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               THE       ATFORNEY               GENERLAL
                               OF   %-lEXAS




Ron. Bill Lofland                            Opinion      NO. M- 1260
County Attorney
Rockwall County                              Re:     Whether the Commissioners
P. 0. Box 36                                         Court of Rockwall County
Rockwall,  Texas  75087                              may call an election   for
                                                     voters of the county to
                                                     determine  whether to separate
                                                     the office of sheriff, tax
                                                     assessor and collector   into
                                                     two separate and different
                                                     offices, and related ques-
Dear   Mr.   Lofland:                                tions.

              Your   request   for an opinion      asks   the   following   questions:

             IV
              1 . Can the Commissioners  Court of Rockwall
       County, Texas call an election for the voters of
       Rockwall County to determine whether or not they
       desire to separate the office of Sheriff, Tax
       Assessor   and Collector into two different offices?

             "2 .  If an election  is called for this
       November   7, 1972, as it is my understanding   that
       the local commissioners    court has already voted
       to do and on that date the voters vote favorably
       to create the new office, does the Commissioners
       Court have the authority    to appoint an Assessor-
       Collector   of Taxes for Rockwall County, Texas to
       begin January 1, 1973."

              Section   16 of Article    VIII   of the Constitution         of Texas
provides:

             "The Sheriff of each county, in addition
       to his other duties, shall be the Assessor      and
       Collector  of Taxes therefor;   but in counties
       having 10,000 or more inhabitants     to be de-
       termined by the last preceding    census of the
       United States, an Assessor    and Collector  of



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Hon. Bill Lofland,       page   2        (M-1260)



     Taxes shall be elected as provided             in Section
     14 of this Article,  and shall hold            office for
     four years and until his successor             shall be
     elected and qualified."

           Under the above   quoted provisions the sheriff performs
ex-officio  the duties of the assessor and collector  of taxes.
Nelson v. Edwards,   55 Tex. 389 (1881); Brooks v. Dulaney,  100
Tex. 86, 93 S.W. 997 (1906).

              Section   16a of Article   VIII   of the Constitution        of Texas
provides:

           "In any county having a population     of less
     than ten thousand    (10,000) inhabitants,   as de-
     termined by the last preceding     census of the
     United States, the Commissioners     Court may sub-
     mit  to the qualified   property taxpaying   voters
     of such county at an election the question of
     adding an Assessor-Collector     of Taxes to the list
     of authorized   county officials.    If a majority
     of such voters voting in such election shall
     approve of adding an Assessor-Collector      of Taxes
     to such list, then such official shall be elected
     at the next General Election     for such Constitu-
     tional term of office as is provided      for other
     Tax Assessor-Collectors     in this State."

              In construing   the provisions     of Section      16a   it was   held
in Attorney     General's   Opinion WW-1292     (1962):

            "Sec. 16a, Art. 8, Texas Constitution,       is
     self-executing,    and requires no enabling act by
     the Legislature     for the voters of a county to
     take action under its provisions.        This section
     provides no specified      time to call the election,
     so any such election held under the provisions         of
     this section may be called at any time! in any
     year, at the discretion      of the Commissioners
     Court.    The term   of the present sheriff and tax
     assessor-collector     will expire on December     31,
     1964, or as soon thereafter       as his successor
     shall have qualified.       There will be a General
     Election held in November,       1962 and a General Election
     in November,    1964.   If the Constitution    had


                                    -b174-
Hon.   Bill   Lofland,    page   3        (M-1260)



       meant for the present sheriff and tax assessor-
       collector   to serve out his full term, before
       anyone assumed the office of tax assessor-
       collector,   it could have provided,     '. . . then
       such official   shall be elected at the next
       General Election    immediately  preceding   the
       expiration   of the term of office of sheriff
       and tax assessor-collector.'      But the Constitu-
       tion says, '. . . at the next General Election
       . . . 1 In our situation     this means the General
       Election   to be held in November,    1962."

           Since Rockwall County has a population    of less than
10,000 inhabitants,   according  to the last preceding   federal census,
the Commissioners   Court of Rockwall County may call an election     and
submit the question of adding an assessor-collector      of taxes to
the list of authorized    county officials.  This election will not
affect the term   of office of the office of sheriff.     If an affirma-
tive vote is cast it will create the additional     office of assessor-
collector  of taxes.

              Article    7246-l/2,   Vernon's   Civil   Statutes,   provides:

             "Where the separate office of assessor-
       collector   of taxes is added to the list of au-
       thorized county offices in a county having less
       than 10,000 inhabitants    by an election pursuant
       to Article VIII, Section 16a, of the Texas
       Constitution,   the commissioners    court in its
       discretion   may fill the office by appointment
       until an assessor-collector     is elected at the
       next general election    and qualifies    for the
       office as required by law.      Before entering
       upon the duties of the office, the appointee
       shall take the official oath and shall give
       bond in the manner prescribed     by law for
       other assessor-collectors."

            The provisions  of Section 16a of Article VIII of the Con-
stitution   of Texas specifically   provide that if a majority   of the
voters approve of adding an assessor-collector      of taxes to the list
of authorized   county officials,   then such officials   shall be elected
at the next general election.     Article   7246-l/2 authorizes  the
commissioners   court to fill the office of assessor-collector     of
taxes created by the election by an appointment      until the next general
election.

                                      -6175-
Hon.   Bill   Lofland,   page    4           (M-1260)



            Therefore   it is our opinion that no conflict exists
between the provisions     of Section 16a of Article VIII of the
Constitution    of Texas and Article 7246-l/2, Vernon's Civil Statutes.
Furthermore,    as pointed out above, the term of office of sheriff
is not affected by the creation of the additional      office of as-
sessor-collector    of taxes.

          You are accordingly  advised that the provisions   of
Article 7246-l/2 are constitutional   and the commissioners  court
will have the authority  to appoint an assessor-collector   of taxes
until the next general election if the office of assessor-collector
of taxes is created by an affirmative   vote at the election called
pursuant to Section 16a of Article VIII of the Constitution     of
Texas.

                                SUMMARY

             The commissioners    court in a county having
       a population   of less than 10,000 inhabitants
       has the authority   to submit the question of
       adding an assessor-collector     of taxes to the
       list of authorized    county officials.    If such
       office is created the commissioners      court has
       the authority   to fill the office by appoint-
       ment until the next general election      following
       the creation of the office.      Texas Constitution,
       Article VIII, Section 16a; Article 7246-l/2,
       Vernon's Civil Statutes.

                                          Very/yruly    yours,



                                                     C. MARTIN
                                                   y General of Texas

Prepared by John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE




                                          -6176-
Hon. Bill Lofland, page 5      (M-1260)



Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Tom Fortescue
Roland Allen
Bill Craig
Bob Lattimore

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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