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 

question, aaid requ 

on on the a Me 

rtnent pee8 

iea t converk 

i 

a County, Texas, 

for a county 

Age 

la 20 yeare of 

of on December 24, 

8 previouely had hie disf full age for 

voting under 

I would like to know is, would this young 

eligible to seek election to a oounty office? 

so, if eleoted, would he be allowed to qualify 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 Constitution* 

“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 diaoharge 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 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 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 referred 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 witnesses, 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 munioipality 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 principlee 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 beaause 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, because, 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 qualified 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 prinoipal, 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 inexperienoe 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 justice 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 swearing 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 

agente, P 

of executing mere powera, end, aa 

of mek ng 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 minietbrial 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. 

Inf. 8 78. 

v. Dillieton, 3 Mod. 222; Tyler, 

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 whomnoever 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 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 New York), but it 

rest8 as a just dsduatlon from the express powere and 

provisfons of'the eyystem, The 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 dimpose 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 electtiona 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 administer 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, 

ATTORIEY G&%XAL OF TAXAS 

BY 

Jas. .?i. Bassett 

Assistant 

COMMITTEE