If a Texas county grows past 8,000, does the combined district-and-county clerk lose office right away?

Plain-English summary

Rains County is small enough that, instead of separate district and county clerks, it elects one "joint clerk" who does both jobs. The Texas Constitution allows this for counties under 8,000 people, and the Government Code requires it. The county attorney expected the 2000 census to show Rains County had grown past 8,000 (preliminary figures put it at 9,139). He asked the Attorney General what happens to the joint clerk when that threshold is crossed: does the combined office have to split immediately, and if so, does the sitting clerk become the district clerk, the county clerk, or neither, and is the other office filled by election or appointment?

The opinion concluded that the office does not split in the middle of a term. If the census numbers require the two offices to separate, that separation takes effect at the end of the term to which the incumbent was elected, not on the date the new census is recognized. The clerk elected to a four-year term that began January 1, 1999, and runs through December 31, 2002, was therefore entitled to finish that term as joint clerk.

The opinion drew on prior Attorney General opinions addressing the same situation. A 1960 opinion about Andrews County (which grew past 8,000 between the 1950 and 1960 censuses) had concluded the combined clerk office does not become separated until the incumbent's term expires. A 1920 opinion about the combined sheriff and tax-collector offices reasoned that the office, as to the person holding it, is one and indivisible, and that there is no provision for electing a tax collector other than at a general election; by analogy the same applies to the county and district clerk. The opinion also noted a timing rule: a governmental entity may not recognize or act on a federal decennial census before September 1 of the year after the census was taken, so any population change would affect the Rains County clerk only after September 1, 2001, or the later publication date. Tying these together, the opinion held the joint office separates at the end of the elected term, and that a district or county clerk can only be elected at a general election.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The population thresholds and the Government Code provisions on joint clerks and census recognition can change, so verify the current constitution and statutes before relying on any specific number or rule mentioned here.

What the opinion meant for those who asked

Sitting joint clerks (what the opinion held for them): The opinion held that a joint clerk is entitled to complete the term to which she was elected, even if a new census pushes the county past 8,000 during that term.

County commissioners courts and election officials (what the opinion held for them): The opinion held that the separation of the district and county clerk offices takes effect at the end of the incumbent's term, not on the census-recognition date, and that the offices are filled by election at a general election, not by mid-term appointment or special election.

Counties watching a census-driven population change (what the opinion held for them): The opinion noted a governmental entity cannot act on a federal decennial census before September 1 of the year after it is taken, so any effect on the clerk would not arrive before then.

Common questions

Does a county clerk lose the combined office the moment the census shows over 8,000 people?
No. The opinion concluded the offices separate only at the expiration of the incumbent's elected term, not on the date the new census is recognized.

Does the sitting joint clerk become the district clerk or the county clerk?
The opinion did not have to assign the incumbent to one office, because it concluded she finishes her full term as joint clerk first; the separation comes at term's end.

Is the new office filled by appointment or election?
The opinion noted there is no provision in Texas law for electing a district or county clerk other than at a general election.

When can the county act on the new census numbers?
The opinion explained a governmental entity may not recognize or act on a federal decennial census before September 1 of the year after the census was taken, or the later publication date.

Background and statutory framework

Article V, section 20 of the Texas Constitution permits counties of fewer than 8,000 persons to elect a single clerk who performs the duties of both district and county clerk, and Government Code section 51.501 requires a county under 8,000 to elect such a joint clerk, with a statutory option to keep the offices separate by special election. Tex. Const. art. V, § 20; Tex. Gov't Code Ann. § 51.501 (Vernon 1998). A governmental entity may not recognize or act on a federal decennial census before September 1 of the year after the census was taken, and may act on a later-published report on its publication date. Tex. Gov't Code Ann. § 2058.001 (Vernon 2000).

The conclusion rested on prior Attorney General opinions: WW-864 (1960) (Andrews County; combined clerk office not separated until the incumbent's term expires), and 2249 (1920) (the combined sheriff and tax-collector office is one and indivisible as to the holder, with no provision for electing a tax collector other than at a general election, applied by analogy to the clerk), along with WW-851 (1960). The opinion also referenced article VIII, section 16, under which the sheriff also serves as tax assessor-collector in counties under ten thousand persons. Tex. Const. art. VIII, § 16.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, § 20; art. VIII, § 16
• Tex. Gov't Code Ann. § 51.501 (Vernon 1998)
• Tex. Gov't Code Ann. § 2058.001 (Vernon 2000)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. Nos. WW-864 (1960); WW-851 (1960); 2249 (1920)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0384
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0384.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

May 23, 2001

The Honorable Robert F. Vititow
Rains County Attorney
113 North Texas
P.O. Box 1075
Emory, Texas 75440

Opinion No. JC-0384

Re: Whether a "joint clerk" who performs the duties of both the district clerk and the county clerk is entitled to complete the term of office to which elected when the county's population exceeds eight thousand persons after the release of the 2000 United States Census of Population (RQ-0339-JC)

Dear Mr. Vititow:

Pursuant to article V, section 20 of the Texas Constitution and section 51.501(a) of the Government Code, Rains County has a "joint clerk" who serves as both the district clerk and the county clerk. You ask our opinion as to whether the clerk in Rains County is entitled to complete her term of office if the county's population is shown to exceed eight thousand persons after the release of the 2000 United States Census of Population. Should census figures require it, we conclude that such office is to be separated at the expiration of the term of office to which the incumbent was elected rather than on the date of recognition of a new census report. The present "joint clerk" in Rains County who performs the duties of both the district clerk and the county clerk is entitled to complete the term of office to which she was elected.

Article V, section 20 of the Texas Constitution states "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." TEX. CONST. art. V, § 20. Section 51.501 of the Government Code is entitled "Joint Clerks," and provides that "a county with a population of less than 8,000 shall elect a single clerk to perform the duties of the district clerk and the county clerk[,]" except as otherwise provided by statute. TEX. GOV'T CODE ANN. § 51.501(a) (Vernon 1998); see id. § 51.501(b) (special election may be held to keep offices of district and county clerk separate).

You relate that your "present Clerk was elected to a four-year term of office which began on January 1, 1999, and will end on December 31, 2002." You expect the new census of population to be released prior to the expiration of the clerk's elected term and anticipate that the results will reflect a population in Rains County of at least eight thousand persons. You ask for guidance as to how to proceed. If the office is required to be split immediately upon the release of the new census, you ask whether the present clerk becomes the district clerk, the county clerk, or neither. Should an immediate split be required, you wish to know whether there must be a new election or whether the vacated office is filled by appointment. See Request Letter, supra note 1, at 1.

(Footnote: Letter from Honorable Robert F. Vititow, Rains County Attorney, to Honorable John Cornyn, Texas Attorney General, at 1 (Jan. 9, 2001) (on file with Opinion Committee) [hereinafter Request Letter].)

This office was asked similar questions regarding Andrews County, which expected its population to increase after the release of the 1960 United States Census of Population, and answered thus:

Where a county had a population of less than 8,000 inhabitants, according to the 1950 Federal Census, and has a population of more than 8,000 inhabitants, according to the 1960 Federal Census, the combined office of a single clerk who shall perform the duties of the district and county clerk [does] not become separated until the expiration of the term of office to which the incumbent was elected, January 1, 1963.

Tex. Att'y Gen. Op. No. WW-864 (1960) at 3-4.

A governmental entity "may not recognize or act on a report or publication, in any form, of a federal decennial census, in whole or in part, before September 1 of the year after the calendar year during which the census was taken." TEX. GOV'T CODE ANN. § 2058.001(a) (Vernon 2000). If the census report is published after September 1, a governmental entity may recognize and act on a published report on the date of its publication. See id. § 2058.001(b). "In this section, 'governmental entity' means the state or an agency or political subdivision of the state." Id. § 2058.001(c). Thus, any change in the population of Rains County will affect the district-county clerk in Rains County only after September 1, 2001, or the publication date, if later.

Attorney General Opinion WW-864 (1960) cites two previous attorney general opinions, WW-851 (1960) and 2249 (1920), which relate to offices that had previously been combined by virtue of a county's population and the effect of a new census of population on those offices. See Tex. Att'y Gen. Op. No. WW-851 (1960); Tex. Att'y Gen. Op. No. 2249 (1920) (C. M. Cureton administration); TEX. CONST. art. VIII, § 16 (sheriff of each county, in addition to his other duties, shall be the tax assessor-collector in counties with population under ten thousand persons). Attorney General Opinion 2249 (1920) addresses the combined offices of sheriff and tax collector:

The office, as to the person holding it, is one and indivisible . . . . There is no provision in our Constitution or statutes for the election of a tax collector [other] than at a general election.

(Footnote: Preliminary figures issued by the United States Census Bureau on March 12, 2001, indicate that the population of Rains County is 9,139, available at http://www.census.gov/.)

What we have said with respect to the office, or offices, of sheriff and tax collector is also applicable, by analogy, to the office, or offices, of county and district clerk . . . .

Tex. Att'y Gen. Op. No. 2249 (1920) at 5-7 (emphasis added).

Should new census figures require it, we conclude that the "joint office" of district and county clerk should be separated at the expiration of the term of office to which the incumbent was elected rather than on the date of recognition of a new United States Census of Population report. There is no provision in the Texas Constitution or in Texas statutes for the election of a district or county clerk other than at a general election.

SUMMARY

The office of "joint clerk" who performs the duties of both the district clerk and the county clerk is to be separated, should census figures require it, at the expiration of the term of office to which the incumbent was elected rather than on the date a United States Census of Population report is recognized. There is no provision in the Texas Constitution or in Texas statutes for the election of a district or county clerk other than at a general election.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee