THE AYTORNEY GENERAL 

OF mXAS 

WILL WILSON 

AlTORNEY GENERAL 

March 26, 1962 

Honorable H. F. Grindstaff Opinion No. WW-1287 

County Attorney 

Fisher County Courthouse Re: Whether the County Executive 

Roby, Texas Committee in a county which 

is subject to Art. 1903, V. 

C.S., and which county votes 

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 letter you state that Fisher County's population 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 1960 Federal Census shows a population of 7,865. Prior to 

the 1960 census, and at the present time, Fisher County had and 

now has both a District Clerk and a County Clerk; they having 

been elected in 1958 for four year terms which expire on December 

31, 1962, or as soon thereafter as their successors have qualified. 

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

"There shall be elected for each county, 

by the qualified voters, a County Clerk, 

who shall hold his office for four years, 

who shall be clerk of the County and 

Commissioners Court and recorder of the 

county, whose duties, perquisites and 

fees of office shall be prescribed by the 

Legislature, and a vacancy in whose office 

shall be filled by the Commissioners Court, 

until the next general election; provided, 

that in counties having a population of 

less than 8,000 persons there may be an 

election of a single Clerk, who shall 

perform the duties of District and County 

Clerks." [tiphasis addedJ 

In conformity with this constitutional provision, the Legislature enacted what 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 Opinion No. ~~-1287 

"In counties having a population of less 

than eight thousand persons, according to 

the preceding federal census, only one clerk 

shall be 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., still provided as set out above, Fisher 

County would have no option, but would be required to elect a 

combination county clerk-district clerk 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 contained an emergency 

clause, passed both houses of the Legislature by the requisite 

two-thirds majority vote, and was signed by 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 preceding Fed&al Lensus, there 

shall be elected a single clerk who shall 

perform the duties of the district clerk 

and the county clerk, unless a majority of 

the qualified voters of the county who 

participate in a special election, called 

by the commissioners court for that purpose, 

vote to keep the offices of county and district 

clerk separate. The commissioners court may 

submit to the qualified voters of such counties, 

at an election held 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 shall be separate or joint. The same 

question may again be submitted immediately 

prior to the expiration of each subsequent 

constitutional term of office of the separate 

clerk. Notice of such special election shall 

be publlshed in a newspaper of general clrculation in the county at least twenty (20) 

days prior to such election. No special 

election as provided herein shall prevent 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 Opinion No. ~~-1287 

Under Art. 1903, V.C.S., Fisher County now has the option 

of retaining its separate offices of District Clerk and County 

Clerk, provided it so votes in a special election called for 

that purpose; 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 letter was written, the Governor had not 

yet signed the act. You anticipate that the Fisher County 

Commissioners Court may call such an election. You state that 

the incumbent District Clerk has announced his candidacy for 

reelection to the office of district clerk, even thou h Fisher 

County will not elect a separate district 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 the primary ballot shall be filed with the county chairman 

not later than the first Monday in February preceding the primary. 

This year the first Monday in February fell on February 5, 1962. 

Apparently the Incumbent District Clerk was the only person to 

file for the office of District Clerk of Fisher County on or 

before February 5th. 

You have asked the following question: 

"And now In case the Commissioners Court 

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 the people of Fisher County say by 

their vote that they desire a district clerk for 

Fisher County?" 

It is our opinion that there are no officially announced 

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 following provision: 

"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 

applications may be filed 

fi rst Monday in March preceding 

the primary." 
Honorable H. F. Grindstaff, Page 4 Opinion No. ~~-1287 

At the 3rd Called Session of the 57th Legislature, Art. 

13.12, Texas Election Code, was amended by S. B. 44, which contained an emergency clause was passed by each house of the 

Legislature by the required two thirds majority vote, and signed 

by the Governor and became effective on February 2, 1962. Art. 

13.12, as amended by S. B. 44, deleted the words "or for any 

other reason", so the first Monday in March as an alternative 

filing date was not available. 

Attorney General's Opinion No. WW-827~(1960) holds that 

w~here a vacancy in an office is created in the middle 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,of District 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 applicable here. 

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 created by 

the special electidn, it will arise after the regular filing day. 

We have just learned that the Commissioners Court has ordered 

such special election to be held on March 24, 1962. 

If such election results in a vote favorable to the creation 

of the office of District Clerk of Fisher County, the County 

Executive Committee may set a date for accepting applications 

from those who desire to file for the office. In setting a deadline for accepting applications, the County Executive Committee 

will necessarily take into consideration the 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 the present time, since such office 

with a term to commence on 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 having 
Honorable H. F. Grindstaff, Page 5 Opinion No. ~~-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 special election called at 

the discretion of the Commissioners Court 

for that purpose, 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 created by special election, 

such creation of such office will occur after 

the regular filing date. The County Executive 

Committee, in the absence of any law governing 

such a situation may 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.