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