Gerald C. Mann

Attorney General

Hon. John W. Moore County Attorney Jack County Jacksboro,Texas

Dear Sir: OpinionNo. O-2524 When does the office of Sheriff, Tax Collector and Assessor become
se arated under Articles 7245 and
72% R.C.S.,when the census of sald'countywas announced by the District Director of the Federal Census Bureau, after the time limit for filing on the Democratic Ticket, and prior to the July Primary? And related question.

We have receivedyour letter of recent date,wherein you request the opinion of this Departmentupon the above stated questions. For factual background of your request,we quote from your letter as follows:

"I am submitting the following questions for an opinion of your department:

"1. When does the office of Sheriff,yax Collector and Assessor become separatedunder articles 7245 and 7246,R.C.S.,when the eensus of said countywas annodnced by the District Director of the Federal Census Bureau, after the time limit for filing on the Democratic ticket, and prior to the July Primary?

"2. Would the successfulcandidate for the office of Sheriff, Collector and Assessor, in a countywhose Federal Census in 1930 was under 10,000, but whose census announced by the District Director of the Census Bureau after the filing time for candidates in the Democratic Primary and prior to the July Primary,was in excess of 10,000, be the DemocraticNominee for the combined office?

"The situation in our county is that the office of Sheriff,Tax Collector and AssessorHon. JohnW. Moore - Page 2 (O-2524)

have been combinedunder the 3930 Federal Censuswhich was 9 046. lhe County Judgewas notified by the District Director of the Federal Census Bureau on July 1, 1940 that the population of Jack Countywas 10 139. Candidates for the officehad filed, bas$ on the 1930 census, for the office of Sheriff,Collector and Assessor as one office. It is now of course too late to file for the separateoffices on the Democratic ticket if suchwould be the cas8 under the law, anI! under the facts set out here,

II** *,

"In this case here the candidatesthat have announced and filed for the combined office are in doubt as to the status of the office they are running for, and that som8write in WIdidat8 may receive a few votes or a majority for the office ofAssessor and Collector,and be declarsd entitled to that Office. When in fact if the two offices~~areseparatedthey mightwant to run for the office ofAssessor and Collector.

Article V, Section 23 of the Constit&ion of Texas pPOVid8S:

"There shallbe electedby the qualified voters of each county a sheriff,who shallhold his office for the term of two years,Whose duties, and perquisitss and fees of office, shall be prescribedby the Legislature and vacancies inwhose Office shallbe filled by the Commissioners1court until the next general election for county or Stat8 officers."

Article VIII, Section 14 of the Constitution of Texas, adopted in 1932, provides, in part:

"There shall b8 818Ct8d by the qUalifieri electors of each county at the same time and under the Sam8 law regulating th8 election Of State and County officers,an Assessor and Collector of Taxes, who shallhold his office, for two (2)years and until his successor is elected and qualified; * * *.I'Hon. JohnW. Moore - Page 3 (O-2524)

Article VIII, Section 16 of the Constitution of Texas, adopted in 1932, provides:

"The sheriff of each county in addition to his other duties shallbe the Assessor and Coll8ctor of Taxes therefor* but, in COMtiSS having ten thousand (10,OOOjor more inhabitants, to be determinedby the last preceding
census of the United States, an Assessor and Collector of Taxes shallbe elected to hold office for two (2)years and until his successor shall be elected and qualified."

The Legislature, in order to give effect to the above constitutionalprovisions enacted in 1933, Articles 7245 and 7246, Vernon's Civil SJatntes.

Article 7245 provides:

"In each countyhaving ten thousand (lo,- 000) inhabitants,to b8 determinedby the prsceding Federal Census, there shall be elected at the regular biennial electionan ASS8SSOP and Collector of Taxes, who shall hold his office for two (2)years."
Article 7246 provides:

"In each countyhaving less than ten thousand (10,000) inhabitants,the sheriff of such county shall be the Assessor and Collsctor of Tax89,and shallhave and axerciseall the rights, powers and privileges,be subject to all the requirements and restrictions,and perform all the duties iYUpOS8d by law upon assessors and collectors; and he shall also give the same bonds re- ~~,';~~ao;

an assessor and collector of taxes

. By construingthe above constitutionalprovisions and Articles 7245 and 7246 supra, together,we se8 that in countieshaving lass than i0,000 inhabitants,there is no separate office of Tax ASS8SSOP and Collector, but the,offlees of Sheriff and Tax Assessor and Collector ars combined
an4 and the sheriff is 8x-officioAssessor and Collector,
as such is simply performing dUti8S he is not required to perform in counties containingmore than 10,000 inhabitants.Hon. JohnW. MOOP8 - Page 4 (O-2524)

The right to elect an individualto fill the separate office of Tax Assessor and Collectorarises in Jack Countywhen the official census of that county Is in excess of 10,000 inhabitants.

