Gerald C. Mann
Attorney General




Hon. John W. Moore       Opinion No. O-2524
County Attorney          When does the office of Sheriff,
Jack County              Tax Collector and Assessor become
Jacksboro, Texas         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 lim-
                         it for filing on the Democratic
                         Ticket, and prior to the July Pri-
                         mary? And related question.
Dear Sir:
          We have received your letter of recent date, where-
in 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 een-
    sus of said county was annodnced by the Dis-
    trict Director of the Federal Census Bureau,
    after the time limit for filing on the Demo-
    cratic 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 Pri-
     mary and prior to the July Primary, was in ex-
     cess 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 Cen-
     sus which was 9 046. lhe County Judge was no-
     tified by the District Director of the Federal
     Census Bureau on July 1, 1940 that the popula-
     tion of Jack County was 10 139. Candidates for
     the office had filed, bas$ on the 1930 census,
     for the office of Sheriff, Collector and Asses-
     sor 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, anI!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 en-
     titled 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
pPOVid8S :
          "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 va-
     cancies 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 inhabi-
     tants, 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 succes-
     sor 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 prs-
     ceding Federal Census, there shall be elected
     at the regular biennial election an ASS8SSOP
     and Collector of Taxes, who shall hold his of-
     fice for two (2) years."
          Article 7246 provides:
            "In each county having less than ten thou-
     sand (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 re-
     quirements and restrictions, and perform all the
     duties   iYUpOS8d by law upon assessors and collec-
     tors; 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 i0,000 inhabitants, there is no
separate office of Tax ASS8SSOP and Collector, but the,of-
flees of Sheriff and Tax Assessor and Collector ars combin-
ed and the sheriff is 8x-officio Assessor and Collector,
an4 as such is simply performing dUti8S he is not required
to perform in counties containing more than 10,000 inhabi-
tants.
Hon. John W. MOOP8 - Page 4   (O-2524)


          The right to elect an individual to fill the sep-
arate 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 pop-
ulation 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 deter-
mine, 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;teas 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 ais-
    tributed, from time to time bulletins and re-
    ports of the preliminary anA 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 investiga-
    tions. 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 pronounca-
     ment 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 pUb-
          lish and distribute bulletins and reports of
          the preliminary and other results of.ths var-
          ious 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 pub-
          lic and all officials may take notice. * * *
          In this case the undisputed facts show the
          Census Bureau, under the signature of its Di-
          rsctor, 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; in-
          dicates when the enumerators* list is filed;
          as required by the law, as it than existed,
          this made it such evidence as that public offi-
          cials 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 che EP-
     vin 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 ap-
          pellants in this case were county jUdg8 and COun-
         ty 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 ulId8Pthe 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 of-
     fice of tax collector, but the application came
     too late for his name to go on the ticket. Bow-
     ever, 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 bal-
     lot at the November, 1920, election as a Demo-
     cratic 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. 'fhebonds required by law
     were prepared, duly Signed, and tendered to the
     commissioners~ court by the appellee, but were re-
     jected 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 ap-
     pellee, 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 com-
     pel 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 certifi-
     cate of election, and that his bonds were in prop-
     er form and the sureties thereon sufficient, and
     that Holeomb was duly elected Sheriff of that coun-
     ty. The only question presented for our determi-
     nation is whether the census taken in 1920 deter-
     mined 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, subject to correction,
      of the returns of the fourteenth census of
      the United States, on file in the Bureau of
      Census, the population of the county of Lub-
      bock, 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 follav-
     lng certificate:
          "'I hereby certify that according to the
       official count of the returns of the four-
       teenth 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 cornliance with your request of
       September 21:
                   th, I take pleasure in inclos-
       ing herewith an official certificate of the
       population of Lubbock County, Texas, as shown
       by a preliminary count, subject to correc-
       tion, of the returns of the fourteenth census,
       taken as of January 1, 1920.'
     -inclosing a bulletin to McGee, which was of-
     fered in evidence, which is as follows:
           "'Released for immediate use, Department
       of Commerce, Bureau of the Census, Washing-
       ton. Fourteenth Census, preliminary an-
       nouncement of population, subject to correc-
       tion. Lubbock County, Texas.
                                                  1900
                                                     293'***."
          The court held that the election officers of Lub-
bock 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 order-
ing 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 certifi-
cate 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 inhab-
itants or more, an election for a Tax Assessor and Col-
lector 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 pop-
ulation of 10,000 or more inhabitants, there arose the
right of the voters of Jack County to&e&   a separate As-
sessor 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 ittee of Jack County
for a place on the ballot of the Democratic Primary for nom-
ination 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 en-
closed herewith for your information.
                                   Yours very truly
DDB:ob:wb                      ATTORNEY GENERAL OF TEXAS
Enclosures                     By /s/ D. Burle Daviss
APPROVED JDL 22, l!+tO         D. Burl6 Daviss, Assistant
/s/ Grover Sellers
FIRST ASSISTANT                APPROVED: OPINION COMMITTEE
ATTORNEY GENERAL               BY BWB     Chairman
