Gerald C. Mann
Attorney General



Hon. E. C. ~oseley           Opinion No. O-2337
Civil DistrictAttorney
Hall of Records              Re: When does the 19&O Fed-
Dallas, Texas                    era1 census become con-
                                 trolling uuder our
                                 statutes involving pop-
                                 ulatIon?
Dear Mr. Moseley:
          We beg to acknowledgereceipt of your letter of
May 6 1940, requesting an opinion from this department
upon che above captioned question which has been propouud-
ed to you by the County Auditor oh Dallas County, being the
third of the group of questions so propouuded,as follows:
           “We were further requested to give our
    opinion as to when the 1040 census would be-
    come controlling. It was this third question
    which we desired particularlyto refer to the
    Attorney   General. Our tentative opinion on
    this third question Is that it becomes opera-
    tive and controllingas to the laws applicable
    as to the particular bracket when the census
    figures for Dallas County have been compiled
    and made available to the public; that Is, pub-
    lic information,without regard to the fact
    that the Washington Bureau reserves the right
    to make such correctionsas might become neces-
    sary.v
          The Act of the Congress authorizingand regulat-
ing the taking of the decennial censuses prescribes:
          @He (the director of the census) Is fur-
     ther authorized to have printed by the public
     printer, in such editions as the director may
     deem necessary, preliminaryand other census
     bulletins, and final reports of the result of
     the several Investigationsauthorized by this
     chapter or by chapters 1 and 3 of this Title
     and to publish and distribute said bulletins
     and rep0rts.v -- Sec. 213 Title 13 U.S.C.A.
Hon. E. C.Moseley - Page 2   (O-2337)


          The question propouudedby ou is ruled by the
                                      91 (App. for writ
cases of Holcomb v. Spikes, 232 S.W. i;
dis.) and Ervin v. State, 44 S.W. (2) 386.
         The opinion In Holcomb-Spikesdeclares:
         "It wonld seem when the bulletin is so
    published and distributedIt then becomes an
    official pronouncementof the law of which
    the public and all officials may cake notice.
    ***

         "The bulletin does not Indicate that it
    (the enumeration)was incompleteor negllgent-
    ly done, but rather Indicates it may be sub-
    ject to correction. It does not carry the idea
    that It was incomplete,but that It was com-
    plete. we think when the bulletin was given to
    the public, officialswho were required to act
    with reference thereto may take official notice
    that the enumerationhad been made and was then
    in the archives of ~thatoffice subject to the
    inspection of the public in which the po;I~ii$
    of Lubbock County had been determined.
    that it may be corrected does not Indicate that
    the census was not complete and then a public
    document under the law."
    Ervin v. State declares:
          "There is no specific provision in the Act
     of Congress June 18, 1929 (13 USCA ]I201 et
     seq.) with reference to the time of final an-
     nouncement of the census; nor Is there any pro-
     vision as to the time the census shall become ef-
     fective. Under the terms of the Act of Congress
     March 6, 1902, Ill (13 USCA ]I41, the Director
     of the Census is required 'to have printed, pub-
     lished, and distributed,from time to time, bul-
     letins and reports of the preliminaryand other
     results of the various investigationsauthorized
     by law.* Substantiallyto the same effect is
     section 13 Act of Congress June 18 1929 (13
     USCA i 213j, which imposes on the D&e&or the
     duty to have printed preliminaryand other census
     bulletins and final reports of the results of the
     several investigations. Section 205, 13 USCA
     reads as follows: 'Each supervisor shall perhorm
Hon. E. C. Moseley - Page 3   (O-2337)


    such duties as may be imposed upon him by
    the Director of the Census in the enforce-
    ment of this chapter,' etc.
         "In Holcomb et al. v. Spllres,232 S.W.
    891, 894, the Court of Civil Appeals at
    Amarillo, Tex., In holding that a prelim-
    inary annouucementof the census by the
    Director was an official pronouncement
    of which the public and all officialsmay
    take notice, said: 'It would seem by the
    act of 1902 duties were imposed upon the
    Director to publish and distribute bulle-
    tins and reports of the preliminaryand
    other results of the various investiga-
    tions authorized by law. This in so far
    as we can ascertain, is the oniy method
    to inform the public and of giving It ac-
    cess to the informationascertainedand
    compiled by the enumeratorsand supervis-
    ors. It would seem when bulletin is so
    published and distributed it then becomes
    an official pronouncementunder the law,
    of which the public and all officials may
    take notice. * * * In this case the un-
    disputed facts show the Census Bureau
    under the signature of its Director, 1.
                                          s-
    sued a bulletin showing before the elec-
    tion the population of Lubbock County to
    be 11 096. This seems to have been of-
    ficiai. This informationappears to have
    been given to leading papers of the State.
    Under the law this Informationcould have
    been obtained in no other way than through
    the Director's official act, without vio-
    lating the law and subjectingthe parties
    to a charge of felony. We think the case
    of Nelson v. Edwards, 55 Tex. 389, indi-
    cates, when the enumerators1list is filed,
    as required bv the law, as it then 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 proclamationplacing the census
    in effect. * * *
        "The opinion is expressed that the pre-
    liminary announcementof the census of the
Hon. E. C. Moseley - Page %              (O-2337)


     city of Abilene was an official pronounce-
     ment. This announcementwas made prior to
     the ~timethe ‘jurycommissionersselected
     the panel from which the jury was drawn.
     The announcementof the population in the
     preliminary report should havr been the guide
     of officialswhose duty it was’to Bet with
     reference thereto,. The effeot of the prelim-
     inary annouucementwas to place the county of
     the proseoutlonunder the provisions of Arti-
     cle 2094, Revised Statutes 1925, as amended.
     Hence ‘the motion to quash the ,jurypanel &Wild
     have been sustained.”
          Your tentative advioe to the County Auditor is,,
in our opinion, a correct pronouncementof the law.
                                     Very truly yours
                            ATTORIVEPGEHERAL OF TEYAS
                            By       /s/ Ocle Speer
~OS:l%rwb                   Ocie Speer, Assistant
APPROVED MAY 18, 1940
/s/ Gerald C. Mann
ATTORNEY GE8RRAL OF TEXAS

                            APPROVED: OPIRION COMHITTgEEi
                            BY:          R.U.F. Chairman




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