R-710 

### EA OWNEY GENERAL,

TEXAS

PRICE DANIEL AITcJR?iEY

GENERAL August 14, 1947

Hon. Jos. B. Dart CountyAttorney Kendall County Boerne, Texas Opinion No.V-343
Re: Is the sheriff,assessor and collector to be consideredas one office in interpretingH. B. 501, Ch. 204, 50th Legislature.
Dear Sir:

We refer to your letter of July 24, 1947, inwhich you requested an opinion of thisDepartment, and inwhich the questions,we believe, msg be succinctly summarizedas follows:

Does H. B. 501 Chapter 204,Acts of the &kh Legislature 6. 3 1947, apply to countieshaving a poiulati;; of less than 10,000 inhabitants? 2. Are the offices of sheriff,assessor and collector of taxes to be considered one office in such counties?
3. Is the sheriffallowed his automobile expenses in such counties,when acting in the capacity of assessor and collector of taxes?
House Bill 501, supra, isas follows: "Section1. The County Commissioners Courts of this State are directed to supply and pay for transportationof sheriffs of their respective countiesand their deputies to and from pointswithin this State, under one of the four (4) following sections: "(a) Such sheriffsand theirdeputies shall be furnishedadequatemotor transportation including all expense incidentalto the upkeep and operation of suchmotor vehicles. "(b) Motor vehicles shall be furnished to such,sheriffsand their deputieswho may furnish gas and oil,wash and grease, incidentalto the operation of suchvehicles; forwhich gas and oil, wash and grease, such sheriffsand deputies shallHon. Jos. B. Dart - Page 2 (V-343)

be compensated at a rate not to exceed four cents (4#) per mile for- each mile such vehfcl8 is operated in the performance of the duties of his off ice.

“(c) Alternatively such County Commissloners Courts mugallow sheriffa and their deputies in their respective countlea to use and operate cara on official busineaa which cars are personally owned by them for which such officers ‘shall be paid not less than six centa (6$) per mile nor more than ten cents (lO$!) per mile for each mile traveled ln the performance of offlclal duties of their offioe.

“(d) All compensation paid under the provisions of this Aot shall be upon a sworn statement of euch sheriff.

“Sec. 2, The fact there ia nov no adequate law providing transportation for sherifis and their deputlee in the enforcement of the laws of the’ State creates an emergency and e case of imperative public necessity that the Constitutional Rule requiring bills to be read on three several daya in each House of the Legialature.be suapended, and said Rule is hereby suspended, and that this Act shall take effect and be in force from and after Its passage, and it la 80 enacted.” In view of the plain, clear, and unambiguous language in said Act, it is our opinion that the sameapplies to all oounties of this State, including those having a population of less than 10,000 inhabitants. .~

Ssotion 16 of Artiole VIII of the ConstitutLon is aa rollows :

“The uherlff of eaoh oountg in additi.on to his other butlea ahall be the Assessor and Collector of Taxes therefor; but, in oountles having ten thoulrand (10,000) or more inhabitanta, to be determined by the last preoedLng oenaua of the United Btstes, an Assessor and Colleator of Tax08 shall be eleoted to hold offloe for two (2) year8 ;Fedur$tfl his sucoesmortx shall be eleoted and quali-

. Article 7246, V.C.S., 16 as follows:Hon. Jos. B. Dart - Page 

### 3 (V-343)

"In each county having less than ten thousand (10,000) inhabitants,the sheriff of such county shall be the Assessor and Collector of Tax,es, and shall have and exerciseall the rights, powers and privileges,be subject to all the requirements and restrictions,and perform all the duties imposedby law upon assessors and collectors;and he shall also give the same bonds required of an assessor and collector of taxes elected."
We quote fromTexas Jurisprudence,Volume 

### 34,page 

### 447, a8 follows:

"In some instancesa public officer,by virtue of the fact that he holds the office to which hewas elected or appointed, or ex officio, isauthorized and required to exercise the powers and perform the duties of another office. In such a case the Supreme Court has said that the powers and duties of the officer, simplyas such, are justas distinct from his powers and duties when acting in his ex officio capacityas if they were exer$isedby two different persons.

. . . . . In view of the above,we believe that the offices of sheriffand assessor and collector of taxes in counties of less than 10,000 population are to be consideredas one office. But in such counties the sheriff Isacting in a dual capacity. For instance,thisDepartment in Opinion No. O-1051 held that. where a sheriff collects taxes, he is not filling two offices, but the sheriff Is simplyperformingduties that he is not required to perform in counties containingmore than 10,000 population. The opinion further held that the sheriffwho performed the duties of assessor and collector of taxes ln counties having a population of less than LO,000 inhabltants was only entitled to draw themaximum fees allowed to the sheriff under the statutes.

In answering QuestionNo. 

### 3, "whetherthe sheriff in such counties is entitled to automobile expenseswhen acting In the capacity of assessor and collector of taxes",we must look toArticle 7246 and H.B. 501. It 1s apparentfrom the language in Article 

### 7246,that the sheriff in countieswith a populatlon of less than 10,000 inhabitants ls,to enjoy the rights and~privilegesand perform all the duties imposedupon assessors and collectors. We fail to find any provisionwhere tax assessors and collectorsare allowed automobile expenses, while assessing taxes.- .

Hon. JOS. B. Dart - Page 4 (V-343)

It is true that underH.B. 501, the sheriffs in such countfes are allowed automobile expenseswhile in the performance of~officialduties. It ~111 be noted, however, in the $mergencyclause of saidAct, that It is for the purposes of providing transuortatlon for sheriffsand their deputies in the enforcement of the laws of the State." (Emphasisours)

We believe from the language used that clearly the Legislative intentwas that this provisionapply only to the sheriffwhen enforcing the lawa~ sheriff,and notwhen he was assessing taxes.

In view of the foregolng,you are respectfully advised that it Is the opinion of thisDepartment that the'sheriff Is not allowed his automobile expenses under the provlsions of I-l.

B. 501, supra,when acting in the capacity of assessor and collector of taxes. SUMMARY 1. H. B. 501,Acts of the 50th Leg., R. S., 1947, which allows automobile expenses to sheriff in the performance of his officlelduties, applies to all counties, -including those having a population of less than 10,000 inhabitants. 2; In counties of less than 10,000population, the positions of sheriffand assessor end collector of taxes are considered es one office. 34 Tex. Jur. 447. 3. The sheriff isnot allowed his automobile expenses in such countieswhen acting in the capacity of assessor and collector of taxes. Art. 7246,V.C.S.;H. B. 501, supre. Very truly yours ATTORNEYGENERAL OF TEXAS

BA:djm:wc By s/BruceAllen Bruce Allen Asslstant

APPROVED: s/FaganDickson FIRST ASSISTANT