Untitled Texas Attorney General Opinion ( 1946 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Zonorable Clifford S. Roe
County Attorney
Panola County
Carti+age, Texas
Dear Siri Opinion No. 0-7089
Re:
'ii% have your on on the aMe
question, aaid requ
rtnent pee8
iea t converk
i
a County, Texas,
for a county
la 20 yeare of
of Age on December 24,
8 previouely had hie dis-
f full age for
voting under
I would like to know is, would this young
eligible to seek election a oounty office?
to
so, if eleoted, would he be allowed to quali-
fy for said office?n
Ron. Clifford S. Roe, page 2
Upon reoeipt of said request, we wrote to you and asked
whtjt office said person had in mind to run for, and you replied
that he wanted to seek election to the offioe of Distriot Clerk
or panola County, Texas.
The general rules aa to who are eligible to hold office
l.~ this State are laid down in 34 Tex. Jur., pp. 341-3, in the
rollowing language :
uhligibility to office belonga equally to all
pereone not exoluded by the Conetitution or statutes,
and not exolueively or apeoially to pereona enjoying
the right of sufrrage; and dieabllity to hold offioe
ie not to be imposed on any oitizen exoept under
authority given by law. The Legislature may not ohange
or add to pualif ioations for an offloe, nor take away
diequallrioatlone, that are preeoribed by the Consti-
tution*
“Under the Constitution no religious test may be
required as a quelifimtioh to any orfloe, and no one
oan be diequalified from holding orfioe on aooount of
his religious eentimente, provided he aokuowledgea the
exietence or a Supreme Being. The following persons
are diequaliried from holding any ofrioe of trust or
prorit in the State: persona oonvloted or~having given
or orfered a bribe to prooure eleotion or appointment
to office; persons who have fought or sent or aocepted
a challenge to fight a duel with deadly weapone, or
who have lcuowiugly aseieted in any manner those thus
offending; and pereone who at any time may have been
oolleotors of taxes or been otherwlee entrusted with
publio money until they shall have obtained a dia-
oharge for the amount of euoh collections or ror all
publio moneye with whioh they hay have been entrusted.
The Conetitution further providee that lawa shall be
made to.exolude from office persona oonvioted of
bribery, perjury, forgery or other high crimes.
“By statute it Is Drovided thatno person shall be
eligible to any state, county, preoinot or muhioipal
offiae unless he shall be eligible to hold offioe under
the Constitution; and certain general qualirioationa as
to the resldenoe and oitizenehip of such offioers are
presorlbed. The statute further provides that no person
.~0n. clirrord s. Hoe, page 3
ineligible to hold offioe ahall ever have his name plaoed
upon the ballot at any general, special Or primary eleo-
tion, or be voted upon, or have votes oounted for him5
prohibits the isauanoe of a certifioate of eleotlon or
appointment to any suoh person; and authorizes the Dia-
triot Court to issue write of injunction and all other
neoeeaary process to enforoe these provieions. When the
penalty for an orrenee is deprivation of oivil rights,
suoh righte are intended, aooording to the Penal Coda,
to inolude the right of holding office.
"In addition to the general provisiona above re-
ferred to, the Conetitutfon and statutes preeoribe various
qualifioatione ror certain partioular 0rfioers.w
Artiole 5, Seotion 9 of the Conetitution of Texas is a8
rollowet
wTher6 ehall be a Clerk for the District Court
of each county, who shall be eleoted by the qualiried
voters for the State and county offioers, and who ahall
hold hie offloe for two yeare, subject to removal by
information, or by indiotmant of a grand jury, and
oonviotion by e petit jury. In 0888 of Vaoancg, the
judge of the District Court ehall have the power to
appoint a olerk, who shall hold until the offioe can
be filled by eleot1on.v
Artiole 1894, Vernon's Annotated Civil Statutes, is ae
follows:
RA clerk of the diatriot court of eaoh oounty shall
be elected at eaoh general election ior a term of two
yeare. ;iaoh auoh clerk shall have power to administer
oaths and affirmations required In the disoharge of
their offioial dutfers, to take the depositiona of wit-
nesses, and generally to perform all suah duties as are
or may be imposed upon bhem by law."
Article 2927 la as followe:
"No person shall be eligible to any State, oounty,
preolnot or munioipal office in this State unless ha
shall be eligible to hold offiae under the Conetitution
of this State, and unless he ehall have resided in this
State for the period of twelve months and six months in
the oounty, preoinct, or municipality, in whioh he offers
himself aa a oandidate, next preoeding any general or
special election, and shall have been an aotual bona
t
son. Clifford S. Roe, page 4
fide citizen, of eaid oounty, preainat, or munioi-
pality for more than aix months. No person ineligible
to hold office ehell ever have his name plaoed upon
the ballot at any general or apeoial election, or
at any primary election where oandidatea are seleoted
under primary election laws of this State; and no such
ineligible candidate shall ever be voted upon, nor have
votea counted rcr him, at any euoh general, speoial, or
primary eleotion.n
Article 5921 4.6 aa rollows;
8Minors above the age of nineteen gears, where it
ah811 appear to their material advantage, may have their
dis8bilitiee of minority r8mOY8d, and be thereafter held,
for all legal purposes, of full age, exoept as to the
right to vote."
The queetion asked by you dose not appear to have been
paseed upon by any of our oourts, but in the oasa of Harkreader L
Y. State, 33 S. .W. 117, the oourt wa8 oonsidering whether a minor
oould legally aot a8 deputV oounty olerk and the following prin-
ciplee of law were there laid down whioh are applioable here:
"The principal ground of oontentlon on the part
of appellant why thie oaae rrhould be reversed la be-
aause the deputy clerk, 0. L. Bi6hop, baf or8 whom said
afridavit was made, ~86 not et the time 21 Veare of age;
that he wae at eaid date only 20 Veers old. The ground8
urged by appellant are; Firat, beoause it app8ared that
0. L. Biehop, the party who adminletered said oath a8
deputg oounty olerk, wee at said time a minor, under 21
years of age, and oould not act a8 deputy oounty clerk,
and that the affidavit was therefore void; seoond, be-
cause, eald affidavit n8t being one required to be taken
bV the oounty clerk in the disoharge of his official duty,
the deputy could not take the came for the oounty clerk.
OS etatute defining perjury and falsle swearing require?
that the oath shall be taken befors an officer authorized
to edminieter oaths, and if a minor, under the laws Of
this state, oan be appointed a deputy county olerk, then
it follows that he is auoh an offioer a8 oan edminieter
an oath. Our statutes with referenoe to oounty clerks
and the appointment of deputies, so far as they bear
upon this question, are a8 rou0w82 Article 1142,
Saylea' Civ. St., provides that there shall be a oountV
olerk for eaoh oountV, who ahall be elaoted at a general
Hon. Clifford S . Roe, page 5
eleotlon for members of the legislature by the quali-
fied voter8 of such oounty, who shall hold hi8 office
for two yeara, and until his auooeasor ehall have duly
qualified. Article 1144, Id., indioatee the rorm of
bond and oath required. Artiole 1145, Id., authorizes
the clerk of the oounty court to appoint one or more
deputies, by written appointment under his hand and seal
of court, which appointment ehall be reoorded in the
office of such olerk of the oounty oourt, and ahall be
deposited in the orrioe or the olerk or the distriot
oourt . Article 1146, Id., la a8 hollows: ‘Suoh
deputiee shall take the oath of offioe prescribed by the
constitution. They ehall aot in the name of their prin-
oipal, and may do and perrorm all suoh official aote a8
may be lawfully done and performed by aucholerk in person.1
Artiole 1149, Id., eaye that such olerk ahall be authorized
to ieeue all marriage iioeneee, to administer all oathe
and affirmationa, and to take affidavite and deposition8
to be ueed a8 provided by law in any of the oourta. There
is no statute derining the qualifioatione of deputy olerke,
z;fyt;t oharaoter of persons may be appointed to said
Art1010 2471, SayleeQ CiY, St., definae who are
minors: making all male persons under 21 years or age
minore. Artiole 336la et aaq., Saylee* civ. St.,
regulates the removal .of the dieabilitlee of minors, and
authorizes the diatriot oourts, on petition setting up
euffioient grounde,to remove the disabilities of minors,
over the age of 19 yeara; and provides that after euoh
adjudioation the minor shall be deemed of full age for
all legal purpoaea, exoept that he ahall not have the
right to vote. We have examined the deoleione of our
own oourte, but we oan rind but one bearing upon the
eubjeat now under consideration. steneorr v. state,
80 Tax. 429, 15 S.W. 1100. Looking into the deoieiona
of the aourte of other atates aa to this and kindred
aubjeots, we find the rule stated to be thie; rr the
offioe la minieterial, suoh 8s oalla for the exeroiee
of skill and diligence only, minors may legally hold
the mama, and exeoute the duties thereof i but if the
office la a judicial one, or one which oonoerna the
administration of juetioe, on acoount of their in-
experienoe and went of judgment and learning they
cannot be appointed to aame. In Gelding’s oaae, 57
N. H. 146, which 1,s relied on by oounsel for appellant,
the rule is etated as above. In that ease, however, it
wa8 held that a minor could not hold the office of jus-
tice of the peaoe, the same being a judicial offioe.
In the oase of U. S. v. Bixby, 9 Fed. 78, the indiotmant
t
424
HOIon.
clirrord S. Roe, page 6
oherged that the defendant oommitted perjur$ in swear-
ing to the truth of a quarterly report aa aaaignee in
bankruptoy, before Auretue W. Hatoh, a notary publio.
The defendant aet~ up that the said Hatoh wae a minor
under 21 yeare of age, and oould not hold the offioe
of notary public, and so the oath taken before him
was not before an orrioer authorized to administer
oathe. The oourt held in that oaae that there was
nothing in the statute8 of Indiana inhibiting minors
from holding the orfloe or notary public; that, the
notarial offloe being ministerial, and not judioial,
the rule at oommon law would govern. The oourt further
aayar ‘Unlike most of the statea, Indiana hae not
deolared, in her oonstitution or etatutee, that only
those who have attained the age of twenty-one years
ahall be eligible to any publio or oi~il offiae.
While at aomaon law pereone are not admitted to the
full amjoymert or politioal and oi~il rights until
they have attained the age of twenty-one yeara, yet
infants are oa able of executing mere powera, end, aa
agente, of mekPng binding oontraote with others. In
England they are allowed to hold the offioee of park
keepers, foreetere, jailer, and meyor of a townI end
in both j&gland and this oountry they are oapeble of
holding and discharging the duties of suoh mere minie-
tbrial offloes as aall for the exeroise of ekill and
dlligenoe only. They are not eligible to the offioee
whioh oonoarn the adminietration of juetioe, on aooount
of their inexperienoe and want of judgment and learning,*.
--referring to Rex. v. Dillieton, 3 Mod. 222; Tyler,
Inf. 8 78. In Wilaon v. Geneeee Circuit Judge, 87 Mioh.
493, 49 N’-. W, 869, the qua&ion wa8 whether a women aould
be appointed to the offioe of deputy oounty olerk. The
statutes of that atate in regard to the qualifioetione
of clerks and deputies are very similar to our own
statutes on the aubjeot. The oourt holds in that oaee
that the orrioe of oounty clerk la wholly ministerial,
and when the law provides that a ministerial officer
mey appoint a deputy, for whoa% aota he and his suretieit
are responsible, and doee not limit or restrict him ha
to whom he appoints, ha ha8 authority to appoint whom-
noever he pleases. The pereon appointed acts for hi&;
or, in other words, he acts through hie deputy.. His
ohoioe la not aonfined to any race, sex, age, or oolor.
In the oaae of Jeffriee v. Herrington, 11 Colo. 191,
17 Tao. 505, cited in the above 0886, the supreme oourt
of the State of Colorado held that, under a provision of
L. Clifford S. koe, Page 7
the constitution of said state, which provided that 'no
person except a qualified elector shall be eleoted or
appointed to any civil or military off108 in this state,*
the word loffiae,l 88 used therein, did not inolude
deputy clerkships of oOunty oourta, and woman may hold
such deputy clerkshipa. These authorities seem to stand
upon correct legal principle. Our own supreme court, in
the oaae of Stensoff v. State, already oited, held that
a oltizen of the state moving from Harris to Liberty
oounty, within 80 short a time before the election as not
to be a quelllied voter at auoh elsotion in the latter
county, still was eligible to eleotion, and oould hold
the orffce of tax assessor in Liberty county, In dia-
The
ousslng the question the oourt quotes with approval from
Barker v. People, 3 Cow. 703, as follows; %llgibility
to offioa is not dealarad as a right or prinaipla by any
express term of’ the oonetitution (of New York), but it
rest8 as a just dsduatlon from the express powere and
provisfons of'the eyystem, basia of the prlnaipla
is the absolute liberty of.the alaators and the appointing
authorities to ohooae and appoint any person who ia not
made ineligible by the conetitution. Xligibility to
ofriae, therefore, belongs not exolusively or spsoially
to eleotors endoying .the right of sufrrage. It belongs
equally to all persona whomsoever not exoluded by the
conatltutlon.* Our supreme oourt then proceeds to dim-
pose or the question In the following language: When a
constitution has been framed whioh aontains no provision
defining in terms who shall be eligible to offlae, than
is atrength in the argument that the intention wae to
oonflde the aelectlon to the untrammeled will of the
eleotors. Xxperianoe teaohes us that in popular elect-
tiona those only are aleated who are in sympathy with
the people, both in thought and asplrationa; and that no
law is needad to aeoure the elaation of those only who
reside in the aounty or distrlot in whioh their functions
are to be performed. The aonstitution of 1869 oontained
the provision "that no person shall be eligible to any
orrioe, state, oounty,or muniolpal, who is not a registered
voter in the state.' Article 3, Sear. 14. The omission of
a smlar artiole in our present aonstitution is not
without eignirioanoe.'
"It is to be observed, a8 before stated, that
neither our aonstltution nor laws on the subjeat prescribe
any qualifioation auoh aa would render a minor ineligible
or disqualified from holding the offioe of deputy oounty
olerk. &j to the clerk himself, there might be Borne
question, as he ia required to exeaute a bond, whioh
night involve the oapaaity to so aontraot, but there is
no such requirement aa to deputy OOuntY alerks. The
4’26
Hon. Clifford S. Roe, page 8
authorities cited establish the dootrine that, if the
duties of deputy county olerk, under the provisions of
our statute, are ministerial, a minor'can receive the
appointment, and exeoute the duties required of said
deputy. The duties of oounty clerks in our state are
regulated by statute, and they appear to be Qurely
ministerial; and, in addition to their other functions,
as has been seen, they have the general power to ad-
minister all oaths and affirmations, and to take
affidavits and depositions to be used as provided by
law in any of the courts. Saylea' Civ. St. art. 1149.
Deputies are authorized to act in the name of their
principal, and to do and perform all such offioial acta
as may be legally done and performed by such clerk in
parson. By virtue of hla offioe the oounty clerk is
empowered to administer oaths and affidavits generally.
This power appertains to his office, and belongs to
his off'icial'auties, and his deputy, in this regard, has
such power and authority as he oan exercise; and, In our
opinion, the appointment of 0. L. Bishop, by the clerk
of the county court of Johnson County, aa his deputy,
was a legal and valid appointment.n
Ordinarily the duties of a alerk of a district oourt are
purely ministerial. Benge v. Foster, et al, 47 S. W. (26) 862.
Therefore, in view of the above provisions of the Constitution
and statutes and the construction plaoed on similar provisions
by the deoision cited, it is our opinion that the young man
referred to in your request Is eligible to seek eleotion to the
office of District Clerk of Panola County, Texas, if he meets
the other requirements of the law in addition to those contained
in your request, and that he should be allowed to qualify for said
Office, if elected. We think this is espeoially true in view of
the faot that he will be twenty-one years of age prior to the
time he would be authorized under the law to qualify, which
would be January 1, 1947. Article 2929a.
Yours very truly,
ATTORIEYG&%XAL OF TAXAS
BY Jas. .?i. Bassett
Assistant
COMMITTEE