               THE         ATTORNEYGENERAL
                                   OF     TEXAS

                            AURTIN,       TFXAS        78711




                              September      24,    1974


The Honorable Homer A.        Davis                        Opinion No.   H- 410
County Attorney
Hartley County                                             Re: Authority of county clerk
Box 1110                                                   to issue certified copy of
D&hart,  Texas  79022                                      letters testamentary  after
                                                           estate has been closed.

Dear Mr.   Davis:

        Your letter    to us asks:

                I would like to know what authority, if any,
                the County Clerk of Hartley County has to
                issue a Certified Copy of Letters Testamentary
                after an estate has been closed.

         The duties of a county clerk as recorder      of public records are
determined    by the Legislature  in accordance   with Article    5, 5 20 of the
Texas Constitution.    Article 1942, V. T. C. S., provides that county clerks
shall be keepers of the records,     books, papers and proceedings       of their
respective   courts,  including matters of probate.      Article 6591, V. T. C. S.,
requires the clerk to record all instruments      of writing “authorized     or
required to be recorded in the county clerk’s      office . . . .” Article 6600,
V. T. C. S., requires him to “give attested copies whenever demanded of
all papers recorded in his office . . . .‘I Therefore,        the answer to your
question depends      on whether     the clerk    is authorized    to record   letters
testamentary.

        We have not found any provision in the Texas Probate Code, or any
other statute, which authorizes  the clerk to record the letter testamentary
itself. However,   the clerk is authorized by the Texas Probate Code to
record such facts as the name of the executor to whom letters testamentary


                                                 p. 1911
The Honorable         Homer     A.   Davis    page 2 (H-410)




are issued,  Texas Probate Code, $13, and each order, judgment,      decree
and proceeding of the probate court,    $15. Among the orders,  decrees
and judgments of the Probate Code which will appear in both the Judge’s
Probate Docket,   5 13, and in the Probate Minutes, $15, will be a full and
complete copy of the order granting letters testamentary.

           The letters testamentary  themselves,  however,   are not official
orders;     decrees or acts of the court such as the clerk is authorized to
record.’     They are rather:

                      . .   . a certificate
                                          of the clerk of the court granting
                      the same, attested by the seal of such court, and
                      stating that the executor . . . has duly qualified as
                      such as the law requires,    the date of such qualifica-
                      tion, and the name of the deceased.     Texas Probate
                      Code, $183.

The distinction between facts which are required to be recorded and a
letter testamentary is recognized in $186 of the Texas Probate Code
which provides:

                      Letters testamentary,       of administration,   or of
                      guardianship,     or a certificate  of the clerk of the
                      court which granted the same, under the seal of
                      such court, that said letters have been issued,
                      shall be sufficient evidence of the appointment
                      and qualification    of the personal representative     of
                      an estate . . . and of the date of qualification.

         The Legislature   has not required the exhibit of a certified letter
testamentary    as evidence of an executor’s   appointment and qualification.
It is sufficient for the clerk when requested,    simply to certify that letters
testamentary    have been issued.

           Attorney     General      Opinion V-575     (1948) reached   the same   conclusion.

                      The County Clerk may not record in the probate
                      minutes a copy of letters of administration,


                                                  p.   1912
,
    -.   -




             The Honorable   Homer   A.   Davis   page 3 (H-410)




                             testamentary    or guardianships.   Neither is he
                             authorized to issue such letters to third persons.
                             However,   after such letters have been issued to
                             the proper persons,    the County Clerk may then
                             issue a certificate  of such facts which may appear
                             of record.

                      Thus, the county clerk is authorized to certify from the record
             that letters testamentary    were issued and any other recorded facts per-
             tinent to a particular  estate.  However,  since letters testamentary   are
             not authorized to be recorded in the probate records,     the county clerk has
             no authority to issue certified copies of s~uch letters.

                                              SUMMARY

                                  Although a county clerk can certify from the
                             record that letters testamentary   were issued to
                             a personal representative,   the clerk has no
                             authority to issue certified copies of letters
                             testamentary.




                                                       //    Attorney   General   of Texas




             DAVID M. KENDALL,        Chairman
             Opinion Committee


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                                                      p. 1913
