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# THEAYTORNEY GENERAL OF’ TEXAS AUSTIN. TEXAS 78711

June 9. 1975 The Honorable David K. Brinkerhoff County Attorney Hardernan County Quanah, Texas 79252 Opinion No. H- 623 Re: Status of county and district clerks who were elected at the last general election inview ofarticle 1903, V. T. C.S. Dear Mr. Brinkerhoff:

You have requested our opinion regarding the status ofthe offices of County and District Clerk for Hardeman County. You advise that in the 1970 federal census, Hardeman County had apopulation offewer than 

## 8,000.For all counties having apopulation offewer than 8,000, according to the last preceding federal census, article 1903, V.T. C.S., requires that:

.

. . . there shall be elected a single clerk who shall perform the duties ofthe district clerk and the county clerk, unless a majority ofthe qualified voters ofthe county who participate ina special election, called by the Commissioners Court for that purpose, vote to keep the offices ofcounty and district clerk separate. (Emphasis supplied). No such special election has been called. However, candidates for the offices ofboth district and county clerk were purportedly elected at the 1974 general election.

We believe that the election was not effective tofill these two offices, by~virtue ofthe express requirement of,article l903.’ Two earlier
‘Opinions ?&this office reached the sarixeresult. ~/ ’ ~’

po 2762The Honorable David K. Brinkerhoff, page 2 (H-623)
[U]nder the Constitution and statutes ofTexas, such offices are not subject to being filled by election bythe qualified voters inthe
. . . general election, there being in lieu thereof only thejoint office of county and district clerk -- one office -- to be filled. Attorney General Opinion O-2591 (1940). See also Attorney General Opinion O-2515 (1940). Since no “single clerk, ” pursuant to article 1903, was elected in.1974, you also inquire as to the method bywhich the office of single County-District Clerk may be filled prior tothe next general election. Article 5,section 9ofthe Texas Constitutitin provides that vacancies in the office ofdistrict clerk are to be filled by thejudge ofthe district court. Article 5,section 20,requires that vacancies in the office of county clerk shall be filled by the commissioners court. A proviso to article 5, section 20 then establishes the constitutional basis for article 1903:

. . . provided, that in counties having a

population ofless than 8.000 persons there may be an election ofa single Clerk, who shall perform the duties ofDistrict and County Clerks. We believe that the presence ofthis language authorizing the office of single Clerk in certain counties as aproviso to the article creating the office of county clerk andprescribing ameans bywhich vacancies shall be filled indicates theintent ofthe voters inthe election approving the constitutional provision to fill a vacancy in the office of single Clerk in the same manner. Since no other constitutional provision or statute speaks directly to this question, it is our opinion that a court would probably hold that article 5, section 20 is deemed to specify the means bywhich avacancy inthe single office ofClerk is tobe filled. Consequently, in our opinion, the presently vacant office ofClerk of Hardeman County is tobe filled, until the next general election, by the Commissioners Court.

p. 2763The Honorable David K. Brinkerhoff page 3 (H-623)

SUMMARY Neither a county clerk nor a district clerk was validly elected inHardeman County at the 1974 general election, for the reason that such offices were not then in existence. The present vacancy in the office of Clerk ofHardeman County should be filled, pending the next general election, by the Commissioners Court. Very truly yours,

Attorney General of Texas -ROVED:

, First Assistant

Opinion Committee

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