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                                     E           E      AI.4
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                        May   15,   1967




Hon. Neal E. Birmingham                    Opinion No. M- 74
Criminal District Attorney
Casa coupty                                Re:   Whether a District Clerk
Linden, Teras                                    can serve a5 a receiver
                                                 in a case pending In the
                                                 court of which he is the
Dear Mr. Birmingham:                             clerk.
          By lstter you have requested an opinion in regard to
the abbve stated matter, and we quote frpm your letter as follows:


            “Mr. w. A. Watson, Jr,, Is the duly elected
       and acting clerk of the District Court of Cass
       County, Texas. Ptiomtime to time It is neces-
       s&ry far the Oourt to appoint a receiver in cer-
       tain civil oases,  It is often Inconvenient and
       difficult to obtatn the services of a dependable
       and qualified person in Case County. This is
       particularly true when nomlnal amounts are in-
       valved .
            “It would be beneficial and convenient to
       the court, the Bar and the lltlgants If Mr. Watson
       could be appointed . . , . .
            8,
             . . . .
            “This Is not a matter involved In litigation
       or likely to be. The request 15 made solely In
       order to properly advise Mr. Watson and the court
       and Bar as to whether or not such appointment is
       either prohlblte$ or incompatible with his
       official duties.
          At the outset, we have considered the effect of Sections
33 and 40 of Article XVI, Vernon’s Texas Constitution, upon the
qualifications of a District Clerk to serve as a receiver. We
have concluded that a District Clerk may serve as a receiver without
violating the dual office holding prohibition of our constitution
                        - 338 -
Hon. Neal E. Birmingham, page 2 (M-74)


and would not vacate his office by being appointed receiver.
          "Ordinarily a receiver 1s a disinterested
     person appointed by the court to receive and pre-
     serve property or funds in litigation pendente
     llte." 49 Tex.Jur.2d, 12, Receivers, Sec. 1.
          "A receiver acts as an officer of the court,
     and his duty is to prot$ct the interests of all,
     pending the ligitation.   Faulk v. Futch, 147
     Tex. 253, 214 S.W.2d 614 (1948).
           The statement is made In 45 Am.Jur. 108, Receivers, Sec.
128, that while the receiver Is an officer of the court, he holds
no public office and is not engaged in exercising a public trust.
The case of State v. Whitehurst, 113 A.L.R. 740, 212 N.C. 300, 193
S.E. 657 Is cited as authority. Although the Texas courts have not
passed directly on this matter, the Court of Civil Appeals In
Texarkana has stated:
          "The inhibition of the statute, we think, Is
     against persons Interested in the subject-matter
     of the litigation or results sought to be attained
     thereby. It Is common practice In some jurlsdic-
     tlons to appoint the clerk.of the court receiver,
     and a sheriff has been held not to be ineligible
     53 a
     to                                   rawford,
      . . .-      (Tex.Clv.App. 1913, n.w.h.). (Emphasis
     added.)
          In the situation of a court reporter, It was held in
Robertson v. Ellis County, 84 S.W. 1097 (Tex.Clv.App. 1905, n.w.h.),
that a court reoorter was not a vubllc officer, but onls an officer
of the court. We believe that a-receiver comes within this rule.
In this connection, also see Attorney General's Opinions Nos. O-6491
and O-5371.
                     SUMMARY
          A district clerk may accept an appointment as
     a receiver in a case pending In the court of which
     he is the clerk, without vacating his office.
                                 truly yours,
  .    .




eon. Neal E. Birrnln@wm,Pas    3   (M-74)




Prepared by James C. McCoy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
John Reeves
Gordon Cass
Neil William@
Ralph Rash
STAFF LEGAL ASSISTANT
A. J. Carubbl, Jr.