Under the Act of Congress, June 18, 1929, and May 17, 1932, (13 U.S.C.A., Sec. 201, et seq.) a census of population shall be taken oy the Director of zensus in the year 1930 and every ten (10)years thereafter.

Under the 1930 census, Jack County bad a population of less than 10,000 inhabitants. The 1940 censusmust determine, therefore, that Jack County has a population of 10,000 inhabitants ormore before a Tax Assessor and Collector may be 8leCtd.

Our first inquiry is as to when the 1940 census d8- terminationbecomes affective. Touching this question,we q,u;te as follows from the case of WVIN v. STATE, & S,W.(2d) :

"There is no specificprovision in the Act of Congress June 18, 1929 (13 USCA 8 201 et seq.), with referenceto the time of final announcement of the census;nor is there any provisionas to the tims the census shallb8COm8 8ff8CtiV8. Under the terms of the Act of Congress March 6 1902, 3 11 (13 USCA a 41, the Director of the Census is required 'tohave printed,publishedand 

### aistributed, from time to time bulletins and reports of the preliminaryan A other results osu;h8 various investigationsauthorizedby law.' - stantiallyto the same effect is Section 13, Act of Congress June 18, 1929 (13 USCA S 213) which imposes:onthe Director the duty to have printed preliminaryand other censusbulletins and final reports of the results of the several investigations. Section 205, 13 USCA, reads as follows: 'Each supervisor shall perform such duties as may b8 imposedupon him by the Director of the Census in the enforcement of this chapter,' etc.

"In Holcomb et al. v. Spik8s 232 S.W. 891, 894, the Court of Civil Appeals a{ Amarillo, Tex., in holding that a preliminaryannouncement of the c8nsus by the DirectorWas an officialpronouncament ofwhich the public and all officialsmay take notice, said: *Itwould seem by the act of 1902,’

Hon. JohnW. Moore - Page 5 

### (O-2524)

dutieswere impOS8dupon the DiP8CtOP to pUblish and distribute bulletins and reports of the preliminaryand other results of.ths various investigationsauthorized by law. This, in so far as we can ascertain, is the only method to inform the public and of giving it
access to the informationascertainedand compiled by the enumeratorsand supervisors. It would seemwhen bulletin is so published and distributed it then becomes an official pronouncementunder the law, ofwhich the public and all officialsmay take notice. * * * In this case the undisputed facts show the Census Bureau, under the signature of its Dirsctor, issueda bulletin showingbefOP the election the population of Lubbock County to be 11 

### 096. This S8ems to have been official. This &formation appears to have been given to leading papers of the state. Under the law this information could have been obtained in no otherway than through the Director~s official act,without violating the law and subjecting the parties to a charge of felony. We 

### think the case of Nelson v. Edwards, 55

### Tex. 389; indicateswhen the enumerators* list is filed;
as required by the law, as it than existed, this made it such evidence as that public officials could and should act upon it. There was no othermethod provided or shown requiringa proclamationplacing the census in effect.'

n* * *,n

The holding of the EOLCOMD v. SPIKES case 232 S.W. 

### 891 (writ of error dismissed),quoted from in c he EPvin case, supra, involved the following facts:

"HUlV, C. J. C. A. Holcombwas eleCted sheriff of Lubbock CountyNovember 2, 1920, S.C. Spikeswas elected tax collector. The other appellants in this casewere county jUdg8and COunty commissionersof LubbockCounty. The issue involved in this case iswhether or not at the November election 

### 1920,Lubbock county had a population of 10,600 as determined by the next pP8c8ding census of Che United States. Lubbock 'CountyulId8Pthe 

### 1910 censushad a pOpdatiOn Of less than 10,000, but under the 1920 census the population is shown as 

### 11,096. The appellee,Hon. JohnW. MOOP8 - Page 6 (O-2524)

S. C. Spikes, having noticed in the DallasNews prior to the July primariesa report that the population of the countywas in excess of 10 000 applied to have his name placed on the officjal ballot as the Democratic candidate for the office of tax collector,but the application came too late for his name to go on the ticket. Bowever, the voters of the.county, bywriting the appellee'sname or-the ticket, nominatedhim to such Office. His namewas certifiedas nominated by the party, and was placed on the officialballot at the November, 1920, election as a Democratic candidate. Having receivsd.thshighest number of votes for the office a certificats of electionwas issued to him by Chs county judge on November 26, 1920. 'fhe bonds required by law were prepared, duly Signed,and tendered to the commissioners~court by the appellee,but were rejected by the commissioners1court because 'the officialbond of S. C. Spikeswas not approved for the reason that,while the court realized the bond is in proper form and is good and sufficient; but in the judgment of,the court C. A. Holeomb, under the facts and circumstances, is entitledto the office.' After the rejection of the bond appellee, Spikes, instituted suit againstHolcomb, praying for a writ of injunctionenjoining the said Holcomb and restraininghim from exercisingthe functions of tax collector,and to restrainhim from appropriating the fees of the officeand against the county judgeand commissionersto compel them to approve the bona of the appellee and installhim in the office of tax collector. It is conceded in this case that the appellee received
a majority of the votes and receivedhis certificate of election,and that his bondswere in proper form and the sureties thereon sufficient,and that Holeombwas duly elected Sheriff of that county. The only question presented for our determination iswhether the census taken in 1920 determined the questionunder the Constitution of this state of the population of LubbockCounty. The facts show that the DallasNews and otherpapers published the result of the census, giving Lubbock County over 10,000 inhabitants. On September 30, 1920, the following certificatewas issued:Hon. JohnW. Moore - Page 

### 7 (O-2524)

"'I hereby certify that according to
a preliminary count, of the returns of thesubject to correction, fourteenth census of the United States, on file in the Bureau of Census, the population of the county of Lubbock, state of Texas takenas of January 1, 

### 1920, is 

### 11,096.' (Jigned)Sam L. Rogers, Director of the Census.

"And on the 10th ofNovember, 1920, the follavlng certificate:

"'I hereby certify that according to the official count of the returns of the fourteenth census of the United States, on file in the Bureau of Census, the population of the county of Lubbock, state of Texast taken
as of January 1, 1920, is 11,096. Signedby the Director.

"On the 30th day of September, 1920, the Directorwrote a letter to John R. McGee, county attorney, inwhich he states:

"'In corn

liancewith your request of September 1:

2 th, I take pleasure in inclosing herewith an official certificate of the population of Lubbock County, Texas, as shown by a preliminary count, subject to correction, of the returns of the fourteenth census, taken as of January 1, 1920.' -inclosing a bulletin to McGee,which was offered in evidence,which is as follows:

"'Released for immediateuse, Department of Commerce,Bureau of the Census, Washington. FourteenthCensus, preliminary announcement of population, subject to correction. Lubbock County, Texas.


### 1900 293'***."

The courtheld that the election officers of Lubbock Countywere actingwithin the law when they ordered the election for tax collectorand declared Spikes elected to that office. It appears that the election officers in ordering the election for tax collector,and in certifying SpikesHon. JohnW. Moore - Page 8 (O-2524)

as the party nominee, and in issuingto him the certificate of election,did so after the publication of the preliminarybulletin by the Director of the Census,which bulletin showedLubbock County to have a population of 10,000 inhabitants or more.

The case is authority for the propositionthat the election officialsmay take notice of a preliminary announcement of the census by the Director,and if such determinesa county to have a population of 10,000 inhabitants or more, an election for a Tax Assessor and Collector may be OPd8Pqd.

Therefore, in view of the foregoingauthorities you are respectiullyadvised that it is the opinion of this Department, in answer to your first question, that after the publication of the preliminarybulletin of the Director of the Census shcwing Jack County to have a population of 10,000 or more inhabitants,there arose the right of the voters of Jack County to&e& a separateAssessorand Collector of Taxes, and the correspondingright for a person to run for this separate office. It follows, of course, that in order for an individualto appear on the general electionballot as the party nominee for the separate office of ASSSSSOP and Collector of Taxes for Jack County, he must have been lawfullynominated by the party for such office in the partyprimary.

You are further respectfullyadvised that it is the opinion of this Department, in answer to your second question, that the successfulcandidate who has filedhis
name with the Democratic Executive Comm ttee i of Jack County for a place on the ballot of the Democratic Primary for nomination to the office of Sheriff and Assessor and Collector of Taxeswill not be nominated to the combined office,but will only be nominated to the office of Sheriff.

This opinion is in accordancewith the holding of
our opinionNos: O-1105 and O-2337, copies ofwhich are enclosedherewith for your information.
Yours very truly ATTORNEY GENERAL OF TEXAS

APPROVED JDL 22, l!+tO DDB:ob:wb Enclosures By /s/ D. Burle Daviss D. Burl6 Daviss,Assistant /s/ Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL APPROVED: OPINIONCOMMITTEE BY BWB Chairman