Untitled Texas Attorney General Opinion ( 1975 )

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THEAYTORNEY GENERAL
OF’ TEXAS
AUSTIN. TEXAS 78711
June 9. 1975
The Honorable David K. Brinkerhoff Opinion No. H- 623
County Attorney
Hardernan County Re: Status of county and
Quanah, Texas 79252 district clerks who were
elected at the last general
election in view of article
1903, V. T. C. S.
Dear Mr. Brinkerhoff:
You have requested our opinion regarding the status of the offices
of County and District Clerk for Hardeman County. You advise that in
the 1970 federal census, Hardeman County had a population of fewer than
8,000. For all counties having a population of fewer than 8,000, accord-
ing to the last preceding federal census, article 1903, V. T. C. S., requires
that:
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. . . there shall be elected a single clerk who
shall perform the duties of the district clerk
and the county clerk, unless a majority of the
qualified voters of the county who participate
in a special election, called by the Commissioners
Court for that purpose, vote to keep the offices
of county and district clerk separate. (Emphasis
supplied).
No such special election has been called. However, candidates for the
offices of both district and county clerk were purportedly elected at the
1974 general election.
We believe that the election was not effective to fill these two
offices, by~virtue of the express requirement of,article l903.’ Two earlier
‘Opinions ?&this office reached the sarixeresult. ~/’ ~’
po 2762
The Honorable David K. Brinkerhoff, page 2 (H-623)
[U]nder the Constitution and statutes of Texas,
such offices are not subject to being filled by
election by the qualified voters in the . . . general
election, there being in lieu thereof only the joint
office of county and district clerk -- one office --
to be filled. Attorney General Opinion O-2591 (1940).
See also Attorney General Opinion O-2515 (1940).
Since no “single clerk, ” pursuant to article 1903, was elected
in.1974, you also inquire as to the method by which the office of single
County-District Clerk may be filled prior to the next general election.
Article 5, section 9 of the Texas Constitutitin provides that vacancies in
the office of district clerk are to be filled by the judge of the district
court. Article 5, section 20, requires that vacancies in the office of
county clerk shall be filled by the commissioners court. A proviso
to article 5, section 20 then establishes the constitutional basis for
article 1903:
. . . provided, that in counties having a
population of less than 8.000 persons there
may be an election of a single Clerk, who
shall perform the duties of District and County
Clerks.
We believe that the presence of this language authorizing the office
of single Clerk in certain counties as a proviso to the article creating
the office of county clerk and prescribing a means by which vacancies
shall be filled indicates the intent of the voters in the election approving
the constitutional provision to fill a vacancy in the office of single Clerk
in the same manner. Since no other constitutional provision or statute
speaks directly to this question, it is our opinion that a court would
probably hold that article 5, section 20 is deemed to specify the means
by which a vacancy in the single office of Clerk is to be filled. Con-
sequently, in our opinion, the presently vacant office of Clerk of
Hardeman County is to be filled, until the next general election, by the
Commissioners Court.
p. 2763
The Honorable David K. Brinkerhoff page 3 (H-623)
SUMMARY
Neither a county clerk nor a district clerk was
validly elected in Hardeman County at the 1974
general election, for the reason that such offices
were not then in existence. The present vacancy
in the office of Clerk of Hardeman County should
be filled, pending the next general election, by
the Commissioners Court.
Very truly yours,
Attorney General of Texas
-ROVED:
, First Assistant
Opinion Committee
pe 2764