                                                       R-710
                    EA       OWNEY        GENERAL,
                                 TEXAS

PRICE   DANIEL
AITcJR?iEY
         GENERAL
                               August 14, 1947

     Hon. Jos. B. Dart         Opinion No. V-343
     County Attorney
     Kendall County            Re:   Is the sheriff, assessor and
     Boerne, Texas                   collector to be considered as
                                     one office in interpreting H. B.
                                     501, Ch. 204, 50th Legislature.
    Dear Sir:
             We refer to your letter of July 24, 1947, in which
     you requested an opinion of this Department, and in which the
     questions, we believe, msg be succinctly summarized as follows:
                  Does H. B. 501 Chapter 204, Acts of
          the &kh Legislature 6. 3     1947, apply to
          counties having a poiulati;; of less than
          10,000 inhabitants?
              2. Are the offices of sheriff, assessor
          and collector of taxes to be considered one
          office in such counties?

              3. Is the sheriff allowed his automobile
          expenses in such counties, when acting in the
          capacity of assessor and collector of taxes?
               House Bill 501, supra, is as follows:
              "Section 1. The County Commissioners
          Courts of this State are directed to supply
          and pay for transportation of sheriffs of their
          respective counties and their deputies to and
          from points within this State, under one of the
          four (4) following sections:
              "(a) Such sheriffs and their deputies shall
          be furnished adequate motor transportation in-
          cluding all expense incidental to the upkeep and
          operation of such motor vehicles.
              "(b) Motor vehicles shall be furnished to
          such,sheriffs and their deputies who may furnish
          gas and oil, wash and grease, incidental to the
          operation of such vehicles; for which gas and oil,
          wash and grease, such sheriffs and deputies shall
Hon. Jos.     B. Dart - Page 2          (V-343)


    be compensated at a rate not to exceed four cents
    (4#)   per mile for- each mile such vehfcl8 is
    operated in the performance of the duties of his
    off ice.
         “(c)    Alternatively    such County Commissloners
    Courts mug allow sheriffa       and their deputies in
    their respective      countlea to use and operate cara
    on official    busineaa which cars are personally
    owned by them for which such officers       ‘shall be
    paid not less than six centa (6$) per mile nor
    more than ten cents (lO$!) per mile for each mile
    traveled    ln the performance of offlclal     duties
    of their offioe.
          “(d) All compensation paid under the pro-
    visions of this Aot shall be upon a sworn state-
    ment of euch sheriff.
         “Sec. 2, The fact there ia nov no adequate
    law providing transportation    for sherifis  and
    their deputlee in the enforcement of the laws of
    the’ State creates an emergency and e case of im-
    perative public necessity    that the Constitutional
    Rule requiring   bills to be read on three several
    daya in each House of the Legialature.be     suapend-
    ed, and said Rule is hereby suspended, and that
    this Act shall take effect    and be in force from
    and after Its passage, and it la 80 enacted.”
         In view of the plain, clear, and unambiguous language
in said Act, it is our opinion that the same applies to all
oounties of this State, including those having a population
of less than 10,000 inhabitants.                            .~
            Ssotion   16 of Artiole      VIII     of the ConstitutLon   is aa
rollows :
         “The uherlff  of eaoh oountg in additi.on to
    his other butlea ahall be the Assessor and Collec-
    tor of Taxes therefor;   but, in oountles having
    ten thoulrand (10,000) or more inhabitanta,    to be
    determined  by the last preoedLng oenaua of the
    United Btstes, an Assessor and Colleator     of Tax08
    shall be eleoted to hold offloe   for two (2) year8
    ;Fedur$tfl his sucoesmortx shall be eleoted and quali-
         .
            Article   7246,   V.C.S.,     16 as follows:
Hon. Jos. B. Dart - Page 3   (V-343)


        "In each county having less than ten thousand
    (10,000) inhabitants, the sheriff of such county
    shall be the Assessor and Collector of Tax,es,and
    shall have and exercise all the rights, powers and
    privileges, be subject to all the requirements and re-
    strictions, and perform all the duties imposed by
    law upon assessors and collectors; and he shall
    also give the same bonds required of an assessor
    and collector of taxes elected."
        We quote from Texas Jurisprudence, Volume 34, page 447,
a8 follows:
        "In some instances a public officer, by
    virtue of the fact that he holds the office to
    which he was elected or appointed, or ex officio,
    is authorized and required to exercise the powers
    and perform the duties of another office. In
    such a case the Supreme Court has said that the
    powers and duties of the officer, simply as such,
    are just as distinct from his powers and duties
    when acting in his ex officio capacity as if they
    were exer$ised by two different persons.
    . . . . .
        In view of the above, we believe that the offices of
sheriff and assessor and collector of taxes in counties of less
than 10,000 population are to be considered as one office.
But in such counties the sheriff Is acting in a dual capacity.
For instance, this Department in Opinion No. O-1051 held that.
where a sheriff collects taxes, he is not filling two offices,
but the sheriff Is simply performing duties that he is not
required to perform in counties containing more than 10,000
population. The opinion further held that the sheriff who
performed the duties of assessor and collector of taxes ln
counties having a population of less than LO,000 inhabltants
was only entitled to draw the maximum fees allowed to the
sheriff under the statutes.
        In answering Question No. 3, "whether the sheriff in
such counties is entitled to automobile expenses when acting
In the capacity of assessor and collector of taxes", we must
look to Article 7246 and H.B. 501. It 1s apparentfrom the
language in Article 7246, that the sheriff in counties with a
populatlon of less than 10,000 inhabitants ls,to enjoy the
rights and ~privilegesand perform all the duties imposed upon
assessors and collectors. We fail to find any provision where
tax assessors and collectors are allowed automobile expenses,
while assessing taxes.
                                                          -      .




Hon. JOS. B. Dart - Page 4    (V-343)


        It is true that under H.B. 501, the sheriffs in such
countfes are allowed automobile expenses while in the perform-
ance of~official duties. It ~111 be noted, however, in the
$mergency clause of said Act, that It is for the purposes of
 providing transuortatlon for sheriffs and their deputies in
the enforcement of the laws of the State." (Emphasis ours)
        We believe from the language used that clearly the
Legislative intent was that this provision apply only to
the sheriff when enforcing the law a~ sheriff, and not when
he was assessing taxes.
        In view of the foregolng, you are respectfully ad-
vised that it Is the opinion of this Department that the'sher-
iff Is not allowed his automobile expenses under the provl-
            B. 501, supra, when acting in the capacity of as-
sions of I-l.
sessor and collector of taxes.
                             SUMMARY
       1. H. B. 501, Acts of the 50th Leg., R. S.,
   1947, which allows automobile expenses to sher-
   iff in the performance of his officlel duties,
   applies to all counties, -includingthose having
   a population of less than 10,000 inhabitants.
        2; In counties of less than 10,000 popula-
    tion, the positions of sheriff and assessor end
    collector of taxes are considered es one office.
    34 Tex. Jur. 447.

       3. The sheriff is not allowed his automo-
   bile expenses in such counties when acting in the
   capacity of assessor and collector of taxes. Art.
   7246, V.C.S.; H. B. 501, supre.
                                Very truly yours
                              ATTORNEY GENERAL OF TEXAS

                                By s/Bruce Allen
                                     Bruce Allen
                                     Asslstant
BA:djm:wc
APPROVED:
s/Fagan Dickson
FIRST ASSISTANT
