Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 18. 2005
The Honorable Rex Emerson Opinion No. GA-0375
Kerr County Attorney
700 Main Street, Suite BA-103 Re: Whether section 6.05(f) ofthe Tax Code bars the
Kerrville, Texas 78028 continued employment of a county appraisal district
employee after the employee marries the same
county’s tax assessor-collec,tor (R~Q-0346-GA)
Dear Mr. Emerson:
You ask whether section 6.05(f) ofthe Tax Code, which governs the operation ofan appraisal
district office, bars the continued employment of a county appraisal district employee after the
employee marries the same county’s tax assessor-collector.’ See TEX. TAX CODE ANN. $ 6.05(f)
(Vernon 2001).
Chapter 6 ofthe Tax Code pertains to the property tax system’s local administration. Under
subchapter A, appraisal districts are established as political subdivisions in each county to appraise
property in the district for each taxing unit that imposes ad valorem taxes on property in the district.
See id. 4 6.01. An appraisal district is governed by its board of directors, which consists of five
directors appointed by the taxing units that participate in the appraisal district. See id. 5 6.03(a)
(Vernon Supp. 2005). Ifthe county tax assessor-collector is not appointed to serve as one ofthe five
directors, the assessor-collector generally serves as a sixth, nonvoting director. See id. Section
6.035(a) restricts a board member’s eligibility if the member’s relative appraises property for pay:
An individual is ineligible to serve on an appraisal district
board of directors if the individual:
(1) is related within the second degree by consanguinity
or affinity to an individual who is engaged in the business of
appraising property for compensation for use in proceedings under
‘See Brief accompanying letter from Honorable Rex Emerson, Km County .4ttomey, to Honorable Greg
Abbott, Texas Attorney General, at 1 (May 20, 2005) (on file with Opinion Committee, aim available ai
http:liw~~,.oag.state.~.us) [hereinafterRequestBriefl; see also Zeke MacComack, Kerr o&al’s marriage on hoid
over concerns, SANANTONIO Exrmss-NEWS,June 5, 2005, available at http:llw~~~~.mysanantonio.cominews/mehol
stories/MYSA060505.7B.ke~~love.2e1844019.hhnl (last visited Nov. 15, ZOOS).
The Honorable Rex Emerson - Page 2 (GA-0375)
this title or of representing property owners for compensation in
proceedings under this title in the appraisal district
Id. fi 6.035(a)(l) (Vernon 2001).
U~ndersection 6.05, an appraisal district may establish an appraisal office and appoint a chief
appraiser. SEZ id. 5 6.05(a), (c). Although the chief appraiser has authority to employ necessary
personnel generally, under section 6.05(f) the chief appraiser may not employ a close relative of a
board member:
[t]he chief appraiser may not employ any individual related to
a member of the board of directors within the second degree by
affinity or within the third degree by consanguinity A person
commits an offense if the person intentionally or knowingly violates
this subsection. An offense under this subsection is a misdemeanor
punishable by a fine of not less than $100 or more than $1,000.
Id. 5 6.05(f); see also id. $6.05(d) (authorizing a chief appraiser to hire personnel). For purposes
of sections 6.035(a) and 6.05(f), spouses are related to each other within the first degree by affinity.
See TEX. G&T CODE AXN. $5 573.024(a), .025(d) (Vernon 2004).
Given sections 6.035 and 6.05(f), you are concerned aboutpossible implications ifthe county
assessor-collector marries an employee of the county appraisal district, and you ask whether either
of them will forfeit his or her position by virtue of their marriage. See Request Brief, SIL~Y’note
YU 1,
at 1. In resolving the issue; you ask us to assume certain facts:
1. that the [appraisal district employee’s] primary duty is to
appraise property;
2. that the employee is paid a salary to perform his appraisal duties;
3. that the employee has been appraising property for the [appraisal
district] since on or about December 18, 2000;
4. that the [tax assessor-collector] and the employee were not
acquainted at the time the employee became employed by the
[appraisal district]; and
5. that the [assessor-collector] has attempted to resign the position
as a nonvoting director of the District, desires no further ofticial
relationship with the District as a nonvoting director, and is willing,
if helpful or necessary, to appoint a replacement from the County tax
office to serve as the nonvoting director.
Id. at 1-2
The Honorable Rex Emerson - Page 3 (GA-0375)
You ask prelimir~arily whether Tax Code sections 6.035(a) and 6.05(f) apply to a nonvoting
member of the appraisal district board. See id. at 2. Section 6.035(a) refers Taoan individual’s
eligibility “to serve on au appraisal district board of dit-ec~tors.” .”
I EX. T/,x COIIE AUK. 5 6035(a)
(Vet-non 2001). Se&on 6.05(f) for-bids the employment of “any individual r-elated to a member
of the board of directors.” ICI. 5 6.05(f). Neither section 6.035(a) nor section 6.05(f) facially
distinguishes between individuals who serve on the appraisal district board and who have authority
to vote and those who do not have such authority. Further, section 6.03(a) plainly states that the
assessor-collector serves as a director, albeit a “nonvoting director.” Id. $ 6.03(a) (Vernon Supp.
2005). Reading sections 6.03(a): 6.035(a), and 6.05(f) consistently with their plain language, we
conc,lude that the tax assessor-collector, a nonvoting member of the appraisal district board, serves
on an appraisal district board for purposes of section 6.035(a) and is a member of the board for
purposes of section 6.05(f).
We do not believe, however, that section 6.035(a) applies to a board member’s relationship
with an appraisal district employee. sunder section 6.035(a), an individual is ineligible to serve on
the appraisal district’s board of directors if the individual’s spouse “is engaged in the business of
appraising property for compensation for use in proceedings under this title.” Id. $ 6.035(a)(l)
(Vernon 2001) (emphasis added). Regarding this provision, you ask whether an appraisal district
employee is engaged in the business of appraising property for compensation for use in tax appraisal,
assessment, and collection proceedings. See Request Brief. s~pm note 1, at 3.
Neither the statute nor any Texas judicial opinion defines the phrase “engaged in the business
of appraising property” nor the single word “business.” We are to read statutory words and phrases
“in context” and define them “according to common usage.” TEX. GOV’T CODE ANN.
5 311.01 l(a) (Vernon 2005). First, with respect to the context, the term “business” in section
6.03.5(a)(l) is unmodified. CJ. e.g., id. 9 25.003(b) (Vernon 2004), 5 2171.055(e) (Vernon Supp.
2005) (referring to “county business”); TEX. Lot. GOV’T CODI? ANN. $5 24.025(b), 25.029(a)
(Vernon 1999) (referring to “municipal business”); id. 5 203.022(a)(2) (referring to “government
business”). Additionally, the legislature enacted section 6.05(f) specifically to regulate appraisal
district employees. See TEX. TAX CODE ANN. 5 6.05(f) (Vernon 2001). Consequently, it seems
unlikely that the legislature also intended section 6.035(a)(l) to apply to appraisal district employees.
Second, the unmodified term “business” commonly connotes activity for commercial profit,
not governmental activity. See TEX. GOV’T CODE ANN. 5 311.01 l(a) (Vernon 2005) (stating that
statutory words must be construed consistently with “common usage”); TI159
S.W.3d 640, 644 (Tex. 2005) (stating that a business pursuits exclusion provision in an insurance
contract involves “a profit motive”). Several statutes define the unmodified term “business”
consistently with this connotation. For example, for purposes of the Business Organizations Code,
the term “business” means “a trade, occupation, profession, or other commercial activity.” TEX.
B~Js. ORG. CODE ANN. 5 1.002(5) (Vernon 2004-05). Chapter 277 ofthe Finance Code, relating to
business checking accounts, defines the term to mean “a legal entity formed for the purpose of
The Honorable Rex Emerson Page 4 (GA-0375)
making a profit.” TM. FIN. CODE An-K. $ 277.001(l) (Vemon Supp. 2005); set ni.~, e.g., id.
5 278.001(2) (defining the please “currency transmission business” to mew engaging in currency
transmission “as a service or for pt-ofit”); TEX. G~v’,r CODE ANN. 5s 2OOh.O01(1)~ (2)_ .Ol l(2)
(Vernon 2000) (defining the terms “micro-business” and “smali business” as legal entities formed
fortl~lepurposeofmakingapro~t);T~~.IS~~~’~~-~&S~~;~~~C~~~A~. 5 144.002(9)(Vernon 2001)
(defining “rendering business” as the collection of renderable raw materials “for commercial
purposes”). Given the context and this common connotation ofthe tern1 “businessl” we construe the
statutory phrase “engaged in the business of appraising property” to mean an individual who
appraises property for commercial profit.
Section 6.035(a) thus applies if a tax assessor-collector is related in a prohibited degree to
such an individual. An appraisal district is a political subdivision of the state and a governmental
entity; it does not operate forcommercialprotit. SETEX. TAX CODE ANN. 3 6.01(c) (Vernon 2001).
G~iven that the appraisal district employee works for a governmental entity that does not operate for
commercial profit, section 6.035(a) does not apply to the assessor-collector’s continued eligibility
to serve on the appraisal district board.
Next, we consider the applicability of section 6.05(f), under which the chief appraiser may
not employ a board member’s spouse. See id. 5 6.05(f); Request Brief, supva note 1, at 2-3. On its
face, section 6.05(f) prohibits the individual’s continued employment with the appraisal district once
he becomes the tax assessor-collector’s spouse. See TEX. TAX CODE ANN. 5 6.05(r) (Vernon 2001).
You question, however, whether the continuous-employment exception to the general
statutory nepotism prohibition, found in Government Code chapter 573, may apply here to modify
the absolute prohibition contained in section 6.05(f). See Request Brief, suprn note 1, at 3. See
gene&b) TEX. GOV’T CODE ANN. ch. 573 (Vernon 2004). Government Code section 573.041
prohibits a public official from appointing an individual to a position paid with public funds if “the
individual is related to the public official within a [specified] degree,” including the first degree by
affinity. Id. 5 573.041. Under section 573.062, the “continuous-employment exception,” section
573.041 does not apply to the employment of an individual who is in a position that he or she has
held continuously for a specified period of time before the public official is elected or appointed.
See id. 5 573.062(a)(l); see also id. $573.001(3)(A), (B) (defining “public official”). This office
determined in Attorney General Opinion GA-0187, a 2004 opinion, that the plain language of
the continuous-employment exception in section 573.062 of the Government Code does not override
the employment prohibition in section 6.05(f) of the Tax Code. See Tex. Att’y Gen. Op. No.
GA-01 87 (2004) at 6. Given that the statutory continuous-employment exception does not apply in
the context of section 6.05(f), Tax Code, we conclude that the appraisal district employee may not
remain employed with the appraisal district after the marriage.
You ask whether, “[ulnder the circumstances of this case, upon learning that” the appraisal
district employee and the tax assessor-collector have married, “the chief appraiser commit[s] an
offense if he does not temrinate the appraiser immediately, or at the conclusion of the pay period.”
Request Brief, supva note 1, at 3. Section 6.05(f) prohibits the chief appraiser f?om employing a
board member’s close relative. TEX. TAX CODE/WI. 5 6.05(f) (V emon 2001). ‘;lperson commits
The Honorable Rex Emerson Page 5 (GA-0375)
an offense ifthe person intentionally or knowingly violates this subsection.” Id. (emphasis added).
Because section 6.05(f) restric,ts the actions of the chief appraiser, we believe the person who may
commit an offense by intentionally or knowingly violating the lnohibition is the &ief appraiser.
Previous opinions of this oflice interl,reting the state’s anti-nepotism laws suggest that the
employee may retain his employment until the end of his contract with the appraisal district or; in
the absence of a contract, until the end of the pay period during which his marriage occurs. See Tex.
Att’y Gen. Op. Nos. DM-132 (1992) at 6-7 (stating that this office has concluded in numerous
opinions “that contract employees who lose their positions because ofthe nepotism law may remain
employed for the remainder of the employee’s contract tern?, while at[-Iwill employees may remain
employed only for the remainder of the pay period”); M-857 (1971) at 4 (equating at-will
employment with a month-to-month employment relationship); Tex. Att’y Gen. LO-89-53, at 2
(stating that “in the absence of a valid contract for a specific term of employment, an individual must
resign at the end of the pay period during which the relationship arises” to avoid violating the
nepotism statute). The rationale in permitting an employee to remain employed until the end oft:he
pay period rather than requiring an immediate termination is the fact that the nepotism statute is not
violated until the employer takes action to renew the individual’s contract, which implicitly occurs
at the beginning of a pay period. Tex. Att’y Gen. LO-89-53, at 1. We believe the same rationale
applies to section 6,05(f). You do not inform us whether the appraisal district employee has been
hired for a specific contract tern1 or on an at-will basis. Consequently, we cannot determine whether
he may serve out the remainder of his contract or whether he must be terminated at the end of the
pay period during which he and the tax assessor-collector many.
