         THEAITORNEYGENE~L
                     Q,FTEXAS




Honorable Doug Crouch
Crlmlnal District Attorney
Tarrant County
Fort Worth, Texas
                        Opinion   No. C- 10
                        Re:   Docketing of cases in
                              the Probate Court of
Dear Mr. Crouch:              Tarrant County.
     Your request for an opinion reads as follows:
          "!lW.soffice has been asked to re-
     quest an opinion from the Attorney General
     concerning the following question:
          "In view of the provisions of Art.
          1970, Section 3, V.C.S. providing
          for the county clerk to alternate
          cases In the respective courts, is
          the county clerk obliged to allow
          clerks appointed by the respective
          courts to interview patients prior
          to receiving applications and assign-
          ing them alternately to either the
          Tarrant County Probate Court or the
          County Court,
          "In connection with the above question
     it appears that Art. 1970, Section 15, V.C.S.
     provides for a clerk to be appointed by the
     Judge of the County Probate Court. It ap-
     pears that no specific duties are assigned
     such clerk. No such duties having been as-
     signed such clerk the court has adopted a
     practice of requiring such clerk appointed
     by him to Interview alleged mentally ill
     persons prior to the processing of the ap-
     plication and the assigning of said cases
     alternately to the respective courts.



                              -37-
Hon. Doug Crouch, page 2 (C- 10 )


          "It would seem that the plain pro-
     visions of Art. 1970 V.C.S. providing that
     all proceedings be filed with the county
     clerk and thathe~ alternate,such cases so
     filed to the respective courts that it is
     within the province of the county clerk
     alone to receive and file applications and
     assign them alternately. Further; the M.en-
     tal Health Code contemp,lates(Art. 5547-12,
     V.C.S.) that all applications, petitions,
     Certificates and all other papers permitted
     or provided to be filed in the county court
     by this Code shall be filed with the county
     clerk of the proper county who shall file
     the same and endorse on,each paper the date
     filed and,the,docket number and his offlaT
     ial signature.
           "Art. 1970, Section 3 and Art. 5547-12   ”
      having specifically assign,edthe ~duty of
      receiving, docketing, and ,alternatlngcases
      in the various courts, It would appear that ',
      such duties are to be carried out and exe-
      cuted exclusively by the county clerk-and
      deputies appointed by him. Any other pro-
      cedure would.make it Impossible for him to
      alternate casesfor the reason   that~he could
      not know whether an application would ac-
      tually be received prior to receiving the
      results and attitude of the interviewing
      clerk so appointed by the court. Wile it
      is generally accepted ,that courts may estab-
      lish certain procedures inconnection with
      the processing of matters before ~themand,it
      Is true further that the filing of a case or
      docketing in either of these c,ourts1~sfor all
      purposes In full force and effect as though
      it were~filed In the, other, the statutes hav-,
      ing clearly ,prescribedthe procedure and it
      appears therefore that both the~county clerk
      and the respective courts ,are~obliged,tofol-,
      low the statutory mandates.
           "The county offlcials~concerngd are    ~
      awaiting your opinion fin:
                               thi~matter so that
      they may act aacordlngly."
                   ,'         .:,
Hon. Doug Crouch, page 3 (C- 10 ')


        The Probate Court of Tarrant County was created In 1957
by the-provisions of House,Bill 662, Acts of 'the55th,Legls-
lature, Regular Session, 1957, cha ter 400, page 1204, codi-
fied in Vernon's as Article 1970-3fl 5, Vernon's Civil Statutes.
Section   3 of this Act required:
                   ,A11 such.new:matters and pro-
      ceeding; ,$thln the jurisdiction of the
      Probate Court of Tarrant Count and the
      County Court of Tarrant Count    filed on
                                    ff
      E4~~P~~a~5~r~r~~o~~~~~~~~~~~~;"
      irrespective of the Courts or Judge to
      which the matter or proceeding is address-
      ed, shall be filed by said Clerk alternate-
      ly in said respective Courts in the order
      in which the same are deposited with him for
      filing, beginning first with the County
      Court of Tarrant County. . . .'
      Section 3 was amended by the provisions oftSenate Bill
435, Acts of the 56th Legislature, Regular Session, 1959,
chapter 334, page 739, by inserting therein the following
provisions:
           " . . . No proceeding had in either of
      said courts, nor any order entered therein,
      shall be invalied because of any failure of
      said clerk to file new matters and proceed-
      ings alternately as above provided. . . .'
      In addition thereto, Section 15a was added to the Act
creating the Probate Court of Tarrant County by the 1959
Act and provides:
           'NO action taken, nor any order made or
      entered, nor any application, pleading, motion,
      bond, citation, 'return of citation filed, nor
      any other proceeding had in the County Court of
      Tarrant County or in the Probate Court of Tar-
      rant County, heretofore or hereafter, shall
      ever be held invalid because done,in either
      of said courts, or because of erronrous refer-
      ence therein to either of said courts by the
      name of the other of said courts, and as
      against any complaint or charge of such nature,



                            -39-
Hon. Doug Crouch, Page 4 (C-10   )


      all of the 881118
                      heretofore,done,are hereby
      validated for every purpose."
      In view of the 1959,amendments to Article 1970-345,
Vernon's Civil Statutes, above referred to, you are advised
that the County Clerk is directed to file all such matters
and proceedings overwhich the County Court of Tarrant County
and the Probate Court of Tarrant County have concurrent jurls-
diction, alternately in ,therespective'courts,-abutthe~failure
to SC,file will not lnval,ldateany order entered on such mat-
ters.
      Turning to your question concerning the duties of the
clerk employed by the Judge of the Probate Court, Section 15 of
House Bill 662 Acts of the,55th Legislature, Regular Session,
1957, chapter 400, page 1204 at page 1206 provided:
           "The Commissioners Court of Tarrant County
      shall provide a secretary for the Judge of the
      Probate Court of Tarrant County, and such other
      and additional clerical assistants as may be re-
      quired to properly carry on the business of said
      Court, at salaries to be fixed by the Commissioners
      Court."
      Section 15 of this Act was amended by House Bill 626,
Acts of the 57th Legislature, Regular Session, 1961, chapter
485, page 1083, so that it now provides:
           "The Commissioners Court of Tsrrant County
      shall provide the following employees for the
      Judge of the County Probate Court of Tarrant
      County: (a) a secretary to be paid not less
      than Four Thousand, One Hundred and Forty Dol-
      lars ($4,140) per annum, and (b) a chief clerk
      to be paid not less than Six Thousand Dollars
      ($6,000) per annum, at salaries to be fixed by
      the Commissioners Court but not less than the
      figured indicated, which salaries shall be paid
      monthly out of the County Treasury by the Com-
      missioners Court from any funds available for
      this purpose, provided, however, that the Jud e
      of the County Probate Court of Tarrant-Tfzii+
      1s hereby authorized to employ, supervise, and
      terminate each and,ever one of said em loyees.
      Th Commissioners CourtYof Tarrant Counfy may
      alEo provide such,other and additional cle,rical
Hon. Doug Crouch, page 5 (C-;lO.,)   ~. :


      assistance as may be-required to properly
      carry on the business of said Court at sala-
      ries to be fixed by the Commissioners Court."
      (Emphasis added).
      It is noted by ,the underlined portion of Section 15 of
Article 1070-345, Vernon's Civil Statutes, quoted above,
that the clerk employed pursuant to its-provisions is under
the supervision of the Judge of the Probate Court. Therefore,
it is the duty of such clerk to perform such functions under
all matters previously filed In the Probate Court as may be
directed by the Judge of the Probate Court of Tarrant County.
      Section 13 of Article 1970-345, Vernon's Civil Statutes,
provides that the County Clerk shall be the clerk of the Pro-
bate Court and his duties are prescribed by the provisions of
Section 3 of Article 1970-345. Whenever an application or
petition is deposited with the County Clerk for filing, it
is the duty of the County Clerk to immediately file such ap-
plication or petition in the proper court. We know of no
provision which would authorize the County Clerk to delay the
filing of an application or petition deposited with him for
filing.
      You are therefore advised that the County Clerk is not
authorized to delay filing of an application or petition which
has been deposited with him for filing pending an interview of
an alleged mentally ill person named in the pleading. In this
connection, you are advised that the clerk employed by the
Judge of the Probate Court pursuant to the provisions of Sec-
tion 15 of Article 1970-345, Vernon's Civil Statutes, has no
duty concerning matters not pending in the Probate Court of
Tarrant County.
                     SUMMARY
      The County Clerk of Tarrant County is di-
      rected by the provisions of Section 3 of
      Article 1970-345, Vernon's Civil Statutes,
      to file all matters filed with him over
      which the Probate Court of Tarrant County
      and the County Court of Tarrant County have
      concurrent jurisdiction, alternately in the
      respective courts In the order in :;hichthe
      same are deposited with him for filing,
      beginning with the County Court of Tarrant
      County. Failure to so file, however, !Irill
Hon. Doug Crouch, page 6 (C- 10 )


        not Invalidate any order entered by said
        courts on such matters, because of any
        failure of the County Clerk to file such
        matters alternately.
        The County Clerk Is not authorized to
        delay the filing of an application or
        petition deposited with him for filing
        until an alleged mentally ill person
        named In the pleading has been intervlew-
        ed.
                           Yours very truly,
                           WAGGONER CARR
                           Attorney General of Texas



                               John Reeves
JR:ms                          Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Norman Suarez
H. Grady Chandler
Ben Harrison
Paul Phy
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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