   OFFICE   OF THE   ArroRNEV   GENERAL   STATE   OF TEXAS

   JOHN CORNYN




                                                  March 31.1999



The Honorable Mark Piland                              Opinion No. JC-0029
Mitchell County Attorney
349 Oak Street, Room 206                               Re: Whether the constitutional residency requirement
Colorado City, Texas 79512                             applies to a deputy county clerk (RQ-1168)


Dear Mr. Piland:

         You ask if a deputy county clerk who moves outside ofthe county where she works becomes
ineligible to serve. To answer your question, we must determine whether a deputy county clerk is
an officer and subject to article XVI, section 14 of the Texas Constitution, which requires that all
district or county officers reside within their districts or counties. See TEX. CONST.art. XVI, 5 14.
We conclude that the constitutional residency requirement does not apply to a deputy county clerk,
because a deputy clerk works under the direction of the county clerk and is an employee rather than
an officer.

          You explain that a deputy county clerk employed by Mitchell County plans to move to
another county, but desires to continue her employment as deputy county clerk in Mitchell County.
Article XVI, section 14 of the Texas Constitution provides: “All civil officers shall reside within
the State; and all district or county officers within their districts or counties, and shall keep their
offices at such places as may be required by law; and failure to comply with this condition shall
vacate the office so held.” Id.; see also Jordan v. Crudgington, 231 S.W.2d 641,646 (Tex. 1950)
(constitutional mandate that all county officers shall reside within their counties). The constitutional
residency requirement for state, district and county officers is self-enacting and requires no
legislative action to put it into force and effect. See Ehlinger Y. Rankin, 29 S.W. 240,241 (Tex. Civ.
App. 1895, no writ). Failure to comply with its terms creates a vacancy in the office. Id.

         The answer to the question you ask depends on whether the deputy county clerk is a “district
or county officer.” Texas law distinguishes between an “officer” and an “employee.” This office
applies the test articulated in Aldine Independent School District Y. Standley, 280 S.W.2d 578 (Tex.
1955), to ascertain whether a person is a public officer or an employee. Under Aldine, one’s status
as an officer is determined by “‘whether any sovereign function ofthe government is conferred upon
the individual to be exercised by him for the benefit of the public largely independent of the control
of others.“’ Aldine, 280 S.W.2d at 583 (quoting Dunbar v. Brazoria County, 224 S.W.2d 738,740
The Honorable   Mark Piland    - Page 2        (X-0029)




(Tex. Civ. App.-Galveston     1949, writ ref d)) (em ph asis supplied by the court in Aldine); Tex. Att’y
Gen. Op. No. DM-212 (1993) at 2. “In more recent decisions, both the Texas Supreme Court and
the courts of appeals have further emphasized that an office involves not only the authority to
perform certain sovereign functions, but also the authority to perform these functions largely
independent of the control of others. In other words, individuals who perform sovereign functions
under the direction of another are not officers.” Tex. Att’y Gen. Op. No. DM-212 (1993) at 3 (citing
 Green v. Stewart, 516 S.W.2d 133, 136 (Tex. 1974) and Harris County v. Schoenbacher, 594
S.W.2d 106, 111 (Tex. Civ. App.-Houston         [lst Dist.] 1979, writ ref d n.r.e.)). See also Powell v.
State, 898 S.W.2d 821,825 (Tex. Crim. App. 1995) (en bane) (applying Aldine test to determine that
assistant district attorney is not public officer).

         Section 82.005(c) of the Local Government Code provides that a deputy county clerk acts
in the name of the county clerk. See TEX. LOCAL GOV’T CODE ANN. 9 82.005(c) (Vernon 1988). A
deputy county clerk does not perform sovereign functions of the government largely independent
of the control of others. Rather, a deputy county clerk performs functions solely at the direction and
under the control of the county clerk. We conclude that a deputy county clerk is an employee, see
Tex. Att’y Gen. Gp. Nos. EM-1083 (1989) at 2 (chief deputy of a county tax assessor collector does
not hold an office), MW-415 (1981) at 1 (deputy county clerk exercises power in the name of
appointing officer and not in own right), H-l 144 (1978) at 2 (stating that Green, 516 S.W.2d at 136,
provides strong implication that the Texas Supreme Court would hold deputy county clerks to
constitute employees); Tex. Att’y Gen. LO-96-148, at 2 (assistant district attorney does not hold an
office), and is not subject to the residency requirement of article XVI, section 14 of the Texas
Constitution.    Accordingly, a deputy county clerk who moves out of the county may continue to
 serve in that capacity.
The Honorable   Mark Piland   - Page 3         (X-0029)




                                       SUMMARY

               A deputy county clerk is an employee, not an officer, and therefore is not
           subject to the residency requirement of article XVI, section 14 of the Texas
           Constitution.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Mary R. Grouter
Assistant Attorney General
