Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Zonorable Clifford S. Roe County Attorney Panola County Carti+age, Texas Dear Siri Opinion No. 0-7089 Re: 'ii% have your on on the aMe question, aaid requ rtnent pee8 iea t converk i a County, Texas, for a county la 20 yeare of of Age on December 24, 8 previouely had hie dis- f full age for voting under I would like to know is, would this young eligible to seek election a oounty office? to so, if eleoted, would he be allowed to quali- fy for said office?n Ron. Clifford S. Roe, page 2 Upon reoeipt of said request, we wrote to you and asked whtjt office said person had in mind to run for, and you replied that he wanted to seek election to the offioe of Distriot Clerk or panola County, Texas. The general rules aa to who are eligible to hold office l.~ this State are laid down in 34 Tex. Jur., pp. 341-3, in the rollowing language : uhligibility to office belonga equally to all pereone not exoluded by the Conetitution or statutes, and not exolueively or apeoially to pereona enjoying the right of sufrrage; and dieabllity to hold offioe ie not to be imposed on any oitizen exoept under authority given by law. The Legislature may not ohange or add to pualif ioations for an offloe, nor take away diequallrioatlone, that are preeoribed by the Consti- tution* “Under the Constitution no religious test may be required as a quelifimtioh to any orfloe, and no one oan be diequalified from holding orfioe on aooount of his religious eentimente, provided he aokuowledgea the exietence or a Supreme Being. The following persons are diequaliried from holding any ofrioe of trust or prorit in the State: persona oonvloted or~having given or orfered a bribe to prooure eleotion or appointment to office; persons who have fought or sent or aocepted a challenge to fight a duel with deadly weapone, or who have lcuowiugly aseieted in any manner those thus offending; and pereone who at any time may have been oolleotors of taxes or been otherwlee entrusted with publio money until they shall have obtained a dia- oharge for the amount of euoh collections or ror all publio moneye with whioh they hay have been entrusted. The Conetitution further providee that lawa shall be made to.exolude from office persona oonvioted of bribery, perjury, forgery or other high crimes. “By statute it Is Drovided thatno person shall be eligible to any state, county, preoinot or muhioipal offiae unless he shall be eligible to hold offioe under the Constitution; and certain general qualirioationa as to the resldenoe and oitizenehip of such offioers are presorlbed. The statute further provides that no person .~0n. clirrord s. Hoe, page 3 ineligible to hold offioe ahall ever have his name plaoed upon the ballot at any general, special Or primary eleo- tion, or be voted upon, or have votes oounted for him5 prohibits the isauanoe of a certifioate of eleotlon or appointment to any suoh person; and authorizes the Dia- triot Court to issue write of injunction and all other neoeeaary process to enforoe these provieions. When the penalty for an orrenee is deprivation of oivil rights, suoh righte are intended, aooording to the Penal Coda, to inolude the right of holding office. "In addition to the general provisiona above re- ferred to, the Conetitutfon and statutes preeoribe various qualifioatione ror certain partioular 0rfioers.w Artiole 5, Seotion 9 of the Conetitution of Texas is a8 rollowet wTher6 ehall be a Clerk for the District Court of each county, who shall be eleoted by the qualiried voters for the State and county offioers, and who ahall hold hie offloe for two yeare, subject to removal by information, or by indiotmant of a grand jury, and oonviotion by e petit jury. In 0888 of Vaoancg, the judge of the District Court ehall have the power to appoint a olerk, who shall hold until the offioe can be filled by eleot1on.v Artiole 1894, Vernon's Annotated Civil Statutes, is ae follows: RA clerk of the diatriot court of eaoh oounty shall be elected at eaoh general election ior a term of two yeare. ;iaoh auoh clerk shall have power to administer oaths and affirmations required In the disoharge of their offioial dutfers, to take the depositiona of wit- nesses, and generally to perform all suah duties as are or may be