              HEA             NEY      GENERAL



                           December 18, 1967



                James            Opinion No. M-170
State Treasurer of Texas                            -.    -
State Capitol Building           Re:   Whether the State Trea-
Austin, Texas   78711                  surer is required~to              "
                                       pay a fee to county
                                       .clerk& for certi'fied~      "
                                       copies of court oraers
                                       transmitted to him pur:
                                        suant to Section 428,~           ~,
 Dear Mr. James:                       Texas,Probate Code.
-1.
           In your recent letter to this office,~ you re-           .'
         . opinion as to whether your office is required
 quest our
 to pay tne county clerk for a certified copy of a court
 order which has been transmitted to your office pursuant
 to Section 428 of the Texas Probate Code. Section 428 i.s
 one of a series of sections'contained:in Cha~pter X 'of then
 Texas Probate Code which provide for the, disposition of
 unclaimed estates. Sections 427,, 428, and 429 of .Chapter
 X read as follows:

            "Sec. 42'7. If any person entitled to
      a portion of an estate, except a ~residerit
      minor without a guardian, shall not dema,nd
      his portion from the executor or ,admi$istra-' :        '~
      tor within six months afte? an.order~of
      court approving the report of commissioners;.'_
      of partition, or within six months after,
      the se,ttlement of the fi.na.1account of an, ,~
      executor or admipistrator,, as: th&.c+se rna,y,."~~ ~:
      be, the court by written drder shall~ re- ,.~ ~~~
      quire the executor or admindstrator to:,':~"         ', "~~
      pay so ,much of Said portion,as iS in;'        ,.~
      money %.o the State' Treatiu'Fek,;~
                                        and ~such ,'
     ~.portion was,is in others proper,ty~he shall,'
      order the execut0.r or administrator to
      sell on such tdrms as the'~@r,t th~inks
      best, and, when'the proceeds ~of such~ Salem
       are collected, the court shall ~order'the~'
       same to be paid to the State Treasurer,       ~,"
       in all such dases~.allowing~th~e: tixecuto~r
       or administrators reasonable'compensa-~.       1~ ~'
       tiofiLfor his services:" .'~,~
                                    :,.    : ,.     ~.
          ‘&3c.@SB* Whenever an order    shall ba
    ma&   by theecmrtfor an executor    or admin-
     istrator to pay any funds to the State Trea-
     surer under the preceding provisions of
    this Code, the clerk of the court in which
    such order is made shall mail to the State
    Treasurer a certified copy of.such order
    within thirty days after the same hati
     besn made.    Whenever the clerk mails
    much copy, he shall take from the post-
    master with whom it is mailed a certifi-
    cate stating that such certified copy was
    mailed in his office, addressed to the
    State Treasurer at Austin, Texas, and
    the date when it was mailed, and shall
     record such certificate."
          USec, 429. Any clerk who shall neglect
    to transmit a certified copy of any such
    order within the time prescribed, and to
    take and record such certificate, as re-
    quired in the preceding Section, shall be
    liable in a penalty of One Hundred Dollars,
     to be recovered in an action in the name
     of the state, after personal service of
     citation, on the information of any citizen,
     one-half of which penalty shall be paid to
     the informer and the other one-half to
     the state."
          Section 430 requires the State Treasurer to issue
a.receipt to an executor or administrator who delivers funds
to the State Treasurer pursuant to an order entered under
Section 427. Section 431 imposes a penalty upon any ex-
ecutor or administrator who fails to comply with an order
entered pursuant to Section 427. Section 432 provides the
procedure to be followed by the State Treasurer, to enforce
and recover the payment of funds, which the executor or ad-
ministrator has failed to pay him, together with the pay-
ment of any damages that shall have accrued. Section 433
authorizes any heirs, devisees, or legatees of any estate
which has been delivered to the State Treasurer pursuant
to Chapter X of the Texas Probate Code to institute a suit
for the recovery of such portion of the estate as may belong
to such claimant, and further provides the procedure to
be followed in such suit.

          Your question has undoubtedly arisen because of
the provisions of House Bill No. 78, Acts 60th Legisla-
    .




Hon. Jesse James, page 3, (M-170)



ture, 1967, Regular Session, Chapter 680, page 1785, and
House Bill No. 80, Acts 60th Legislature, Regular Session,
1967, Chapter 681, page 1789.

             House Bill 78 provides, in part, as follows:

             "Section 1. County clerks and clerks of
        county courts are hereby authorized and re-
        quired to collect the following fees for serv-
        ices rendered by them to all persons, firms,
        corporations, legal entities, governmental
        agencies and/or governmental representatiiTes:
             II
              . . . .

             "D . For issuing each certificate, certi-
        fied copy, notice, statement, transcript, or
        any other instrument, document, or paper autho-
        rized, permitted, or required, to be issued by
        said county clerk or clerk of county courts on
        which there is no return to be recorded:

             "For each page, or part of a page, a fee,
        to be paid at the time each order is placed,
        of $1.00.
             II
              . . . .

              "Section 2. All laws or parts of laws
        in conflict with the provisions of this Act
        are hereby repealed to the extent of conflict
        OhlY t including but not limited to . . . ."
        (Emphasis added.)

             House Bill NO.   80 provides, in Part, as follows:

             "Section 1. County clerks and county
        recorders are hereby authorized and required
        to collect the following fees for services
        rendered by them to all persons, firms,
        corporations, legal entities, governmental
        agencies and/or gopernmental representatives:
             II
              . . . .

             "(3) For issuing each certified copy
        (except certified copy of map records and
        condominium records), notice, statement,
        license where the fee for issuing a license




                                 -815-
Hon. Jesse James, page 4,   (M-170)



    is not speciFically provided by statute, or
    any other instrument, document, or paper
    authorized, permitted, or required, to
    be issued by said county clerk or county
    recorder, except as otherwise provided
    in Section 1, of this Act:

          "For each page, or part of a page,
     a fee, to be paid in cash at the time
     each order is placed, of $1.00.
          ,#. . . .

          "Section 2. Article  393.0a, Revised
     Civil Statutes of Texas, 1925, as added
     by Section 1, Chapter 495, Acts of the
     57th Legislature, Regular Session, 1961,
     is repealed; and the fees provided for
     county clerks in all other laws, or
     parts of laws, in conflict with the pro-
     visions of this Act are hereby repealed
     as to county clerks only, included but
     not limited to: . . . ."

          The provisions of Chapter X of the Probate Code
provide a special~procedure for the~disposition of unclaim-
ed estates.  In order for the State Treasurer to perform
the duties imposed upon him with regard to such estates,
it is essential that he have notice of the action of the
probate court. As an integral part of the procedure under
Chapter X, the legislature made it the duty of the clerk
of the court entering the order to transmit a certified
Copy of the order to the State Treasurer within thirty days
of its entry. A penalty of One Hundred Dollars ($100) is
imposed upon any clerk who fails to transmit the,required
order. House Bill 78 and House Bill 80 are bills which
prescribe the fees to be collected by county clerks. The
repealing clauses of the bills do not specifically amend
or repeal any portion of Chapter X of the Probate 'Code.
Insofar as the repealing clauses repeal all laws in con-
flict, the effect is necessarily limited to statutes which
deal with the fees to be collected by county clerks, and
county recorders for services rendered.   In the situation
governed by Section 428 of the Probate Code, the mailing
of the certified dopy to the State Treasurer is not a
"service rendered" to that state official, but is an act
done by the county clerk or recorder in furtherance of his
own legal duties. ~.We find no conflict between the provi-
sions of the,two billskand,,Chaptkr,'X0f~th.e Probate Code,




                               -816
Hon. Jesse James, page 5, (M-178)



nor do we find any expression of intent on the part of the
legislature to condition the performance of the duty imposed
upon the clerk by the Probate Code, or the penalty for failure
to perform such duty, upon the payment of a fee to the clerk.

          You are, therefore, advised that in our opinion
the State Treasurer is not required to pay a fee to county
clerks for certified copies of court orders transmitted
to him pursuant to Section 428 of Chapter X of the Texas
Probate Code. Our answer to your first'question makes it
unnecessary for us to consider your question with regard
to what fund would be available for payment of such fees.


                        SUMMARY
                        -------

          The State Treasurer is not required
     to pay a fee to county clerks for certified
     copies of court orders transmitted to him
     pursuant to Section 428 of Chapter X of the
     Texas Probate Code.

                                       truly yours,



                                           C,. MARTIN
                                           General of Texas

Prepared by W. 0. Shultz
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman

W, V. Geppert
Bill Allen
Harold Kennedy
Ralph Rash

A. J. CARUBBI, JR.
Staff Legal Assistant




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