Untitled Texas Attorney General Opinion ( 2000 )

OFFKE OF THE ATTORNEYGENERAL.STATEOF TEXAS
JOHN CORNYN
March 9,200O
The Honorable Jose R. Rodriguez Opinion No. JC-0192
El Paso County Attorney
County Courthouse Re: Eligibility for service on an appraisal review
500 E. San Antonio, Room 203 board (RQ-010%JC)
El Paso, Texas 79901
Dear Mr. Rodriguez:
You have requested our opinion regarding the eligibility to serve of a current member of the
board of directors of the El Paso Appraisal Review Board (the “EPARB”). For the reasons set forth
below, we conclude that he is ineligible to continue to serve on the board.
Section 6.41of the Tax Code establishes an appraisal review board for each appraisal district.
Members “are appointed by resolution of a majority of the appraisal district board of directors.”
TEX. TAX CODE ANN. 5 6.41(d) (Vernon Supp. 2000). “A vacancy on the board is tilled in the same
manner for the unexpired portion of the term.” Id. “Members of the board hold oftice for terms of
two years beginning January 1.” Id. 5 6.41(e).
Section 6.412(d) of the Tax Code provides:
(d) A person is ineligible to serve on the appraisal review board
of an appraisal district established for a county having a population
of more than 100,000:
(1) if the person:
(A) has servedfor all orpart of three previous terms as a
board member or auxiliary board member on the appraisal review
board. or
(B) is a former member of the board of directors, officer,
or employee of the appraisal district; or
(2) if the person served as a member of the governing body or
officer of a taxing unit for which the appraisal district appraises
The Honorable Jose R. Rodriguez - Page 2 (JC-0192)
property, until the fourth anniversary of the date the person ceased to
be a member or officer; or
(3) if the person has ever appeared before the appraisal
review boardfor compensation.
TEX. TAX CODE ANN. 5 6.412 (Vernon Supp. 2000) (emphasis added).
You first ask whether a member of an appraisal review board appointed prior to the effective
date of House Bill 79,’ which enacted the present version of subsection 6.412(d), is ineligible to
serve if he or she has previously served at least three terms on the board. The issue here is whether
subsection 6.412(d) implicitly contains a grandfather clause, so that the three-ten-n limit is
inapplicable to members serving on June 18, 1999. The bill that enacted the prior version of
subsection (c) [current subsection (d)], contained the following provision:
The changes in law made by this Act in the qualifications of
members of an appraisal review board do not affect the entitlement
of a member serving on a board immediately before the effective date
of this Act to continue to serve on the board and to participate in
board hearings for the remainder of the member’s term. The changes
in law apply only to a member appointed on or after the effective date
of this Act. .
Act ofMay 19, 1997, 75th Leg., RX, ch. 691, $ 3(a), 1997 Tex. Gen. Laws 2312,2313.
The 1999 revision of what is now subsection (d) does not contain a grandfather clause. As
the Supreme Court has declared, the intent of a statute must be determined by examining the
statutory language. Jones v. DelAndersen & Assocs., 539 S.W.2d 348,350 (Tex. 1976). Language
excluded from a statute “must be presumed to have been excluded for a purpose.” Laidlaw
Waste Systems, Inc. v. City of Wilmer, 904 S.W.2d 656,659 (Tex. 1995) (citing Cameron v. Terre11
and Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)). Senator David Cain indicates that the
grandfather clause “was inadvertently deleted from the final version of House Bill 79.” Letter from
Honorable David Cain, Senator, to Honorable John Comyn, Attorney General, at 1 (Nov. 5, 1999)
(on tile with Opinion Committee). The intent of an individual legislator, however, even the statute’s
principal author, does not constitute legislative history controlling the construction to be given a
statute. General Chemical Corp. v. De La Lastra, 852 S.W.2d 916,923 (Tex. 1993). Despite the
intent of Senator Cain, we have no basis on which to conclude that the language adopted by the full
legislature does not reflect the legislature’s collective intent. Thus, we must construe the current
version of section 6.412(d) as lacking a grandfather clause.
‘Act of May 17, 1999,76th Leg., R.S., ch. 639, 1999 Tex. Gen. Laws 3209 (effective June 18, 1999).
The Honorable Jose R. Rodriguez - Page 3 (JC-0192)
Subsection 6.412(d) speaks in terms of “eligible to‘ serve” rather than “eligible to be
appointed.” When used as an intransitive verb, “serve” means, inter alia, “to perform official duties,
hold office (e.g., as sheriff or M.P., or on a jury).” XV OXFORDENGLISHDICTIONARY29 (2d ed.
1989). According to the Code Construction Act, “[wlords in the present tense include the future
tense.” TEX. GOV’T CODE ANN. 5 311.012(a) (Vernon 1998). Prior opinions of this office, relying
on Phagan v. State, 510 S.W.2d 655 (Tex. Civ. App.-Fort Worth, writ ref d n.r.e.), have held that,
even when a statute is couched in terms of “eligible for appointment,” it imposes a continuing
eligibility requirement. Tex. Att’y Gen. Op. Nos. H-1065 (1977) at 2; H-578 (1975) at 2. In our
opinion, there can be no doubt that “eligible to serve” requires that a board member retain that
eligibility throughout his tenure. Accordingly, a member of an appraisal review board who, on
June 18, 1999, had served all or part of three terms prior to the term he was then serving, became
ineligible for continued service on the board.
You next ask whether a current member of an appraisal review board who was appointed
prior to June 18, 1999, becomes ineligible to serve if the member appeared before the board for
compensation prior to the effective date of the statute. We have previously determined that, because
subsection (d) does not contain a grandfather clause, it is applicable to all persons serving on the
effective date ofthat provision’s latest amendment, i.e., June 18,1999. Similarly, since the statutory
language speaks in terms of eligibility to serve, it imposes a continuing requirement. Thus, a
member of the board is ineligible for further service after June 18, 1999, if, prior to that date, he
“ever appeared before the appraisal review board for compensation.” TEX. TAX CODE ANN.
5 6.412(d)(3) (Vernon Supp. 2000).
Your third question is premised on the role of the individual who is the principal focus of
your request. According to the attorney for the El Paso Central Appraisal District (“EPCAD”), the
individual in question was appointed to the Board of Directors of the El Paso Appraisal Review
Board (“EPARB”) on March 4, 1999, but was not sworn in until May 21, 1999. You indicate that,
until May 13,1999, he served as counsel to both the EPCAD and EPARB, providing “legal advice
and representation” to both these entities. Letter from Honorable Jo&R. Rodriguez, El Paso County
Attorney, to Honorable John Comyn, Attorney General, at 1 (Dec. 15, 1999) (on tile with Opinion
Committee). You ask whether his presence as a paid legal adviser to either the EPCAD or the
EPARB constituted an “appearance before the board for compensation” for purposes of the
disqualification of subdivision (3) of subsection 6.412(d). We need not address that matter,
however, because of the circumstances of the appointment of this particular individual require the
conclusion that he was otherwise ineligible to be appointed to the EPARB.
At the time of his appointment, the individual at issue was ineligible to be appointed to the
EPARB pursuant to section 6.413 of the Tax Code, which provides, in relevant part:
(a) An individual is not eligible to be appointed to or to serve on
the appraisal review board established for an appraisal district if the
individual or a business entity in which the individual has a
The Honorable Jose R. Rodriguez - Page 4 (JC-0192)
substantial interest is aparty to a contract with the appraisal district
or with a taxing unit that participates in the appraisal district.
TEX. TAX CODE ANN. $ 6.413(a) (Vernon 1992) (emphasis added). While the attorney for the
EPCAD asserts that the person of whom you inquire did not have a written contract to perform legal
services for the appraisal district, see Letter from Robert Mott, Attorney at Law, to Honorable Jose
R. Rodriguez, El Paso County Attorney (Nov. 22,1999) (on file with Opinion Committee), he was
clearly not an employee, and the only possible conclusion is that he was, in his capacity as attorney,
a party to some kind of contract with the district. See Yaklin v. Glusing, Sharpe & Krueger, 875
S.W.2d 380, 383 (Tex. App.Xorpus Christi 1994, no writ) (attorney-client relationship is a
contractural relationship, whereby the attorney agrees to render professional services for the client);
see also, Simpson v. James, 903 F.2d 372,376 (5th Cir. 1990). Furthermore, as EPCAD’s attorney
acknowledges, the individual in question was appointed to the EPARR on March 4 (although not
sworn in until May 21) and continued to perform the duties of counsel until May 13, 1999. Letter
from Robert Mott, Attorney at Law, to Honorable John Comyn, Attorney General (Jan. 28,200O)
(on tile with Opinion Committee). Unlike its counterpart in section 6.412, which relates to
restrictions on eligibility for service on an appraisal review board, section 6.413 makes clear that a
person may not be appointed to the board if, at the time of his appointment, he is “a party to a
contract” with the appraisal district. Since the individual in question was “aparty to a contract” for
legal services at the time of his appointment on March 4, it follows that he was ineligible for such
appointment.
Finally, you ask about the effect of the member’s ineligibility on actions taken by the
EPARH. Even an ineligible individual is a de facto officer. See Rivera v. City of Laredo, 948
S.W.2d 787 (Tex. App.-San Antonio 1997, writ denied). Furthermore, the acts of neither the
individual board member nor the board as a whole are subject to collateral attack on the ground that
the particular member was ineligible for continued service. See Tex. Att’y Gen. Gp. No. JM-874
(1988). We therefore conclude that, since the individual in question occupied the status of a defacto
offtcer, his ineligibility did not affect any actions taken by the board during his tenure.
The Honorable Jose R. Rodriguez - Page 5 ( JC-o 192)
SUMMARY
An individual who served as legal counsel to the El Paso
Central Appraisal District was not eligible to be appointed to the El
Paso Appraisal Review Board, pursuant to section 6.413 of the Tax
Code. Section 6.412 thereof does not contain a grandfather clause,
and is thus applicable to all members of an appraisal review board on
the effective date of the statutory amendment. The ineligibility of a
board member does not affect actions taken by the board during his
tenure.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee