Untitled Texas Attorney General Opinion ( 1974 )

THE ATTORNEYGENERAL
OF TEXAS
AURTIN, TFXAS 78711
September 24, 1974
The Honorable Homer A. Davis Opinion No. H- 410
County Attorney
Hartley County Re: Authority of county clerk
Box 1110 to issue certified copy of
D&hart, Texas 79022 letters testamentary after
estate has been closed.
Dear Mr. Davis:
Your letter to us asks:
I would like to know what authority, if any,
the County Clerk of Hartley County has to
issue a Certified Copy of Letters Testamentary
after an estate has been closed.
The duties of a county clerk as recorder of public records are
determined by the Legislature in accordance with Article 5, 5 20 of the
Texas Constitution. Article 1942, V. T. C. S., provides that county clerks
shall be keepers of the records, books, papers and proceedings of their
respective courts, including matters of probate. Article 6591, V. T. C. S.,
requires the clerk to record all instruments of writing “authorized or
required to be recorded in the county clerk’s office . . . .” Article 6600,
V. T. C. S., requires him to “give attested copies whenever demanded of
all papers recorded in his office . . . .‘I Therefore, the answer to your
question depends on whether the clerk is authorized to record letters
testamentary.
We have not found any provision in the Texas Probate Code, or any
other statute, which authorizes the clerk to record the letter testamentary
itself. However, the clerk is authorized by the Texas Probate Code to
record such facts as the name of the executor to whom letters testamentary
p. 1911
The Honorable Homer A. Davis page 2 (H-410)
are issued, Texas Probate Code, $13, and each order, judgment, decree
and proceeding of the probate court, $15. Among the orders, decrees
and judgments of the Probate Code which will appear in both the Judge’s
Probate Docket, 5 13, and in the Probate Minutes, $15, will be a full and
complete copy of the order granting letters testamentary.
The letters testamentary themselves, however, are not official
orders; decrees or acts of the court such as the clerk is authorized to
record.’ They are rather:
. . . a certificate
of the clerk of the court granting
the same, attested by the seal of such court, and
stating that the executor . . . has duly qualified as
such as the law requires, the date of such qualifica-
tion, and the name of the deceased. Texas Probate
Code, $183.
The distinction between facts which are required to be recorded and a
letter testamentary is recognized in $186 of the Texas Probate Code
which provides:
Letters testamentary, of administration, or of
guardianship, or a certificate of the clerk of the
court which granted the same, under the seal of
such court, that said letters have been issued,
shall be sufficient evidence of the appointment
and qualification of the personal representative of
an estate . . . and of the date of qualification.
The Legislature has not required the exhibit of a certified letter
testamentary as evidence of an executor’s appointment and qualification.
It is sufficient for the clerk when requested, simply to certify that letters
testamentary have been issued.
Attorney General Opinion V-575 (1948) reached the same conclusion.
The County Clerk may not record in the probate
minutes a copy of letters of administration,
p. 1912
,
-. -
The Honorable Homer A. Davis page 3 (H-410)
testamentary or guardianships. Neither is he
authorized to issue such letters to third persons.
However, after such letters have been issued to
the proper persons, the County Clerk may then
issue a certificate of such facts which may appear
of record.
Thus, the county clerk is authorized to certify from the record
that letters testamentary were issued and any other recorded facts per-
tinent to a particular estate. However, since letters testamentary are
not authorized to be recorded in the probate records, the county clerk has
no authority to issue certified copies of s~uch letters.
SUMMARY
Although a county clerk can certify from the
record that letters testamentary were issued to
a personal representative, the clerk has no
authority to issue certified copies of letters
testamentary.
// Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
lg
p. 1913