You ask whether the tax assessor-collector may “‘decline’ or resign from the statutory
position as nonvoting director or. appoint an ‘agent’ from the tax office to serve as the nonvoting
director.” Request Brief, supra note 1, at 3. No statute provides for the assessor-collector to
delegate to another member of her office her responsibilities on the appraisal district board. In
addition, because section 6.03(a) expressly designates the assessor-collector as a member of the
appraisal district board, we believe the assessor-collector’s position on the board is inseparable from
the office of assessor-collector. We thus conclude she may not delegate her duties to another person
in the tax assessor-collector’s office, nor may she decline or resign from her nonvoting position on
the appraisal district board.
Finally, you ask whether “the only resolution” is that “either the [tax assessor-collector] must
resign that elected office[] or the [appraisal district employee must] resign or be discharged from
employment with” the appraisal district. Id. at 3. That is, indeed, the unavoidable conclusion ofour
reading of the existing statutes. Of course, even if the tax assessor-collector resigns her office, she
holds over in that position until her successor is qualified. See TEX. CONST. art. XVI, 5 17 (declaring
that all ofticers within this state continue to serve in office “until their successors shall be duly
qualified”).
The Honorable Rex Emerson - Page 6 (GA-0375)
Section 6.035(aj( 1) of the Tax Code. which directs that an
individual is ineligible to serve on an appraisal district board ofdirectors
if the indi\+dual is married “to an individual who is engaged in the
business of appraising property for compensation for use in proceedings
under this title>” applies to a tax assessor-collector who serves as a
nonvoting member of the board of directors under section 6.03(a) ofthe
same code. TEX. TAX CODE ANN. 5 6.035(a)(l) (Vernon 2001~);see &so
id. 5 6.03(a) (Vernon Supp. 2005). Similarly, section 6.05(f) ofthe Tax
Code, which prohibits a chief appraiser from employing the spouse of “a
member ofthe board of directors” applies to a tax assessor-collector who
serves as a nonvoting member of the board of directors under section
6.03(a). Id. 5 6.05(f) (Vemon2001).
Nevertheless, section 6.035(a) does not apply when an appraisal
district board member is married to an employee of the appraisal district.
The words in section 6.035(a), “is engaged in the business of appraising
property for compensation for use in proceedings under this title,”
id. 5 6.035(a)(l), refer to an individual who appraises property for
commercial profit. Consequently, a tax assessor-collector is eligible to
serve as a nonvoting member of the appraisal district board of directors
under 6.03(a) despite her marriage to an appraisal district employee.
Ifthe chief appraiser employs the spouse of the local tax-assessor
collector, who serves as a member of the appraisal district board, the
chief appraiser violates section 6.05(f). The continuous-employment
exception to the general anti-nepotism statute, found in Government
Code chapter 573, does not apply to section 6.05(f) of the Tax Code.
See TEX. Gov’r CODE ANN. $5 573.041, .062(a) (Vernon 2004).
Consequently, upon an appraisal district employee’s marriage to the
tax assessor-collector, the appraisal district cannot continue to employ
him. The employee may retain his employment either until the end ofhis
contract with the appraisal district, orifthe employee is employed at-will,
he may retain his employment until the end of the pay period during
which his marriage occurs.
The tax assessor-collector has no authority to either decline to
serve as a nonvoting member of the appraisal district board of directors
under Tax Code section 6.03(a) or to appoint an agent from her office to
serve in her stead.
The Honorable Rex Emerson - Page 7 (GA-0375)
BARRY R. MCBEE
First Assistant Attorney General
NAN0 S. FULLER
Chair. Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee