Can a Texas appraisal district employee also serve on the school board of a district that participates in the appraisal district?

Plain-English summary

A person who worked for an appraisal district had also served on the board of trustees of an independent school district that participates in that appraisal district. To avoid a conflict with Tax Code section 6.054, the person first stepped down from any officer role on the board, became an ordinary member, and then resigned entirely before January 1, 2020. Local citizens then wanted to re-elect that person to the school board. So a state representative asked the Attorney General: if the person takes no officer positions on the board and serves only as an ordinary, non-officer trustee, can he hold that seat and keep working for the appraisal district?

Section 6.054 says an individual may not be employed by an appraisal district if the individual is an officer or an employee of a taxing unit that participates in the appraisal district. The statute does not define "officer." The request, relying on a brief, proposed importing the Business Organizations Code's corporate definitions, under which a person on a board is just a "director" or "individual" until elected to an officer position, and returns to that ordinary status when they cease to be an officer. The AG declined that approach. An independent school district is a public, quasi-municipal corporation, not a private company, and for statutes about governmental entities a Texas court is more likely to use the well-established common-law definition of "officer."

That common-law definition comes from the Texas Supreme Court's decision in Aldine Independent School District v. Standley, which the AG and the courts have applied for decades. Under Aldine, the determining factor that distinguishes a public officer is whether a sovereign function of government is conferred on the individual, to be exercised for the public's benefit largely independent of the control of others. Because the authority to govern and manage an independent school district is vested in its board of trustees, the AG concluded, consistent with a line of its prior opinions, that a school board trustee holds an office under Aldine. That conclusion does not depend on whether the trustee also serves as board president or in any other leadership role. So even an ordinary, non-officer trustee is within the reach of section 6.054, and an appraisal district employee may not serve as a trustee of a participating independent school district.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Tax Code section 6.054 and the cited Education Code provisions can be amended, so verify current law before relying on any specific rule mentioned here.

What the opinion meant for those who asked

The opinion gave a direct answer to a recurring local-government compatibility question. For the appraisal district and the person hoping to be re-elected, the takeaway was that serving as a school board trustee, even with no officer title, is holding a public office, and section 6.054 bars an appraisal district employee from also being a trustee of a participating school district. The non-officer distinction the request leaned on did not change the result, because the office is the trusteeship itself, not any added leadership role. For school districts and appraisal districts statewide, the opinion reinforced that the Aldine common-law test, not corporate-officer definitions, governs whether a governmental position is an office. The practical effect was that the person would have to choose between the appraisal district job and the board seat, not hold both.

Common questions

Q: What does Tax Code section 6.054 prohibit?
A: It prohibits an appraisal district from employing a person who is an officer or an employee of a taxing unit (such as a school district) that participates in the appraisal district.

Q: Is a school board trustee an "officer" for this purpose?
A: Yes. The AG concluded that a school board trustee holds a public office under the Aldine common-law standard, because the authority to govern and manage the district is vested in the board of trustees.

Q: Does it matter if the trustee holds no leadership title like board president?
A: No. The AG concluded the trusteeship itself is the office, so being an ordinary, non-officer member does not avoid section 6.054.

Q: Why didn't the AG use the corporate definition of "officer"?
A: Because an independent school district is a public, quasi-municipal corporation, and for statutes about governmental entities Texas courts use the common-law definition of "officer" from Aldine, not the Business Organizations Code's corporate definitions.

Background and statutory framework

The opinion applies a long-settled test for public office to a tax-administration conflict rule. Tax Code section 6.054 keeps appraisal district staff separate from the taxing units they appraise for, barring employment of an officer or employee of a participating taxing unit; section 6.01 sets up the appraisal district and its appraisal duties. The character of a school board comes from the Education Code, which vests governance of an independent school district in its board of trustees (sections 11.051(a)(1) and 11.151(b)). On the meaning of "officer," the AG relied on the quasi-municipal nature of school districts described in San Antonio Indep. Sch. Dist. v. McKinney and the common-law standard from Aldine Independent School District v. Standley, applied in prior Opinions GA-0365 (2005), KP-0243 (2019), GA-0284 (2004), and consistently holding trustees to be officers in KP-0114 (2016), GA-1083 (2014), and JC-0490 (2002). The AG declined to read the Business Organizations Code into the Education Code, citing the ordinary-meaning approach in Jaster v. Comet II Constr., Inc. and the general meaning of "body corporate" reflected in Trs. of Dartmouth Coll. v. Woodward and Opinion MW-10 (1979).

Citations and references

Statutory provisions:

• Tex. Tax Code § 6.054, § 6.01 (appraisal district employment restriction; establishment)
• Tex. Educ. Code §§ 11.051, 11.151 (governance vested in board of trustees)

Cases:

• San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279 (Tex. 1996)
• Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Jaster v. Comet II Constr., Inc., 438 S.W.3d 556 (Tex. 2014)
• Trs. of Dartmouth Coll. v. Woodward, 17 U.S. 518 (1819)

Related opinions:

• Tex. Att'y Gen. Op. Nos. KP-0114 (2016), GA-1083 (2014), JC-0490 (2002) (school board trustee holds an office under Aldine); GA-0365 (2005), KP-0243 (2019), GA-0284 (2004), MW-10 (1979)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0329
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0329.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 25, 2020

The Honorable Charlie Geren
Chair, Committee on House Administration
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0329

Re: Whether an employee of an appraisal district may serve as a trustee of an independent school district that is a participating taxing unit of the appraisal district under section 6.054 of the Tax Code (RQ-0335-KP)

Dear Representative Geren:

You ask whether "an employee of an appraisal district [may] also serve as a non-officer member of a school district board of trustees which participates in the appraisal district in light of Texas Tax Code [section] 6.054."¹ You tell us that an employee of an appraisal district previously served on the board of trustees of an independent school district that was a participating taxing unit within the appraisal district. Request Letter at 1. You state that this person "served as an officer of the Board . . . but relinquished his office, becoming a non-officer member of the Board,² and then later resigned from the Board prior to January 1, 2020 to avoid any potential conflict" with section 6.054 of the Tax Code. Id. You inform us that since this person's resignation, citizens "have expressed interest in again re-electing this person" to the school district's board. Id. at 2. You ask "[i]f this person does not accept any officer positions and appointments on the Board of Trustees, would he be considered a non-officer under [section 6.054] and be permitted to . . . serve as an ordinary member of the board of trustees and as an employee of the appraisal district." Id.

Section 6.054 of the Tax Code provides that "[a]n individual may not be employed by an appraisal district if the individual is: (1) an officer of a taxing unit that participates in the appraisal district; or (2) an employee of a taxing unit that participates in the appraisal district." TEX. TAX CODE § 6.054; see also id. § 6.01(a), (b) (establishing an appraisal district in each county and providing that it is responsible for appraising property for each taxing unit in the district). In your request letter, you note that section 6.054 does not define officer. See Request Letter at 2. Your letter proffers a definition from the Business Organizations Code, which defines "officer" as "an individual elected, appointed, or designated as an officer of an entity by the entity's governing authority or under the entity's governing documents." Id. (noting that under the Education Code a board of trustees is considered a "body corporate"); see also Fuller Brief at 2-5 (setting out similar argument). Your letter distinguishes an "officer" from a "director" of a board based on the Business Organizations Code's definition of a "director" as "an individual who serves on the board of directors." Request Letter at 2. It notes that it would "appear . . . a person serving on a board of trustees is considered to be 'an individual' serving on the board until such time as that person is elected or appointed by the board to serve as an 'officer,' after which time the person is considered an officer" of the board. Id. Your letter concludes that "[w]hen that person ceases to be an officer, that person returns to a status of being an individual serving on the board." Id.

Despite any distinction between a director and an "officer" in the context of a private corporation, independent school districts "are local public corporations of the same general character as municipal corporations." San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 283 (Tex. 1996) (further explaining "[t]hey are quasi-municipal corporations" (quotation marks and citation omitted)). For statutes concerning governmental entities, a Texas court is more likely to use the well-established definition of "officer" from the common law.³ In Aldine Independent School District v. Standley, the Texas Supreme Court adopted a standard by which to determine whether a person occupying a particular position is an officer. 280 S.W.2d 578, 583 (Tex. 1955). Texas courts subsequently applied the standard developed in Aldine to various constitutional provisions and statutes. See Tex. Att'y Gen. Op. No. GA-0365 (2005) at 4-5 (discussing the development and use of the Aldine standard by the courts). Similarly, this office utilizes the Aldine standard to determine whether a position is an office. See, e.g., Tex. Att'y Gen. Op. Nos. KP-0243 (2019) at 2-3 (applying Aldine to consider whether members of the Physician Health and Rehabilitation Advisory Committee were "officers" under provisions in the Civil Practice and Remedies Code), GA-0284 (2004) at 2-3 (applying Aldine to consider whether members of a water district's board of directors were "officers" pursuant to several provisions of the Water Code).

Under Aldine, the "determining factor [that] distinguishes a public officer . . . is whether any sovereign function of the government is conferred upon the individual to be exercised by him [or her] for the benefit of the public largely independent of the control of others." Aldine, 280 S.W.2d at 583. The authority to govern and manage an independent school district is vested in its board of trustees. TEX. EDUC. CODE §§ 11.051(a)(1), .151(b). Consequently, this office consistently determines that a school board trustee holds an office under Aldine. See Tex. Att'y Gen. Op. Nos. KP-0114 (2016) at 2, GA-1083 (2014) at 2, JC-0490 (2002) at 1. Thus, irrespective of any additional leadership role a person may hold on the board of trustees, the person's position as a trustee is an office that brings the person within the scope of section 6.054. Accordingly, an employee of an appraisal district may not serve as a trustee of an independent school district that is a participating taxing entity in the appraisal district.

¹ Letter from Honorable Charlie Geren, Chair, House Comm. on House Admin., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 27, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0335KP.pdf ("Request Letter").

² By "non-officer member" of the Board, we understand you to mean an elected trustee who does not perform additional duties such as a board president. Cf. Brief from Thomas A. Fuller, The Fuller Law Group, PLLC, on behalf of White Settlement Indep. Sch. Dist. at 2-5 (Mar. 30, 2020) (setting out argument pertaining to "ordinary, non-officer, member of the board") (hereinafter "Fuller Brief") (on file with the Op. Comm.).

³ We decline the invitation of the Fuller Brief to construe Education Code sections 11.051(a) and 11.151(a)-(b) to refer to, or to incorporate by reference, the Business Organizations Code. See Fuller Brief at 2, 5 (citing Education Code sections 11.051(a) and 11.151(a)-(b), and arguing they reference corporate law); see also Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563, 566 (Tex. 2014) (recognizing that courts look for an undefined term's common, ordinary meaning through "a wide variety of sources, including dictionary definitions, treatises and commentaries, [their] own prior construction of the term in other contexts, [and] the use and definitions of the word in other statutes"). Here, the phrase "a body corporate" is undefined in sections 11.051 and 11.151 but is likely used in its general sense to mean a separate legal entity. See generally Trs. of Dartmouth Coll. v. Woodward, 17 U.S. 518, 636 (1819) (equating a body corporate with a "corporation[, which] is an artificial being, invisible, intangible, and existing only in contemplation of law[;] it possesses only those properties which the charter of its creation confers upon it"); Tex. Att'y Gen. Op. No. MW-10 (1979) at 1 (equating a body corporate with a unit of government).

S U M M A R Y

Section 6.054 of the Tax Code prohibits an individual who is an officer of a taxing unit that participates in an appraisal district from being employed by the appraisal district. The position of school board trustee is an office within the scope of section 6.054. Thus, an employee of an appraisal district may not serve as a trustee of an independent school district that is a participating taxing entity in the appraisal district.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee