OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

Zonorable Clifford S. Roe CountyAttorney Panola County Carti+age, Texas
Dear Siri Opinion No. 0-7089
Re:

'ii%have your question, aaid requ on on the a Me

rtnent pee8 ieat converk

i

a County, Texas, for a county Age la 20yeare of of onDecember 24, 8previouely had hie disf full age for voting under

I would like to knowis, would this young eligible to seek election to a oounty office? so, if eleoted, would hebe allowed to qualify for said office?nRon. Clifford S. Roe, page 2

Uponreoeipt of said request, wewrote to you andasked whtjtoffice said person had in mind to run for, and you replied that hewanted to seek election to the offioe of Distriot Clerk
or panola County, Texas.
Thegeneral rules aa to whoare eligible to hold office l.~this State are laid downin 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, andnot exolueively or apeoially to pereona enjoying the right of sufrrage; anddieabllity to hold offioe ie not to be imposed on any oitizen exoept under authority given by law. TheLegislature maynot ohange
or add to pualif ioations for anoffloe, nor take away diequallrioatlone, that are preeoribed by the Constitution*

“Under the Constitution no religious test maybe required as a quelifimtioh to any orfloe, andno one oan be diequalified from holding orfioe onaooount of his religious eentimente, provided he aokuowledgea the exietence 

## or a SupremeBeing. Thefollowing 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 whohave fought or sent or aocepted
a challenge to fight a duel with deadly weapone, or whohave lcuowiugly aseieted in anymanner those thus offending; andpereone whoat any time mayhave been oolleotors of taxes or been otherwlee entrusted with publio moneyuntil they shall have obtained a diaoharge for the amountof euoh collections or ror all publio moneyewith whioh they hay have been entrusted. TheConetitution further providee that lawa shall be madeto.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 noperson.~0n. clirrord s. Hoe, page 3

ineligible to hold offioe ahall ever have his nameplaoed upon the ballot at anygeneral, special Orprimary eleotion, 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 Diatriot Court to issue write of injunction andall other neoeeaary process to enforoe these provieions. Whenthe 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 referred to, the Conetitutfon and statutes preeoribe various qualifioatione ror certain partioular 0rfioers.w
Artiole 5, Seotion 9of the Conetitution of Texas is a8 rollowet
wTher6ehall be a Clerk for the District Court of each county, whoshall be eleoted by the qualiried voters for the State and county offioers, andwhoahall hold hie offloe for twoyeare, 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, whoshall 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 andaffirmations required In the disoharge of their offioial dutfers, to take the depositiona of witnesses, andgenerally to perform all suah duties as are or maybe imposed upon bhemby law."
Article 2927 la as followe:
"Noperson 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, andunless 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 anaotual bona

tson. Clifford S. Roe, page 4

fide citizen, of eaid oounty, preainat, or munioipality for more than aix months. Noperson ineligible to hold office ehell ever have his nameplaoed upon the ballot at anygeneral or apeoial election, or at anyprimary election where oandidatea are seleoted under primary election laws of this State; andno such ineligible candidate shall ever be voted upon, nor have votea counted rcr him, at anyeuoh general, speoial, or primary eleotion.n
Article 5921 4.6aa rollows;
8Minors above the age of nineteen gears, where it ah811appear to their material advantage, mayhave their dis8bilitiee of minority r8mOY8d,and be thereafter held, for all legal purposes, of full age, exoept as to the right to vote."
Thequeetion 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 wa8oonsidering whether aminor oould legally aot a8deputV oounty olerk andthe following principlee of lawwere there laid downwhioh are applioable here:

"The principal ground of oontentlon on the part of appellant whythie oaae rrhould be reversed la beaause the deputy clerk, 0. L. Bi6hop, bafor8 whomsaid afridavit wasmade, ~86 not et the time 21Veare of age; that hewaeat eaid date only 20Veers old. Theground8 urged by appellant are; Firat, beoause it app8ared that 0. L. Biehop, the party whoadminletered said oath a8 deputg oounty olerk, wee at said time aminor, under 21 years of age, andoould not act a8 deputy oounty clerk, andthat the affidavit was therefore void; seoond, because, eald affidavit n8t being one required to be taken bVthe oounty clerk in the disoharge of his official duty, the deputy could not take the camefor 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 aminor, under the laws Of this state, oan be appointed a deputy county olerk, then it follows that he is auohanoffioer a8 oan edminieter
anoath. Ourstatutes with referenoe to oounty clerks andthe appointment of deputies, so far as they bear uponthis question, are a8 rou0w82 Article 1142, Saylea' Civ. St., provides that there shall be a oountV olerk for eaoh oountV, whoahall be elaoted at a generalHon. Clifford S

. Roe, page 5

eleotlon for membersof the legislature by the qualified voter8 of such oounty, whoshall hold hi8 office for twoyeara, anduntil his auooeasor ehall have duly qualified. Article 1144, Id., indioatee the rorm of bond andoath required. Artiole 1145, Id., authorizes the clerk of the oounty court to appoint one or more deputies, bywritten appointment under his handandseal 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 nameof their prinoipal, andmaydo andperrorm all suoh official aote a8 maybe lawfully done andperformed by aucholerk in person.1 Artiole 1149, Id., eaye that such olerk ahall be authorized to ieeue all marriage iioeneee, to administer all oathe andaffirmationa, and to take affidavite and deposition8 to be ueed a8provided by law in anyof the oourta. There is no statute derining the qualifioatione of deputy olerke, z;fyt;t oharaoter of persons maybe appointed to said

Art1010 2471, SayleeQ CiY, St., definae whoare minors: making all male persons under 21years 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 19yeara; andprovides that after euoh adjudioation the minor shall be deemedof full age for all legal purpoaea, exoept that he ahall not have the right to vote. Wehave examined the deoleione of our ownoourte, but we oanrind but one bearing uponthe eubjeat nowunder consideration. steneorr v. state, 80Tax. 429, 15S. W. 1100. Looking into the deoieiona of the aourte of other atates aa to this andkindred aubjeots, wefind the rule stated to be thie; 

## rr the offioe la minieterial, suoh 8s oalla 

### for the exeroiee of skill anddiligence only, minors maylegally hold the mama,andexeoute the duties thereof i but if the office la ajudicial one, or onewhich oonoerna the administration of juetioe, on acoount of their inexperienoe andwent of judgment andlearning they cannot be appointed to aame. In Gelding’s oaae, 57 N. H. 146, which 1,srelied on by oounsel for appellant, the rule is etated as above. In that ease, however, it wa8held that aminor could not hold the office of justice of the peaoe, the samebeing ajudicial offioe. In the oase of U. S. v. Bixby, 9Fed. 78, the indiotmant

t

### 424



## HOIon. clirrord S. Roe, page 6

oherged that the defendant oommitted perjur$ in swearing to the truth of a quarterly report aa aaaignee in bankruptoy, before Auretue W.Hatoh, anotary publio. Thedefendant aet~upthat the said Hatohwaeaminor under 21yeare of age, and oould not hold the offioe of notary public, andso the oath taken before him
wasnot before anorrioer 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, andnot judioial, the rule at oommonlawwould govern. The oourt further aayar ‘Unlike most of the statea, Indiana hae not deolared, in her oonstitution or etatutee, that only those whohave attained the age of twenty-one years ahall be eligible to any publio 

### or

## oi~il offiae. While at aomaonlaw 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 agente, P of executing mere powera, end, aa



### ofmekng binding oontraote with others. In England they are allowed to hold the offioee of park keepers, foreetere, jailer, andmeyor of a townI end in bothj&gland and this oountry they are oapeble of holding anddischarging the duties of suohmereminietbrial 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 andwant of judgment andlearning,*. --referring to Rex. Inf. 878. v. Dillieton, 3Mod. 222; Tyler,

In Wilaon v. Geneeee Circuit Judge, 87Mioh. 493, 49N’-.W, 869, the qua&ion wa8whether awomenaould be appointed to the offioe of deputy oounty olerk. The statutes of that atate in regard to the qualifioetione of clerks anddeputies 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, andwhenthe law provides that aministerial officer meyappoint a deputy, for whoa%aota he and his suretieit
are responsible, and doee not limit or restrict himha to whomhe appoints, haha8authority to appoint whomnoever he pleases. Thepereon 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, 17Tao. 505, cited in the above 0886, the supreme oourt of the State of Colorado held that, under a provision ofL. 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 88used therein, did not inolude deputy clerkships of oOunty oourta, andwomanmayhold such deputy clerkshipa. These authorities seemto 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 80short 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 diaousslng 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 

### NewYork), but it rest8 as ajust dsduatlon from the express powere and provisfons of'the eyystem,

# The

basia of the prlnaipla is the absolute liberty of.the alaators andthe appointing authorities to ohooae andappoint anyperson whoia not madeineligible by the conetitution. Xligibility to ofriae, therefore, belongs not exolusively or spsoially to eleotors endoying .theright of sufrrage. It belongs equally to all persona whomsoever not exoluded by the conatltutlon.* Oursupreme oourt then proceeds to dimpose or the question In the following language: When a constitution has been framed whioh aontains noprovision defining in terms whoshall be eligible to offlae, than is atrength in the argument that the intention waeto oonflde the aelectlon to the untrammeledwill of the eleotors. Xxperianoe teaohes us that in popular electtiona those only are aleated whoare in sympathywith the people, both in thought andasplrationa; andthat 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. Theaonstitution of 1869 oontained the provision "that no person shall be eligible to any orrioe, state, oounty,or muniolpal, whois not a registered voter in the state.' Article 3, Sear. 14. Theomission 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 aawould render aminor 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 abond, whioh night involve the oapaaity to soaontraot, but there is
no such requirement aa to deputy 

### OOuntYalerks. 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, aminor'can receive the appointment, andexeoute the duties required of said deputy. The duties of oounty clerks in our state are regulated by statute, andthey appear to be Qurely ministerial; and, in addition to their other functions,
as has been seen, they have the general power to administer all oaths and affirmations, andto take affidavits and depositions to be used as provided by law in anyof the courts. Saylea' Civ. St. art. 1149. Deputies are authorized to act in the nameof their principal, and to do andperform all such offioial acta as maybe legally done andperformed by such clerk in parson. Byvirtue of hla offioe the oounty clerk is empoweredto administer oaths andaffidavits generally. This power appertains to his office, andbelongs to his off'icial'auties, andhis deputy, in this regard, has such power and authority as he oan exercise; and, In our opinion, the appointment of 0. L. Bishop, bythe clerk of the county court of Johnson County, aa his deputy,
was a legal andvalid 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 andstatutes andthe construction plaoed on similar provisions bythe deoision cited, it is our opinion that the youngman referred to in your request Is eligible to seek eleotion to the office of District Clerk of Panola County, Texas, if hemeets the other requirements of the law in addition to those contained in your request, andthat he should be allowed to qualify for said Office, if elected. Wethink this is espeoially true in view of the faot that hewill be twenty-one years of age prior to the time hewould be authorized under the law to qualify, which would be January 1, 1947. Article 2929a.

Yours very truly,
ATTORIEY

G&%XALOFTAXAS 

# BY Jas. .?i.Bassett

Assistant

**COMMITTEE**