                     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 V. 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
