Honorable T. J. Rodgers        Opinion No. C-714
District Attorney
Young County                   Re:   Under Article 14.21, V.C.S.,
Graham, Texas                        Taxation-General, what is
                                     the authority of the County
                                     Judge to act as agent or
                                     representative of the
                                     Comptroller of Public
                                     Accounts and related
Dear Mr. Rodgers:                    questions?
           You have requested an opinion of this office on the
,following questions:
          "1 . Under Article 14.21 what is the authority
     of the county judge to act as agent or representative
     of the Comptroller of Public Accounts? Is it
     necessary that the county judge be designated in
     writing as such by the Comptroller?
          "2 . Under Article 14.22 may the county judge
     designate a representative in a bank, safe deposit
     company or other institution having possession and
     control of papers of a decedent as his agent or
     representative to turn over a will, deed or
     insurance policies to the representative of the
     decedent's estate?

          “3.  Does a will delivered to the clerk of the
     probate court have to be filed by the clerk and
     retained In his possession until application for
     probate is made? If there is no necessity for
     probating the will but is filed only as a muniment
     of title, is the clerk still required to retain
     same in his possession and what record, if any,
     is made of it?"
          Article 14.21, Vernon's Civil Statutes, Taxation-
General, reads in part:
          "No safe deposit company, trust company,
     corporation, bank or other institution, person
     or persons, having in possession or under control
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Hon. T. J. Rodgers,   page   2   (C-714)




     securities, deposits, or other assets belonging
     to a decedent, who was a resident or non-resident,
     or belonging to such a decedent and one or more
     persons, shall deliver the same to the executors,
     administrators heirs, or legal representatives
     of said decedekt or to the survivor or survivors
     when held in the'joint names of a decedent and
     one or more other persons, or upon their order
     or request, unless notice of the time and place
     of such Intended delivery or transfer be served
     upon the Comptroller at least ten (10) days
     prior to said delivery of transfer, and delivery
     to be made only in the presence of the Comptroller
     or his duly authorized agent, who may be the
     County Judge of the county in which said transfer
     transpires, unless the Comptroller, in writing,
     consents to the transfer without his presence.
     And it shall be lawful for the said ComptrolLer,
     or his representative, to examine all of said
     securities, deposits, or assets at the time of
     such delivery or transfer. . . ."
          The statute provides that the County Judge may act
as the agent of the Comptroller if so authorized by the Comptroller.
          Agency has been defined by the Texas courts:
          "Agency is a legal relationship which is
     based upon a contract, express or implied, of the
     parties or created by the law, by virtue of which
     one party is employed and authorized to act for
     another. The party so employed is the agent and
     the one who so emolovs him is the orincioal. _ _ _'
     Great Southern Life fnsurance Co. v. Wiliiams,-lj5-
     S.W.2d 241 (Tex.Civ.App, 1939, error dism., judgm.
     car.); Hawkins v. Murphy & Bolanz, 112 S.W. 136
     (Tex.Civ.App. 1908, error dism.).
           Since the statute provides that the County Judge "may"
be the Comptroller's authorized agent, the County Judge does
not automatically become the Comptroller's agent for the purposes
of Article 14.21.   The agency is not created by law since the
County Judge is not required to act as the Comptroller's agent.
Consequently. the laws of contract are applicable; and there must
be an offer-and acceptance to act as Agent Amber Petroleum Co.
v. Beech. 111 S.W. 668 (Tex.Civ.Aoo. 1908.'no writ history).
 .ithough'writtenauthorization to-act as the Comptrollerls'agent
7i
is not required by Article 14.21, it woul.dbe good practice to
acquire such authorization in writing from the Comptroller.
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Hon. T. J. Rodgers, page 3 (c-714)


