Could former officers, employees, or governing-board members of a Texas taxing unit serve on an appraisal review board?

TX AG Opinion DM-0462: Who was eligible to serve on an appraisal review board?

Plain-English summary

The opinion reconciled two 1997 amendments restricting who could serve on a Texas appraisal review board. Tax Code section 6.412(c), effective September 1, 1997, applied to new appointments in every county until January 1, 1998. Once the amendment to section 6.41(c) took effect on January 1, the Attorney General read the provisions together so section 6.41(c) governed appraisal districts in counties with more than 300,000 people and section 6.412(c) governed the remaining counties.

The two provisions used different scopes. In a county over 300,000, section 6.41(c) made a former governing-body member, officer, or employee of any taxing unit ineligible, whether or not the local appraisal district appraised that unit's property. In a smaller county, section 6.412(c) applied only when the person had served a taxing unit for which that appraisal district appraised property. The opinion treated “former” as modifying officer and employee as well as governing-body member, avoiding redundancy with the separate restriction on current officials and employees.

Tax Code section 1.04(12) supplied the definition of taxing unit. A political subdivision had to be both authorized to impose and actually imposing ad valorem taxes. Whether the subdivision later stopped taxing or ceased to exist did not change the appointee's status. The relevant question was whether it qualified as a taxing unit while the person served it. A subdivision that was authorized but did not impose ad valorem tax during the person's tenure was not a taxing unit for this purpose.

The opinion used Aldine Independent School District v. Standley to distinguish officers from employees. An officer exercised a sovereign governmental function largely independent of others' control. An employee served under an express or implied contract of hire, was subject to the employer's direction and control, and was compensated. That definition included full- and part-time workers, such as instructors, substitute teachers, election workers, summer municipal employees, and driver-education teachers, but excluded an uncompensated volunteer who was not an officer.

Finally, the Attorney General rejected facial due-course and special-law objections. The opinion predicted that courts would find a rational connection between the classifications and the state's interest in neutral property-tax review, while acknowledging that final resolution of the rational-basis issue could require facts outside the opinion process.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 1997)

Appraisal districts in counties over 300,000: From January 1, 1998, the opinion treated former governing-body members, officers, and employees of any taxing unit as ineligible under section 6.41(c).

Appraisal districts in smaller counties: Section 6.412(c) applied, limiting the bar to people connected with taxing units for which that appraisal district appraised property.

Former taxing-unit workers and officials: Eligibility turned on the entity's taxing status during the person's tenure and on whether the person was an officer or compensated employee. Later dissolution or cessation of taxation was irrelevant.

Volunteers: A volunteer who was not an officer did not fall within the opinion's definition of employee because the definition required compensation.

Common questions

Which statute controlled between September 1, 1997, and January 1, 1998?
Section 6.412(c) governed new appointments to appraisal review boards in all counties during that period.

What changed on January 1, 1998?
The opinion read section 6.41(c) to govern boards in counties over 300,000 and section 6.412(c) to govern boards in smaller counties.

Did the former taxing unit have to still exist when the person joined the review board?
No. The relevant time was the appointee's tenure. If the entity was authorized to impose and was imposing ad valorem taxes then, its later dissolution or decision to stop taxing did not restore eligibility.

Was every person who worked for a taxing unit an employee?
Paid full- and part-time workers subject to the entity's direction and control were employees under the opinion. A non-officer volunteer was not.

How did the opinion define a public officer?
It used the Aldine test: the person had to receive a sovereign governmental function to exercise for the public's benefit largely independent of others' control.

Background and statutory framework

Section 6.41(c), as amended by Senate Bill 841, applied to appraisal districts established for counties with more than 300,000 people and barred a person who had served three prior terms, a former taxing-unit governing-body member, officer, or employee, or a former appraisal-district director, officer, or employee. The restriction applied to appointments made on or after January 1, 1998 and also reached auxiliary appraisal review board members.

Section 6.412(c), added by Senate Bill 1017, became effective September 1, 1997. It barred former appraisal-district officers and employees, former appraisal-district directors, and former governing-body members, officers, or employees of taxing units for which the appraisal district appraised property. People already serving on its effective date could finish their terms.

The opinion harmonized the provisions under Government Code section 311.026(a), which directs courts to give effect to both a general and a specific provision when possible. It reasoned that a populous county had a larger pool of potential board members, so the Legislature could impose the broader section 6.41(c) exclusion without impairing the district's ability to find qualified appointees. Smaller counties retained the narrower section 6.412(c) rule.

On constitutional review, article I, section 19 supplied the Texas due-course protection and article III, section 56 barred special laws. The opinion applied rational-basis concepts, citing Hurt, Patterson, Maple Run, and Rodriguez, and predicted that the classifications would be upheld as reasonably related to impartial appraisal review and as operating equally within each class.

Citations

Constitution and statutes:

• Tex. Const. art. I, § 19
• Tex. Const. art. III, § 56
• Tex. Tax Code §§ 1.04(12), 6.41(c), 6.411, 6.412(c), 25.22(a), 41.01, 41.03, 41.05, 41.07, 41.41, 41.45, 41.47
• Tex. Gov't Code §§ 311.011(a), 311.026(a)
• Tex. Civ. Prac. & Rem. Code §§ 101.001(2), 102.001(1)

Cases:

• Towne Square Assocs. v. Angelina County Appraisal Dist., 709 S.W.2d 776 (Tex. App.-Beaumont 1986, no writ)
• Corchine Partnership v. Dallas County Appraisal Dist., 695 S.W.2d 734 (Tex. App.-Dallas 1985, writ ref'd n.r.e.)
• State v. Edmond, 933 S.W.2d 120 (Tex. Crim. App. 1996) (en banc)
• White v. State, 930 S.W.2d 673 (Tex. App.-Waco 1996, no writ)
• Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Dunbar v. Brazoria County, 224 S.W.2d 738 (Tex. Civ. App.-Galveston 1949, writ ref'd)
• Riverbend Country Club v. Patterson, 399 S.W.2d 382 (Tex. Civ. App.-Eastland 1965, writ ref'd n.r.e.)
• Hurt v. Cooper, 110 S.W.2d 896 (Tex. 1937)
• Patterson v. City of Dallas, 355 S.W.2d 838 (Tex. Civ. App.-Dallas 1962, writ ref'd n.r.e.)
• Maple Run at Austin Mun. Util. Dist. v. Monaghan, 931 S.W.2d 941 (Tex. 1996)
• Rodriguez v. Gonzales, 227 S.W.2d 791 (Tex. 1950)

Related opinions:

• Tex. Att'y Gen. Op. DM-94 (1992); DM-259 (1993); DM-409 (1996); JM-525 (1986); DM-98 (1992); H-56 (1973); M-187 (1968); O-2911 (1940)
• Tex. Att'y Gen. LO-96-081 (1996)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0462
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1997/dm0462.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

December 19, 1997

The Honorable Ken Armbrister
Chair, Committee on State Affairs
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

The Honorable Michael P. Fleming
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002-1891

Opinion No. DM-462

Re: Whether a former member of the governing body or an officer or employee of a taxing unit is eligible for appointment to an appraisal review board, and related questions

Gentlemen:

Both Tax Code section 6.41(c) and section 6.412(c) deem ineligible for membership on an
appraisal review board a former director, former officer, or former employee of the appraisal district
board. Tax Code 6.41(c)’s restriction, however, applies only to an appraisal review board in an
appraisal district established for a county with a population that exceeds 300,000, while section
6.412(c) applies to any appraisal review board, regardless of the size of the county with which the
review board is affiliated. More importantly, section 6.41(c) deems ineligible for membership a
former member of the governing body, a former officer, or a former employee of a taxing unit. By
contrast, Tax Code section 6.412(c) deems ineligible for membership only a former member of the
governing body, a former officer, or a former employee of a taxing unit for which the appraisal
district appraises property. You both ask about the eligibility of certain former officers or
employees of the government to serve on an appraisal review board. Senator Armbrister asks
generally about “the breadth of the application” of section 6.41(c)’s restriction. Mr. Fleming asks
how these two limitations on eligibility interface, and he asks specifically how to define taxing unit
in section 6.41(c). We conclude generally that, on and after January 1, 1998, section 6.41(c) limits
appraisal review board membership on an appraisal review board affiliated with a county that has
over 300,000 people, while section 6.412(c) applies to appraisal review boards affiliated with the
remaining, smaller counties. We further conclude that section 6.41(c) applies to former officers and
former employees of any taxing unit, as Tax Code section 1.04(12) defines that term, while section
6.412(c) is limited to former officers and employees only of taxing units for which the appraisal
district appraises property.

Mr. Fleming asks several other questions as well. He asks how to distinguish a taxing unit
officer from a taxing unit employee. We understand his real concern to be how to distinguish an
individual who serves a taxing unit and who is therefore ineligible for appointment under either

section 6.41(c) or section 6.412(c) from a similarly situated individual who is not ineligible under
those sections. We conclude, based upon the language of the statutes, that the sections deem
ineligible all former officers and employees, including part-time employees, but they do not deem
ineligible volunteers who are not officers. Mr. Fleming further suggests that the prohibition on
appointing former officers and employees violates Texas Constitution article I, section 19, an
argument we believe is without merit. Finally, Mr. Fleming contends that the prohibitions constitute
special laws and are thus unconstitutional under Texas Constitution article III, section 56. We find
this contention without merit as well.

We begin by examining the appraisal review process. In each appraisal district, an appraisal
review board' reviews the appraisal records of the county’s chief appraiser.” As part of its review
function, the review board is required to hear and determine taxing units’ challenges to the records,’
as well as property owners’ protests regarding the records.* Review board members are appointed
by the appraisal district board of directors.° The appraisal district board also may appoint auxiliary
members to the appraisal review board to hear taxpayer protests and to assist the review board in
performing its other duties.®

In 1997 the Seventy-fifth Legislature added two provisions pertaining to the eligibility of
review board members. By the passage of Senate Bill 841, the legislature amended Tax Code
section 6.41(c) to restrict membership on an appraisal review board affiliated with a county having
a population greater than 300,000:

In an appraisal district established for a county having a population of more
than 300,000, an individual who has served for all or part of three previous
terms as a board member or auxiliary board member on the appraisal review
board, is a former member of the governing body or an officer or employee of
a taxing unit, or is a former director, officer, or employee of the appraisal
district is ineligible to serve on the appraisal review board.’

‘See Tax Code § 6.41(a).

See id. §§ 25.22(a), 41.01; Attorney General Opinion DM-94 (1992) at 2.

3See Tax Code §§ 41.03, .05, .07.

‘See id. §§ 41.41, .45, .47; see also Attorney General Opinion DM-259 (1993) at 1-2.

5See Tax Code § 6.41(d). The appraisal district board and appraisal review board are separate entities. See
Towne Square Assocs. v. Angelina County Appraisal Dist., 709 S.W.2d 776, 778 (Tex. App.—-Beaumont 1986, no writ);
Corchine Partnership v. Dallas County Appraisal Dist., 695 S.W.2d 734, 735 (Tex. App.--Dallas 1985, writ ref’d n.r.e.).

®See Tax Code § 6.411(a).

"See Tax Code § 6.41(c), as amended by Act of May 29, 1997, 75th Leg., R.S., ch. 1039, § 4, 1997 Tex. Sess.
(continued...)

This new restriction on eligibility, signified by the italicized language, applies only to the review
board members appointed on or after January 1, 1998.* The restriction on eligibility also applies to
auxiliary review board members.’ In addition, by the adoption of Senate Bill 1017, the legislature
added to Tax Code section 6.412 a new subsection (c), which similarly restricts membership on an
appraisal review board:

A person is ineligible to serve on the appraisal review board if the person
is:

(1) a former officer or employee of the appraisal district or a taxing unit
for which the appraisal district appraises property;

(2) a former member of the board of directors of the appraisal district; or

(3) a former member of the governing body of a taxing unit for which the
appraisal district appraises property."°

Although section 6.412(c) became effective September 1, 1997, it does not affect review board
members sitting on the board on that date.'' Rather, they may “continue to serve on the board and
to participate in board hearings for the remainder of [their terms]. The changes in law apply only
to a member appointed on or after the effective date... .”!?

As a preliminary matter, we construe section 6.41(c) so that the adjective former modifies
officer and employee as well as member of the governing body.'* When read literally, the eligibility
limitation in section 6.41(c) that is at issue in this opinion appears to deem ineligible a former
governing board member, a current officer, or a current employee of a taxing unit: “an individual

1(...continued)
Law Serv. 3897, 3899 (emphasis added to denote 1997 amendment).

*See Act of May 29, 1997, 75th Leg., R.S., ch. 1039, § 50(c), 1997 Tex. Sess. Law Serv. 3897, 3919.

*See id. § 5, 1997 Tex. Sess. Law Serv. 3897, 3899 (amending Tax Code § 6.411(c)).

Act of May 19, 1997, 75th Leg., R.S., ch. 691, sec. 2, § 6.412(c), 1997 Tex. Sess. Law Serv. 2312, 2313.

'\See Act of May 19, 1997, 75th Leg., R.S., ch. 691, § 3(a), 1997 Tex. Sess. Law Serv. 2312, 2313.

"27g, Tax Code section 6.412(c) “does not prohibit a person who is a member of an appraisal review board on
the effective date . . . from being reappointed to the board if the person has the qualifications required for a member
under the Tax Code as amended by this Act.” Jd.

We received a letter from Representative Todd Smith specifically raising this issue. Representative Smith

is not an authorized requestor. See Gov’t Code §§ 402.042, .043, .044. To resolve your questions, however, we must
resolve the very issue Representative Smith raises.

who . . . is a former member of the governing body or an officer or employee of a taxing unit . . . is
ineligible to serve ....” In this phrase, the adjective former appears to modify only member of the
governing body, not officer or employee. The immediately preceding sentence, however, deems
ineligible for review board membership (in any county, regardless of population) a current appraisal
district board member or a current officer or employee of the comptroller, the appraisal office or a
taxing unit. If the adjective former does not modify officer or employee, the two sentences are
largely redundant, and we presume that the legislature did not intend the redundancy.'*

The two provisions about which you ask differ in several respects. Mr. Fleming points out
two differences, which he contends render the provisions inconsistent. First, section 6.41(c) applies
only to review board members in an appraisal district established for a county having a population
greater than 300,000, while section 6.412(c) applies, ostensibly, to review board members in any
appraisal district, regardless of the affiliated county’s population. Second, while both section 6.41(c)
and 6.412(c)(1), (2) deem ineligible a former member, officer, or employee of the appraisal district
board, they set different standards for former taxing unit officers or employees. Specifically, section
6.41(c) deems ineligible a former officer or employee of “a taxing unit,” while section 6.412(c)
deems ineligible a former officer or employee of “a taxing unit for which the appraisal district
appraises property.” Likewise, section 6.41(c) deems ineligible a former member of the governing
body of “a taxing unit,” while section 6.412(c) deems ineligible a former member of the governing
body of “a taxing unit for which the appraisal district appraises property.” We note a third
difference: section 6.412(c) became effective September 1, 1997, while the amendments to section
6.41(c) will become effective January 1, 1998.

We disagree that sections 6.41(c) and 6.412(c) are irreconcilably inconsistent; instead, we
_ believe the differences may be harmonized. Where a general provision conflicts with a more specific
provision, we are to construe the two, if possible, to effectuate both.'* Clearly, before January 1,
1998, there is no conflict: every appointment to an appraisal review board must comply with Tax
Code section 6.412(c), the only effective provision at this time. But even when both provisions are
effective, on January 1, 1998, we do not find irreconcilable conflict.

On and after January 1, 1998, we believe the eligibility restriction in section 6.41(c) will
apply only to an appraisal review board affiliated with a populous county, while section 6.412(c) will
apply to an appraisal review board affiliated with a smaller county. By its terms, the restriction in
section 6.41(c) applies only to appointments to an appraisal review board affiliated with a county
with a population higher than 300,000, which to be concise we will denominate a “populous
county.”'® Section 6.412(c), by contrast, is not explicitly limited. We interpret it, consequently, to

“See State v. Edmond, 933 S.W.2d 120, 124 (Tex. Crim. App. 1996) (en banc); White v. State, 930 S.W.2d
673, 676 (Tex. App.--Waco 1996, no writ).

'SSee Gov't Code § 311.026(a).

'6The 1998-1999 Texas Almanac lists eleven counties as having populations higher than 300,000. See THE
(continued...)

apply to all nonpopulous counties, to which the restriction in section 6.41(c) does not apply. Thus,
on January 1, 1998, Mr. Fleming’s county, Harris, a populous county,!’ will be subject to the
eligibility restriction in section 6.41(c), although it is currently subject to section 6.412(c). On the
other hand, Gonzales County, one of the counties Senator Armbrister represents, is and on January
1, 1998, will remain subject to section 6.412(c) because it is a nonpopulous county.'®

In addition, we construe section 6.41(c) to deem ineligible for appointment to an appraisal
review board that is affiliated with a populous county a former governing board member, former
officer, or former employee of any taxing unit, whether or not the taxing unit’s property is appraised
by the appraisal review board’s appraisal district. Under section 6.41(c), an appraisal district in a
populous county cannot appoint a former member of the governing body, officer, or employee of
a taxing unit. The term taxing unit in section 6.41(c) is unrestricted. By contrast, the legislature has
chosen explicitly to limit the term in section 6.412(c) to include only those taxing units for which
the appraisal district appraises property. The term taxing unit, for purposes of both sections 6.41(c)
and 6.412(c), is defined in Tax Code section 1.04(12):

“Taxing unit” means a county, an incorporated city or town (including a
home-rule city), a school district, a special district or authority (including a
junior college district, a hospital district, a district created by or pursuant to
the Water Code, a mosquito control district, a fire prevention district, or a
noxious weed control district), or any other political unit of this state,
whether created by or pursuant to the constitution or a local, special, or
general law, that is authorized to impose and is imposing ad valorem taxes
on property even if the governing body of another political unit determines
the tax rate for the unit or otherwise governs its affairs.”

Indeed, the fact that section 6.41(c) applies to former officers and employees of any taxing
unit, while section 6.412(c) applies to former officers and employees only of those taxing units for
which the appraisal district appraises property appears to us to follow logically from the population
difference. In a populous county, the appraisal district has a larger pool of citizens from which to
select appointees to the appraisal review board; the legislature may, therefore, exclude a larger
number of people without seriously impacting the appraisal district’s ability to find competent
appointees. But in a smaller county, the appraisal district has a smaller pool of possible appointees

'6(__.continued)
DALLAS MORNING NEWS, 1998-1999 TEXAS ALMANAC 143-292 (1997).

See BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, 1990 CENSUS OF POPULATION: GENERAL
POPULATION CHARACTERISTICS: TEXAS 2 (1992) (population 2,818,199).

81d. (population: 17,205).

Tax Code section 1.04 defines terms for the whole of Tax Code title 1. Sections 6.41 and 6.412 both are part
of title 1.

from which to choose. By excluding only former directors, officers, and employees of taxing units
for which the appraisal district appraises property, the legislature, we believe, attempted to maximize
the number of people eligible for appointment while still accomplishing the intent of the
limitation—to reduce cronyism in the appointment process.”°

We turn now to your specific questions. We begin with Mr. Fleming’s first question: how
to reconcile what he perceives as irreconcilable differences between the limitation in section 6.41(c)
and section 6.412(c). We have concluded that until January 1, 1998, section 6.412(c) applies to
appointments to appraisal review boards in all counties. On and after January 1, we have concluded,
section 6.41(c)’s limitation applies to appraisal review boards affiliated with populous counties,
while section 6.412(c) applies to all other counties.

Mr. Fleming’s second question concerns the definition of taxing unit. Unlike section
6.412(c), section 6.41(c), we have concluded, pertains to former officers and employees of all taxing
units, whether or not the appraisal district appraises property for that taxing unit. Further, we have
adopted, for purposes of section 6.41(c) and 6.412(c), the definition of taxing unit found at Tax Code
section 1.04(12), which describes a political subdivision that is authorized to and is imposing ad
valorem taxes. Mr. Fleming, however, asks about former directors, officers, or employees of taxing
units that have either ceased to exist or that do not or did not impose taxes:

[I]s an [appointee] ineligible to serve on the appraisal review board if he or
she was formerly an officer or employee of . . . :

1. A taxing unit that ceased to exist prior to January 1, 1998 (effective
   date of legislative changes to [Tax Code section] 6.41277!

See Hearings on S.B. 1017 Before the Senate Comm. on Intergovernmental Relations, 75th Leg., RS.
(Mar. 26, 1997) (statement of Senator Patterson) (tape available from Senate Staff Services) (indicating that bill’s
purpose is to ensure that appraisal review process is fair and that members of appraisal review board be neutral arbiters
of property tax disputes); id. {testimony of Breck Bostwick, representing Texas Ass’n of Property Owners) (stating that
small counties have difficult time finding people to serve on appraisal review boards); cf. Hearings on S.B. 841 Before
the House Comm. on Revenue and Public Education, 75th Leg., R.S. (May 1, 1997) (testimony of Mark Rose,
representing self) (tape available from House Video/Audio Services Office) (reflecting public perception that, because
appraisal district board appoints board members’ friends and cronies to appraisal review board, taxpayer protesting
decision can do nothing to get fair hearing from review board); cf also CITIZENS’ COMM. ON PROPERTY TAX RELIEF,
FINAL REPORT 21-22 (Nov. 8, 1996) (summarizing public sentiment that review process “undemocratic” because,
according to those who testified, appraisal review board cannot offer unbiased review of appraisal district’s work).

21As we have stated, Tax Code section 6.412(c) became effective September 1, 1997. See Act of May 19, 1997,
75th Leg., R.S., ch. 691, 1997 Tex. Sess. Law Serv. 2312, 2312-13. The amendment to section 6.41(c), on the other
hand, will take effect January 1, 1998. See Act of May 29, 1997, 75th Leg., RS., ch. 1039, § 50({a), 1997 Tex. Sess.
Law Serv. 3897, 3919. We believe, therefore, that Mr. Fleming refers to section 6.41(c) in this question, not section
6.412(c), as he states.

2. A taxing unit that ceased to exist prior to January 1, 1982 (effective
   date of [Tax Code])?

3. A taxing unit that ceased to exist prior to May 31, 1993 (effective date
   of changes to [Tax Code section 1.04(12), which defines taxing
   unit])?

4. A taxing unit that ceases to exist before the appraisal review board
   member takes office?

5. A taxing unit that is in existence but otherwise ceases to impose an ad
   valorem tax before the appraisal review board member takes office?

6. A taxing unit that is in existence but did not impose an ad valorem tax
   (although authorized to do so) during the time that the appraisal
   review board [appointee] was an employee or officer?

In our opinion, the critical question in unraveling all of these hypothetical situations is
whether the appointee served a political subdivision that was, at the time the appointee served it,
authorized to impose and was imposing ad valorem taxes. Thus, it makes no difference that the
taxing unit ceased to exist before some arbitrary date. Nor does it matter that the taxing unit ceased
imposing ad valorem taxes after the appointee’s tenure. It is relevant, however, that a political
subdivision was authorized to but did not collect ad valorem taxes during the appointee’s tenure.
Under the Tax Code’s definition, two factors set a political subdivision apart as a taxing unit: first,
the political subdivision is authorized to collect ad valorem taxes; and second, the political
subdivision in fact imposes ad valorem taxes. Where one of these factors is not present, the political
subdivision is not a taxing unit. Consequently, in response to the first five of Mr. Fleming’s
hypotheticals, we believe the appointee is ineligible to serve on an appraisal review board.
Conversely, in response to Mr. Fleming’s sixth hypothetical, we believe neither section 6.41(c) nor
section 6.412(c) precludes the appointee from service on an appraisal review board because the
political subdivision was not a taxing unit at the time the appointee served it.

You both question the scope of the terms officer and employee for purposes of sections
6.41(c) and 6.412(c). Mr. Fleming first cites the opinion of the Texas Supreme Court in Aldine
Independent School District v. Standley,” distinguishing an officer from an employee on the basis
of “whether any sovereign function of the government is conferred upon the individual to be
exercised by him for the benefit of the public /argely independent of the control of others.””

²²280 S.W.2d 578 (Tex. 1955).

*Id. at 583 (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App.--Galveston 1949, writ
ref’d))} (emphasis in original).

Mr. Fleming then cites several statutory definitions of employee,“ and he closes with one,
Government Code section 821.001(6), that defines the term to include only full-time workers. He
also cites a statutory definition of local public official, Local Government Code section 171.001, and
a previous opinion of this office that an individual who serves as an alternate election judge in a
single municipal election is not an officer of a taxing unit.?* He finally lists specific positions and
asks whether an individual who currently or formerly has held one of the positions is eligible for
appointment to an appraisal review board:

• part-time instructor for a community college (which, Mr. Fleming
  states, is a taxing unit);

° alternate election judge or clerk for a taxing unit for one or more
elections;

° substitute teacher for a school district (which, Mr. Fleming states, is
a taxing unit);

e summer employee for a municipal parks and recreation program

(Mr. Fleming states that a municipality is a taxing unit).

Senator Armbrister asks, in addition, about a former city driver education teacher or a retired taxing
unit employee.

In our view, all of the positions about which you ask are employments. None are offices, we
believe, because none of the position holders exercises a sovereign governmental function
independently of others’ control.”* Indeed, this office previously has concluded that an alternate
election judge or clerk is not an officer.?” Rather, all of the positions are subject to the control of
others and all are compensated; both of which are characteristics of employment.

We believe, for purposes of Tax Code sections 6.41(c) and 6.412(c), the term employee
encompasses any individual who is appointed to serve the government under a contract of hire,
express or implied, oral or written, where the employer has the power or right to control and direct
the employee in the material details of how the work is to be performed, and who is compensated

“See Civ. Prac. & Rem. Code §§ 101.001(2), 102.001(1); Gov’t Code §§ 606.021(1), 607.001, 613.001(3);
Local Gov’t Code § 158.001(2).

See Letter Opinion No. 96-081 (1996) at 2.

*See Aldine, 280 S.W.2d at 583 (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App.--
Galveston 1949, writ ref’d)).

7See Letter Opinion No. 96-081 (1996) at 2.

for his or her work.” Because we find no statutory definition of employee expressly applicable to
Tax Code sections 6.41(c) and 6.412(c), we define the term in context and consistently with common
usage.” Some, but not all, of the statutory definitions Mr. Fleming cites coincide with our
definition. For example, Civil Practice and Remedies Code section 101.001 distinguishes an
employee from an independent contractor, an agent or employee of an independent contractor, or
another person who performs tasks the details of which the contracting government has no legal right
to control’ Others were adopted to provide the term employee with a connotation useful in that
context and do not apply in the context we are considering here. Civil Practice and Remedies Code
section 102.001(1), for example, defines employee to include volunteers. We believe, however, that
section 102.001(1) relates only to the specific context in which it was adopted--a local government’s
liability for tort claims against those under its control--and we see no reason to extend the meaning
of the term employee in Tax Code sections 6.41(c) and 6.412(c) to include volunteers. Likewise, we
see no reason to distinguish between full- and part-time employees, as Government Code section
821.001(6), does. Government Code chapter 821 pertains to membership in the Teacher Retirement
System. Full-time employees are members,*' and consequently, they receive retirement benefits
from the system. Part-time employees, on the other hand, are not members.” This distinction makes
sense in the retirement-system context, but we do not think it makes sense here.

Accordingly, so long as each of the employments about which you ask are with a taxing unit,
in a populous county, or a taxing unit for which the appraisal district appraises property, in a
nonpopulous county, the former employee is ineligible for appointment to the appraisal review
board. Whether a particular political subdivision is a taxing unit in the context of sections 6.41(c)
and 6.412(c) depends, as we have said, upon whether the subdivision satisfies the definition in Tax
Code section 1.04(12). This question of fact must be examined on a case-by-case basis.

We proceed to address the constitutional issues Mr. Fleming raises. Mr. Fleming first avers
that sections 6.41(c) and 6.412(c) violate Texas Constitution article I, section 19, insofar as they
impose a lifetime bar on appointees to appraisal review boards while appointees to other governing
boards are not similarly barred. Similarly, Mr. Fleming points out, “[a]ssuming that the legislature
believed that former taxing unit employees and officers were biased against property owners who
protest their appraised values [sic], it failed to prohibit other individuals who may be similarly biased
such as property tax consultants.” Both of these distinctions, Mr. Fleming argues, are irrational.

*See Riverbend Country Club v. Patterson, 399 S.W.2d 382, 383 (Tex. Civ. App.--Eastland 1965, writ ref’d
m.r.e.); see also Attorney General Opinion DM-409(1996) at 5-6.

29See Gov’t Code § 311.011(a); Attorney General Opinion DM-409 (1996) at 4 (citing Attorney General
Opinion JM-525(1986) at 4).

See also Local Gov’t Code § 155.041.
31See Gov’t Code § 821.001(6), 822.001{a).

³²Id. § 821.001(6).

We do not believe a court would agree with Mr. Fleming’s argument. Article I, section 19
of the Texas Constitution, referred to as the “due course” clause, like the due process clause of the
United States Constitution and the equal protection clauses of the federal and state constitutions,
allows the legislature to distinguish among individuals so long as the distinction rationally furthers
a legitimate state interest, unless the classification warrants heightened review.*? Mr. Fleming does
not appear to contend that the classification at issue here warrants heightened review, and indeed,
we do not imagine that he could. Thus, we believe a court would apply the rationality standard.

We think it likely a court would find that the classification the legislature has established in
sections 6.41(c) and 6.412(c) rationally relates to the state’s interest in providing an unbiased system
by which a property owner may contest his or her property’s appraised value. Nevertheless, the
question, to be finally determined, requires the resolution of fact questions and is, therefore, beyond
the scope of an attorney general’s opinion.**

For the same reason, we believe a court would disagree with Mr. Fleming’s final contention,
that the amendment to section 6.41(c) and section 6.412(c) in toto are special laws and consequently
unconstitutional under article III, section 56 of the Texas Constitution. “The primary and ultimate
test of whether a law is general or special is whether there is a reasonable basis for the classification
made by the law, and whether the law operates equally on all within the class.”> As we determined
above, we believe a court would find that the legislature had a reasonable basis to classify appointees
to appraisal district review boards differently than others. Further, as we have explained above, we
believe the fact that the legislature has chosen to set stricter eligibility standards for appointees to
appraisal review boards affiliated with populous counties than for appointees to such boards in
nonpopulous counties flows logically from the population difference.® Moreover, sections 6.41(c)
and 6.412(c) operate, we believe, equally on all within their respective scopes.

SUMMARY

Between September 1, 1997, and January 1, 1998, an appointee’s
eligibility for service on an appraisal review board is determined in
accordance with Tax Code section 6.412(c). On and after January 1, 1998,
Tax Code section 6.41(c) deems ineligible for appointment to an appraisal
review board in an appraisal district affiliated with a county that has over

3Cf Hurt v. Cooper, 110 S.W.2d 896, 900-01 (Tex. 1937); Patterson v. City of Dallas, 355 S.W.2d 838,
843-44 (Tex. Civ. App.--Dallas 1962, writ ref’d n.r.e.), appeal dismissed, 372 U.S. 251 (1963).

See, e.g., Attorney General Opinion DM-98(1992) at 3; H-56(1973) at 3; M-187(1968) at 3, O-2911 (1940)
at 2.

Maple Run at Austin Mun. Util. Dist. v. Monaghan, 931 S.W.2d 941, 945 (Tex. 1996) (quoting Rodriguez
v. Gonzales, 227 S.W.2d 791, 793 (Tex. 1950)).

See supra pp. 5-6.

300,000 people a former member of the governing board, former officer, or
former employee of any taxing unit, as taxing unit is defined in Tax Code
section 1.04(12). On and after January 1, 1998, Tax Code section 6.412(c)
deems ineligible for appointment to an appraisal review board affiliated with
a smaller county a former member of the governing board, former officer, or
former employee of a taxing unit for which the appraisal district appraises
property. Whether the political subdivision the appraisal review board
appointee served has ceased to be a taxing unit since the appointee’s tenure
is irrelevant.

For purposes of sections 6.41(c) and 6.412(c), an officer is an individual
upon whom a sovereign, governmental function is conferred, to be exercised
by him or her for the benefit of the public largely independent of others’
control. An employee, on the other hand, is an individual who works, under
an express or implied contract, for the employer at the employer’s direction
and control and who is compensated for his or her service. Employee
includes both full- and part-time workers, but it does not include a volunteer
who is not an officer.

A court probably would conclude that the 1997 amendment to section
6.41(c) and section 6.412(c) in toto is not unconstitutional, either under Texas
Constitution article I, section 19 or article III, section 56.

Yours very truly,

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General