Untitled Texas Attorney General Opinion ( 1961 )

Honorable Doug Crouch Opinion No. WW-1091
Criminal District Attorney
Fort Worth, Texas Re: The validity of H. B. 626,
57th Legislature, Regular
Session, 1961, in prescrlb-
lng, Inter alia, a chief
clerk-he Probate Court
Dear Mr. Crouch: of Tarrant County.
You have requested an opinion of this office concern-
ing the constitutionality of House Bill 626, Acts of the 57th
Legislature, Regular Session, 1961. Your specific questions
are as follows:
"1) Is a recent act of the State Legis-
lature creating a 'Chief Clerk' of the Probate
Court of Tarrant County and providing for
his appointment by the Judge of said Court
violative of any constitutional provision of
our State Constitution and particularly the
constitutional provision that the County Clerk
shall be Clerk of the County Court, known as
Probate Court of Tarrant County?
"2) If such act is not invalid in the
light of No. 1 above, then would It be Invalid
for the reason that it fails to prescribe the
duties of such 'Chief Clerk,' thereby leaving
all of the functions of this position uncertain
and vague?"
House Bill 626, Acts of the 57th Legislature, reads in
part as follows:
"Sec. 15. The Commissioners Court of Tarrant
County shall provide the following employees
for the Judge of the County Probate Court of
Tarrant County: (a) a secretary , . . and (b)
a chief clerk . . . the Judge of the County
Probate Court of Tarrant County is hereby
authorized to employ, supervise, and terminate
each and every one of said employees. . . . '
Honorable Dnug Crouch, page 2 (WW-1091)
Article 1970-llOa, Vernon's Civil Statutes, established
the Probate Court of Harris County in terms substantially identl-
cal to those employed in the establishment of the Tarrant Counts
Probate Court. - In-State, ex rel. Rector v. McClelland, 148 Tex:
372, 224 S.W.2d 706 (1949), the Supreme Court held that Section
1 of Article V of the Constitution afforded authority for the
creation of the Probate Court of Harris County.
Authority to establish a court carries with it auth-
ority to rovide a clerk Ex parte Kiburg, 10 MO. App. 442
(1881); lfl C.J.S. 1212, Clerks of Courts, Sec. 2.
Conceding, then, that there would otherwise be auth-
ority to prescribe a clerk for the Probate Court of Tarrant
county, can It be said that to do so is in contravention of
Section 20 of Article V of the Constitution? That Section
reads in part as follows:
"There shall be elected for each county,
. . . a County Clerk, . . . who shall be clerk
of the County and Commissioners Courts . . .'
Were the Probate Court of Tarrant County a County
Court within the meaning of Section 20, legislation prescrib-
ing a separate clerk for that court might be invalid as in-
fringing upon the constitutional functions of the County Clerk.
This court would seem, however, to enjoy a different status.
Section 1 of Article V of the Constitution creates
the various appellate courts and the District, County, Commis-
sloners, and Justices' Courts. It further allows the Legisla-
ture to establish "such other courts as it may deem necessary."
The case of Sterrett v. Morgan, 294 S.W.2d 201 (Clv.
APP 1956) held that Eh County Court of Dallas County, at Law
No. '2, as established b; Article 1970-15, Vernon's Civil
Statutes, is not a County Court. Rather, the Court reasoned,
it Is one of those additional courts permitted by Section 1 of
Article V of the Constitution.
In view of the foregoing authorities, it is our
opinion that the Probate Court of Tarrant County Is not a
regular county court; consequently, House Bill 626 of the 57th
Legislature, which among other things provides for a Chief
Clerk of the Probate,Court, does not violate the provisions
of Section 20 of Article V or any other provision of the Con-
stitution of Texas.
Honorable Doug Crouch, page 3. (ww-1091)
Further, the fact that House Bill 626 does not set
forth the duties of the Chief Clerk of the Probate Court does
not violate any provision of the Texas Constitution.
SUMMARY
House Bill 626, Acts of the 57th
Legislature, Regular Session, 1961,
does not violate the provisions of
Section 20, Article V, or any other
provision of the Texas Constitution.
Further, the fact that this Act does
not prescribe the specific duties of
the Chief Clerk of the Probate Court
does not render it unconstitutional.
Yours very truly,
WILL WILSON
Attorney General of Texas
GH:lgh:zt
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Harris Toler
Jay Howell
John Reeves
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbitt