ELECTED BUT NOT SEATED: Wilco Appraisal Board seat remains vacant after claiming Mike Sanders found ineligible; Sander plans to file lawsuit; Board to fill seat itself in June

UPDATE: Regardless of what others have claimed about how the law should be interpreted, the Williamson County Appraisal District  Board of Directors voted unanimously - with Chairman Jon Lux not attending - at their June 25 meeting to appoint Mike Sanders to the seat he won in the May 4 election.

The board did not cite the reason behind their reversal. 

The article has been updated with the new information, including more accurately citing who was the source of claims about the law.

On May 4, Leander resident Mike Sanders won his election to a seat on the Williamson Central Appraisal District (WCAD) Board of Directors.

Appraisal districts determine a home's assessed value, which impacts homeowners' home values and the funding for school districts, counties, and cities.

These districts' obscure Board of Directors cannot legally control how a home is assessed nor the local tax rates, which are set by separate taxing entities. Instead, they deal indirectly with the districts by:

• hiring the Chief Appraiser, who helps run the district and ensure assessments are accurate to market value,
• hiring the Taxpayer Liaison Officer who helps residents navigate the appraisal process
• setting the district's annual budget, and
• appointing the members for their district's Appraisal Review Board, which reviews residents' protests against their assessed values and determines whether to lower the values in response.

However, after the board certified the election results at their Wednesday, May 15, meeting, Sanders was not allowed to take his seat. In fact, the board itself will be legally required to pick someone else to fill the vacant seat created by this situation.

He announced on Monday, May 20, that he plans to file a lawsuit "against this injustice." He has already set up a GiveSendGo crowdfunding account to help him obtain legal representation for his legal challenge. As of Monday night, he has raised $1,000 towards his $20,000 goal. 

"We have decided to move ahead with litigation. This is your opportunity to take a stand and defend Election Integrity at your local level," Sanders said in a social media post about the lawsuit. "All it takes for evil to triumph is for good men to simply do nothing.

How does a democratically-elected individual end up not taking the seat they won, only for it to be filled by a board mainly comprised of individuals not elected by the public?

The answer lies in the same 2023 law passed by the Texas Legislature that created the seat Sanders ran for this year— and an unprecedented legal situation that throws these obscure appraisal boards into turmoil while having profound implications for the biggest school districts, counties and cities in Texas.

Ineligible

Three new board seats created by the new law were up for election this year, but the final voting totals were not available by the board's May 9 meeting, so they instead completed the work of verifying each candidate's eligibility. 

At the meeting, the board learned Sanders had been paying his property taxes more than 60 days later this year. According to Lux, as a result, under state law, Sanders is ineligible to serve on an appraisal board this year, and the board legally can't seat him, even though his election was valid.

According to public records with the Williamson County Tax Assessor, Sanders has paid his taxes more than 60 days late at least five times since taking ownership of his Leander house in 2011, including paying this year's taxes 72 days late on April 12.

According to Lux, state law doesn't care whether Sanders paid his taxes late or whether they are currently paid, only whether he exceeded the 60-day window within a given year. The rule does not apply in future years where he pays his taxes on time or within the 60-day window.

As a result, the board announced at their May 15 meeting that the seat was still vacant without going into any detail about the reason for the vacancy, instead simply citing the section of state law covering eligibility for the board.

Sanders argues that the board's interpretation of the law is fundamentally incorrect and that he is eligible because his taxes have been paid. 

"(This) is an incorrect interpretation of Texas Tax Code section 6.035, which clearly states an individual is ineligible if he or she still owns a property that still has back taxes due as of the date he or she takes office. I do not owe any back taxes," Sanders said in a statement following the board meeting.

The 60-day ineligibility portion of the law provides two exemptions: if the individual has an installment payment agreement in place when they cross the 60-day threshold or if the lawsuit to collect the delinquent taxes was deferred or abated.

Sanders did not state in his statement whether he had a payment plan in place when he crossed the 60-day threshold. In his statement and his prior social media post, in response to similar questions from local Republicans, he indicated he had believed while campaigning that he would be eligible since he has paid off his taxes.

State law doesn't give the board any options to address this situation, nor does it provide Sanders with an appeals process.

The result is a small-scale crisis of democracy where nobody involved feel they can legally seat an election's winner. 

Sanders can request that Texas Attorney General Ken Paxton issue an expedited opinion about the issue. However, if Paxton doesn't issue a ruling by the time the position begins on July 1, Sanders will only have two options: accept the situation or go forward with his plans to file a lawsuit against the board and any other relevant government entity in the hope that the courts will resolve it.

The new law, authored by Sen. Paul Bettencourt (R-Houston), also dictates that the same board that deemed Sanders ineligible to serve will also fill the vacancy by nominating individuals for the seat and then voting on them, giving the seat to whoever gets a majority of the board's votes. 

The board plans to fill the seat at their June meeting. 

According to Lux, the board cannot appoint Sanders to the board with this method because he would still be ineligible to serve regardless of how he is selected.

In a bizarre twist of fate, WCAD Chairman and former Cedar Park City Council member John Lux, whom Sanders beat in the election for the vacant seat, will remain on the board either way and be one of the individuals to vote on filling the vacancy. Lux was already a board member for a different board seat and never vacated his current seat because he lost the election, so he will serve out the rest of his current seat's term.

He told the Hill Country News that he would not accept any nomination to the Sanders seat out of respect for the voters' will. He also noted that it wouldn't make sense for him to be appointed to a new seat since it would leave his current seat vacant, creating further work for the board.

While the possibility doesn't apply to the current situation, it does highlight that the new law creates a possibility where a candidate deemed ineligible could result in an appraisal board appointing the opponent he defeated.

Lux explained he is also very frustrated with the situation and the new law's lack of clarity on several issues, noting the board has never had an issue like this prior to the new law.

New law, new problems

This issue is unheard of for appraisal district boards because this is the first year three board seats have been up for public election, and the previous method for filling these boards essentially prevents this problem from occurring.

Appraisal district boards in Texas counties with more than 75,000 residents, or 50 of the state's 254 counties, have nine members. Williamson County is one of those members.

One seat is filled by the county tax assessor-collector, who is publicly elected in a separate election, and five members are appointed by the taxing entities in the district, such as school districts, the local county, and local cities. 

Previously, all board members were elected by the taxing entities. The entities can each nominate a candidate, and then they alone vote on these five seats, with the larger tax entities like school districts getting more votes than smaller entities like cities. 

The 2023 law added three publicly-elected seats, each holding a separate election. The May 4 elections were the first time voters could cast a ballot for these seats.

The eligibility issue essentially never came up in the past because the taxing entities would do their own background checks before nominating a candidate, essentially self-selecting ineligible candidates out of the process.

State law doesn't prohibit an ineligible individual from running for an elected office, so this issue is essentially unique to the three publicly elected seats.

The new law gives the three publicly elected seats outsized power over who the board appoints to the Appraisal Review Board, making appointees ineligible unless two of the elected seats voted for them.

In other words, any two elected board members could have veto power over who is or isn't appointed, and they could hypothetically prevent their review board from being filled either intentionally or because they can't come to an agreement on candidates.

The situation creates an entirely separate series of potential issues.

If property values are even appraised inaccurately or revised by the review board inaccurately compared to the state's methodology for determining market values, the taxing entities pay the price. School districts, in particular, would be punished by being required to pay a much larger amount in recapture payments.

Additionally, taxing entities cannot issue a new tax rate in the future until the Appraisal Review Board is filled, so 

Critics of the new law argue it injects politics into a government function that was previously free of political manipulation, creates major risks for counties, cities and school districts and creates legal headaches in exchange for minimal differences, especially since the boards and review board still can't influence the assessed values and tax rates. 

In statements to the media and press releases issued after the bill was passed, Bettencourt argued that the changes would make the districts more accountable to the public and bring them closer to the Board of Trustees who oversee school districts. He also argued that the changes bring direct public representation to these obscure districts and boards.

Regardless of how the situation shakes out for Sanders, the appraisal districts and their boards now have some major questions that the Texas Legislature and courts will need to answer in the coming years.