Gerald C. Mann 

Attorney General 

Hon. John W. Moore 

County Attorney 

Jack County 

Jacksboro, Texas 

Dear Sir: 

Opinion No. 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'county was 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 received your letter of recent date, wherein you request the opinion of this Department upon 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 separated under 

articles 7245 and 7246, R.C.S., when the eensus of said county was 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 successful candidate for 

the office of Sheriff, Collector and Assessor, 

in a county whose 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 Democratic Nominee for the 

combined office? 

"The situation in our county is that the 

office of Sheriff, Tax Collector and Assessor 
Hon. John W. Moore - Page 2 (O-2524) 

have been combined under the 3930 Federal Census which was 9 046. lhe County Judge was notified by the District Director of the Federal 

Census Bureau on July 1, 1940 that the population of Jack County was 10 139. Candidates for 

the office had 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 separate offices on the 

Democratic ticket if such would be the cas8 

under the law, an I! under the facts set out here, 

II* * *, 

"In this case here the candidates that have 

announced and filed for the combined office are 

in doubt as to the status of the office they are 

running for, and that som8 write in WIdidat8 may 

receive a few votes or a majority for the office 

of Assessor and Collector, and be declarsd entitled to that Office. When in fact if the two 

offices~~areseparated they might want to run for 

the office of Assessor and Collector. 

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

pPOVid8 S : 

"There shall be elected by the qualified 

voters of each county a sheriff, who shall hold 

his office for the term of two years, Whose 

duties, and perquisitss and fees of office, 

shall be prescribed by the Legislature and vacancies in whose Office shall be filled by the 

Commissioners1 court 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 shall hold his office, 

for two (2) years and until his successor is 

elected and qualified; * * *.I' 
Hon. John W. 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 shall be the Assessor and 

Coll8ctor of Taxes therefor* but, in COMtiSS 

having ten thousand (10,OOOj or more inhabitants, to be determined by the last preceding 

census of the United States, an Assessor and 

Collector of Taxes shall be 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 constitutional provisions enacted in 1933, Articles 

7245 and 7246, Vernon's Civil SJatntes. 

Article 7245 provides: 

"In each county having ten thousand (lo,- 

000) inhabitants, to b8 determined by the prsceding Federal Census, there shall be elected 

at the regular biennial election an ASS8SSOP 

and Collector of Taxes, who shall hold his office for two (2) years." 

Article 7246 provides: 

"In each county having less than ten thousand (10,000) inhabitants, the sheriff of such 

county shall be the Assessor and Collsctor of 

Tax89,and shall have and axercise all 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 construing the above constitutional provisions 

and Articles 7245 and 7246 supra, together, we se8 that in 

counties having lass than i 0,000 inhabitants, there is no 

separate office of Tax ASS8SSOP and Collector, but the,offlees of Sheriff and Tax Assessor and Collector ars combined 

an 4 

and the sheriff is 8x-officio Assessor and Collector, 

as such is simply performing dUti8S he is not required 

to perform in counties containing more than 10,000 inhabitants. 
Hon. John W. MOOP8 - Page 4 (O-2524) 

The right to elect an individual to fill the separate office of Tax Assessor and Collector arises in Jack 

County when 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 census must determine, therefore, that Jack County has a population of 10,000 

inhabitants or more before a Tax Assessor and Collector may 

be 8leCtd. 

Our first inquiry is as to when the 1940 census d8- 

termination becomes affective. Touching this question, we 

q,u;te as follows from the case of WVIN v. STATE, & S,W.(2d) 

: 

"There is no specific provision in the Act 

of Congress June 18, 1929 (13 USCA 8 201 et seq.), 

with reference to the time of final announcement 

of the census; nor is there any provision as to 

the tims the census shall b8COm8 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 'to have printed, published and aistributed, from time to time bulletins and reports of the preliminary an A other results osu;h8 

various investigations authorized by law.' - 

stantially to the same effect is Section 13, Act 

of Congress June 18, 1929 (13 USCA S 213) which 

imposes:on the Director the duty to have printed 

preliminary and other census bulletins 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 imposed upon 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 preliminary announcement of the 

c8nsus by the Director Was an official pronouncament of which the public and all officials may take 

notice, said: *It would seem by the act of 1902 
,’ 

Hon. John W. Moore - Page 5 (O-2524) 

duties were impOS8d upon the DiP8CtOP to pUblish and distribute bulletins and reports of 

the preliminary and other results of.ths various investigations authorized 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 information ascertained and 

compiled by the enumerators and supervisors. 

It would seem when bulletin is so published 

and distributed it then becomes an official 

pronouncement under the law, of which the public and all officials may take notice. * * * 

In this case the undisputed facts show the 

Census Bureau, under the signature of its Dirsctor, issued a bulletin showing befOP 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 

other way 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; indicates when 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 other method provided or shown requiring a 

proclamation placing 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. Holcomb was eleCted 

sheriff of Lubbock County November 2, 1920, S.C. 

Spikes was elected tax collector. The other appellants in this case were county jUdg8 and COunty commissioners of Lubbock County. The issue 

involved in this case is whether 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 

'County ulId8P the 1910 census had a pOpdatiOn Of 

less than 10,000, but under the 1920 census the 

population is shown as 11,096. The appellee, 
Hon. John W. MOOP8 - Page 6 (O-2524) 

S. C. Spikes, having noticed in the Dallas News 

prior to the July primaries a report that the 

population of the county was 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, by writing the 

appellee's name or-the ticket, nominated him to 

such Office. His name was certified as nominated 

by the party, and was placed on the official ballot at the November, 1920, election as a Democratic candidate. Having receivsd.ths highest 

number of votes for the office a certificats of 

election was 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 commissioners1 court because 'the 

official bond of S. C. Spikes was 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 entitled to 

the office.' After the rejection of the bond appellee, Spikes, instituted suit against Holcomb, 

praying for a writ of injunction enjoining the said 

Holcomb and restraining him from exercising the 

functions of tax collector, and to restrain him 

from appropriating the fees of the office and 

against the county judge and commissioners to compel them to approve the bona of the appellee and 

install him in the office of tax collector. It is 

conceded in this case that the appellee received 

a majority of the votes and received his certificate of election, and that his bonds were in proper form and the sureties thereon sufficient, and 

that Holeomb was duly elected Sheriff of that county. The only question presented for our determination is whether the census taken in 1920 determined the question under the Constitution of this 

state of the population of Lubbock County. The 

facts show that the Dallas News and other papers 

published the result of the census, giving Lubbock 

County over 10,000 inhabitants. On September 30, 

1920, the following certificate was issued: 
Hon. John W. Moore - Page 7 (O-2524) 

"'I hereby certify that according to 

a preliminary count, 

of the returns of the 

subject 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 taken as of January 1, 

1920, is 11,096.' (Jigned) Sam L. Rogers, 

Director of the Census. 

"And on the 10th of November, 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. Signed by 

the Director. 

"On the 30th day of September, 1920, the 

Director wrote a letter to John R. McGee, county 

attorney, in which he states: 

"'In corn liance with your request of 

September 2 1: 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 immediate use, Department 

of Commerce, Bureau of the Census, Washington. Fourteenth Census, preliminary announcement of population, subject to correction. Lubbock County, Texas. 

1900 

293'***." 

The court held that the election officers of Lubbock County were acting within the law when they ordered the 

election for tax collector and declared Spikes elected to 

that office. It appears that the election officers in ordering the election for tax collector, and in certifying Spikes 
Hon. John W. Moore - Page 8 (O-2524) 

as the party nominee, and in issuing to him the certificate of election, did so after the publication of the 

preliminary bulletin by the Director of the Census, which 

bulletin showed Lubbock County to have a population of 

10,000 inhabitants or more. 

The case is authority for the proposition that 

the election officials may take notice of a preliminary 

announcement of the census by the Director, and if such 

determines a 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 foregoing authorities 

you are respectiully advised that it is the opinion of 

this Department, in answer to your first question, that 

after the publication of the preliminary bulletin 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 separate Assessor and Collector of Taxes, and the corresponding right 

for a person to run for this separate office. It follows, 

of course, that in order for an individual to appear on 

the general election ballot as the party nominee for the 

separate office of ASSSSSOP and Collector of Taxes for 

Jack County, he must have been lawfully nominated by the 

party for such office in the party primary. 

You are further respectfully advised that it is 

the opinion of this Department, in answer to your second 

question, that the successful candidate who has filed his 

name with the Democratic Executive Comm i ttee 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 Taxes will not be nominated to the combined office, but 

will only be nominated to the office of Sheriff. 

This opinion is in accordance with the holding of 

our opinion Nos: O-1105 and O-2337, copies of which are enclosed herewith 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: OPINION COMMITTEE 

BY BWB Chairman