          Article 14.22, Vernon's Civil Statutes, Taxation-General,
reads as follows:
          "When It is made to appear to a County Judge
     in this State that a safe deposit company, trust
     company, bank, person, or corporation has in its
     possession or under its control papers of a decedent
     of whose estate such court has jurisdiction
     that the decedent has leased from such a coi&zEation
     a safe deposit box, and that such papers or such
     safe deposit box may contain a will of the decedent,
     or a deed to a burial plot in which the decedent
     is to be Interred, or a policy of insurance issued
     in the name of the decedent and payable to a named
     beneficiary, he may make an order directing such
     deposit company, trust company, bank, person, or
     corporation to permit a person named in the order
     to examine such papers or safe deposit box in the
     presence of himself, or his duly authorized
     representative, or a representative of the
     Comptroller, and an officer of such safe deposit
     company, trust c,ompany,bank or corporation, or
     agent of such person, and if such documents are
     found among such papers, or in such box, to
     deliver said will to the clerk of the probate
     court of such county, or said deed to such persons
     as may be designated in such order, or said policy
     of insurance to the beneficiary named therein.
     The Clerk of said court shall furnish a receipt
     upon the delivery of the will to him." As
     amended Acts 1963, 59th Leg., p. 833, ch. 402,
     6 7; eff. July 1, 1965.
          Article 14.22 comprehends the presence of three separate
individuals, the person named in the order to examine the papers
of a decedent or safe deposit box; an officer of the safe deposit
company, trust company, bank or corporation, or agent of such
person; and the county judge, or his authorized representative
or a representative of the Comptroller. Pursuant to the statute,
the oerson designated in the order to examine the paoers of
a decedent or safe deposit box must do so in the presence of
the other two individuals and then deliver the enumerated
papers so found to parties designated by the statute. There
is nothing in the statute which would prohibit the person
designated to examine the papers of a decedent or safe deposit
box from being an officer or employee of the safe deposit
company, trust company, bank or corporation; however, such
person may not at the same time also serve as the County
Judge's representative or act in behalf of the holder.
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Hon. T. J. Rodgers, page 4 (C-714)


          In answering your third question, we must look to
Article 1942, Vernon's Civil Statutes, and Section 71(e) of the
Texas Probate Code.
          Article 1942 reads as follows:
          "They fiounty clerks7 shall be keepers of the
     records, bozks, papers aiidproceedings of their
     respective courts in civil and criminal cases and
     in matters of probate, and see that the same are
     properly indexed, arranged and preserved, and shall
     perform such other duties in that behalf as may be
     by law Imposed on them."
And Section 71(e), Texas Probate Code, reads as follows:
          "If there shall be submitted to the bounty7
     clerk an affidavit to the effect that thetestaf;or
     of any will deposited with the clerk has died, or
     if the clerk shall receive any other notice or proof
     of the death of such testator which shall suffice to
     convince him that the testator is deceased, the
     clerk shall notify by registered mail with return
     receipt requested the person or persons named on
     the indorsement of the wrapper of the will that the
     will is on deposit in his office, and, upon request,
     he shall deliver the will to such person or persons,
     taking a receipt therefor. If the notice by
     registered mail is returned undelivered, or if a
     clerk has accepted a will which does not specify
     on the wrapper the person or persons to whom it
     shall be delivered, the clerk shall open the wrapper
     and Inspect the will, If an executor is named in
     the will, he shall be notified by registered mail,
     with return receipt requested, that the will is
     on deposit, and, upon request, the clerk shall
     deliver the will to the person so named as executor.
     If no executor is named in the will, or if the
     person so named is deceased, or fails to take the
     will within thirty days after the clerk's notice
     to him is mailed, or if notice to the person so
     named is returned undelivered, the clerk shall
     give notice by registered mail, with return receipt
     requested, to the devisees and legatees named in
     the will that the will is on deposit, and, upon
     request, the clerk shall deliver the will to any
     or all of such devisees and legatees."
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Hon. T. J. Rodgers, Page 5 (c-714)


          Section 75, Texas Probate Code, and Section 14.22,
Vernon's Civil Statutes, require the delivery of the will to the
clerk after the death of the testator. Section 71, Texas Probate
Code, is concerned with the depositing of the will with the
clerk during the testator's lifetime. Even though the two former
statutes do not indicate whether the clerk may return the will
after filing It is the opinion of this office, in the light of
Section 71(e), that the will once filed with the clerk, may,
thereafter, be delivered to the executor, or the devisees or
legatees under the will prior to probate. All wills delivered
to the clerk under the above statutes must be numbered in
consecutive order and indexed. In the absence of a request
for delivery of the will by one of the above parties, it is the
clerk's duty under Article 1942 to retain and preserve the will.
          As concerns the second part of your third question, it
must be oointed out that a will mav not be used as a muniment
of title-unless it has been probated, Ochoa v. Miller
463 (1883); Moursund v. Priess, 84 Tex. 554 19 S.W. f7~9(%$');
White v. White, 142 Tex. 499, 179 S.W.2d 53; (1944).
          Section 89 of the Texas Probate Code allows the
probating of,wills as Muniments of Title.
         II. . . In each instance where the Court is
    satisfied that a will should be admitted to probate,
    and where the Court is further satisfied that there
    are no unpaid debts owing by the estate of the
    testator, excluding debts secured by liens on real
    estate, or for other reason finds that there is
    no necessity for administration upon such estate,
    the Court may admit such will to probate as a
    Munlment of Title."
          If the will is probated as a Muniment of Title, Section
33 of the Texas Probate Code applies.
         Section 93 reads as follows:
          "All original wills, together with the probate
    thereof, shall be deposited in the office of the
    county clerk of the county wherein the same shall
    have been probated, and shall there remain, except
    during such time as they may be removed for
    inspection to another place upon order by the
    court where probated. If the court shall order
    an original  will to be removed to another place
    for inspection, the person removing such original
    will shall  give a receipt  therefor, and the clerk
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Hon. T. J. Rodgers, page 6 (C-714)


     of the court shall make and retain a copy of such
     original will." Acts 1955, 54th Leg., P. 88, ch. 55.
          Since the foregoing cases and statutes indicate that
a will must be probated before it may be used as a muniment of
title, a will used as a munlment of title should be filed,
probated, and recorded as in the case of normal probated wills
and retained accordingly.

                    SUMMARY
          The County Judge is not required by statute
     to act as the Comptroller's agent under Section
     14.21, Vernon's Civil Statutes, but may be his
     agent if authorized.
          In accordance with Section 14.22, Vernon's
     Civil Statutes, the person designated in the
     County Judge's order to examine the papers and
     safety deposit box of a decedent may be an officer
     of the bank, safe deposit company or other
     institution having possession and control of the
     papers of the decedent. However, the person so
     designated may not at the same time serve as
     the County Judge's representative or act in behalf
     of the holder.
          All wills delivered to the clerk under either
     14.22 or the Texas Probate Code must be numbered
     in consecutive order and indexed. In the absence
     of a request to deliver the will of the decedent
     to the executor or devisees or legatees under the
     will, it is the clerk's duty under Article 1942,
     Vernon's Civil Statutes, to retain and preserve
     the will.
          A will may not be used as a muniment of title
     unless probated; and once probated, Section 90 of
     the Texas Probate Code requires the county clerk
     to retain possession of the original will, and
     probate thereof, in the absence of a court order




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Hon. T. J. Rodgers, page 7 (C-714)


    allowing the probated will to be removed to another
    place for Inspection.
                          Very truly yours,
                          WAGGONER CARR
                          Att,orneyOeneral


                          By:
                                Wade Anderson
                                Assistant
WA:ml
APPROVED
OPINION COMMITTEE:
W. V. Geppert, Chairman
Pat Bailey
James McCoy
Gordon Cass
Bill Allen
Marietta Payne
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright




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