Untitled Texas Attorney General Opinion ( 1967 )

. .
TEKE ATTBRNEY GENERAL
OF -XAS
Honorable Joe Resweber Opinion No M-l 66
County Attorney of Harris County
Harris County Courthouse Re: Under Article 1970-l 1Oa,1, Vernon’s Civil
Houston, Texas 77002 Statutes (Acts 60th Legislature, R.S , 1967,
Ch 712, pi 1835), whether the “Con-
gressional Certificate” now in use by the
Harris County Probate Court No. 1 is valid
since the instrument to which it is some-
times attached is signed in one capacity and
Dear Mr. Resweber: the certificate is signed in another capacity,
In your request for an opinion from this office you state the following:
“ ‘The Honorable Jack Smith, Judge of the Probate Court of Harris
County, has directed the following inquiry to this office concerning the re-
cently passed Chapter 7 12, Acts of the 60th Legislature, Regular Session, 1967,
codified as Article 1970- 1 1Oa 1, V A C S.:
“ ‘Is the “‘Congressional Certificate” now being used by the Probate
Court No. 1 of Harris County, Texas, valid, since the instrument to which it is
sometimes attached was signed in one capacity, and the certificate 1s slgned in
another capacity?’ ”
The certificate which is now being used, reads, in part,. as foilows:
‘“I, Jack Smith, sole and presiding judge of Probate Court No, 1, for-
merly designated Probate Court, in and for Harris County, Texas, do hereby
certify that the foregoing attestation and certificate of R Ed Turrentine, Jr, is
in due form of law, .”
Section 1 of Article 1970-l lOa, Vernon’s Civil Statutes, reads as follows:
“Section One, There is hereby created a County Court to be held in and
for Harris County, to be called the Probate Court of Hams County ”
Section 13 of said Article 1970-l 1Oa provides:
“Set 13 The County Clerk of Harris County shall be the Clerk of the
Probate Court of Harris County, The seal of the Court shall be the same as that
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Honorable Joe Resweber, page 2 (M- 166)
provided by law for County Courts, except that the seal shall contain the words
‘Probate Court of Harris County~.’The Sheriff of Harris County shall, in person
or by deputy, attend the said Court when required by the Judge thereof”
Almost all of the sixteen sections of this statute refer to the Probate Court of
Harris County, Texas.
Section 1 of Chapter 712, p, 1835, Acts 60th Legislature, R S., 1967, provides
as follows:
“Section 1 Article 1970-l 10a of Vernon’s Annotated Civil Statutes
shall be amended so that the Probate Court of Harris County shall hereafter be
known as the Probate Court No 1 of Harris County, Texas, and the seal of said
Court shall hereafter be the same as that provided by law for county courts,
except that the seal shall contain the words: ‘Probate Court No 1 of Harris
County, Texas.‘, and said seal shall be judicially noticed.”
It is clear that this Article, as enacted by the 60th Legislature, in effect, attempts
to amend both Section 1 and Section 13, supra, by reference, and of course was not published at
length in the statute, as required by the Constitution of Texas,
Section 36 of Article III of the Texas Constitution states that:
“No law shall be revived or amended by reference to its title; but in
such case the Act revived, or the section or sections amended, shall be re-
enacted and published at length,”
In Henderson v Cify of Galveston, 102 Tex 163, 114 S.W. 108 (1908), the
Court states:
“By referring to the charter it will be seen that section 34, the one
amended, is not reenacted in the amendatory act; the amendment being ac-
complished by the addition of a distinct provision conferring additional powers
upon the board of commissioners Section 36, Art 3, of the Constitution, pro-
vides: ‘No law shall be revived or amended by reference to its title; but m such
case the act revived or the section or sections amended shall be *e-enacted and
published at length ’ In its language and structure the statute plainly violates
this provision By its very terms it undertakes to amend Section 34 of the char-
ter, and that section as amended is not re-enacted, and of course cannot be
published at length in the new statute Nor is there anything in the nature of
the provision to take it out of the operation of the Constitution It is not only
named an amendment. but it is such in its character It adds a prowsion to the
existing section, and this. according to UN authority judlclal or parliamentary,
of which we know anything, is un amendment
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Honorable Joe Resweber, page 3 (M-166)
‘I
“But no authority cited, and none that we know of, has held that a
section of a statute may be amended by adding words to it; without re-enacting
the entire section as amended, and such a !tolding would be condemned by the
plain words of the Constitution
“
“It may be true that this act was and is as susceptible of as easy an un-
derstanding, in connection with that of which it is an amendment by the Legis-
lature in its passage, by the courts and by the public as if the original section,
with the new provision included, has been re-enacted and published at large.
As much, perhaps, might be said in favor of many statutes which do not con-
form to the Constitution. It may even be doubted if the good accomplished by
the constitutional provision compensates for the inconvenience It causes. But
it must be remembered not only that the provision is intended to prevent the
mischiefs against whicl? it is directed, but that it seeks to accomplish this by a
comprehensive and unbending yule, striking down all statutes which do not
conform to it From that rule the Constitution makes no e.uceptions, and
neither the Legislature nor the courts have the right to make them (Emphasis
added )
In 28 U S C A I738, it is provided, in part, that the records and judicial pro-
ceedings of any court of a state, or copies thereof, shall be proved or admitted in other courts
within the United States and its territories or possessions by the attestation of the clerk and the
seal of the court annexed; if a seal exists, together with a certificate of the judge of the court
that said attestation is in proper forms
Also, in Section 4 of Arbcle 373 1a, Vernon’s Civil Statutes,, it is provided that if
the office in which the record is kept is within the United States, the certificate may be made by
a judge of the court of record of the dtstrict or political subdivision in which the record is kept,
authenticated by the seal of his office
We therefore agree with your conclusion that Section 1 of Chapter 7 12, p. 1835,
Acts 60th Legislature, R S , 1967, is unconstitutional; nevertheless, the Probate Court of Harris
County still exists and the judge of that court had the authority to make the certifications at all
times, although the certificate is defective on its face in erroneously reciting the designatton of
the court as Probate Court No 1 pursuant to the unconstitutional statute, Under the general rule,
the court’s act is not void when the court in fact had jurisdiction and such a defect would not
preclude the certificate from being effective 30 Am Jur 2d 17 1, Judgments, Set I9
Since the certification IS not void, it is settled that the Law presumes the validity
and regularity of the official acts of public officers wrthin the lme of their official duty, which
presumption obtains, until overcome by proof, as to all acts mvolving the performance of minis-
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Honorable Joe Resweber, page 4 (M-166)
terial or administrative duties. In 30 Am Jur 2d 118, Evidence, Section 989, it is stated:
“The federal statute relatmg to the authentication of judicial records
provides that the records and judicial proceedings of any court of any state;
territory, or possession of the United States, or copies thereof, shall be proved
or admitted in other courts within the United States and its territories and pos-
sessions by the attestation of the clerk and the seal of the court annexed, if a
seal exists, together with a certificate of a judge of the court that the said at-
testation is in proper form A record of a judgment so authenticated proves It-
self without further evidence, and such authenticated transcript is sufficient
without proof of the laws of the sister state showing the orgamzation and juris-
diction of the courts. If the court in which the record was made has been
abolished, and its records transferred to another court, these facts need not be
shown by proof of the statutes of the state authorizing the change; the certi-
ficate of the clerk settmg out such facts, together with the usual certificate of
the judge that the attestation is in proper form, is all that is needed A trans-
cript of a record from another state properly authenticated by certificates of
the judge and clerk of court as required by the act of Congress, which shows
that the record ts among those of the court of which they are officers. is prima
facie admissible in evidence, although the record itself purports to belong to
another court, .‘~
SUMMARY
Although Section 1 of Chapter 712, p 1835) A& 60th Legislature,
R S , 1367, is unconstitutional, the “Congressional Certificate” now in use by
the Harris County Probate Court No 1 is not void so as to preclude its
effectiveness
Prepared by Jac!c Sparks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
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Honorable Joe Resweber, page 5 (M-166)
W. V. Geppert
Brandon Bickett
Alan Minter
Alvin Zimmerman
A. J. CARUBBI, JR.
Staff Legal Assistant
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