. - 

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 in view of article 

1903, V. T. C. S. 

Dear Mr. Brinkerhoff: 

You have requested our opinion regarding the status of the offices 

of County and District Clerk for Hardeman County. You advise that in 

the 1970 federal census, Hardeman County had a population of fewer than 

8,000. For all counties having a population of fewer 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 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. (Emphasis 

supplied). 

No such special election has been called. However, candidates for the 

offices of both district and county clerk were purportedly elected at the 

1974 general election. 

We believe that the election was not effective to fill these two 

offices, by~virtue of the express requirement of,article l903.’ Two earlier 

‘Opinions ?&this office reached the sarixeresult. ~/’ ~’ 

po 2762 
The Honorable David K. Brinkerhoff, page 2 (H-623) 

[U]nder the Constitution and statutes of Texas, 

such offices are not subject to being filled by 

election by the qualified voters in the . . . general 

election, there being in lieu thereof only the joint 

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 by which the office of single 

County-District Clerk may be filled prior to the next general election. 

Article 5, section 9 of the Texas Constitutitin provides that vacancies in 

the office of district clerk are to be filled by the judge of the 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 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. 

We believe that the presence of this language authorizing the office 

of single Clerk in certain counties as a proviso to the article creating 

the office of county clerk and prescribing a means by which vacancies 

shall be filled indicates the intent of the voters in the 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 

by which a vacancy in the single office of Clerk is to be filled. Consequently, in our opinion, the presently vacant office of Clerk of 

Hardeman County is to be filled, until the next general election, by the 

Commissioners Court. 

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

SUMMARY 

Neither a county clerk nor a district clerk was 

validly elected in Hardeman 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 of Hardeman 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 

pe 2764