GENERAL THE AYTORNEY

OF mXAS

WILL WILSON AlTORNEY GENERAL March 26, 1962

Honorable H. F. Grindstaff OpinionNo. WW-1287 CountyAttorney Fisher County Courthouse Re: Whether the County Executive Roby, Texas Committee in a countywhich is subject to Art. 1903,V. C.S., and which countyvotes in a special election to have
a separate office of District Clerk,may receive appllcatlons from candidates for that office after the first Dear Mr. Grindstaff: Monday In February.

In your letteryou state thatFisher County'spopulation I.s
now less than 8,000 inhabitants. The Texas Almanac for 1961-1962 shows that Fisher County had a population In 1950 of 11,023, and the 1960Federal Census shows a population of 7,865. Prior to the 1960 census, and at thepresent time,Fisher County had and
now has both a District Clerk and a County Clerk; theyhaving been elected in 1958 for four year termswhich expire on December 31, 1962, or as soon thereafteras their successorshave qualified.

Section 20, Article 5, Texas Constitution,reads as follows:

"There shall be elected for each county, by the qualifiedvoters, a County Clerk, who shallhold his office for four years, who shall be clerk of the County and CommissionersCourt and recorder of the county,whose duties,perquisitesand fees of office shall be prescribedby the Legislature, and a vacancy inwhose office shallbe filled by the CommissionersCourt, until the next general election;provided, that in countieshaving a population of less than 8,000 persons theremay be an election of a single Clerk,who shall perform the duties of District and County Clerks." [tiphasis addedJ

In conformitywith this constitutionalprovision, the Legislature enactedwhat is now Article 1903,V.C.S. Prior to the 3rd Called Session of the 57th Legislature,which convened on January 3, 1962, and adjourned on February 1, 1962,Art. 1903, V.C.S., read as follows:Honorable H. F. Grindstaff, Page 2 OpinionNo. ~~-1287

"In countieshaving a population of less than eight thousandpersons, according to the preceding federal census, only one clerk shallbe elected. He shall take the oath and give the bond required of clerks of both the district and county courts, and shall have the powers and perform the duties of such clerks respectively."

If Art. 1903,V.C.S., stillprovided as set out above, Fisher Countywould have no option,but would be required to elect a combination county clerk-districtclerk in 1962, to take office
on January 1, 1963.

At the 3rd Called Session of the 57th Legislature,Art. 1903, V.C.S.,was amended by S.B. 66. This bill containedan emergency clause,passed both houses of the Legislatureby the requisite two-thirdsmajority vote, and was signedby the Governor on February 1.6,1962,making the amendment effective that date. As amended,Art. 1903,V.C.S., now reads:

th~~en~~"~~~u~~~~~8aO~~~u1~~~~~d~~g1~~s the last precedingFed&al Lensus, there shallbe elected a single clerkwho shall perform the duties of the district clerk and the county clerk,unless a majority of the qualifiedvoters of the countywho participate in a special election, called by the commissionerscourt for that purpose, vote to keep the offices of county and district clerk separate. The commissionerscourtmay submit to the qualifiedvoters of such counties, at an electionheld at least thirty (30)days before any regular primary election immediately preceding the expiration of the constitutional term of office of said clerk, the question of whether the offices of district and county clerk shallbe separate or joint. The same questionmay again be submitted immediately prior to the expirationof each subsequent constitutionalterm of office of the separate clerk. Notice of such special election shall be publlshed in a newspaper of general clrculation in the countyat least twenty (20) days prior to such election. No special election as provided herein shallprevent any county clerk, district clerk or joint clerk from serving the full term of office to which he was elected."Honorable H. F. Grindstaff, Page 3 OpinionNo. ~~-1287

Under Art. 1903,V.C.S., Fisher Countynow has the option of retaining its separate offices of District Clerk and County Clerk,provided it so votes in a special election called for thatpurpose; or to have a joint clerk if it so votes at said special election; or to have a joint clerk by operation of law without holding any election.

At the time your letterwas written, the Governorhad not yet signed the act. You anticipate that the Fisher County CommissionersCourtmay call such an election. You state that the incumbentDistrict Clerk has announcedhis candidacy for reelection to the office of district clerk, even thouh Fisher % Countywill not elect a separatedistrict clerk in 19 2, unless such an election is called, and the vote is favorable.

Art. 13.12,Texas Election Code, provides that a request to go on theprimary ballot shall be filedwith the county chairman not later than the first Monday in Februarypreceding the primary. This year the firstMonday inFebruary fell on February 5, 1962. Apparently the IncumbentDistrict Clerkwas the only person to file for the office of District Clerk of Fisher County on or before February 5th.

You have asked the followingquestion:

"Andnow In case the CommissionersCourt sets a date for an election and it is passed favorably for us to have a District Clerk in Fisher County, Texas, since it is past the date for anyone to announce for the office, and since there is only one announced, could others announce for the Office of District Clerk, if thepeople of Fisher County say by their vote that they desire a district clerk for Fisher County?"

It is our opinion that there are no officiallyannounced candidates for the separate office of District Clerk of Fisher County at this time; that is, the prospective office of District Clerk of Fisher County,with a term to begin on January 1, 1963, did not exist on February 5, 1962.

Prior to the 3rd Called Session of the 57th Legislature, Art. 13.12, Texas Election Code,had the followingprovision:

"2.

. provided,however, that in the event there is'no candidate for the nomination of any office due to the death of the one who had filed
or for any other reason, 'n6t later than the applicationsmay be filed fi rst Monday in March preceding theprimary."Honorable H. F. Grindstaff, Page 4 OpinionNo. ~~-1287

At the 3rd Called Session of the 57th Legislature,Art. 13.12, Texas Election Code, was amendedby S. B. 44, which contained an emergency clausewas passed by each house of the Legislatureby the required two thirdsmajority vote, and signed by the Governor and became effective on February 2, 1962. Art. 13.12, as amended by S. B. 44, deleted thewords "or for any other reason", so the first Monday inMarch as an alternative filing date was not available.

Attorney General's OpinionNo. WW-827~(1960)holds that w~herea vacancy in an office is created in themiddle of a term of office by reason of death of the Incumbent,and such vacancy arises too late for candidates to file by the regular filing date, that in the absence of any law governing such a situation, the County Executive Committee could authorize a nomination for the unexpired term and fix a date for filing. The opinion cites Kilday v. Germany, 139 Tex. 380, 163 S.W.2d 184 (1942)

While the term,ofDistrict Clerk of Fisher County, to
commence on January 1, 1968, if authorized in a special election, will not be for a "short"or unexpired term;nevertheless,we are of the opinion that the reasoning applied in Opinion No. ww-827 is equally applicablehere. by any existing law. Our situation is not governed The office of District Clerk of Fisher County for a four year term to commence on January 1, 1963 does not now exist. If the office of district clerk is createdby the special electidn, it will arise after the regular filing day. We have just learned that the CommissionersCourthas ordered such special election to be held on March 24, 1962.

If such electionresults in a vote favorable to the creation of the office of District Clerk of Fisher County, the County Executive Committeemay set a date for acceptingapplications from thosewho desire to file for the office. In setting a deadline for accepting applications, the CountyExecutive Committee will necessarily take into considerationthe amount of time required by the printer to prepare the ballots in time for absentee voting.

SUMMARY

1. There are no legally filed candidates for the office of District Clerk of Fisher County at thepresent time, since such office with a term to commenceon January 1, 1963, did not exist at the time of the regular filing date, February 5, 1962.

2. Fisher County,which is not now entitled to a District Clerk by reason of havingHonorable H. F. Grindstaff, Page 5 OpinionNo. ~~-1287

a population of less than 8,000 inhabitants, may continue to have a separate office of District Clerk if the voters of the county
so decide in a specialelection called at the discretion of the CommissionersCourt for thatpurpose, under Art. 1903,V.C.S..
as amended by S.B. 66, 3rd C.S., 57th Legislature.

3. If the office of District Clerk of Fisher County is createdby specialelection, such creation of such officewill occur after the regular filing date. The County Executive Committee, in the absence of any law governing such a situationmay set a date for accepting applications to run for such office.

Yours very truly,

WILL WILSON Attorney General of Texas

Riley Eugene Fletcher Assistant

REF/cm

APPROVED:

OPINION COMMITTEE: W. V. Geppert, Chairman
Grundy Williams Marietta McGregor Payne Malcolm Quick

REVIEWED FOR THE ATTORNEY GENERAL By: Houghton Brownlee, Jr.