
Code section 6.05(f). Your query assumes that the word “employ” in this provision embraces not
just fhe initial act of hiring a person, but also the ongoing act of employing the person. We agree
wifh this construction. First, according to its common usage, the word “employ” means “to make
use of,” “to use or engage the services of,” or “to provide with a job that pays wages or a salary.”
WEBSTER’SNINTHNEW COLLEGIATE
DICTIONARY480 (9th ed. 1990); see also TEX. GOV’T CODE
The Honorable James L. Keffer - Page 4 (GA-0187)
ANN. 5 311.011(a) (Vernon 1998) (Code Construction Act) (words in statutes are construed
according to their common usage). Furthermore, general nepotism law, on which section 6.05(f) is
clearly modeled, governs not only relatives’ hiring but also their ongoing employment, as nepotism
conflicts of interest may influence not only a relative’s hiring but also any subsequent employment
action involving the person. See TEX. GOV’T CODEANN. $5 573.041 (prohibiting “appointment”
of certain persons), 573.062 (continuous-employment exception), 573.083 (prohibiting payment of
ineligible employees) (Vernon 1994); Cain v. State, 855 S.W.2d 714 (Tex. Crim. App. 1993) (sheriff
violated general nepotism law by promoting daughter and increasing compensation of son who were
employed under continuous-employment exception). Thus, section 6.05(f) applies to a chief
appraiser’s authority to continue to employ a person who was employed by the district before the
director to whom the person is related became an appraisal district board member.
Your specific question is whether the continuous-employment exception in Government
Code section 573.062 applies to employment relationships prohibited by section 6.05(f). Section
573.062 provides as follows:
(a) A nepotism prohibition prescribed by Section 573.041 or by a
municipal charter or ordinance does not apply to an appointment,
confirmation of an appointment, or vote for an appointment or
confirmation of an appointment of an individual to a position if:
(1) the individual is employed in the position immediately
before the election or appointment of the public official to whom the
individual is related in a prohibited degree; and
(2) that prior employment of the individual is continuous for
at least:
(A) 30 days, ifthe public official is appointed;
(B) six months, if the public official is elected
at an election other than the general election for state
and county officers; or
(C) one year, if the public official is elected at
the general election for state and county officers.
(b) If, under Subsection (a), an individual continues in a position,
the public official to whom the individual is related in a prohibited
degree may not participate in any deliberation or voting on the
appointment, reappointment, confirmation of the appointment or
reappointment, employment, reemployment, change in status,
compensation, or dismissal of the individual if that action applies
only to the individual and is not taken regarding a bona tide class or
category of employees.
TEX. GOV’T CODEANN. 5 573.062 (Vernon 1994) (emphasis added).
The Honorable James L. Keffer - Page 5 (GA-01 87)
Section 573.062’s plain language leads us to conclude that it does not apply to an
employment relationship prohibited by section 6.05(f). Section 573.062(a) limits the application of
“[a] nepotism prohibition prescribed by Section 573.041 or by municipal charter or ordinance.” Id.
Section 573.041 does not prohibit a chief appraiser from employing appraisal district directors’
relatives. See id. 8 573.041. Section 6.05(f) adds an employment prohibition that goes beyond the
chapter 573 nepotism prohibitions in that it precludes the chief appraiser from employing board
member’s relatives. By its express terms, section 573.062(a) does not apply to employment
relationships prohibited by section 6.05(f).
It has been suggested that section 6.05(9’s reference to chapter 573 incorporates the
continuous-employment exception.’ However, it is clear from its plain language that section 6.05(f)
references chapter 573 only with respect to computing degrees ofrelationship: “The chief appraiser
may not employ any individual related to a member of the board of directors within the second
degree by affinity or within the third degree by consanguinity, as determined under Chapter 573,
Government Code.” TEX. TAX CODE ANN. 5 6.05(f) (Vernon 2001) (emphasis added).
Legislative history supports this conclusion. See TEX. GOV’T CODE ANN. 5 3 11.023(l), (3)
(Vernon 1998) (“In construing a statute, . . a court may consider among other matters the object
sought to be attained [and] legislative history.“). As originally enacted in 1989, section 6.05(t) made
no reference to chapter 573’s statutory predecessor, former articles 5996a-5996g. See Act of May
28, 1989, 71st Leg., R.S., ch. 796, 5 7, 1989 Tex. Gen. Laws 3591, 3593. By contrast, section
6.05(g) provided that the chief appraiser “is an officer for purposes of the nepotism law, Article
5996a.” Id. In 1991, the legislature enacted article 599611, to adopt the civil-law method for
computing degrees ofrelationship, see Act ofMay 25,1991,72d Leg., R.S., ch. 561,§ 1,199l Tex.
Gen. Laws 1979,1979-80 (adopting article 5996h), and amended all other state statutes that referred
to relationships by affinity and consanguinity for any purpose to use that method as well by inserting
references to article 5996h, see id. $5 2-99. Among many other such amendments, section 6.05(t)
was amended to provide that afftnity and consanguinity were to be “determined under article 5996h.”
Id. § 44. The bill’s purpose was not to incorporate into section 6.05(f) state-law nepotism
provisions, such as the continuous-employment exception, but to standardize the method for
computing degrees ofrelationship throughout Texas statutes. See HOUSECOMM. ONSTATEAFFAIRS,
BILL ANALYSIS, Tex. H.B. 1345, 72d Leg., R.S. (1991) (noting that sections 2-99 of the bill
“[almend all pertinent Texas law by defining affinity and consanguinity as determined under Article
599631”).
‘See Request Letter, supra note 1, at 2; Brief from Wesley Johnson, Escamilla & Poneck, Inc., on behalf of
Anderson-Shire Consolidated Independent School District, at 3 (‘Tax Code 3 6.05(f)‘sreference to Chapter 573 as
a whole, rather than to specific provisions found within Chapter 573 that define consanguinity and affinity, indicatesthe
legislative intent that all of the nepotism laws set forth within Chapter 573 be applied to a member of a tax appraisal
board of directors.“).
The Honorable James L. Keffer - Page 6 (GA-0187)
Furthermore, the 1995 amendment to section 6.05(f) to change the reference Tom article
5996h to chapter 573 followed article 5996h’s codification in chapter 573 in 1993.“ The 1995
amendment made no substantive change to section 6.05(f) and did not change section 6.05(f) to
incorporate chapter 573 as a whole. See Act of April 25, 1995, 74th Leg., R.S., ch. 76, $5 1.01
(bill’s purpose to make nonsubstantive changes), 5.95 (cross-reference corrections), 5.95(27)
(changing numerous references to former article 5996h to “Chapter 573, Government Code”), 1995
Tex. Gen. Laws 458,458,543-45.
In sum, by its plain language, section 573.062 permits under certain circumstances the
continued employment of a relative whom a public official is prohibited from employing under
section 573.041. See TEX. GOV’T CODEANN. 3 573.062(a) (Vernon 1994). Section 573.041 does
not prohibit a chief appraiser from hiring appraisal district directors’ relatives. Section 6.05(f)
prohibits a chief appraiser from employing an appraisal district director’s relative, a relationship
section 573.041 does not address. Section 573.062’s plain language forecloses us from concluding
that it applies to a relationship prohibited by section 6.05(f).
“SeeActofMay4,1993,73dLeg., RX, ch. 268, $Q1 (enactingGovernment Code, chapter 573),46 (repealing
former articles 5996s5996i), 1993 Tex. Gen. Laws 583,641-45, 986.
The Honorable James L. Keffer - Page 7 (GA-0187)
SUMMARY
Section6,05(f)oftheTax Code provides that achiefappraiser
of an appraisal district “may not employ any individual related to a
member of the board of directors within the second degree by affinity
or within the third degree by consanguinity.” The exception for
continuous employment in the general nepotism statute, Government
Code chapter 573, does not apply to an employment relationship
prohibited by section 6.05(f).
Very truly yours,
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee