E TTORNEY GENERAI.
Aas- 11.I’EXAS
June 24, 1960
Honorable Russell D. Austin
County Attorney
Andrews County
Andrews, Texas Opinion No. WW-864
Re: Office of County Clerk and
District Clerk becoming
separated in view of increase
in population over a,000 in-
habitants according to the
Dear Mr. Austin: 1960 Federal Census.
You have requested an opinion on the following questions:
"1. When do the offices of County Clerk and
District Clerk become automatically separated in
Andrews County in view of the increase in the popu-
lation as above stated?
"2. If the present joint County Clerk and Dis-
trict Clerk desires to become the District Clerk
and the local democratic committee is willing to
place his name upon the ballot as the democratic
nominee for the coming general election, can that
be done by said local democratic committee at the
September meeting of said local democratic com-
mittee?
“3. If the present joint County Clerk and Dls-
trict Clerk desires for his name to be placed upon
the ballot as the democratic nominee on the ballot
for the general election in November, can the duly
authorized local democratic convention in September
also place upon the ballot a named candidate for the
office of County Clerk to appear as the democratic
nominee In the November general election?
1,
4. In the event that question three has been
answered in the negative, can the Andrews Commission-
ers Court appoint a County Clerk to serve to the end
of the present County Clerk's term, December 31, 1962?
Honorable Russell D. Austin, page 2 (WW-864)
“5. If separation of the joint office of
County Clerk and District Clerk is automatically
separated on account of the census report of Andrews
County, would the person now the duly elected County
Clerk and District Clerk have the choice of determin-
ing which of the offices of County Clerk or District
Clerk he would choose to hold for the remainder of
his elected term by reason of his having been elect-
ed to said office in the election of 1958?"
These questions are asked on the assumption of facts stated
In your request as follows:
"Prior to the 1960 Census, the population of
Andrews County was less than 8,000. The preliminary
reports and publications in surrounding newspapers
as well as the local paper have given the population
for the City of Andrews as well over 11,000, and the
population for the County of Andrewa as over 13,000.
When the County Clerk was elected in 1958, the office
was the joint office of District and County Clerk. No
one had his name on the ticket for County Clerk or for
District Clerk In the Democratic Primary held here
this year, nor did the local democratic convention noml-
nate anyone to be placea upon the ballot for the general
election in November of 1960. , . ."
Section 9 of Article V of the Constitution of Texas, pro-
vides as follows:
"There shall be a Clerk for the District Court
of each county, who shall be elected by the quali-
fied voters for State snd county officers, and who
shall,hold his office forkfour years, subject to
removal by information, or by indictment of a grand
jury, and conviction of a petit jury. In case of
vacancy, the Judge of the District Court shall have
the power to appoint a Clerk, who shall hold until
the office can be filled by election. As amended
Nov. 2, 1954."
Section 20 of Article V of the Constitution of Texaspro-
vides as follows:
"There shall be elected for each county, by the
qualified voters, a County Clerk, who shall hold,his
Honorable Russell D. Austin, page 3 (W-864)
office for four years, who shall be clerk of the
County and Commissioners Courts 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 per-
form the duties of District and County Clerks.
As amended Nov. 2, 1954."
In Attorney General's Opinion WW-851 (1960) on a simi-
lar question involving the office of sheriff and the office
of assessor-collector of taxes, it was held that where a
county had a population of more than 10,000 according to the
1950 Federal Census, and having a population of less than
10,000 according to the 1960 Federal Census- the assessor-
collector of taxes for such county remains the assessor-
collector of taxes for such county until the expiration of
his term of office. This conclusion was based u on the
holding in Attorney General's Opinion 2249 (1920'5
, that
such offices were not intended to be separated or combined
as the case may be, as of the date of such census, but were
intended to be and should be separated or combined, as the
case may be, as of the date of the termination of the term
of office to which the incumbent was elected. It is noted
that ,theprovisions of Section 20 of Article V of the
Constitution of Texas, as amended in 1954, provides that
in counties having a population of less than 8,000 persons
there may be an election of a single clerk. The next elec-
tion for this office will not occur until November 1962.
On that date counties having a population in excess of 8,000
inhabitants will not be authorized to elect a single clerk,
but must elect Individuals to hold the separate offices of
district clerk and of county clerk.
In view of the foregoing, and under the facts submitted,
your.questions are answered as follows:
The offices of county clerk and district clerk in Andrews
County become separated as of January 1, 1963.
SUMMARY
Where a county had a population of less than
8,000 Inhabitants, according to the 1950
. i
Honorable Russell D. Austin, page 4 (WW-864)
Federal Census, and has a population of
more than 8,000 inhabitants, accordinp to
the 1960 Federal Cens&s, ~the~comblned of-
fice of a single clerk who shall perform
the duties of the district and county clerk
do not become separated until the expira-
tion of the term of office to which the
incumbent was elected, January 1, 1963.
Yours very truly,
WILL WILSON
Attorney General of Texas
(yg&,T%
John Reeves
JR:ms Assistant Attorney General
APPROVED:
OPINION COMMITTEE
J. C. Davis, Chairman
Henry 0. Braswell
Marietta Payne
H. Grady Chandler
Ralph~R. Rash
Byron Fullerton
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore