Untitled Texas Attorney General Opinion ( 1949 )

EA~ORNEY GENEXCAL.
PRICE DANIEL
ATTORNEY
GENERAL
FebPuaPj 11, 1949.
Hon. M. E. Gates
County AttoPney
Wslkep County We8 The authopity of the Coun-
Huntsville, Texae tg AttoPney OP the Count7
ClePk to take affidavits
giving lnfomation that a
pePeon 16 ot unsound rind.
Dear Sips
RePePence Is made to your recent Pesuest which
reads in part a5 follows:
'1 wish you would advise me whetheP
OP not, un&eP the pPovislons of APticls
55614, the County Attorney and the Coun-
ty Clerk have the authopitf to take the
affldavlt of the afflant cxp Informant, to
an 1nPoPmation c$sxging that a pePson is
of l.Lnsoundmind.
Section 1, APtlcle 5561a provides in paPt as
follows 8
"Section .__,l 0 If_ infpslnstion in.wPit-
_ _
lng unae~ oats De given to 8ny county judge
that any person in hls county, not cbapged
with a criminal offense, is a pePson of un-
souuU mind, and that the welfare of eitheP
such person OP any otheP person OP pepsons
requipes that he be placed undeP peatpaint,
and such county ju&ge shall belleve such
Information to be true, he shall fopthwfth
issue a WaPPant for. the aQQPehen8iOn o?
such pePson, OP, if such like InfoPmatlon
be given to any justice of the peace in
such county, said justice may fsaue a waP-
rant fop the aQQPehenaiOn of said peP8011,
making said complaint and warrant PetuPn-
able to the county comt of said CountJ,
Hon. M. E. Gates, page 2 (V-770)
ad Bald county judge in either event shall
fix a time and place for the hearing and
determination of the utter, either in term
tine or in vacation, which place shall, be
either at the court house of the county, or
at the residence of the person named, or at
any other place In the county, as the coun-
ty Judge may deem best for rueh hearla(l. e
. e
The pertinent porislons of Article 26, V* C.
S .,, are a8 follovr:
“1 0 All o&ha, affidavits, or afftima-
tlons made within this State may be admlnls-
tered and a certlricate of the ract given by:
‘a.. A judge, clerk, or commissioner of
any court of record;
“be A notsry public;
“ce A justice of the peace; O ., **
Therefore under the ~rovislons of the preceg-
ing Articles we think it is clear that the County Clerk
may administer the oath referred to under Article 55618,
SUQPS.
It will be noted that the County Attorney is
not included in Article 26, supra. Belther are we able
to find any statute which authorizes the County Attor-
ney to admlnlster such an oath.
Article 30 V, C. C. P. provides that “for the
purpose mentioned in the tvo preceding Articles, di8-
trlct and county attorneys are authorized to administer
oaths e ” The “two preceding Articles” referred to have
to do with the issuance of a complaint where an offense
has been committed or alleged; they include misdemeanors
and felonies e Similarly Article 221 Va. C. C. P. pro-
vides that “the affidavit made before the D a . dlstplct
OF county attorney is called 3 complsint if it charges
the commission of an offense. The oaths referred to in
Articles 30 and 221 relate to criminal cases only. It
Is stated in 24 Tex. Juno 388 that:
. -
Hon. M, E. Qatea, page 3 (V-770)
"The procedure fer ldjudglmg oae sot
chrrged with cPlme to be a pemmn of unsound
mind and p~ovidfng for bitis restraint is sole-
ly through the County Courts. And~although
the state is a party to such an inqulpy, the
chaPactor of the proceeding is essentially
civil*"
In view of the foregoing it is out opinion
that the County Attorney may not administer such an
oath in his official ca acity, However, it was held
in A. G. Opinion Ro. 0- r 228 that:
'You ape further advised that the couh-
ty attorney and the city attorney are not
prohibited by law from holding the office of
notary public while holding theiP qfflaes of
couuty attorney and city attorney.
TherefoPe If the County Attorney has quall-
. fied as a liotaryPublic, It is oup opinion that he uy
admlnlster such an oath under the p~orl~ion~ of ArtI-
cle 26, V, C. S., as a Rotary Public.
SUMMARY
The County ClePk may admlnlsteP the
oath of one charging that a pepson 1s of
unsouudnlud, Art0 26, 71,C.S. The Coun-
ty AttoPney may not admlnlster such an
oath in his offlclal capacity, HoveveP,
If he has qualified as a Rotary Public,
he may administer such oath. Art. 26, V.
C.S.; A. G, Opinion MO, o-4228.
Yows very tPuly,
AP?ROVEl ATTOltMXT
OIME OF TIEUS
BY
Assistant
BAsbh