        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



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