Untitled Texas Attorney General Opinion ( 1983 )

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The Attorney General of Texas
September 19, 1983
JIM MATTOX
Attorney General
Supreme Court Building Honorable Dana Ehrlich opinion No. 34-72
P. 0. Box 12546 Lipscomb County Attorney
Austin, TX. 76711. 2546 P. 0. Box 156 Re: Whether appraisal district
512/475.2501
Follett, Texas 79034 may contract with chief appraiser
Telex 9101674-1367
Telecopier 5121475.0266
for appraisal services
Dear Mr. Ehrlich:
714 Jackson, Suite 700
Dallas. TX. 75202-4506
2141742G3944
You ask the following four questions regarding the proper
administration of the Lipscomb County Appraisal District:
4624 Alberta Ave.. Suite 160 1. May the appraisal district enter into an
El Paso. TX. 79905.2793 independent contractor relationship with a chief
915/533&l64
appraiser for the purpose of appraising property
in the district for ad valorem tax purposes?
1001 Texas, Suite 700
,- ,s,on, TX. 77002-3111 2. Is such a contract creating an independent
~1223.5666 contractor relationship subject to competitive
bidding requirements of section 6.11 of the
Property Tax Code?
606 Broadway, Suite 312
Lubbock, TX. 79401.3479
6061747-5236 3. If the contract is invalid, may the wife of
the chief appraiser be employed by the chief
appraiser in the appraisal offices as secretary
4309 N. Tenth. Suite B
without violating article 5996a?
McAllen, TX. 76501-1665
512/662-4547
4. If the contract is valid, may the wife of
the chief appraiser be employed by a private
200 Main Plaza. Suite 400 appraisal firm performing appraisal services for
San Antonio. TX. 76205.2797
the district under contract?
5121225-4191
In answer to your first question, we conclude that an appraisal
An Equal Opportunity/ district may not enter into a contractual relationship with an
Affirmative Action Employer independent contractor to perform the duties of a chief appraiser. In
answer to your third question, we conclude that the wife of a chief
appraiser may not be employed by the chief appraiser in the appraisal
district offices without violating article 5996a, V.T.C.S. Because we
conclude that an appraisal district may not enter into the contract in
question, we need not address your second and fourth questions.
First, you ask whether the appraisal district may enter into a
contract with an independent contractor to perform the duties of a
chief appraiser. We answer your question in the negative.
p. 305
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Honorable Dana Ehrlich - Page 2 (JM-72)
The contract at issue contains, inter alia, the following
provisions which define the relationship of the parties in the
following way:
The parties intend that an independent
contractor-employer relationship will be created
by this contract. District is interested only in
the results to be achieved, and the conduct and
control of the work "ill lie solely with
Contractor. Contractor is not to be considered an
agent or employee of District for any purpose. It
is further understood that Contractor is free to
contract for other appraisal services while he is
under contract with District provided that
Contractor gives precedence to the discharge of
his responsibilities under this agreement . . . .
The work to be performed under this contract
will be performed entirely at Contractor's risk.
In this instance, the chief appraiser of the district proposed to
resign his official position and be rehired as an independent
contractor. His wife would then be employed by the district as a
secretary. Subsequently, the former chief appraiser would be
reappointed to his original position.
Generally, the powers of such governmental agencies as counties,
townshios.
. _ and school districts are more strictlv construed than those
of incorporated municipalities. Tri-City Fresh-Water Supply District
No. 2 of Harris County v. Mann, 142 S.W.2d 945, 948 (Tex. 1940). For
example, a county has no powers or duties except those which are
clearly set forth and defined by the constitution and the state
statutes. Harrison County v. City of Marshall, 253 S.W.2d 67. 69
(Tex. Civ. App. - Fort Worth 1952, writ ref'd); Wichita County v.
Vance, 217 S.W.2d 702, JO3 (Tex. Civ. App. - Fort Worth 1949, writ
ref'd n.r.e.). See also Miller v. El Paso County, 150 S.W.2d 1000,
1003 (Tex. 1941). Analogously, we hold that an appraisal district can
exercise only those powers and duties which are clearly set forth in
the constitution and statutes of this state. Section 6.05 of the Tax
Code provides the following:
(a) Except as authorized by Subsection (b) of
this section, each appraisal district shall
establish an appraisal office.
(b) The board of directors of an appraisal
district may contract with an appraisal office in
another district or with a taxing unit in the
district to perform the duties of the appraisal
office for the district.
p. 306
Honorable Dana Ehrlich - Page 3 (JM-72)
(c) The chief appraiser is the chief
administrator of the appraisal office. The chief
appraiser is appointed by and serves at the
pleasure of the appraisal district board of
directors. If a taxing unit performs the duties
of the appraisal office pursuant to a contract,
the assessor for the unit is the chief appraiser.
(d) The chief appraiser is entitled to
compensation as provided by the budget adopted by
the board of directors. He may employ and
compensate professional, clerical, and other
personnel as provided by the budget.
(e) The chief appraiser may delegate authority
to his employees.
Section 25.01(b) of the Tax Code sets forth the following:
The chief appraiser with the approval of the board
of directors of the district may contract with a
private appraisal firm to perform appraisal
services for the district, subject to his
approval. A contract for private appraisal
services is void if the amount of compensation to
be paid the private appraisal firm is contingent
on the amount of or increase in appraised,
assessed, or taxable value of property appraised
by the appraisal firm.
Because there is no provision in the Tax Code permitting an appraisal
district to enter into a contract such as that here contemplated, we
conclude that it may not do so.
You also ask whether the wife of a chief appraiser may be
employed by the chief appraiser as a secretary in the appraisal
district office in the event that we conclude that the contract about
which you ask is improper. We conclude that she may not be employed.
The nepotism statute is article 5996a, V.T.C.S., and provides the
following:
No officer of this State nor any officer of any
district, county, city, precinct, school district,
or other municipal subdivision of this State, nor
=*Y officer or member of any State district,
county, city, school district or other municipal
board, or judge of any court, created by or under
authority of any General or Special Law of this
state, nor any member of the Legislature, shall
appoint, or vote for, or confirm the appointment
to any office, position, clerkship, employment or
duty, of any person related within the second
p. 307
Honorable Dana Ehrlich - Page 4 (JM-72)
degree by affinity or within the third degree by
consanguinity to the person so appointing or so
voting, or to any other member of any such board,
the Legislature, or court of which such person so
appointing or voting may be a member, when the
salary, fees, or compensation of such appointee is
to be paid for, directly or indirectly, out of or
from public funds or fees of office of any kind or
character whatsoever; provided, that nothing
herein contained, nor in any other nepotism law
contained in any charter or ordinance of any
municipal corporation of this State, shall prevent
the appointment, voting for, or confirmation of
any person who shall have been continuously
employed in any such office, position, clerkship,
employment or duty for a period of two (2) years
prior to the election or appointment of the
officer or member appointing, voting for, or
confirming the appointment, or to the election or
appointment of the officer or member related to
such employee in the prohibited degree. (Emphasis
added).
Article 5996b, V.T.C.S.. enumerates the officers embraced within the
nepotism statute:
The inhibitions set forth in this law shall apply
to and include the Governor, Lieutenant Governor,
Speaker of the House of Representatives, Railroad
Commissioners, head of departments of the State
government, judges and members of any and all
Boards and courts established by or under the
authority of any general or special law of this
State, members of the Legislature, mayors,
commissioners, recorders, aldermen and members of
school boards of incorporated cities and towns,
public school trustees, officers and members of
boards of managers of the State University and of
its several branches, and of the various State
educational institutions and of the various State
eleemosynary institutions, and of the
peniten;iaries. This enumeration shall not be
held to exclude from the operation and effect of
this law any person included within its general
provisions. (Emphasis added).
Clearly, the wife of a chief appraiser falls within the prohibited
degree of affinity. At issue is whether the chief appraiser is an
"officer" for purposes of article 5996a, V.T.C.S. We conclude that he
is.
p. 308
Honorable Dana Ehrlich - Page 5 (JM-72)
We note at the outset of this discussion that we are not
concluding that a chief appraiser is an officer for all purposes. In
Attorney General Opinion MW-450 (1982), this office declared that the
dual office-holding provisions of article XVI, section 40 of the Texas
Constitution are not violated when a chief appraiser of an appraisal
district is appointed to serve on the State Property Tax Board. In
that opinion, we did not discuss whether a chief appraiser is an
officer for purposes of article XVI, section 40 because such a
determination was not necessary in order to resolve the constitutional
question. Such a determination as to whether a chief appraiser is an
officer in any constitutional sense is not necessary in this instance
either.
In Attorney General Letter Advisory No. 156 (1978), this office
concluded that the nepotism law is applicable to persons hired by a
junior college board of trustees upon the recommendation of the
president to whom the person is related. The letter advisory did not
hold that a junior college president is an officer for purposes of
article XVI, section 40; rather, the letter relied on an education
code provision that reposed joint control over the selection of
employees and faculty in the board and the college president. The
letter concluded that such control is sufficient to make the nepotism
statute applicable to the employment of persons related to the
president. See also Attorney General Letter Advisory No. 152 (1978)
(chief of nolice had influence over retainine. orobationarv
. ~, em~lovee).
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In Pena v.' Rio Grande City Consolidated Independent School District,
616 S.W.2d 658, 659 (Tex. Civ. App. - Eastland 1981, no writ), it was
held that a school superintendent is not an officer within the meaning
of article 5996a, V.T.C.S., because the exclusive right and sole legal
authority to appoint or employ teachers was reposed by the Education
Code in the board of trustees.
For purposes of article 5996s. V.T.C.S., the Pena court relied
upon the standard set forth in Aldine Independent School District v.
{tandley, 280 S.W.2d 578 (Tex. 1955), to determine who constitutes an
officer." We note that the court in Aldine was concerned with who
constitutes an "officer" for purposes of article XVI, section 30 of
the Texas Constitution; Pena was concerned with who constitutes an
officer only for purposes of article 5996a, V.T.C.S. In m, the
court in discussing Aldine declared:
The court also stated that status as an officer is
determined by 'whether any sovereign function of
the government is conferred upon the individual to
be exercised by him for the benefit of the public
largely independent of the control of others.'
See also Green v. Stewart, 516 S.W.2d 133 (Tex.
1974); Harris County v. Schoenbacher, 594 S.W.2d
106 (Tex. Cl". App. - Houston [lst Dist.] 1979,
writ ref'd n.r.e.); City of Groves v. Ponder, 303
S.W.2d 485 (Tex. Civ. App. - Beaumont 1957, writ
ref'd n.r.e.). We think the reasoning applied in
p. 309
,
Honorable Dana Ehrlich - Page 6 (JM-72)
Standley is appropriate to the instant case. A
school superintendent merely performs functions
delegated to him by the trustees who do not by
such delegation abdicate their statutory authority
or control. (Emphasis added).
w, supra. at 658. Under the Pena rationale, we believe that a
court would hold that, in an instance in which an individual possesses
the authority to hire and fire personnel, he does exercise a
“sovereign function of the government . . . exercised by him for the
benefit of the public largely independent of the control of others”
and would be an “officer” for purposes of article 5996a, V.T.C.S.
Under Letter Advisory No. 156 (1978). no recourse was had to any
constitutional test; mere control over the hiring and firing of
personnel was sufficient to trigger article 5996a, V.T.C.S. Without
deciding which rationale is the correct one, we conclude that, under
either test, article 5996a, V.T.C.S., is triggered here.
In this instance, section 6.05 of the Tax Code expressly confers
authority on the chief appraiser, as the chief administrator of the
appraisal district office, to employ and compensate professional,
clerical and other personnel as provided by the budget and empowers
him to delegate authority to his employees. We conclude that such
control is sufficient to make applicable the nepotism statute and
that, for purposes of article 5996a, V.T.C.S., the chief appraiser is
an officer. He would thereby be prohibited from “appoint[ing], or
vot[ing] for, or confirm[ing] the appointment to any office, position,
clerkship, employment or duty” of his wife. We point you, however, to
the exception set forth in article 5996a, V.T.C.S., which permits the
appointment of any person who shall have been continuously employed in
such position for two years prior to the appointment of the officer so
appointing. Whether the wife of the chief appraiser falls within this
exception is a factual matter about which we can render no decision.
Because of our answer to your first question, we conclude that it
is unnecessary to consider your second and fourth questions.
SUMMARY
An appraisal district is without authority to
enter into a contract with an independent
contractor to perform the duties of chief
appraiser. The nepotism statutes are applicable
to a chief appraiser and prohibit his appointing
or hiring someone within the stated degree of
J k
affinity or of consanguinity.
Very truly your ,
r;,
JIM MATTOX
Attorney General of Texas
p. 310
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Honorable Dana Ehrlich - Page 7 (JM-72)
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
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
Nancy Sutton
p. 311