,.&            -


          -
      ’       .’




                            OFFICE   OF THE ATTORNEY GENERAL       OF TEXAS
                                               AUSTIN




                   .. Honorible R. 0.. Neavee
                      County Auditor ,. Grayson County
                      Sheman,. Te,xaa    ,~.

                    Dear Sir:




                                                                  ,’   ”            I
                                     "3. What would be the statub or'notary    rees
                           colleoted  by a person for 'admlnlstering   ,oaths under    ,.
                           Xridavit  'A or, .Arriaavit  B, in regard 'to gnregis-i
                          .tereU births,   when such 'person is a du,ly sppointeq
                          ~~
                           notary publio ahd at the same time' ,is holdlng ,t& 1'.
                         :position   0r ruu tiim deputy douaypoh3rk?.*      : ‘~    ,~ .~
                                                          ”
,.
      Roaorable’R.      r;. Neavos,         page 2




                      When an: application  is maa6 to rile an unregis-
       tered birth under the provisions    0r Rule 5lA, Article 4477,
       Vernon’s Annotated Civil Statutes,     a fee or One Dollar ($1.00)
       shall be ‘collected   by the probate Court, fifty   cents of whioh
       shall- be retained by the court, ati dirty oents or vhioh shall
     ’ be retained by the clerk et the County Court for recording       suib                                :.
       birth or death oert if io~ate. The roregolng statute makes no
       provision   for oonpensatlng the County Clerk ror administering
       the oath for either of the afridavits     mentioned in your inquiry.
       Rowever, Article    3933, Vernon’s Annotated Civil Statutes,   pro-
       vldes,   In pa-t:

                     *Clerks of the County Court shall                                      reoeive
            the r0ii0whg     rees:
                     11* * *               ‘.

                        WAdminlsterlng oath with oertifloate
            ‘and seal    . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...*....      ,$     .25
               I.
                        n* * *n


                        Section        5 of Article              3912e, Vernon’s’ Annotated Civil
      Statutes,      provides:


                       “It shall be the duty 0r all officers        to
             charge and collect       in the manner aut borized by law
             all fees and commissions which are permitted by
             law to be assessed and collected         for all Official
             service performed by them. As and when suoh fees
             are.collected      thsy~shall   be deposited   in the Orricers’
             Salary Fund, or’runds provided in this Act.            In event
             the Commissioncrst       Court rinds t&t th3 failure      to
             collect     any fee or co;l~lllssion was due to neglect on
             the part of’ thz officer      oharged with the responsibility
             or collecting      same, the ainount of such ree or conunis-
             sion shall be deducted from t?he salary or such orflcer.
             Before any such deduction        is made, the Commlssioners~
             court shall rurnish such officer         with an itemized
             statement of the uncollected        fees with which his
             account Is to be elm rged, and shall notify          such ot-
             ricer 0r the time and place for a hsaring on same,
             to ,determine whether suoh officer         was guilty or
             negligence,     which time for huarlng shall ‘be at least
Honorable      R. C. Neaves,‘p>ge   3




      ,~.ten days subsequent to t,he date of not ice. Un-
         less an officer    is oh.irged by law with .the re-
         sponsibility    of oolleoting  roes, the CommleslonersV
         Court shall not in any event make any aed~uotions
         from the authorized salary of suoh ,ofrioer.*

                In view oi the foregoing   statutes,    you are re-
spectfully    advised that the County Clerk or Deputy County
Clerk administering      the oath, under “Afiidavit   ‘A,” or WAffidavit
B” is legally     authorized to charge a tee of twenty-rive      cents
ror eaoh airidavit      and under Section 5 or xrticls    39120, supra,
it is .,the duty or su’ch County Clerk or Deputy County Clerk to
collect    such fee and deposit the 88.me in the Otfloers’     Salary
Fund 0r the county.
                In answer to your second qtiestion,   you are advised
that It is our opinion that the Count.y Clerk would be liable to
the County for the fee or commission he railed to oolleot        due .t.o
neglect    on the part of said officer   who is charged with the re-
sponsibility    or collecting the saxo, and that such See could be
withheld from his salary as authorized by Section 5, Article
39120, supra, provided that such officer       due to negleot failed,
to collect    said fee or ooZ~isslon   and the required notice was
given him according to said Section 5 of Article       39120, supra.
               With reference   to your third question,    you are
respjotfully   advised that this department has repeatedly~ held
that the offices    of Bputy County Clerk and Notary Public are
incompatible . Therelore,     one could not serve as deputy oounty
clerk and notary publio at the same time,        Therefore,   you are
respectfully   advised that the Deputy County Clerk mentioned in
your inquiry oannot be a notary pub110 during the time he is a
Deputy.County Clerk, and .would not be authorized to act as a
notary pub110 or collect     any tees whatsoever when, and if at-
tempting to act as a notary publio ‘when in iact suoh person
is a Deputy County Clerk.

                                               Yours, very      truly
                                        .
                                            ATTORNEY
                                                   GENERALOF TMhS

                                        ‘, By .&&i&4      LJ!-+

                                                       Ardeli     Williams
            ATTORWXY
                   GkFXRAIOF !2ExA5                              Assistant
 AW:Ep
