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