imposed upon bhem by law." Article 2927 la as followe: "No person shall be eligible to any State, oounty, preolnot or munioipal office in this State unless ha shall be eligible to hold offiae under the Conetitution of this State, and unless he ehall have resided in this State for the period of twelve months and six months in the oounty, preoinct, or municipality, in whioh he offers himself aa a oandidate, next preoeding any general or special election, and shall have been an aotual bona t son. Clifford S. Roe, page 4 fide citizen, of eaid oounty, preainat, or munioi- pality for more than aix months. No person ineligible to hold office ehell ever have his name plaoed upon the ballot at any general or apeoial election, or at any primary election where oandidatea are seleoted under primary election laws of this State; and no such ineligible candidate shall ever be voted upon, nor have votea counted rcr him, at any euoh general, speoial, or primary eleotion.n Article 5921 4.6 aa rollows; 8Minors above the age of nineteen gears, where it ah811 appear to their material advantage, may have their dis8bilitiee of minority r8mOY8d, and be thereafter held, for all legal purposes, of full age, exoept as to the right to vote." The queetion asked by you dose not appear to have been paseed upon by any of our oourts, but in the oasa of Harkreader L Y. State, 33 S. .W. 117, the oourt wa8 oonsidering whether a minor oould legally aot a8 deputV oounty olerk and the following prin- ciplee of law were there laid down whioh are applioable here: "The principal ground of oontentlon on the part of appellant why thie oaae rrhould be reversed la be- aause the deputy clerk, 0. L. Bi6hop, baf or8 whom said afridavit was made, ~86 not et the time 21 Veare of age; that he wae at eaid date only 20 Veers old. The ground8 urged by appellant are; Firat, beoause it app8ared that 0. L. Biehop, the party who adminletered said oath a8 deputg oounty olerk, wee at said time a minor, under 21 years of age, and oould not act a8 deputy oounty clerk, and that the affidavit was therefore void; seoond, be- cause, eald affidavit n8t being one required to be taken bV the oounty clerk in the disoharge of his official duty, the deputy could not take the came for the oounty clerk. OS etatute defining perjury and falsle swearing require? that the oath shall be taken befors an officer authorized to edminieter oaths, and if a minor, under the laws Of this state, oan be appointed a deputy county olerk, then it follows that he is auoh an offioer a8 oan edminieter an oath. Our statutes with referenoe to oounty clerks and the appointment of deputies, so far as they bear upon this question, are a8 rou0w82 Article 1142, Saylea' Civ. St., provides that there shall be a oountV olerk for eaoh oountV, who ahall be elaoted at a general Hon. Clifford S . Roe, page 5 eleotlon for members of the legislature by the quali- fied voter8 of such oounty, who shall hold hi8 office for two yeara, and until his auooeasor ehall have duly qualified. Article 1144, Id., indioatee the rorm of bond and oath required. Artiole 1145, Id., authorizes the clerk of the oounty court to appoint one or more deputies, by written appointment under his hand and seal of court, which appointment ehall be reoorded in the office of such olerk of the oounty oourt, and ahall be deposited in the orrioe or the olerk or the distriot oourt . Article 1146, Id., la a8 hollows: ‘Suoh deputiee shall take the oath of offioe prescribed by the constitution. They ehall aot in the name of their prin- oipal, and may do and perrorm all suoh official aote a8 may be lawfully done and performed by aucholerk in person.1 Artiole 1149, Id., eaye that such olerk ahall be authorized to ieeue all marriage iioeneee, to administer all oathe and affirmationa, and to take affidavite and deposition8 to be ueed a8 provided by law in any of the oourta. There is no statute derining the qualifioatione of deputy olerke, z;fyt;t oharaoter of persons may be appointed to said Art1010 2471, SayleeQ CiY, St., definae who are minors: making all male persons under 21 years or age minore. Artiole 336la et aaq., Saylee* civ. St., regulates the removal .of the dieabilitlee of minors, and authorizes the diatriot oourts, on petition setting up euffioient grounde,to remove the disabilities of minors, over the age of 19 yeara; and provides that after euoh adjudioation the minor shall be deemed of full age for all legal purpoaea, exoept that he ahall not have the right to vote. We have examined the deoleione of our own oourte, but we oan rind but one bearing upon the eubjeat now under consideration. steneorr v. state, 80 Tax. 429, 15 S. W. 1100. Looking into the deoieiona of the aourte of other atates aa to this and kindred aubjeots, we find the rule stated to be thie; rr the offioe la minieterial, suoh 8s oalla for the exeroiee of skill and diligence only, minors may legally hold the mama, and exeoute the duties thereof i but if the office la a judicial one, or one which oonoerna the administration of juetioe, on acoount of their in- experienoe and went of judgment and learning they cannot be appointed to aame. In Gelding’s oaae, 57 N. H. 146, which 1,s relied on by oounsel for appellant, the rule is etated as above. In that ease, however, it wa8 held that a minor could not hold the office of jus- tice of the peaoe, the same being a judicial offioe. In the oase of U. S. v. Bixby, 9 Fed. 78, the indiotmant t 424 HOIon. clirrord S. Roe, page 6 oherged that the defendant oommitted perjur$ in swear- ing to the truth of a quarterly report aa aaaignee in bankruptoy, before Auretue W. Hatoh, a notary publio. The defendant aet~ up that the said Hatoh wae a minor under 21 yeare of age, and oould not hold the offioe of notary public, and so the oath taken before him was not before an orrioer authorized to administer oathe. The oourt held in that oaae that there was nothing in the statute8 of Indiana inhibiting minors from holding the orfloe or notary public; that, the notarial offloe being ministerial, and not judioial, the rule at oommon law would govern. The oourt further aayar ‘Unlike most of the statea, Indiana hae not deolared, in her oonstitution or etatutee, that only those who have attained the age of twenty-one years ahall be eligible to any publio or oi~il offiae. While at aomaon law pereone are not admitted to the full amjoymert or politioal and oi~il rights until they have attained the age of twenty-one yeara, yet infants are oa able of executing mere powera, end, aa agente, of mekPng binding oontraote with others. In England they are allowed to hold the offioee of park keepers, foreetere, jailer, and meyor of a townI end in both j&gland and this oountry they are oapeble of holding and discharging the duties of suoh mere minie- tbrial offloes as aall for the exeroise of ekill and dlligenoe only. They are not eligible to the offioee whioh oonoarn the adminietration of juetioe, on aooount of their inexperienoe and want of judgment and learning,*. --referring to Rex. v. Dillieton, 3 Mod. 222; Tyler, Inf. 8 78. In Wilaon v. Geneeee Circuit Judge, 87 Mioh. 493, 49 N’-. W, 869, the qua&ion wa8 whether a women aould be appointed to the offioe of deputy oounty olerk. The statutes of that atate in regard to the qualifioetione of clerks and deputies are very similar to our own statutes on the aubjeot. The oourt holds in that oaee that the orrioe of oounty clerk la wholly ministerial, and when the law provides that a ministerial officer mey appoint a deputy, for whoa% aota he and his suretieit are responsible, and doee not limit or restrict him ha to whom he appoints, ha ha8 authority to appoint whom- noever he pleases. The pereon appointed acts for hi&; or, in other words, he acts through hie deputy.. His ohoioe la not aonfined to any race, sex, age, or oolor. In the oaae of Jeffriee v. Herrington, 11 Colo. 191, 17 Tao. 505, cited in the above 0886, the supreme oourt of the State of Colorado held that, under a provision of L. Clifford S. koe, Page 7 the constitution of said state, which provided that 'no person except a qualified elector shall be eleoted or appointed to any civil or military off108 in this state,* the word loffiae,l 88 used therein, did not inolude deputy clerkships of oOunty oourta, and woman may hold such deputy clerkshipa. These authorities seem to stand upon correct legal principle. Our own supreme court, in the oaae of Stensoff v. State, already oited, held that a oltizen of the state moving from Harris to Liberty oounty, within 80 short a time before the election as not to be a quelllied voter at auoh elsotion in the latter county, still was eligible to eleotion, and oould hold the orffce of tax assessor in Liberty county, In dia- The ousslng the question the oourt quotes with approval from Barker v. People, 3 Cow. 703, as follows; %llgibility to offioa is not dealarad as a right or prinaipla by any express term of’ the oonetitution (of New York), but it rest8 as a just dsduatlon from the express powere and provisfons of'the eyystem, basia of the prlnaipla is the absolute liberty of.the alaators and the appointing authorities to ohooae and appoint any person who ia not made ineligible by the conetitution. Xligibility to ofriae, therefore, belongs not exolusively or spsoially to eleotors endoying .the right of sufrrage. It belongs equally to all persona whomsoever not exoluded by the conatltutlon.* Our supreme oourt then proceeds to dim- pose or the question In the following language: When a constitution has been framed whioh aontains no provision defining in terms who shall be eligible to offlae, than is atrength in the argument that the intention wae to oonflde the aelectlon to the untrammeled will of the eleotors. Xxperianoe teaohes us that in popular elect- tiona those only are aleated who are in sympathy with the people, both in thought and asplrationa; and that no law is needad to aeoure the elaation of those only who reside in the aounty or distrlot in whioh their functions are to be performed. The aonstitution of 1869 oontained the provision "that no person shall be eligible to any orrioe, state, oounty,or muniolpal, who is not a registered voter in the state.' Article 3, Sear. 14. The omission of a smlar artiole in our present aonstitution is not without eignirioanoe.' "It is to be observed, a8 before stated, that neither our aonstltution nor laws on the subjeat prescribe any qualifioation auoh aa would render a minor ineligible or disqualified from holding the offioe of deputy oounty olerk. &j to the clerk himself, there might be Borne question, as he ia required to exeaute a bond, whioh night involve the oapaaity to so aontraot, but there is no such requirement aa to deputy OOuntY alerks. The 4’26 Hon. Clifford S. Roe, page 8 authorities cited establish the dootrine that, if the duties of deputy county olerk, under the provisions of our statute, are ministerial, a minor'can receive the appointment, and exeoute the duties required of said deputy. The duties of oounty clerks in our state are regulated by statute, and they appear to be Qurely ministerial; and, in addition to their other functions, as has been seen, they have the general power to ad- minister all oaths and affirmations, and to take affidavits and depositions to be used as provided by law in any of the courts. Saylea' Civ. St. art. 1149. Deputies are authorized to act in the name of their principal, and to do and perform all such offioial acta as may be legally done and performed by such clerk in parson. By virtue of hla offioe the oounty clerk is empowered to administer oaths and affidavits generally. This power appertains to his office, and belongs to his off'icial'auties, and his deputy, in this regard, has such power and authority as he oan exercise; and, In our opinion, the appointment of 0. L. Bishop, by the clerk of the county court of Johnson County, aa his deputy, was a legal and valid appointment.n Ordinarily the duties of a alerk of a district oourt are purely ministerial. Benge v. Foster, et al, 47 S. W. (26) 862. Therefore, in view of the above provisions of the Constitution and statutes and the construction plaoed on similar provisions by the deoision cited, it is our opinion that the young man referred to in your request Is eligible to seek eleotion to the office of District Clerk of Panola County, Texas, if he meets the other requirements of the law in addition to those contained in your request, and that he should be allowed to qualify for said Office, if elected. We think this is espeoially true in view of the faot that he will be twenty-one years of age prior to the time he would be authorized under the law to qualify, which would be January 1, 1947. Article 2929a. Yours very truly, ATTORIEYG&%XAL OF TAXAS BY Jas. .?i. Bassett Assistant COMMITTEE