Untitled Texas Attorney General Opinion

Honorable Jim Rates Opinion No. WW-493 Criminal District Attorney Hidalgo County Re: Office under which a Edlnburg, Texas candidate's name should be printed on the gen- eral election ballot where he has been certi- fled as the nominee of a political party for the office of county commissioner and the of- Dear Mr. Bates: fice of county clerk. You have requested an opinion as to the office under which the county clerk of Hldalgo County should order the name of Vern Carlson to be printed on the ballot as the nominee of the Republican Party at the general election to be held on November 4, 1958. Your opinion request is based on the following facts: According to the returns filed with the couniy clerk, Mr. Carlson received two votes for the office of county clerk of Hidalgo County and six votes for the office of county com- missioner of Precinct No. 4 of Hidalgo County at the primary election held by the Republican Party in Hidalgo County on July 26, 1958, the votes for county clerk having been cast at one polling place and the votes for county commissioner having been cast at another polling place. There were no other candidates in the Republican primary for either of these offices, as far as shown by the returns of the election. You have Informed us that so far as you are able to ascertain the votes cast for Mr. Carl- son for each of the offices were write-in votes. The Chairman of the Republican Executive Committee for Hidalgo County has certl- fied the name of Mr. Carlson as the Republican nominee for each of these offices, and Mr. Carlson has not to date filed a decll- nation of the nomination for either office. This opinion Is predicated on the assumption that the certificate of the County Chairman is In proper form and regular on its face. . . Hon. Jim Bates, page 2 (WW-493) Article 6.01 of Vernon's Texas Election Code con- tains the following provision applicable to the general election ballot: ** l l The name of no candidate shall ap- pear more than once upon the official ballot, except as a candidate for two (2) or more of- fices permitted by the Constitution to be held by the same person." Articles 13.31 and 13.32 of the Texas Election Code provide that the county clerk shall “cause the names of all the nominees to be printed on the official ballot" and shall "order all the names of the candidates so certified printed on the official ballot as otherwise provided in this title." These directions must be construed in conjunction with the provision in Article 6.01 quoted above. The clerk may not go outside the official records to determine dlsouted Issues of fact or of mixed fact and law in determining the eligibility of a candidate to have his name printed on the ballot. Weatherly v. Fulgham, 271 S.W.2d 938 Ferris-;. Carlson, 314 S W.2d 577 (Tex.Sup. i;(;;iS~;ttl,954L; : . D. But he may-and should deter- mine'whether the Constitution permits a person to hold the two offices for which a candidate has been certified as the nominee before he orders the name of the candidate printed on the ballot under both offices, this being purely a ques- tion of law not denendent on any facts which would have to be ascertained outside official-records. Purcell v. Lindsey, 314 S.W.2d 283 (Tex.Sup. 1958). The common law rule, which prevails In Texas, Is that a person may not hold two Incompatible offices. Article XVI, Section 40 of the Constitution of Texas adds a further prohibition against a person's holding more than one civil office of emolument, except an office specifically exempted, regardless of whether the offices are Incompatible. This con- stitutional provision reads in part as follows: 'NO person shall hold or exercise, at the same time, more than one Civil Office of emolu- ment, except that of l * l County Commissloner, l l l*” This provision has not abrogated the common law rule. It per- mits a person to hold two civil offices of emolument, one of which Is the office of county commissioner, provided the of- fice of county commissioner is not incompatible with the other office; but it does not permit the holding of two incompatible . . Honorable Jim Bates, page 3 (WW-493) offices even though one of the offices is that of county com- missioner. Thomas v. Abernathy County Line Ind. School Dlst., 290 S.W. 152 (Tex.Com.App. 1927) Attly Oen. 0 0-2b40 [1940). In 34 Tex.Jur., Public Officers,'@ 18, it is stated: "As Is the rule at common law, the same per- son cannot hold two Incompatible offices. Accept- ance and qualification for an office Incompatible with one already held Is a resignation or vacation of the office held, regardless of whether both are offices of emolument within the meaning of the Con- stitution. Offices are Incompatible where their duties are or may be Inconsistent or conflict, but not where their duties are wholly unrelated, are In no manner inconsistent and are never in conflict, and where neither officer is accountable or under the dominion of, or subordinate to, the other, or has any right or power to interfere with the other In the performance of any duty. * * *' We are of the opinion that the offices of county com- missioner and county clerk are incompatible. The commissioners court fixes the compensation of the county clerk within the limits set by the Legislature. Arts. 3883h and 38831, Vernon's Civil Statutes. It decides on the number of deputies the clerk may appoint and fixes their compensation within the limits set by statute. Art. 3902, V.C.S. The clerk must make a report to the commissioners court of moneys collected by him and the court must pass on the correctness of the reports. Art. 1617, V.C.S. The county clerk serves as clerk of the commissioners court. Tex. Const., Art. V, Sec. 20; Art. 2545, V.C.S. These examples of the supervision which the county commissioners exercise over the county clerk and of the conflict between the duties of the tnrooffices are sufficient to show that the offices are Incompatible. Since Mr. Carlson's name should not be placed on the general election ballot as a candidate for both offices, the next question is which office he should be listed under. Although the legality of a nomination by write-in votes Is outside the scope of the clerk's Inquiry, it may be noted that a nomination may be made by write-in votes. Dunagan v. Jones, 76 S.W.2d 219 (Tex.Civ.App. 1934). Upon receiving the necessary votes to nominate him for two different offices, we think Mr. Carlson has the right to choose which nomination he will accept. We do not know of any prior ruling directly in point, but an analogous situation was resented in Williams v. Huntress, 272 S.W.2d 87 (Tex.Sup. 1954P , where a person who had been nominated in the primary election for one office and Honorable Jim Sates, page 4 (WW-493) later nominated by the state convention for another of- fice was permitted to choose which nomination he wished to accept. Westerman v. Mims, 227 S.W. 178 (Tex.Sup. 1921), held that a person could decline a party nomination and accept nomination as an independent candidate. It has also been held that a person who has been elected or appointed to two incompatible offices may choose which of the two positions he will hold. See 34 Tex.Jur., Public Officers, I lg. Mr. Carlson may make his choice of nominations by filing with the county clerk a declination of the nomina- tion he does not wish to accept, as provided in Article 13.56 of the Election Code. Westerman v. Mims and Williams v. Huntress, supra. While the county clerk may not be under an af- firmative duty to notify Mr. Carlson that his name cannot be placed on the ballot under both offices and that he should choose the office for which he wishes to be a can- didate, it is our advice that the clerk give him this no- tice so that there will be no question of the clerk's having failed to perform his duty. We have not reached any conclusion on what the clerk should do in the event Mr. Carlson does not decline one of the nominations. If he fails to file a declination of one of the nominations within a reasonable time after the notice and prior to the time the clerk is required to post the names of the candidates as provided In Article 13.32 of the Election Code, we wlil then make a further study of the question of the clerk's duty with respect to placing his name on the ballot under one or the other of the offices and issue an cpinion on it. We are not holding that the declination would be ineffectual if not filed within a reasonable time after notice, but the clerk would be justified in asking for further advice at that time so that an opinion could be rendered by the time he is re- quired to order the ballots printed. SUMMARY The offices of county commissioner and county clerk are incompatible and a person may not have his name placed on the general election ballot as a candidate for both offices. A person who has been certified as a party nominee for both of these offices may choose which nomination he wishes . . Honorable Jim Bates, page 5 (WW-493) to accept by filing a declination of the nomina- tion he does not wish to accept, and his name should be placed on the ballot under the office for which he chooses to be a candidate. Yours very truly, WILL WILSON Attorney ffeneralof Texas By hz =&'L Mary Wall Assistant MKW:bh APPROVED: OPINION COMMITTEE Geo. P. Blackburn, Chairman F.C. Jack Goodman William E. Allen C. Dean Davis REVIEWED FOR THE ATTORNEY GENERAL BY: W.V. Geppert