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                  THEAYTORNEY                      GENERAL
                                  OF’ TEXAS
                              AUSTIN.   TEXAS      78711




                                    June 9. 1975


The Honorable David K.         Brinkerhoff           Opinion No.   H-   623
County Attorney
Hardernan County                                    Re: Status of county and
Quanah, Texas   79252                               district clerks who were
                                                    elected at the last general
                                                    election in view of article
                                                    1903, V. T. C. S.

Dear Mr.       Brinkerhoff:

        You have requested our opinion regarding the status of the offices
of County and District Clerk for Hardeman County.      You advise that in
the 1970 federal census,  Hardeman County had a population of fewer than
8,000. For all counties having a population of fewer than 8,000, accord-
ing to the last preceding federal census, article 1903, V. T. C. S., requires
that:
                               .
                    . . . 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.    (Emphasis
                    supplied).

No such special election has been called.   However,   candidates for the
offices of both district and county clerk were purportedly  elected at the
1974 general election.

         We believe that the election was not effective to fill these two
offices,  by~virtue of the express requirement    of,article l903.’ Two earlier
‘Opinions ?&this office reached the sarixeresult.                  ~/’ ~’




                                        po 2762
The Honorable     David K.      Brinkerhoff,   page 2   (H-623)




                 [U]nder the Constitution and statutes of Texas,
                 such offices are not subject to being filled by
                 election by the qualified voters in the . . . general
                 election,   there being in lieu thereof only the joint
                 office of county and district clerk -- one office --
                 to be filled.   Attorney General Opinion O-2591     (1940).

See also   Attorney   General     Opinion O-2515   (1940).

     Since no “single clerk, ” pursuant to article 1903, was elected
in.1974,   you also inquire as to the method by which the office of single
County-District      Clerk may be filled prior to the next general election.
Article   5, section 9 of the Texas Constitutitin provides that vacancies in
the office of district clerk are to be filled by the judge of the district
court.    Article   5, section 20, requires that vacancies in the office of
county clerk shall be filled by the commissioners          court.  A proviso
to article 5, section 20 then establishes       the constitutional basis for
article 1903:

                 . . . 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.

    We believe that the presence     of this language authorizing the office
of single Clerk in certain counties as a proviso to the article creating
the office of county clerk and prescribing     a means by which vacancies
shall be filled indicates the intent of the voters in the election approving
the constitutional  provision to fill a vacancy in the office of single Clerk
in the same manner.       Since no other constitutional   provision or statute
speaks directly to this question,    it is our opinion that a court would
probably hold that article 5, section 20 is deemed to specify the means
by which a vacancy in the single office of Clerk is to be filled.      Con-
sequently,   in our opinion, the presently    vacant office of Clerk of
Hardeman County is to be filled, until the next general election,       by the
Commissioners      Court.




                                         p. 2763
   The Honorable    David K.   Brinkerhoff      page 3    (H-623)




                                    SUMMARY

                        Neither a county clerk nor a district clerk was
                   validly elected in Hardeman County at the 1974
                   general election,   for the reason that such offices
                   were not then in existence.     The present vacancy
                   in the office of Clerk of Hardeman County should
                   be filled, pending the next general election,   by
                   the Commissioners      Court.

                                                       Very   truly yours,




                                                       Attorney     General   of Texas

-ROVED:




                          , First   Assistant




   Opinion   Committee




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