                 -E     ATl.ORNEZY           GENERAL
c
                              OF   TEXAS


  WILL   wILsoN
Aa--        GEIYEBAI.
                                                    cd d?d vvc..&
                                     8,    1960

         Mr. Charles L. Reynolds          Opinion No. WW-851
         County Attorney
         Chlldress County                 Re: Effective date sheriff
         Childress, Texas                     becomes Assessor and
                                              Collector of Taxes,
                                              and related questions,
                                              when population of
                                              county becomes less
         Dear Mr. Reynolds:                   than 10,000.
                Your request for   an opinion reads In part as
         followa:
                      "Heretoforefor a number of yeara,
                 an Assessor and Collector of Taxes has
                 been elected by the qualified voters of
                 Childress County in accordancewith the
                 provisions of Article 8, Sections 14 and
                 16, of the Constitutionof Texas, thla
                 county during all such times having had
                 more than 10,000 inhabitant.8as deter-
                 mined by the applicable federal census.
                 'Ihefour year term of the present lncum-
                 bent expires December 31, 1960. The
                 present incumbent,being the only an-
                 nounaed candidate for nomination to such
                 offloe and having received the highest
                 number of votes cast for any person for
                 such office in the May 7, 1960, Democratlo
                 primary election, has been certified to
                 be the democratic nominee for the offlce
                 of Tax Assessor and Collector at the gener-
                 al election to be held in November, 1960.
                 According to the prellmlnary 1960 oensus
                 report, Childress County has a population
                 of 8,371. The Constitutionof Texas pro-
                 vldee that In counties having leas than
                 10,000 inhabitantsthe Sheriff shall be
                 the Assessor and Collector of Taxea unless
                 the votezw, at an election called for that
HP. Charles L. Reynolds, page 2 (Ww-851)                    .




       purpoee. shall approve of adding an Asses-
       aor and Colleotor of Taxee to the list of
       authorized county officials.
            "l'hlssituation raises the following
       questions:
            "1. If no eleatlon 1s held, or If the
       voters fall to approve the adding of an Asses-
       sor-Collectorof Taxes to the list of authorized
       county offloiala,uhen does the Sheriff assume
       the duties of Assessor and Colleotor of Taxes?
             "2. And, Inevitablycontrolledby the
       determinationof question one above, when does
       the term of the present incumbent end?
            “3. If at an election held for that
       purpose, an Assessor-Collectorof Taxes Is
       added to the list of authorized county officials,
       Is the present Incumbent,who was nominated In
       the May 7, 1960, Democraticprimary election, en-
       titled to have his name placed on the ballot in
       the November general election as the Democratic
       nominee for such office?"
        Section 16 of Article VIII of the Constitutionof
Texas provides as follows:
            "The Sheriff of each county, In addl-
       tlon to hla other duties, shall be the
       Assessor and Collector of Taxes therefor;
       but, In countlee having 10,000 or more ln-
       habitants, to be determinedby the last pre-
       ceding census of the United States, an Asses-
       sor and Collector of Taxes shall be elected
       as provided in Section 14 of this Article,
       and shall hold office for four years and un-
       til his succetmor shall be elected and quall-
       fled.n
        Section 16a of Article VIII of the Constitutionof
Texae provides a8 follows:
             "In any county having a population
        of less than ten thousand (10,CCC) lnhabl-
        tants, as determined by the last preceding
.
    Mr.   Charles L. Reynolds, page 3 (W-851)


              aensua of the United States, the Cosmis-
              sionerrl Court may submit to the quallfl$a
              property taxpaying voters of auoh county!
              at an.electlon the quelrtion of adding an
              Assessor-Collectorof Taxes to the list of
              authorised oounty offlalals.   If a majority
              of such voterr voting in ruch ale&Ion
              shall approve o? adding an Assessor-Collector
              of Taxes to 8uoh llst,*then suoh offlolal
              shall be elected at the next Oeneral Eleo-
              tlon for 6uoh Constitutionalterm of office
              as is provided for other Tax Assessor-
              Colleotors In this State.”
            In construing the provisions of Section 16 of Artl-
    ole VIII of the Conetltutlonof Texas above quoted   the
    Court held In Nelson v. Rdwardr, 55 Tex. 389 (16811:
                 ”. . . It will be reoolleotedthat
            under the above section of the oonstltu-
            tion of 1876,   rlma facie the sheriff Is
            the oollector %r-
                           o    axes, and that the ex-
            ception applies to oounties of ten thou-
            sand lnhabitante;and that a party, to
            avail hlmelf of this exkeptlon, should
           ‘show that he oomca ulthln it. . . .’
            Likewise; It was held In Attorney   Oenetial’sOpinion
    2249 (1920):
                   “Prlmarlly,and presumably,the sheriff
              of a oounty 1s       radle ‘the oollector of
              taxes therefor,      o-aiming     to the con-
              Wary ham the burden of showing that such ooun-
              ty oanea within the exception provided for by
              the latter part of said Seat&on 16 of Artlole
              8 of our State Constitution. This 1s express-’
              ly 80 decided in Nelson vs. Edwards, 55 T. 389;
              and this Departmenthas held that the failure
              of a sheriff to exeoute the bonds required of
              the tax oolleotor o? a oounty shown by the
              United Staten Census next preoedlng the gener-
              al election’tohave less than ten thousand ln-
              habitants would have the effeot of creating a
              vacancy in the officreof sheriff of such ooun-
              ty.;that the office of sheriff and tax collector
              of such county Is dual and inseparable,and that
              one has not the rlght.to hold or exercise the
or. Charles L. Reynolds, page 4 (W-851).


        funotlons of eitherwithout ~qualifylngas, and
        being charged with the duties 'andreeponsibili-
        ties of, both. Rep. IkOpi Atty. Gen. 1916-1918,
        P. 399.




       A.COPY  of Attorney Qeneral~s'Opln~b~2249 (1920) is
attached to this opinion.
Mr. Charles L. Reynolds, page 5 (W-851)


        In view of the foregoing, you are advised that the
present Incumbent In the office of Assessor and Collector
of Taxes of Chlldress County remains the Assessor and
Collector of Taxes for such County until January 1, 1961,
and the Sheriff oS'ChlldreesCounty after January 1, 1961,
will assume the duties of Assessor and Collector of Taxes.
If prior to the next general election, an election Is held
pursuant to the provisions of Section 16a of Article VIII
of the Constitutionof Texas, and the voters authorize
adding an Aseeasor and Collector of Taxes to the list of
authorized county otflalals, the n@e to be placed on the
ballot at the November election as the Democratic nominee
for such office will be.the Individualnominated at the
Primary Election for such office on May 7, 1960.
                        SUWARY

            fn a oounty having a population of more
         than 10,000 Inhabitantsaccording to the
         1950 Federal Census and having a population
         of less than 10,000 Inhabitantsaccording
         to the 1960 Federal Census, the Asseeeor
         and Collector of Taxes for.suoh County re-
         mains the Assessor and Collector of Taxes
         ror such County until Jdnuary 1, 1961.   If
         prior to the next general election, an
         election Is held pursuant to the provisions
         of Section 16a of Article VIII of the Con-
         stitution of Texas, and the voters authorize
         adding an Assessor and Collector of'Taxea to
         the list of authorized county officials, the
         name to be plaoed on the ballot at the Novem-
         ber Election as the Democratic nominee for
         such office will be the Individualnominated
         at the Primary Election for such Purpose on
         may 7.1 1960.
                                 ,Ygursvery truly,
                                 WILL WIISON
                                 Attorney Oeneral of Texas




                                     Assistant Attorney Wneral
JR:snn
Mr. Charles L. Reynolds,.~page
                             ~6 (~~-851)



APPRCVR?:            ..
OPINION.cmm       ~' ~;
W. N. (#eppert,Chairman
Dean D&IS'
Lawrence liargrove
Jerry H: Roberts
James M. Farrla
RRVIRWRDFORTREAlTORNl3~C@NERAL
BY: Leonard Passmore
