                   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
