Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
JIM MATTOX June 13, 1984
Attorney General
Supreme Court Building Mr. Ron Patterson Opinion No. JM- 166
P. 0. Box 12546
Austin, TX. 76711. 2546
Executive Director
512/475-2501 State Property Tax Board Re: Selection process for
Telex 910/674-1367 9501 North Ill-35 members of an appraisal
Telecopier 51214750266 Austin, Texas 78761 district board of directors
under section 6.03 of the
714 Jackson, Suite 700 Tax Code
Dallas. TX. 75202.4506
21417424944 Dear Mr. Patterson:
You ask us a series of questions regarding section 6.03 of the
4624 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
Tax Code which governs the method of selection for members of an
913533.3464 appraisal district board of directors. We will answer each of your
questions in turn.
)401 Texas, Suite 700 Section 6.03 of the Tax Code contains the following:
Mon. TX. 77002.3111
I 13/223-5666
86.03. Board of Directors
606 Broadway, Suite 312 (a) The appraisal district is governed by a
Lubbock, TX. 794013479 board of five directors. To be eligible to serve
606/747-5238
on the board of directors, au individual must be a
resident of the district and must have resided in
4309 N. Tenth, Suite B the district for at least two years immediately
McAllen, TX. 76601-1665 preceding the date he takes the office. An
512/682-4547
individual who is otherwise eligible to serve on
the board is not ineligible because of membership
200 Main Plaza, Suite 400 on the governing body of a taxing unit. However,
San Antonio. TX. 762052797 not more than one employee of a taxing unit may
512/225-4191 serve on the board at one time. If more than one
employee is appointed to the board, the employee
An Equal Opportunity/
receiving the highest vote total serves, and the
Affirmative Action Employer taxing unit that nominated each of the other
employees appointed to the board shall name a
replacement who is not an employee of a taxing
unit.
(b) Members of the board of directors serve
two-year terms beginning on January 1 of
even-numbered years.
(c) Members of the board of directors are
appointed by vote of the governing bodies of the
p. 729
Mr. Ron Patterson - Page 2 (JM-166)
incorporated cities and towns and the school
districts that participate in the district and of
the county. A governing body may cast all its
votes for one candidate or distribute them among
candidates for any "umber of directorships.
(d) The voting entitlement of a taxing unit
that is entitled to vote for directors is
determined by dividing the total dollar amount of
property taxes imposed in the district by the
taxing unit for the preceding tax year by the sum
of the total dollar amount of property taxes
imposed in the district for that year by each
taxing unit that is entitled to vote, by
multiplying the quotient by 1,000, and by rounding
the product to the nearest whole number. That
number is multiplied by the number of
directorships to be filled. A taxing unit
participating in two or more districts is entitled
to vote in each district in which it participates,
but only the taxes imposed in a district are used
to calculate voting entitlement in that district.
(e) The county clerk shall calculate the
number of votes to which each taxing unit is
entitled and shall deliver written notice to the
presiding officer of the governing body of each
unit of its voting entitlement before October 1 of
each odd-numbered year.
(f) Each taxing unit that is entitled to vote
-Y nominate by resolution adopted by its
governing body one candidate for each position to
be filled on the board of directors. The
presiding officer of the governing body of the
unit shall submit the names of the unit's nominees
to the county clerk before October 15. Before
October 30, the county clerk shall prepare a
ballot, listi"g the candidates alphabetically
according to the first letter in each candidate's
surname, and shall deliver a copy of the ballot to
the presiding officer of the governing body of
each taxing unit that is entitled to vote.
(g) The governing body of each taxing unit
entitled to vote shall determine its vote by
resolution and submit it to the county clerk
before November 15. The county clerk shall count
the votes, declare the five candidates who receive
the largest cumulative vote totals elected, and
submit the results before .December 1 to the
b
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Mr. Ron Patterson - Page 3 (JM-166)
governing body of each taxing unit in the district
and to the candidates. The county clerk shall
resolve a tie vote by any method of chance.
(h) If a vacancy occurs on the board of
directors, each taxing unit that is entitled to
vote by this section may nominate by resolution
adopted by its governing body a candidate to fill
the vacancy. The unit shall submit the name of
its nominee to the county clerk within 10 days
after notification from the board of directors of
the existence of the vacancy, and the county clerk
shall prepare and deliver to the board of
directors within the next five days a list of the
nominees. The board of directors shall elect by
majority vote of its members one of the nominees
to fill the vacancy.
You ask, first, "[ils the selection process contained in section
6.03 of the Property Tax Code governed by the Texas Election Code?"
We conclude that it is not. By its very terms, subsection (c) of
section 6.03 of the Tax Code provides that "[mlembers of the board of
directors are appointed by vote of the governing bodies . . . ."
(Emphasis added). See also Tax Code 16.031. Article 1.01 of the
Election Code, on the other hand, provides that "the provisions of
this code shall apply to all elections and primaries held in this
[sltate . . . .u (Emphasis added). A court of appeals has referred
to an appraisal district board of directors as "a board consisting of
appointees" and declared that equal protection of the law is not
denied where such board members do not represent equal numbers of
people. Colony Municipal Utility District No. 1 of Denton County v.
Appraisal District of Denton County. 626 S.W.2d 930, 932 (Tex. Civ.
APP. - Fort Worth 1982, writ ref'd n.r.e.). See also Walling v. North
Central Texas Municipal Water Authority, 359 S.W.2d 546 (Tex. Civ.
APP. - Eastland 1962, writ ref'd n.r.e.) (method of selecting
governing body of conservation and reclamation district substantially
similar to that set forth in section 6.03 of the Tax Code held not to
be a denial of a republican form of government nor a violation of the
rule set forth in Baker v. Carr, 369 U.S. 186 (1962)). Because the
members of the boards of directors for appraisal districts are
appointed rather than elected, the procedure for selecting the members
is not governed by the Election Code.
Second, you ask the following:
Are any or all of the following dates included in
section 6.03(f) and (g) mandatory deadlines? If
any of these dates are not mandatory, what should
- the county clerk consider the deadline for
performance to be?
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Mr. Ron Patterson - Page 4 (m-166)
(a) Before October 15 -- the date for the unit
to have submitted the names of the unit's nominees
to the county clerk.
(b) Before October 30 -- the date for the
coun136 S.W.2d 808 (Tex. 1940). Federal
Crude Oil Company v. Yount-Lee Oil Company, 52 S.W.2d 56 (Tex. 1932).
As the Texas Supreme Court declared in Cbisholm v. Bewley Mills, 287
S.W.2d 943, 945 (Tex. 1956):
There is no absolute test by which it may be
determined whether a statutory provision is
mandatory or directory. The fundamental rule is
to ascertain and give effect to the legislative
intent. Although the word 'shall' is generally
construed to be mandatory, it may be and
freauentlv is held to be merely directorv. In
essence of the thing to be done, but which are
included for the purpose of promoting the proper,
orderly and prompt conduct of business, are not
generally regarded as mandatory. If the statute
directs, authorizes or cormnandsan act to be done
within a certain time, the absence of words
restraining the doing thereof afterwards or
stating the consequences of failure to act within
the time specified, may be considered as a
circumstance tending to support a directory
construction. (Emphasis added).
p. 732
Mr. Ron Patterson - Page 5 (JM-166)
h
It is clear that the legislature intended that each taxing unit
entitled to appoint members of the board of directors of an appraisal
district have a voice in the selection of the appraisal district board
of directors. See Colony Municipal Utility District No. 1 of Denton
County v. AppraGl District of Denton County, supra. If we were to
conclude that the appointment procedures were mandatorv. _ we would
doubtless promote the proper, -orderly and prompt conduct of the
process. However, such a construction could have the effect of
denying the opportunity to be represented to those appointing taxing
units which fail to comply timely with the provisions. Because we
conclude that such a result is contrary to the manifest intent of the
Legislature when it established the complex and elaborate appointing
procedure in section 6.03, we hold that the provisions are directory
and not mandatory.
Third, you ask
What constitutes a valid subqission of the names
of a unit's nominees under section 6.03(f) and a
valid submission of a unit's vote under section
6.03(g)?
You inform us that several taxing units merely called in their votes
by telephone. Section 6.03(f) specifically provides that
[e]ach taxing unit that is entitled to vote may
nominate by resolution adopted by its govern=
body one candidate for each position to be filled
on the board of directors. The presiding officer
of the governing body of the unit shall submit the
names of the unit's nominees to the county clerk
before October 15. (Emphasis added).
Section 6.03(g) declares that
[tlhe governing body of each taxing unit entitled
to vote shall determine its vote by resolution and
submit it to the county clerk before November 15.
(Emphasis added).
In Civil Service Coam~issionof the City of Texarkana v. Carter, 344
S.W.2d 225, 227 (Tex. Civ. App. - Texarkana 1960, no writ), the court
declared that
it is a fundamental rule of construction that when
an affirmative statute which is introductive of a
new law, such as this [alct, directs a thing to be
done in a certain manner and the procedure for
doing it, the statutory procedure must be followed
exclusively.
p. 733
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Mr. Ron Patterson - Page 6 (JM-166)
In this instance, we believe the statute contemplates that a written
communication regarding the votes be provided the clerk. Furnishing a
copy of the resolutions would, in our opinion, best effectuate the
intent of the statute.
Fourth, you ask:
Does the county clerk have any authority or duty
to investigate or act upon the qualifications of
the nominees or candidates?
Generally, a public officer has no authority to perform an act not
authorized or required of him by law. Duncan v. State, 67 S.W. 903
(Tex. Civ. App. 1902, uo writ).
All public offices and officers are creatures of
law. The powers and duties of public officers are
defined and limite$ by law. By being defined and
limited by law, we mean the act of a public
officer must be expressly authorized by law, or
implied therefrom.
Fort Worth Cavalry Club v. Sheppard, 83 S.W.2d 660, 663 (Tex. 1935).
This office has repeatedly held that a county clerk acts in a
ministerial capacity in receiving certificates of nomination and in
placing names of nominees on the general election ballot. Where the
certificate is regular on its face, the county clerk has neither the
duty nor authority officially to determine questions of regularity or
irregularity, a process which would depend upon an ascertsinment and
determination of facts extraneous to the certificate. Attorney
General Opinions WW-1359 (1962); WW-908 (1960); V-1529 (1952). See
also Attorney General Opinions H-1261 (county clerk must file proposed
plat of a new subdivision which is clearly not defective on its face);
H-1155 (1978) (clerk must file pleadings even though not certified);
H-426 (1974) (clerk may reject instrument clearly defective on its
face); C-695 (1966) (clerk must file deed referring to plat not
recorded pursuant to article 974a. V.T.C.S.). Neither the Tax Code
nor any other statute confers the authority nor imposes a duty upon
the county clerk to determine whether board nominees comply with the
qualifications for office set forth in section 6.03(g). Accordingly,
we conclude that the county clerk may not so officially act.
Finally, you ask:
May a unit cast its voting entitlement for a
person other than one nominated and named on the
ballot? If so, should that vote be counted by the
county clerk in declaring the results of the
election?
p. 734
Mr. Ron Patterson - Page 7 (JM-166)
P
For the reasons set forth in answer to your third and fourth
questions, we conclude that a taxing unit may not cast its voting
entitlement for a person other than one nominated and named on the
ballot and that a county clerk is without authority to include any
such vote in declaring the results of the election.
SUMMARY
The selection process for appointing members of
the appraisal districts' boards of directors set
forth in section 6.03 of the Tax Code is not
governed by the Texas Election Code. The dates
set forth in subsections 6.03(f) and (g) are
directory and not mandatory. A written communica-
tion regarding the votes of the taxing unit must
be submitted to the county clerk. The county
clerk has neither the duty nor the authority to
determine the qualifications of nominees. A
taxing unit nay not cast its voting entitlement
for a person other than one nominated and named on
the ballot. The county clerk is without authority
to include any such vote in declaring the results
of the election.
d-/k
Very ruly your
-
JIM MATTOX
Attorney General of Texas
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
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
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p. 735