Judges: JOHN CORNYN, Attorney General of Texas
Filed Date: 5/23/2001
Status: Precedential
Modified Date: 7/6/2016
Office of the Attorney General — State of Texas John Cornyn The Honorable Robert F. Vititow Rains County Attorney 113 North Texas P. O. Box 1075 Emory, Texas 75440
Re: Whether a "joint clerk" who performs the duties of both the district clerk and the county clerk is entitled to complete the term of office to which elected when the county's population exceeds eight thousand persons after the release of the 2000 United States Census of Population (RQ-0339-JC)
Dear Mr. Vititow:
Pursuant to article
Article
You relate that your "present Clerk was elected to a four-year term of office which began on January 1, 1999, and will end on December 31, 2002."1 You expect the new census of population to be released prior to the expiration of the clerk's elected term and anticipate that the results will reflect a population in Rains County of at least eight thousand persons.2 You ask for guidance as to how to proceed. If the office is required to be split immediately upon the release of the new census, you ask whether the present clerk becomes the district clerk, the county clerk, or neither. Should an immediate split be required, you wish to know whether there must be a new election or whether the vacated office is filled by appointment. See Request Letter,supra note 1, at 1.
This office was asked similar questions regarding Andrews County, which expected its population to increase after the release of the 1960 United States Census of Population, and answered thus:
Where a county had a population of less than 8,000 inhabitants, according to the 1950 Federal Census, and has a population of more than 8,000 inhabitants, according to the 1960 Federal Census, the combined office of a single clerk who shall perform the duties of the district and county clerk [does] not become separated until the expiration of the term of office to which the incumbent was elected, January 1, 1963.
Tex. Att'y Gen. Op. No. WW-864 (1960) at 3-4.
A governmental entity "may not recognize or act on a report or publication, in any form, of a federal decennial census, in whole or in part, before September 1 of the year after the calendar year during which the census was taken." Tex. Gov't Code Ann. §
Attorney General Opinion WW-864 (1960) cites two previous attorney general opinions, WW-851 (1960) and 2249 (1920), which relate to offices that had previously been combined by virtue of a county's population and the effect of a new census of population on those offices. See Tex. Att'y Gen. Op. No. WW-851
(1960); Tex. Att'y Gen. Op. No. 2249 (1920) (C. M. Cureton administration); Tex. Const. art.
The office, as to the person holding it, is one and indivisible. . . . There is no provision in our Constitution or statutes for the election of a tax collector [other] than at a general election.
. . . .
What we have said with respect to the office, or offices, of sheriff and tax collector is also applicable, by analogy, to the office, or offices, of county and district clerk. . . .
Tex. Att'y Gen. Op. No. 2249 (1920) at 5-7 (emphasis added).
Should new census figures require it, we conclude that the "joint office" of district and county clerk should be separated at the expiration of the term of office to which the incumbent was elected rather than on the date of recognition of a new United States Census of Population report. There is no provision in the Texas Constitution or in Texas statutes for the election of a district or county clerk other than at a general election.
Yours very truly,
JOHN CORNYN Attorney General of Texas
ANDY TAYLOR First Assistant Attorney General
SUSAN D. GUSKY Chair, Opinion Committee
Rick Gilpin Assistant Attorney General — Opinion Committee