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Election Advisory No. 2023-24

To: All Election Officials
From: Christina Worrell Adkins, Director of Elections
Christina Adkins signature
Date: December 14, 2023
RE: NEW LAW: Elections for Appraisal Districts in Counties with a Population of 75,000 or More – Senate Bill 2 (88th Legislature, Second Called Special Session)

Introduction

Senate Bill 2 (88th Leg., 2nd C.S.) made a number of changes to the Tax Code regarding the composition of Appraisal Districts. This advisory is intended to address the new election requirements related to an Appraisal District Board of Directors in a county with a population of 75,000 or more.

Senate Bill 2 also modified the composition and appointment of Appraisal Review Boards and Appraisal Districts in counties with a population under 75,000. (Sections 6.03, 6.033, Tax Code). These changes are not addressed in this advisory as they do not involve election-related activities.

Most parts of Senate Bill 2 have an effective date of July 1, 2024. However, certain parts of Senate Bill 2 generally deal with the preparation for elections of the members of a board of directors have an effective date of October 12, 2023 which was the 91st day after the last day of the Second Called Special Session of the 88th Legislature.

Composition of the Appraisal District Board of Directors in Counties with a Population of 75,000 or More

Senate Bill 2 added Section 6.0301 of the Tax Code to provide that an appraisal district in a county with a population of 75,000 or more is governed by a board of nine directors. The board is composed of both appointed and elected directors. Five of the directors are to be appointed by the taxing units that participate in the district in the manner prescribed by Section 6.03 of the Tax Code. Three directors are elected by majority vote at the general election for state and county officers by the voters of the county in which the district is established. The county assessor-collector serves as an ex officio director.

A majority vote means that the winning candidates must receive more than fifty percent of the votes. If no candidate receives more than fifty percent of the vote in an election requiring a majority, then a runoff election is required between the top two vote getters, pursuant to Chapter 2 of the Election Code.

Terms of Directors

The directors appointed by the members of the board of directors who are appointed by the taxing units participating in the district serve staggered four-year terms beginning on January 1st of every other even-numbered year. (Section 6.031, Tax Code).

The elected members of the board will then serve staggered four-year terms beginning on January 1st of every other odd-numbered year. (Section 6.031, Tax Code).

Section 6.0301 of the Tax Code provides that the following do not apply to an appraisal district in a county with a population of 75,000 or more:

  1. Section 6.031 of the Tax Code (Changes in Board Membership or Selection);
  2. Section 6.034 of the Tax Code (Optional Staggered Terms for Board of Directors); and
  3. Section 6.10 of the Tax Code (Disapproval of Board Actions)

Pursuant to Section 8.06(b) of Senate Bill 2, Section 6.0301 of the Tax Code takes effect on July 1, 2024.

Eligibility to Serve on the Appraisal District Board of Directors in Counties with a Population of 75,000 or More

To be eligible to serve as an elected member of the board of directors, an individual must meet certain eligibility requirements. The eligibility requirements include the following:

Restrictions on Eligibility to Serve on the Appraisal District Board of Directors in Counties with a Population of 75,000 or More

Section 6.035 of the Tax Code provides that an individual is ineligible to serve on an appraisal district board of directors and is disqualified from employment as chief appraiser if the individual is related within the second degree by consanguinity (blood) or affinity(marriage), as determined under Chapter 573, Government Code, to an individual who is engaged in the business of appraising property for compensation for use in proceedings under this title or of representing property owners for compensation in proceedings under this ti tle in the appraisal district.

Similarly, an individual is ineligible to serve on an appraisal district board of directors and is disqualified from employment as chief appraiser if the individual owns property on which delinquent taxes have been owed to a taxing unit for more than 60 days after the date the individual knew or should have known of the delinquency unless: (A) the delinquent taxes and any penalties and interest are being paid under an installment payment agreement under Section 33.02 of the Tax Code; or (B) a suit to collect the delinquent taxes is deferred or abated under Sections 33.06 or 33.065 of the Tax Code.

Per Section 6.035 of the Tax Code, an individual is also ineligible to serve on the board of directors of an appraisal district if the individual:

  1. has served as a member of the board of directors for all or part of five terms, unless:
    1. the individual was the county assessor-collector at the time the individual served as a board member; or
    2. the appraisal district is established in a county with a population of less than 120,000;
  2. has engaged in the business of appraising property for compensation for use in proceedings under this title at any time during the preceding three years;
  3. has engaged in the business of representing property owners for compensation in proceedings under this title in the appraisal district at any time during the preceding three years; or
  4. has been an employee of the appraisal district at any time during the preceding three years.

Date of Election and Terms for Elected Appraisal District Board of Directors in Counties with a Population of 75,000 or More

Initial Director Election Date

As provided in Section 5.13 of Senate Bill 2, appraisal district directors must be elected to their elective positions as provided by Section 6.0301 of the Tax Code, beginning with the election conducted on the uniform election date of May 4, 2024. The directors then elected take office on July 1, 2024, and serve a term that expires on December 31, 2026.

General Election Date

Following the election of the initial elected directors of an appraisal district on May 4, 2024, directors are then elected as provided by Section 6.0301 of the Tax Code beginning with the general election conducted in November 2026. Directors then elected take office on January 1, 2027.

Method of Election of the Appraisal District Board of Directors in Counties with a Population of 75,000 or More

Majority Vote Requirement

Section 6.0301 of the Tax Code provides that three directors of an appraisal district must be elected by majority vote at the general election for state and county officers by the voters of the county in which the district is establish. A majority vote means that the winning candidate must receive more than fifty percent of the votes. If no candidate receives more than fifty percent of the vote in an election requiring a majority, then a runoff election is required between the top two vote getters, pursuant to Chapter 2 of the Election Code.

Directors Elected At-Large by Place

In order to elect three directors by a majority vote in the same election, candidates for the appraisal district board of directors must be elected at-large by place. Specifically, the board of directors for the appraisal district must be elected to either the at-large by place 1, at-large by place 2, or at-large by place 3 position. Further, candidates must indicate on their candidate application the at-large position for which they are running. The Notice of Deadline to File an Application for a Place on the Ballot posted by the county judge will also need to adequately address this provision. If the candidate fails to provide this information on their application, the application should be rejected due to form, content, and procedure issues.

Authority Responsible for Conducting the Election for Elected Appraisal District Board of Directors in Counties with a Population of 75,000 or More

The appraisal district board of directors is responsible for conducting the election required under Section 6.0301 of the Tax Code. However, the appraisal district board of directors and the county may agree to contract for election services under Chapter 31 of the Election Code and may also agree to conduct a joint election pursuant to Chapter 271 of the Election Code.

Notice of Candidate Filing Deadline Posting Requirement for Elected Appraisal District Board of Directors in Counties with a Population of 75,000 or More

Pursuant to Section 141.040 of the Election Code, the authority with whom an application for a place on the ballot must be filed—in this case, the county judge—must post the Notice of Deadline to File an Application for a Place on the Ballot. This notice provides the dates of the filing period and must be posted in a public place in a building in which the county judge has an office not later than the 30th day before the first day on which a candidate may file the application. As a best practice, the notice should also be posted on the county’s website.

Ordering the Election for Elected Appraisal District Board of Directors in Counties with a Population of 75,000 or More

Per Section 3.004 of the Election Code, the governing body of a political subdivision, other than a county or city, that has elective officers must order the general election for those officers. In this case, the appraisal district board of directors must order the election required under Section 6.0301 of the Tax Code.

Candidate Filing Requirements for Elected Appraisal District Board of Directors in Counties with a Population of 75,000 or More

Senate Bill 2 added Section 6.032 to the Tax Code regarding the ballot procedures for elected directors in a county with a population of 75,000 or more. Per Section 6.032 of the Tax Code, Chapter 144 of the Election Code applies to a candidate for an elective position on an appraisal district board of directors. Chapter 144 of the Election Code pertains to candidacy for the office of a political subdivision other than a county or city.

