Can a Texas deputy county clerk keep her job after moving to another county?

Texas AG Opinion JC-0029: Does the County-Residency Rule Apply to a Deputy County Clerk?

Plain-English summary

The Mitchell County Attorney asked whether a deputy county clerk who moves out of the county loses her eligibility to serve. The Texas Constitution, in article XVI, section 14, requires all district and county officers to live within their districts or counties, and says that failing to do so vacates the office. The question was whether a deputy county clerk counts as a county "officer" under that rule.

The Attorney General concluded she does not. The dividing line between an officer and an employee comes from the Aldine test: a person is an officer only if some sovereign function of government is conferred on her to be exercised largely independent of the control of others. Someone who performs governmental functions under another person's direction is an employee, not an officer. A deputy county clerk acts in the name of the county clerk under Local Government Code section 82.005(c) and works solely at the county clerk's direction, so she is an employee. Because the residency requirement applies only to officers, it did not reach her, and she could continue as a deputy county clerk after moving to another county.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does a deputy county clerk have to live in the county where she works?
Not under the constitutional rule. The opinion concluded that article XVI, section 14's residency requirement applies only to district and county officers, and a deputy county clerk is an employee rather than an officer, so it does not require her to live in the county.

Why is a deputy county clerk an employee rather than an officer?
Under the Aldine test, an officer exercises a sovereign government function largely independent of the control of others. A deputy county clerk acts in the county clerk's name (Local Government Code section 82.005(c)) and performs her functions at the county clerk's direction, so she does not act independently and is treated as an employee.

Could the deputy clerk keep her job after moving away?
Yes. Because the residency requirement did not apply to her, the opinion concluded a deputy county clerk who moves out of the county may continue serving in that capacity.

Background and statutory framework

Article XVI, section 14 provides that all civil officers shall reside within the state, and all district or county officers within their districts or counties, with failure to comply vacating the office. The requirement is self-enacting (Ehlinger v. Rankin) and applies to county officers generally (Jordan v. Crudgington). The decisive question was whether a deputy county clerk is such an officer.

To draw the officer-employee line, the opinion applied the test from Aldine Independent School District v. Standley, which asks whether a sovereign function of government is conferred on the individual to be exercised for the public largely independent of the control of others (quoting Dunbar v. Brazoria County). Later decisions stress that an office requires authority to perform sovereign functions independently, so those who perform such functions under another's direction are not officers (citing Green v. Stewart and Harris County v. Schoenbacher, and Powell v. State applying Aldine to assistant district attorneys). Because section 82.005(c) has a deputy clerk act in the county clerk's name and under the clerk's control, the opinion classified her as an employee, consistent with prior opinions on deputy and assistant positions (JM-1083, MW-415, H-1144, and LO-96-148).

Citations

Constitutional and statutory provisions:

• TEX. CONST. art. XVI, § 14
• TEX. LOCAL GOV'T CODE ANN. § 82.005(c) (Vernon 1988)

Cases:

• Jordan v. Crudgington, 231 S.W.2d 641 (Tex. 1950)
• Ehlinger v. Rankin, 29 S.W. 240 (Tex. Civ. App. 1895, no writ)
• Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Dunbar v. Brazoria County, 224 S.W.2d 738 (Tex. Civ. App.-Galveston 1949, writ ref'd)
• Green v. Stewart, 516 S.W.2d 133 (Tex. 1974)
• Harris County v. Schoenbacher, 594 S.W.2d 106 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.)
• Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1995)

Prior Attorney General opinions discussed: DM-212 (1993), JM-1083 (1989), MW-415 (1981), H-1144 (1978), and Letter Opinion 96-148.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0029
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0029.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL, STATE OF TEXAS
JOHN CORNYN

March 31, 1999

The Honorable Mark Piland
Mitchell County Attorney
349 Oak Street, Room 206
Colorado City, Texas 79512

Opinion No. JC-0029

Re: Whether the constitutional residency requirement applies to a deputy county clerk (RQ-1168)

Dear Mr. Piland:

You ask if a deputy county clerk who moves outside of the 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, § 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 v. 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 v. 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 of the 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 (Tex. Civ. App.-Galveston 1949, writ ref'd)) (emphasis 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 [1st Dist.] 1979, writ ref'd n.r.e.)). See also Powell v. State, 898 S.W.2d 821, 825 (Tex. Crim. App. 1995) (en banc) (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. § 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. Op. Nos. JM-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-1144 (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.

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.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General