Untitled Texas Attorney General Opinion

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May 15, 1967
Hon. Neal E. Birmingham Opinion No. M- 74
Criminal District Attorney
Casa coupty Re: Whether a District Clerk
Linden, Teras can serve a5 a receiver
in a case pending In the
court of which he is the
Dear Mr. Birmingham: clerk.
By lstter you have requested an opinion in regard to
the abbve stated matter, and we quote frpm your letter as follows:
“Mr. w. A. Watson, Jr,, Is the duly elected
and acting clerk of the District Court of Cass
County, Texas. Ptiomtime to time It is neces-
s&ry far the Oourt to appoint a receiver in cer-
tain civil oases, It is often Inconvenient and
difficult to obtatn the services of a dependable
and qualified person in Case County. This is
particularly true when nomlnal amounts are in-
valved .
“It would be beneficial and convenient to
the court, the Bar and the lltlgants If Mr. Watson
could be appointed . . , . .
8,
. . . .
“This Is not a matter involved In litigation
or likely to be. The request 15 made solely In
order to properly advise Mr. Watson and the court
and Bar as to whether or not such appointment is
either prohlblte$ or incompatible with his
official duties.
At the outset, we have considered the effect of Sections
33 and 40 of Article XVI, Vernon’s Texas Constitution, upon the
qualifications of a District Clerk to serve as a receiver. We
have concluded that a District Clerk may serve as a receiver without
violating the dual office holding prohibition of our constitution
- 338 -
Hon. Neal E. Birmingham, page 2 (M-74)
and would not vacate his office by being appointed receiver.
"Ordinarily a receiver 1s a disinterested
person appointed by the court to receive and pre-
serve property or funds in litigation pendente
llte." 49 Tex.Jur.2d, 12, Receivers, Sec. 1.
"A receiver acts as an officer of the court,
and his duty is to prot$ct the interests of all,
pending the ligitation. Faulk v. Futch, 147
Tex. 253, 214 S.W.2d 614 (1948).
The statement is made In 45 Am.Jur. 108, Receivers, Sec.
128, that while the receiver Is an officer of the court, he holds
no public office and is not engaged in exercising a public trust.
The case of State v. Whitehurst, 113 A.L.R. 740, 212 N.C. 300, 193
S.E. 657 Is cited as authority. Although the Texas courts have not
passed directly on this matter, the Court of Civil Appeals In
Texarkana has stated:
"The inhibition of the statute, we think, Is
against persons Interested in the subject-matter
of the litigation or results sought to be attained
thereby. It Is common practice In some jurlsdic-
tlons to appoint the clerk.of the court receiver,
and a sheriff has been held not to be ineligible
53 a
to rawford,
. . .- (Tex.Clv.App. 1913, n.w.h.). (Emphasis
added.)
In the situation of a court reporter, It was held in
Robertson v. Ellis County, 84 S.W. 1097 (Tex.Clv.App. 1905, n.w.h.),
that a court reoorter was not a vubllc officer, but onls an officer
of the court. We believe that a-receiver comes within this rule.
In this connection, also see Attorney General's Opinions Nos. O-6491
and O-5371.
SUMMARY
A district clerk may accept an appointment as
a receiver in a case pending In the court of which
he is the clerk, without vacating his office.
truly yours,
. .
eon. Neal E. Birrnln@wm,Pas 3 (M-74)
Prepared by James C. McCoy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
John Reeves
Gordon Cass
Neil William@
Ralph Rash
STAFF LEGAL ASSISTANT
A. J. Carubbl, Jr.