Untitled Texas Attorney General Opinion ( 1982 )

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The Attorney General of Texas
February 23, 1982
MARK WHITE
Attorney General
Honorable Oscar H. Mauzy Opinion No.MW-450
Supreme Court Buildinp
Chairman
P. 0. BOX 12546
*ustim TX. 78711. 2548
Senate Committee on Jurisprudence ItI?: Whether duties of chief
512N75-2501 Texas State Senate tax appraiser conflict with
Telex 9101674-1367 Austin, Texas 78711 duties of member of state
Telecopier 512i4750266 Property Tax Board
1607 Main St., Suite 1400
Dear Senator Mauzy:
Oaltas. TX. 75201.4709
21417424944 You ask whether the chief appraiser of an appraisal district may
legally serve on the State Property Tax Board. We understand that you
are specifically-concerned about whether either article XVI, section
4824 Alberta Ave.. Suite 160
El Paso. TX. 79335-2793
40 of the Texas Constitution or the common law doctrine of
915/5X3-3464 incompatibility prevent a person from simultaneously holding both
positions. We'will focusexclusively eon ~these questions.
1220 Oak Ave., Suite 202
We first look to article XVI, section 40. That provision states
Houston. TX. 77002.6966
713650-0666
in pertinent part that, with numerous exceptions which are
inapplicable here:
606 Broadway. Suite 312 No person shall hold or exercise at the same time,
Lubbock. TX. 79401.3479 more than one civil office of emolument....
606i747.5236
The key words in construing this provision are "office" and
4309 N. Tenth. Suite 6 "emolument."
McAlten. TX. 76501-1665
5121662-4547
In the context of article XVI, section 40, the term "emolument"
signifies a pecuniary profit, gain or advantage. Irwin v. State, 177
200 Main Plaza. Suite 400 S.W.2d 970 (Tex. Crim. App. 1944). Section 5.01(i) of the Property
San Antonio. TX. 78205.2797 Tax Code provides that:
512!225-4191
A member of the [State Property Tax Board] may not
An Equal Opportunltyl
receive compensation for his service on the board
Attirmative Action Employer but is entitled to reimbursement for actual and
necessary expenses. as provided by legislative
appropriation, incurred while on travel status in
the performance of official duties.
Because a board member receives no compensation, but is only
reimbursed for certain expenses incurred during the performance of his
official duties, we conclude that no "profit, gain or advantage"
inures to him by virtue of his position. Accordingly, he does not
p. 1550
Honorable Oscar H. Mauzy - Page 22. (Mw-450)
hold an office “of emolument” within the meaning of article XVI,
section 40. See. e.g., Attorney General Opinions MW-81, MW-21 (1979);
compare Willis v. Potts, 377 S.W.Zd 622 (Tex. 1964).
We therefore conclude that article XVI. section 40 does not bar a
chief appraiser from serving on the State Property Tax Board.
We next consider the common law doctrine of incompatibility.
There is a dearth ~of Texas cases dealinn with this doctrine. In the
few cases that have been decided, see, e.g., Ehlinger v. Clark, 8
S.W.2d 666 (Tex. 1928); Pruitt v. Glen Rose Independent School
District Number 1, 84 S.W.2d 1004 (Tex. 1935); Thomas v. Abernathy
County Line Independent School District, 290 S.W. 152 (Tex. Cosun’n
APP. 1927), the courts have merely concluded, without applying any
particular test, that based on the facts before them, the positions in
question either were or were not incompatible. This approach has
resulted in a lack of clear guidance as to how to determine whether
particular positions are in fact incompatible.
Cases from other jurisdictions are more helpful. In particular,
Haskins v. Harrington. 516 P.2d 1171 (Wyo. 1973), which was relied on
in Letter Advisory No. 114 (1975), contains a useful discussion of the
doctrine of incompatibility. Among other authorities, Haskins cited
volume 63, section 74 of American Jurisprudence 2d Public Officers and
Employees:
One of the most important tests as to whether
offices are incompatible is found in the principle
that the incompatibility is recognized whenever
one is subordinate to the other in some of its
important and principal duties, and subject in
some degree to the other’s revisory power. Thus,
two offices are incompatible where the incumbent
of the one has the power of appointment to the
other office or the power to remove its incumbent,
even though the contingency on which the power may
be exercised is remote.
The court also quoted from O’Connor v. Calandrillo, 285 A.2d 275. 277
(N.J. Super. 1971). affirmed, 296 A.2d 326 (N.J. Super. 1972):
. ..the common law doctrine of incompatibility has
developed as a matter of public policy in order to
insure that there be the appearance as well as the
actuality of impartiality and undivided loyalty.
[citation omitted]. Incompatibility exists ‘where
in the established governmental scheme one office
is subordinate to another, or subject to its
supervision or control, or the duties clash,
inviting the incumbent to prefer one obligation to
another.‘... If the duties of the two offices are
p. 1551
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Honorable Oscar H. Mauzy - Page 3 (MW-450)
such that when 'placed in one person they might
disserve the public interests, or if the
respective offices might or will conflict even on
rare occasions, it is sufficient to declare them
legally incompatible.' [citation omitted].
A shorthand formulation of these principles can be found in Letter
Advisory No. 62 (1973):
Offices are legally incompatible when the faithful
and independent exercise of one would necessarily
interfere with or control the faithful and
independent exercise of the other. (Emphasis in
original).
See also Letter Advisory No. 86 (1974).
Sections 6.01 et seq. of the Property Tax Code provide for
appraisal districts. Each district is governed by a board of five
directors. 96.03. The chief appraiser of an appraisal district is
appointed by, and serves at the pleasure of, the district board of
directors. 56.05.
The duties of chief appraisers are spelled out in various
sections scattered throughout the Property Tax Code. Among other
things, chief appraisers prepare a proposed budget for the operations
of their appraisal district for each succeeding year. 86.06. They
perform various administrative duties in connection with applications
for tax exemptions. §11.44. They prepare appraisal records listing
all taxable property in their district and its appraised value.
525.01. They also prepare and certify to the assessor for each taxing
unit participating in their district that part of the appraisal roll
for the district that lists property which is taxable by the unit.
526.01.
The duties and responsibilities of the State Property Tax Board
are numerous, but may be generally sumnisrized as' ~follows: (1)
promulgate rules establishing minimum standards for the administration
and operation of appraisal district offices and uniform record
systems, Property Tax Code sections 5.03(a), 5.07, 5.07(c); (2)
conduct a valuation study for school district financing, Cduc~ricn
Code section 11.80; (3) publish general and special appraisal manuals,
a newsletter, and pamphlets discussing taxpayers' remedies, Property
Tax Code sections 5.05(a), 5.06; (4) apportion the appraised value ot
railroad rolling stock and appraise the intangible values of certain
transportation businesses, Property Tax Code sections 24.37, 24.01;
see also section 31.09; and (5) develop educational materials and
training programs: conduct, sponsor, or approve courses of instruction
and training; and provide technical assistance, Property Tax Code
sections 5.05(b), 5.04(a). 5.08(a). 5.08(b).
Honorable Oscar H. Mauzy - Page 4 (l+fW-450)
Our analysis of the duties and responsibilities of chief
appraisers and members of the State Property Tax Board convinces us
that under the tests set forth above, these positions are not legally
incompatible. Chief appraisers are subject to the direction and
control of their appraisal district’s board of directors and the
appraisal review board, not the Property Tax Board. The Property Tax
Board has no authority to appoint or remove chief appraisers. The
duties of the two positions do not clash, in our opinion, and are not
such that “when placed in one person they might disserve the public
interests.” Haskins V. Harrington. supra. Put another way, the
faithful and independent exercise of one position would not
necessarily Interfere with or control the faithful and independent
exercise of the other. -See Letter Advisory Nos. 86 (1974); 62 (1973).
Our conclusion is not altered by the fact that section 5.03(a) of
the Property Tax Code directs the Property Tax Board to adopt rules
establishing minimum standards for the administration and operation of
appraisal districts, and that because of this a chief appraiser who is
a member of the board will participate ln developing standards which
he will then follow when functioning as chief appraiser. First, the
board of directors of the appraisal district, not the chief appraiser,
is charged with the responsibility of implementing rules promulgated
by the Property Tax Board. Second. as we have noted, chief appraisers
are answerable to the appraisal district board of directors, not the
Property Tax Board. Third, the Property Tax Board has no power to
enforce its own rules; on the contrary, the power to force compliance
with the rules of the Property Tax Board lies in the hands of taxing
units, not the board itself. Property Tax Code 943.01.
We therefore conclude that the positions of chief appraiser of an
appraisal district and member of the State Property Tax Board are not
legally incompatible under the present statutory scheme.
SUMMARY
Article XVI, section 40 of the Texas
Constitution does not prohibit a chief appraiser
of a” appraisal district from serving on the State
Property Tax Board. The positions of chief
appraiser and member of the Property Tax Board are
not legally incompatible.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
D. 1553
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Honorable Oscar H. Mauzy - Page 5 (Mw-450)
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RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
p. 1554