                   THE    AYTORNEY          GENERAL
                               OF   mXAS


   WILL    WILSON
AlTORNEY      GENERAL
                                March 26, 1962


       Honorable H. F. Grindstaff          Opinion No. WW-1287
       County Attorney
       Fisher County Courthouse            Re:   Whether the County Executive
       Roby, Texas                               Committee in a county which
                                                 is subject to Art. 1903, V.
                                                 C.S., and which county votes
                                                 in a special election to have
                                                 a separate office of District
                                                 Clerk, may receive appllca-
                                                 tlons from candidates for
                                                 that office after the first
       Dear Mr. Grindstaff:                      Monday In February.
            In your letter you state that Fisher County's population I.s
       now less than 8,000 inhabitants. The Texas Almanac for 1961-1962
       shows that Fisher County had a population In 1950 of 11,023, and
       the 1960 Federal Census shows a population of 7,865. Prior to
       the 1960 census, and at the present time, Fisher County had and
       now has both a District Clerk and a County Clerk; they having
       been elected in 1958 for four year terms which expire on December
       31, 1962, or as soon thereafter as their successors have qualified.
              Section 20, Article 5, Texas Constitution, reads as follows:
                     "There shall be elected for each county,
                   by the qualified voters, a County Clerk,
                   who shall hold his office for four years,
                   who shall be clerk of the County and
                   Commissioners Court 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
                   perform the duties of District and County
                   Clerks." [tiphasis addedJ
            In conformity with this constitutional provision, the Legis-
       lature enacted what is now Article 1903, V.C.S. Prior to the
       3rd Called Session of the 57th Legislature, which convened on
       January 3, 1962, and adjourned on February 1, 1962, Art. 1903,
       V.C.S., read as follows:
Honorable H. F. Grindstaff, Page 2       Opinion No. ~~-1287


           "In counties having a population of less
         than eight thousand persons, according to
         the preceding federal census, only one clerk
         shall be elected. He shall take the oath
         and give the bond required of clerks of both
         the district and county courts, and shall
         have the powers and perform the duties of
         such clerks respectively."
     If Art. 1903, V.C.S., still provided as set out above, Fisher
County would have no option, but would be required to elect a
combination county clerk-district clerk in 1962, to take office
on January 1, 1963.
     At the 3rd Called Session of the 57th Legislature, Art. 1903,
V.C.S., was amended by S.B. 66. This bill contained an emergency
clause, passed both houses of the Legislature by the requisite
two-thirds majority vote, and was signed by the Governor on
February 1.6, 1962, making the amendment effective that date. As
amended, Art. 1903, V.C.S., now reads:

         th~~en~~"~~~u~~~~~8aO~~~u1~~~~~d~~g1~~s
         the last preceding Fed&al Lensus, there
         shall be elected a single clerk who shall
         perform the duties of the district clerk
         and the county clerk, unless a majority of
         the qualified voters of the county who
         participate in a special election, called
         by the commissioners court for that purpose,
         vote to keep the offices of county and district
         clerk separate. The commissioners court may
         submit to the qualified voters of such counties,
         at an election held at least thirty (30) days
         before any regular primary election immediately
         preceding the expiration of the constitutional
         term of office of said clerk, the question of
         whether the offices of district and county
         clerk shall be separate or joint. The same
         question may again be submitted immediately
         prior to the expiration of each subsequent
         constitutional term of office of the separate
         clerk. Notice of such special election shall
         be publlshed in a newspaper of general clrcu-
         lation in the county at least twenty (20)
         days prior to such election. No special
         election as provided herein shall prevent any
         county clerk, district clerk or joint clerk
         from serving the full term of office to which
         he was elected."
Honorable H. F. Grindstaff, Page 3     Opinion No. ~~-1287


     Under Art. 1903, V.C.S., Fisher County now has the option
of retaining its separate offices of District Clerk and County
Clerk, provided it so votes in a special election called for
that purpose; or to have a joint clerk if it so votes at said
special election; or to have a joint clerk by operation of law
without holding any election.
     At the time your letter was written, the Governor had not
yet signed the act. You anticipate that the Fisher County
Commissioners Court may call such an election. You state that
the incumbent District Clerk has announced his candidacy for
reelection to the office of district clerk, even thou h Fisher
County will not elect a separate district clerk in 19%2, unless
such an election is called, and the vote is favorable.
     Art. 13.12, Texas Election Code, provides that a request to
go on the primary ballot shall be filed with the county chairman
not later than the first Monday in February preceding the primary.
This year the first Monday in February fell on February 5, 1962.
Apparently the Incumbent District Clerk was the only person to
file for the office of District Clerk of Fisher County on or
before February 5th.
     You have asked the following question:
          "And now In case the Commissioners Court
        sets a date for an election and it is passed
        favorably for us to have a District Clerk in
        Fisher County, Texas, since it is past the
        date for anyone to announce for the office,
        and since there is only one announced, could
        others announce for the Office of District
        Clerk, if the people of Fisher County say by
        their vote that they desire a district clerk for
        Fisher County?"
     It is our opinion that there are no officially announced
candidates for the separate office of District Clerk of Fisher
County at this time; that is, the prospective office of District
Clerk of Fisher County, with a term to begin on January 1, 1963,
did not exist on February 5, 1962.
     Prior to the 3rd Called Session of the 57th Legislature,
Art. 13.12, Texas Election Code, had the following provision:
           "2. .   provided, however, that in the event
         there is'no candidate for the nomination of any
         office due to the death of the one who had filed
         or for any other reason, applications may be filed
        'n6t later than the first Monday in March preceding
         the primary."
Honorable H. F. Grindstaff, Page 4       Opinion No. ~~-1287


     At the 3rd Called Session of the 57th Legislature, Art.
13.12, Texas Election Code, was amended by S. B. 44, which con-
tained an emergency clause was passed by each house of the
Legislature by the required two thirds majority vote, and signed
by the Governor and became effective on February 2, 1962. Art.
13.12, as amended by S. B. 44, deleted the words "or for any
other reason", so the first Monday in March as an alternative
filing date was not available.
     Attorney General's Opinion No. WW-827~(1960) holds that
w~herea vacancy in an office is created in the middle of a term
of office by reason of death of the Incumbent, and such vacancy
arises too late for candidates to file by the regular filing
date, that in the absence of any law governing such a situation,
the County Executive Committee could authorize a nomination for
the unexpired term and fix a date for filing. The opinion cites
Kilday v. Germany, 139 Tex. 380, 163 S.W.2d 184 (1942)
     While the term,of District Clerk of Fisher County, to
commence on January 1, 1968, if authorized in a special election,
will not be for a "short" or unexpired term; nevertheless, we
are of the opinion that the reasoning applied in Opinion No.
ww-827 is equally applicable here. Our situation is not governed
by any existing law. The office of District Clerk of Fisher
County for a four year term to commence on January 1, 1963 does
not now exist. If the office of district clerk is created by
the special electidn, it will arise after the regular filing day.
We have just learned that the Commissioners Court has ordered
such special election to be held on March 24, 1962.
     If such election results in a vote favorable to the creation
of the office of District Clerk of Fisher County, the County
Executive Committee may set a date for accepting applications
from those who desire to file for the office. In setting a dead-
line for accepting applications, the County Executive Committee
will necessarily take into consideration the amount of time
required by the printer to prepare the ballots in time for
absentee voting.

                       SUMMARY
             1. There are no legally filed candidates
        for the office of District Clerk of Fisher
        County at the present time, since such office
        with a term to commence on January 1, 1963, did
        not exist at the time of the regular filing
        date, February 5, 1962.
             2. Fisher County, which is not now
        entitled to a District Clerk by reason of having
Honorable H. F. Grindstaff, Page 5         Opinion No. ~~-1287


         a population of less than 8,000 inhabitants,
         may continue to have a separate office of
         District Clerk if the voters of the county
         so decide in a special election called at
         the discretion of the Commissioners Court
         for that purpose, under Art. 1903, V.C.S..
         as amended by S.B. 66, 3rd C.S., 57th Legis-
         lature.

              3. If the office of District Clerk of
         Fisher County is created by special election,
         such creation of such office will occur after
         the regular filing date. The County Executive
         Committee, in the absence of any law governing
         such a situation may set a date for accepting
         applications to run for such office.
                             Yours very truly,
                             WILL WILSON
                             Attorney General of Texas



                                     Riley Eugene Fletcher
                                     Assistant
REF/cm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Grundy Williams
Marietta McGregor Payne
Malcolm Quick
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.
