Untitled Texas Attorney General Opinion

Gerald C. Mann Attorney General Hon. John W. Moore Opinion No. O-2524 County Attorney When does the office of Sheriff, Jack County Tax Collector and Assessor become Jacksboro, Texas se arated under Articles 7245 and 72% R.C.S., when the census of sald'county was announced by the District Director of the Federal Census Bureau, after the time lim- it for filing on the Democratic Ticket, and prior to the July Pri- mary? And related question. Dear Sir: We have received your letter of recent date, where- in you request the opinion of this Department upon the above stated questions. For factual background of your request, we quote from your letter as follows: "I am submitting the following questions for an opinion of your department: "1. When does the office of Sheriff, yax Collector and Assessor become separated under articles 7245 and 7246, R.C.S., when the een- sus of said county was annodnced by the Dis- trict Director of the Federal Census Bureau, after the time limit for filing on the Demo- cratic ticket, and prior to the July Primary? "2. Would the successful candidate for the office of Sheriff, Collector and Assessor, in a county whose Federal Census in 1930 was under 10,000, but whose census announced by the District Director of the Census Bureau after the filing time for candidates in the Democratic Pri- mary and prior to the July Primary, was in ex- cess of 10,000, be the Democratic Nominee for the combined office? "The situation in our county is that the office of Sheriff, Tax Collector and Assessor Hon. John W. Moore - Page 2 (O-2524) have been combined under the 3930 Federal Cen- sus which was 9 046. lhe County Judge was no- tified by the District Director of the Federal Census Bureau on July 1, 1940 that the popula- tion of Jack County was 10 139. Candidates for the office had filed, bas$ on the 1930 census, for the office of Sheriff, Collector and Asses- sor as one office. It is now of course too late to file for the separate offices on the Democratic ticket if such would be the cas8 under the law, anI!under the facts set out here, II** *, "In this case here the candidates that have announced and filed for the combined office are in doubt as to the status of the office they are running for, and that som8 write in WIdidat8 may receive a few votes or a majority for the office of Assessor and Collector, and be declarsd en- titled to that Office. When in fact if the two offices~~areseparated they might want to run for the office of Assessor and Collector. Article V, Section 23 of the Constit&ion of Texas pPOVid8S : "There shall be elected by the qualified voters of each county a sheriff, who shall hold his office for the term of two years, Whose duties, and perquisitss and fees of office, shall be prescribed by the Legislature and va- cancies in whose Office shall be filled by the Commissioners1 court until the next general election for county or Stat8 officers." Article VIII, Section 14 of the Constitution of Texas, adopted in 1932, provides, in part: "There shall b8 818Ct8d by the qUalifieri electors of each county at the same time and under the Sam8 law regulating th8 election Of State and County officers, an Assessor and Collector of Taxes, who shall hold his office, for two (2) years and until his successor is elected and qualified; * * *.I' Hon. John W. Moore - Page 3 (O-2524) Article VIII, Section 16 of the Constitution of Texas, adopted in 1932, provides: "The sheriff of each county in addition to his other duties shall be the Assessor and Coll8ctor of Taxes therefor* but, in COMtiSS having ten thousand (10,OOOj or more inhabi- tants, to be determined by the last preceding census of the United States, an Assessor and Collector of Taxes shall be elected to hold office for two (2) years and until his succes- sor shall be elected and qualified." The Legislature, in order to give effect to the above constitutional provisions enacted in 1933, Articles 7245 and 7246, Vernon's Civil SJatntes. Article 7245 provides: "In each county having ten thousand (lo,- 000) inhabitants, to b8 determined by the prs- ceding Federal Census, there shall be elected at the regular biennial election an ASS8SSOP and Collector of Taxes, who shall hold his of- fice for two (2) years." Article 7246 provides: "In each county having less than ten thou- sand (10,000) inhabitants, the sheriff of such county shall be the Assessor and Collsctor of Tax89,and shall have and axercise all the rights, powers and privileges, be subject to all the re- quirements and restrictions, and perform all the duties iYUpOS8d by law upon assessors and collec- tors; and he shall also give the same bonds re- ~~,';~~ao;an assessor and collector of taxes . By construing the above constitutional provisions and Articles 7245 and 7246 supra, together, we se8 that in counties having lass than i0,000 inhabitants, there is no separate office of Tax ASS8SSOP and Collector, but the,of- flees of Sheriff and Tax Assessor and Collector ars combin- ed and the sheriff is 8x-officio Assessor and Collector, an4 as such is simply performing dUti8S he is not required to perform in counties containing more than 10,000 inhabi- tants. Hon. John W. MOOP8 - Page 4 (O-2524) The right to elect an individual to fill the sep- arate office of Tax Assessor and Collector arises in Jack County when the official census of that county Is in excess of 10,000 inhabitants. Under the Act of Congress, June 18, 1929, and May 17, 1932, (13 U.S.C.A., Sec. 201, et seq.) a census of pop- ulation shall be taken oy the Director of zensus in the year 1930 and every ten (10) years thereafter. Under the 1930 census, Jack County bad a population of less than 10,000 inhabitants. The 1940 census must deter- mine, therefore, that Jack County has a population of 10,000 inhabitants or more before a Tax Assessor and Collector may be 8leCtd. Our first inquiry is as to when the 1940 census d8- termination becomes affective. Touching this question, we q,u;teas follows from the case of WVIN v. STATE, & S,W.(2d) : "There is no specific provision in the Act of Congress June 18, 1929 (13 USCA 8 201 et seq.), with reference to the time of final announcement of the census; nor is there any provision as to the tims the census shall b8COm8 8ff8CtiV8. Under the terms of the Act of Congress March 6 1902, 3 11 (13 USCA a 41, the Director of the Census is required 'to have printed, published and ais- tributed, from time to time bulletins and re- ports of the preliminary anA other results osu;h8 various investigations authorized by law.' - stantially to the same effect is Section 13, Act of Congress June 18, 1929 (13 USCA S 213) which imposes:on the Director the duty to have printed preliminary and other census bulletins and final reports of the results of the several investiga- tions. Section 205, 13 USCA, reads as follows: 'Each supervisor shall perform such duties as may b8 imposed upon him by the Director of the Census in the enforcement of this chapter,' etc. "In Holcomb et al. v. Spik8s 232 S.W. 891, 894, the Court of Civil Appeals a{ Amarillo, Tex., in holding that a preliminary announcement of the c8nsus by the Director Was an official pronounca- ment of which the public and all officials may take notice, said: *It would seem by the act of 1902 ,’ Hon. John W. Moore - Page 5 (O-2524) duties were impOS8d upon the DiP8CtOP to pUb- lish and distribute bulletins and reports of the preliminary and other results of.ths var- ious investigations authorized by law. This, in so far as we can ascertain, is the only method to inform the public and of giving it access to the information ascertained and compiled by the enumerators and supervisors. It would seem when bulletin is so published and distributed it then becomes an official pronouncement under the law, of which the pub- lic and all officials may take notice. * * * In this case the undisputed facts show the Census Bureau, under the signature of its Di- rsctor, issued a bulletin showing befOP the election the population of Lubbock County to be 11 096. This S8ems to have been official. This &formation appears to have been given to leading papers of the state. Under the law this information could have been obtained in no other way than through the Director~s official act, without violating the law and subjecting the parties to a charge of felony. We think the case of Nelson v. Edwards, 55 Tex. 389; in- dicates when the enumerators* list is filed; as required by the law, as it than existed, this made it such evidence as that public offi- cials could and should act upon it. There was no other method provided or shown requiring a proclamation placing the census in effect.' n* * *,n The holding of the EOLCOMD v. SPIKES case 232 S.W. 891 (writ of error dismissed), quoted from in che EP- vin case, supra, involved the following facts: "HUlV, C. J. C. A. Holcomb was eleCted sheriff of Lubbock County November 2, 1920, S.C. Spikes was elected tax collector. The other ap- pellants in this case were county jUdg8 and COun- ty commissioners of Lubbock County. The issue involved in this case is whether or not at the November election 1920, Lubbock county had a population of 10,600 as determined by the next pP8c8ding census of Che United States. Lubbock 'County ulId8Pthe 1910 census had a pOpdatiOn Of less than 10,000, but under the 1920 census the population is shown as 11,096. The appellee, Hon. John W. MOOP8 - Page 6 (O-2524) S. C. Spikes, having noticed in the Dallas News prior to the July primaries a report that the population of the county was in excess of 10 000 applied to have his name placed on the officjal ballot as the Democratic candidate for the of- fice of tax collector, but the application came too late for his name to go on the ticket. Bow- ever, the voters of the.county, by writing the appellee's name or-the ticket, nominated him to such Office. His name was certified as nominated by the party, and was placed on the official bal- lot at the November, 1920, election as a Demo- cratic candidate. Having receivsd.ths highest number of votes for the office a certificats of election was issued to him by Chs county judge on November 26, 1920. 'fhebonds required by law were prepared, duly Signed, and tendered to the commissioners~ court by the appellee, but were re- jected by the commissioners1 court because 'the official bond of S. C. Spikes was not approved for the reason that, while the court realized the bond is in proper form and is good and sufficient; but in the judgment of,the court C. A. Holeomb, under the facts and circumstances, is entitled to the office.' After the rejection of the bond ap- pellee, Spikes, instituted suit against Holcomb, praying for a writ of injunction enjoining the said Holcomb and restraining him from exercising the functions of tax collector, and to restrain him from appropriating the fees of the office and against the county judge and commissioners to com- pel them to approve the bona of the appellee and install him in the office of tax collector. It is conceded in this case that the appellee received a majority of the votes and received his certifi- cate of election, and that his bonds were in prop- er form and the sureties thereon sufficient, and that Holeomb was duly elected Sheriff of that coun- ty. The only question presented for our determi- nation is whether the census taken in 1920 deter- mined the question under the Constitution of this state of the population of Lubbock County. The facts show that the Dallas News and other papers published the result of the census, giving Lubbock County over 10,000 inhabitants. On September 30, 1920, the following certificate was issued: Hon. John W. Moore - Page 7 (O-2524) "'I hereby certify that according to a preliminary count, subject to correction, of the returns of the fourteenth census of the United States, on file in the Bureau of Census, the population of the county of Lub- bock, state of Texas taken as of January 1, 1920, is 11,096.' (Jigned) Sam L. Rogers, Director of the Census. "And on the 10th of November, 1920, the follav- lng certificate: "'I hereby certify that according to the official count of the returns of the four- teenth census of the United States, on file in the Bureau of Census, the population of the county of Lubbock, state of Texast taken as of January 1, 1920, is 11,096. Signed by the Director. "On the 30th day of September, 1920, the Director wrote a letter to John R. McGee, county attorney, in which he states: "'In cornliance with your request of September 21: th, I take pleasure in inclos- ing herewith an official certificate of the population of Lubbock County, Texas, as shown by a preliminary count, subject to correc- tion, of the returns of the fourteenth census, taken as of January 1, 1920.' -inclosing a bulletin to McGee, which was of- fered in evidence, which is as follows: "'Released for immediate use, Department of Commerce, Bureau of the Census, Washing- ton. Fourteenth Census, preliminary an- nouncement of population, subject to correc- tion. Lubbock County, Texas. 1900 293'***." The court held that the election officers of Lub- bock County were acting within the law when they ordered the election for tax collector and declared Spikes elected to that office. It appears that the election officers in order- ing the election for tax collector, and in certifying Spikes Hon. John W. Moore - Page 8 (O-2524) as the party nominee, and in issuing to him the certifi- cate of election, did so after the publication of the preliminary bulletin by the Director of the Census, which bulletin showed Lubbock County to have a population of 10,000 inhabitants or more. The case is authority for the proposition that the election officials may take notice of a preliminary announcement of the census by the Director, and if such determines a county to have a population of 10,000 inhab- itants or more, an election for a Tax Assessor and Col- lector may be OPd8Pqd. Therefore, in view of the foregoing authorities you are respectiully advised that it is the opinion of this Department, in answer to your first question, that after the publication of the preliminary bulletin of the Director of the Census shcwing Jack County to have a pop- ulation of 10,000 or more inhabitants, there arose the right of the voters of Jack County to&e& a separate As- sessor and Collector of Taxes, and the corresponding right for a person to run for this separate office. It follows, of course, that in order for an individual to appear on the general election ballot as the party nominee for the separate office of ASSSSSOP and Collector of Taxes for Jack County, he must have been lawfully nominated by the party for such office in the party primary. You are further respectfully advised that it is the opinion of this Department, in answer to your second question, that the successful candidate who has filed his name with the Democratic Executive Comm ittee of Jack County for a place on the ballot of the Democratic Primary for nom- ination to the office of Sheriff and Assessor and Collector of Taxes will not be nominated to the combined office, but will only be nominated to the office of Sheriff. This opinion is in accordance with the holding of our opinion Nos: O-1105 and O-2337, copies of which are en- closed herewith for your information. Yours very truly DDB:ob:wb ATTORNEY GENERAL OF TEXAS Enclosures By /s/ D. Burle Daviss APPROVED JDL 22, l!+tO D. Burl6 Daviss, Assistant /s/ Grover Sellers FIRST ASSISTANT APPROVED: OPINION COMMITTEE ATTORNEY GENERAL BY BWB Chairman