Application Requirements for Elected Appraisal District Directors

An application for a place on the ballot for the office of elected director of an appraisal board must be filed with the county judge of the county in which the appraisal district is established. The application must be accompanied by a filing fee or a petition in lieu of the filing fee that satisfies the requirements prescribed by Section 141.062 of the Election Code and Section 6.032(d) of the Tax Code. Additionally, Section 144.002 of the Election Code provides that a candidate’s name may appear on the ballot only as an independent. Therefore, there is no party affiliation listed on a candidate’s application or listed on the ballot.

Candidates may use the Application for a Place on the Ballot for a General Election for a City, School District or Other Political Subdivision (Form 2-49).

Section 1.007 of the Election Code provides that any employee at the usual place of business can take delivery of a document, including a candidate’s application, petition in lieu of a filing fee, and filing fee. As such, an employee at the county judge’s usual place of business may take delivery of these documents. However, the responsibility for reviewing the application and filing fee/petition in lieu of a filing fee rests with the county judge.

Filing Fee Requirements for Elected Appraisal District Directors

The filing fee for a place on the ballot is:

  1. $400 for a county with a population of 200,000 or more; or
  2. $200 for a county with a population of less than 200,000.

The filing fee received must be deposited in the county treasury to the credit of the county general fund. Paying a filing fee with a credit card is not authorized under current law. (Section 6.032, Tax Code).

Petition in Lieu of Filing Fee for Elected Appraisal District Directors

Candidates may submit a petition in lieu of paying a filing fee. (Section 6.032, Tax Code). If submitting a petition in lieu of the filing fee, candidates may use the Petition (2-51). Chapter 141, Subchapter C of the Election Code pertains to the validity of a candidate’s petition, including prescribing the content of a petition, the validity of a signature, and the method of acquiring a signature. (Sections 141.062, 141.063, 141,064, 141.065, Election Code).

With regards to the petition in lieu of a filing fee, Section 6.032(d) of the Tax Code provides that the minimum number of signatures that must appear on the petition is the lesser of:

  1. 500; or
  2. Two percent of the total vote received in the county by all the candidates for governor in the most recent gubernatorial general election, unless that number is less than 50, in which case the required number of signatures is the lesser of:
    1. 50; or
    2. 20 percent of that total vote.

Deadline to Submit Candidate Application for Elected Appraisal District Directors

The deadline for candidates to submit an application and filing fee/petition in lieu of a filing fee is the 78th day before election day. (Section 144.003(d), Election Code). Per Section 144.005(a) of the Election Code, an application may not be filed earlier than the 30th day before the date of the filing deadline.

For write-in candidates, a Declaration of Write-in Candidacy must be filed no later than 5:00 p.m. of the 74th day before election day as provided under Section 144.006 of the Election Code. A person who has filed a Declaration of Write-in Candidacy is not required to submit a filing fee or a petition in lieu of a filing fee. Section 144.002 of the Election Code further provides that a candidate’s name may appear on the ballot only as an independent.

Public Information and Candidate Filings for Elected Appraisal District Directors

Per Section 141.035 of the Election Code, an application for a place on the ballot, including an accompanying petition, is public information immediately on its filing. However, pursuant to Section 552.1175 of the Government Code, candidates who are eligible may request that certain information pertaining to their candidate application be kept confidential. To that extent, these eligible candidates may also submit a Request for Confidentiality for Candidates Under Texas Government Code to the county judge.

Pursuant to Section 8.06(c) of Senate Bill 2, Section 6.032 of the Tax Code became effective on October 12, 2023, which was the 91st day after the last day of the Second Called Session of the 88th Legislature.

Review of the Candidate Application and Petition in Lieu of a Filing Fee by a County Judge in Counties with a Population of 75,000 or More

Form, Content, and Procedure Review

Section 141.032 of the Election Code provides that on the filing of an application for a place on the ballot, the county judge must review the application to determine whether it complies with the requirements as to form, content, and procedure only. That is, the county judge must review the application to confirm that it was filed correctly and in a timely manner and that all required information is completed and attested to. Unless accompanied by a petition, the review must be completed not later than the fifth day after the date the application is received by the county judge. If an application is accompanied by a petition, the petition is considered part of the application, and the review must be completed as soon as practicable after the date the application is received by the county judge. The petition is not considered part of the application for purposes of determining compliance with the requirements applicable to each document; thus, a deficiency in the requirements of one document may not be remedied by the contents of the other document.

Under the Election Code, there is no process for a candidate to supplement a defective application. The application and petition must satisfy all applicable requirements as originally filed. If an application does not comply with applicable requirements, the county judge must reject the application and immediately deliver to the candidate written notice of the reason for the rejection. An application for a place on the ballot may not be challenged for compliance with the applicable requirements as to form, content, and procedure after the 50th day before the date of the election for which the application is made. (Section 141.034, Election Code).

Declaration of Ineligibility

Section 141.032 of the Election Code, which governs the review of a candidate's application for a place on the ballot for form, content, and procedure, does not apply to a determination of a candidate’s eligibility. Pursuant to Section 145.003 of the Election Code, a candidate may be administratively declared ineligible if: (1) the information on the candidate’s application for a place on the ballot indicates that the candidate is ineligible for the office; or 2) facts indicating that the candidate is ineligible are conclusively established by another public record. As a reminder, no public record conclusively establishes residency; only a court of law may make a ruling on a person’s residency.

When presented with an application for a place on the ballot or another public record containing information pertinent to the candidate’s eligibility, the county judge will need to promptly review the record. If the county judge determines that the record establishes the candidate’sineligibility, the county judge must declare the candidate ineligible and notify the candidate in writing. Pursuant to Section 145.094 of the Election Code, if a candidate is declared ineligible on or before the deadline to withdraw, the candidate’s name is omitted from the ballot. For the deadlines associated with candidate withdrawal or issuance of a declaration of ineligibility in time to remove a candidate’s name from a ballot, please consult the election law calendar for that election.

Ballot Drawing Required Under the Texas Election Code

Section 52.094 of the Election Code provides that the authority responsible for having the official ballot prepared for the election shall conduct the ballot drawing. Pursuant to Section 52.002 of the Election Code, for an election ordered by an authority of a political subdivision other than a county or city, the secretary of the subdivision’s governing body or, if the governing body has no secretary, the governing body’s presiding officer shall have the official ballot prepared. Therefore, the secretary or the presiding officer of the appraisal district’s board of directors is responsible for conducting the ballot drawing required under Section 52.094 of the Election Code.

Notice of Ballot Drawing to Candidates

The county judge may make arrangements with the appraisal district board of directors and agree to provide notice to the candidates of the ballot drawing and to conduct the ballot drawing on behalf of the appraisal district board of directors. It is recommended that such an agreement be documented in writing.

Drawing Lots to Determine Term Length for Appraisal District Board of Directors in Counties with a Population of 75,000 or More

At the first meeting of the board of directors of an appraisal district described by Section 6.0301 of the Tax Code that follows the November 2026 general election of directors, the three elected directors must draw lots to determine which director shall serve a term of two years and which two directors shall serve a term of four years as prescribed by Section 5.13 of Senate Bill 2. Thereafter, all elected directors serve four-year terms.

The term of an appraisal district director serving on the board of directors of an appraisal district on December 31, 2024 described by Section 6.0301 of the Tax Code expires on January 1, 2025. Not later than December 31, 2024, the taxing units participating in the appraisal district that are entitled to appoint directors must appoint five directors to serve terms that begin on January 1, 2025. Two directors must be appointed to serve a term of one year, and three directors shall be appointed to serve a term of three years. Thereafter, all appointed directors serve four-year terms.

Filling a Vacancy in an Elective Position on an Appraisal District Board of Directors in Counties with a Population of 75,000 or More

If a vacancy occurs in an elective position on the board, the board must appoint by majority vote of its members a person to fill the vacancy. This appointed director will serve the remainder of the term. A person appointed to fill a vacancy in an elective position must have the qualifications required of a director elected at a general election.

Frequently Asked Questions Regarding Senate Bill 2

Q. Do term limits continue to apply to directors in an appraisal district board of directors per Section 6.035 of the Tax Code?

A. Yes. Section 6.035 of the Tax Code, which provides for restrictions on eligibility and conduct of board members and chief appraisers, was not repealed or amended in Senate Bill 2. As such, directors in an appraisal district in a county with a population of 120,000 or more are ineligible to serve as an appointed or elected director if the individual has served as a member of the board of directors for all or part of five terms. Term limits do not apply to appraisal districts in counties with a population of less than 120,000. For additional exceptions regarding eligibility, please review Section 6.035 of the Tax Code.

Q. Which individual is responsible for verifying that the individuals running as candidates for the appraisal district board of directors in a county with a population of 75,000 or more are eligible to run and that the candidates submitted timely and properly executed applications?

A. Section 141.032 of the Election Code provides that the authority with whom the candidate application is filed shall review the application to determine whether it complies with the requirements as to form, content, and procedure that it must satisfy for the candidate’s name to be placed on the ballot. Section 6.032 of the Tax Code provides that the candidate application must be filed with the county judge. As such, the county judge is responsible for reviewing the candidate application and making the determination to accept or reject those applications. Additionally, the county judge is responsible for issuing a declaration of ineligibility with regard to candidates for an elected appraisal board position, if applicable.

Pursuant to Section 145.003(d) of the Election Code, the presiding officer of the final canvassing authority for the office sought by a candidate may declare the candidate ineligible after the polls close on election day and before a certificate of election is issued. This means that the board president may declare the candidate ineligible after the time addressed in Section 145.003(d) of the Election Code.

If an office holder no longer qualifies for the office they hold, then they may be removed from office by a quo warranto proceeding. Tex. Civ. Prac. and Rem. Code Chapter 66.

Q. Which entity is responsible for paying the costs of the election for the three members of the board of directors required under Section 6.0301 of the Tax Code?

A.  The county appraisal district is responsible for the costs of the election.

Section 1.014 of the Election Code provides that the expensesincurred in the conduct of a general or special election must be paid by the political subdivision served by the authority ordering the election. Section 1.005 of the Election Code defines “political subdivision” as a governmental entity that embraces a geographic area with a defined boundary, exists for the purpose of discharging functions of government, and possesses authority for subordinate self -government through officers selected by it. Section 3.004 of the Election Code further provides that the governing body of a political subdivision, that has elective offices, is responsible for ordering an election. Based on these sections of the Election Code, the county appraisal district is responsible for paying the expenses incurred in the conduct of the election.

Q. What happens if three individuals do not run for the elected positions provided under Section 6.0301 of the Tax Code?

A. This will create one or more vacancies on the board of the appraisal district. Pursuant to Section 6.0301(g) of the Tax Code, if a vacancy occurs in an elective position on the board of directors, the board of directors must appoint by majority vote of its members a person to fill the vacancy. A person appointed to fill a vacancy in an elective position must have the qualifications required of a director elected at a general election.

Q. Several county appraisal district boards have previously increased their board to more than 5 members as allowed by law. The new statute states that appraisal districts shall have a 9- member board.

A. Per Section 8.06 of Senate Bill 2, Article 5 of the bill takes effect on July 1, 2024. However, Section 5.04 of Senate Bill 2 (which deals with ballot procedures for elected directors) and Section 5.13 of the bill (which deals with the board transition period) took effect on the 91st day after the last day of the legislative session, which was October 12, 2023.

It is possible that under Section 6.031 of the Tax Code, county appraisal districts previously increased their board to more than the nine directors permitted under newly created Section 6.0301 of the Tax Code. Under Section 5.13(d) of Senate Bill 2, the terms of all current directors will expire on December 31, 2024. Not later than December 31, 2024, the taxing units participating in the appraisal district that are entitled to appoint directors shall appoint five directors to serve terms that begin on January 1, 2025.

As previously noted, the terms of all current directors will expire on December 31, 2024. Senate Bill 2 did not provide a mechanism by which county appraisal districts can reduce the number of current board directors. Therefore, the excess members will serve until their terms expire on December 31, 2024. However, Section 6.033 of the Tax Code provides that the governing body of a taxing unit may call for the recall of a member of the board of directors of an appraisal district appointed under Section 6.03 of the Tax Code for whom the unit cast any of its votes in the appointment of the board. While Senate Bill 2 does not expressly require the removal of the existing board members, Section 6.033 of the Tax Code provides a process by which a member of the board of directors may be removed.

Q. Who is responsible for ordering and canvassing the election?

A. The county appraisal district board of directors is responsible for ordering and canvassing the election for the elected appraisal board members.

Section 3.004 of the Election Code provides that a general election for the officers of the governing body of a political subdivision other than a county shall be ordered by the political subdivision’s governing body. The governing body of the county appraisal district is the district’s board of directors, who will be responsible for ordering the election for elected appraisal board members.

Section 67.002 of the Election Code provides that the precinct election returns for an election ordered by a political subdivision other than a county will be canvassed by the political subdivision’s governing body. The governing body of the county appraisal district is the district’s board of directors, who will be responsible for canvassing the election for elected appraisal board members.

Q. Is the use of county election precincts required for the initial election of county appraisal district board members on May 4, 2024?

A. No. The use of county election precincts is not required for the initial election of county appraisal board members on the May 4, 2024 uniform election date. However, the use of county election precincts will be required for all subsequent elections for county appraisal board members held on the November uniform election date in even-numbered years.

Section 42.061 of the Election Code provides that the governing body of a political subdivision other than a county shall establish the election precinct for elections ordered by an authority of the political subdivision. This provision allows the county appraisal board to establish its own election precincts for the May 4, 2024 initial election of elected county appraisal board members.

Section 42.0621 of the Election Code provides that in an election held on the November uniform election date, a political subdivision is required to use the regular county election precincts for the political subdivision’s election. Because all subsequent elections for the elected members of the county appraisal board will be held on the date of the general election for state and county officers in November, this provision would require the county appraisal board to use the county election precincts for each subsequent election of elected county appraisal board members held after the May 4, 2024 initial election for those members.

Q. Who is responsible for posting the Notice of Deadline to File an Application for a Place on the Ballot prior to the candidate filing period starting?

A. The county judge is responsible for posting the Notice of Deadline to File an Application for a Place on the Ballot for the candidate filing period for the elected members of the county appraisal district.

Section 141.040 of the Election Code provides that the authority with whom an application for a place on the ballot must be filed shall post notice of the dates of the filing period in a public place in a building in which the authority has an office not later than the 30th day before the first day on which a candidate may file the application. Because the county judge is the authority with whom an application for a place on the ballot is filed for the election of the elected members of the county appraisal district, the county judge would be responsible for posting the Notice of Deadline to File an Application for a Place on the Ballot.

Q. Are county appraisal board elections subject to the same cancellation procedures that apply to elections held by political subdivisions other than counties?

A. Yes. If all of the offices up for election in the county appraisal board’s election are unopposed, then the election would be cancelled under Chapter 2, Subchapter C of the Election Code.

Section 2.051 of the Election Code provides that the cancellation procedures outlined in Chapter 2, Subchapter C of the Election Code apply to an election for officers of a political subdivision other than a county in which write-in votes may be counted only for declared write-incandidates, and in which each candidate for an office that is to appear on the ballot is unopposed.

Under Section 2.052 of the Election Code, if every at-large race in the election is unopposed, then the authority responsible for preparing the ballot (i.e., the secretary or the presiding officer of the county appraisal board of directors, if the board does not have a secretary) must prepare a Certification of Unopposed Status for each unopposed candidate in the election and must deliver that certification to the governing body of the political subdivision (i.e., the county appraisal district board of directors). On receipt of the certification, the county appraisal district board of directors would declare those unopposed candidates elected to their offices and cancel the election under Section 2.053 of the Election Code. For additional information regarding cancellation of an election, please see the Secretary of State’s outline.

Q. Are appointed and elected county appraisal district directors required to take an Oath of Office and submit a Statement of Officer?

A. Yes. All appointed and elected county appraisal district board of directors are required to take an Oath of Office and submit a Statement of Officer (anti-bribery statement), pursuant to Article 16, Section 1 of the Texas Constitution.

CA:HM