                          E                  Y GENERAL

                                AUSTIN    ~I.TEXAS
  GWAID       C. MANN
AlTORNEY        GENE-I.




           Honorable W. A. Davis
           State Registrar
           State Board of Health
           Austin, Texas
           Dear Sir:                      Opinion NO. o-2672
                                          He: Whether special county judge
                                               elected by a bar may pass upon
                                               delayed registration of birth
                                               certificates.
                     This will acknowledge receipt of your letter of August
           22, 1940, supplemented by yours of September 14, requesting the
           opinion of this department as to whether or not a special county
           judge elected by the members of the Webb County Bar in the
           sbsence  from ths county of the regular oountg judge, may pass
           upon the delayed reglztratlon of blrth certlflcates as provldsd
           for In House Bill No. 614, Aats 1939, Forty-sixth Legislature,
           page 346.
                    House Bill No. 614,    supra, reads Ln part as follows:
                   “lAnd provided further, that any citizen of
              the State of Texas wishing to fFle the record of
              any birth or death, not prevlouslg registered,
              may submit to the Probate Court in the county
              where the birth or death occurred, a record of
              that birth or death written on the adopted forms
              of birth and death certificates. The certlfi-
              cate shall be substantiated by the affidavit of
              the medical attendant present at the time of the
              birth, or in case of death, the affidavit of the
              physician last in attendance upon the deceased,
              or the undertaker who buried the body. When the
              affidavit of the medical attendant or undertaker
              cannot be secured, the certificate shall be sup-
              ported by the affidavit of some person who was
              acquainted with the facts surrounding the blrth
              or death, at the time the birth or death occurred,
              with a second affidavit of some person who is
              acquainted wlth the facts surrounding the djlrth
              or death, and who is not related to the Individual
              by blood or marriage. The Probate Court shall
              require such other information or evidence as may
              be deemed necessary to establish the cltlzenship
Honorable W. A. Davis,   page   2       o -2672


   of the individual filing the certificate, and the
   truthfulness of the statements made in that record.
   The Clerk of the said Court shall forward the cer-
   tificate to the State Bureau of Vital Statistics
   with an order from the Court of the State Registrar
   that the record be, or be not, accepted. The State
   Registrar is authorized to accept the certificate
   when verified in the above manner, and shall issue
   certified copies of such records as provided for in
   Section 21 of this Act. Such certified copies shall
   be prima facie evidence in all Courts and places of
   the facts stated thereon. The State Bureau of Vital
   Statistics shall furnish the forms upon which such
   records are filed, and no other form shall be used
   for that purpose.'"
         Article 1934, Vernon's Annotated Civil Statutes, pro-
vides for the election of a special county judge in the absence
of the regular county judge, and this article reads as follows:
        “If a county judge fails to appear at the
   time appointed for holding the court, or should
   he be absent during the term or unable or unwlll-
   lng to hold the court, a special county judge may
   be elected In like manner as is provided for the
   election of a special district judge. The special
   county judge so elected shall have all the authority
   of the county judge while in the trial and dlsposl-
   tion of any case pending in said court during the
   absence, inability, or such refusal of the county
   judge. Similar elections may be held at any time
   during the term, to supply the absence, failure
   or inability of the county judge, or any special
   judge, to perform the duties of the offlco. When
   a special county judge shall have been so elected,
   the clerk shall enter upon the mlnutes of the
   court. a record such as is provided for in like
   cases in a dlstrlct court.'"
         It will be noted that Article 1934 provides for the
election of a special county judge in the absence of a regular
county judge “In like manner as is provided for the election of
a special dlstrlct judge".
         Articles 1887 through 1862, of Vernon's Annotated
Civil Statutes, reads as follows:
         "Article 1887. Should the judge of a dis-
    trict court on the first or any future day of a
    term, fall or refuse to hold the court, the
Honorable W. A. Davis,   page 3        o-2672


    practicing lawyers of the court present may elect
    from among thelr number a special judge who shall
    hold the court and proceed with the business
    thereof .‘I
          “Article 1888. Such election shall be by
    bal.lot, and each practicing lawyer in attendance
    at such court shall be entitled to participate
    In such election and shall be entitled to one
    vote. A majority of the votes of the lawyers
    partlclpatlng shall be necessary to the election
    of such special judge.”
        “Article 1889. The election shall be con-
   ducted as follows: The sheriff or constable
   shall make proclamation at the court house door
   that the election of a special judge of the court
   is about to be made by the practicing lawyers
   present; the clerk shall then make a list of the
   practicing lawyers present; and such lawyers
   shall then organize and hold the election.”
         "Article 1890. Should the sheriff, con-
    stable, and clerk, or either of them, fall or re-
    fuse to act, the said practicing lawyers may
    nevertheless proceed to organize themselves into
    such electoral body, and appoint a sheriff and
    clerk pro tempore to do the duties of such
    officers respectively.”
         “Article 18%.   The clerk shall enter upon
    the minutes of the court a record of the election
    of such special judge, showing:
         “1 . The names of all the practicing lawyers
    present and participating In such election.
         “2 . The fact that the public proclamation
    was made at the court house door that such elec-
    tion was about to take place.
         "3 . The number of ballots polled at such
    election and the number polled for each person,
    and the result of the election.
         "4. That the oath prescribed by law has been
    duly administered to the special judge.”
         “Artlcle 1892 . The record of such proceedings,
Honorable W. A. Davis,   page 4         O-2672


    substantially complying with the requirements of
    the law, shall be conclusive evidence of the elec-
    tion and qualification of such special judge."
         We mst assume (In the absence of facts      to the contrary)
the the provisions of Article 3.934and likewise,     Articles 1887-
1892, have been strictly followed, and also that     the conditions
therein stated glvlng rise to the appointment of     a special county
judge were present.
         This being true, a special county judge so elected has,
in the language of the statute, "all the authority of a county
judge in the trial and disposition of any case pending In said
court during the absence. . . of the county judge”; and you are
respectfully advised that in the opinion of this department such
duly elected special county judge may entertain proceedings for
the delayed reglstratlon of births as provided for In House Bill
No. 614, Acts 1939, Forty-sixth Legislature.
                                  Very truly yours
                            ATTORNEY GENERAL OF TEXAS

                                  By s/James D. Smullen
                                       James D. Smullen
                                       Asslstant
JDS :LM:wc

APPROVm OCT 7, 1940
s/Gerald C. Mann
ATTORNEY.GENWAL OF TEXAS
Approved OpMion   Committee by s/BWB Chairman
