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b
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,              OFFICE   OF THE   A-ITORNEY    GENERAL     OF TEXAS

b                                    AUSTIN




    Honorablo John R. Shook
    Criminal Dis triot Attorney
    Bexar County
    San Antonio, Texas
    Attention:      Hr. T. H. Ridgewoy
    Dear Sir a



              Your letter                               equestlng the opinion
    of this department o                                ed therein reads as
    r0ii0ws:




           on the amun




                         mmeotion we wish to direot your at-
                         tion Four of tho recent law emoted
           by the 48th Legislature:
                        At the time 0r suoh      qualirioation  the
           COunti’iierk   shall oolleot the      fees alloTied him by
           law for administering the oath        and approving end
           filing   the bond of suoh Notary      Publio, together
                  .
Honorable Tohn R, Shook, Page 2


    wlth the tee allowed by law to the Seoretarp of
    State for lssul~  a sonmission to suoh Notary
    Publio. ’
          %u will observe from Seotion 4 thet the
    reoordlng clerk shall oolleot for administering
    the oath, approving and filing the bond together
    with the ree allowed by law to the Seoretarg Of
    the State.    Ro mention 1s nade or any fee for
    reoording the bond as provided by the prsVlOUs
    statute*
           *The rirst question is whether or not the
     County Clerk should ohorge a fee of 504 for re-
     cording the bond aa provided for by the previous
     statutea.   The seoond question is, in oases where
     the oath is administered by an outside authority,
     should the County Clerk oolleot the fee of 50#
     upon the oath. The third question is whether or
     not it Is neoessary under the law as reoently
     mended by the Legislature,    for the County Clerk
     to index the bonds when they do not have to be
     reoorded, In order to raollltate   in looatlng then
     after they are filed,    If so, oould a oharge be
     made ror same, in plaoe OS recording.
          *Due to the State wide lmportanoe of these
     three questlone we deea it advisable for us to
     submit the questions to you for determination.
           "?iedo not know or any deolsion 0r any Court
     that night aid us in determining these questions.
     Our County Clerk Is under the impression that he
     should oharge the 5Og provided for by the preYlOU
     law ror reoordlng the bond lfi view of the faot
     that the filing and retention of the bonds in his
     oifloe would, in a manner, oonstitute a reoord of
     the same.
          “Theso questions are very urgent at this time
     and we would like to request an oplnlon at your
     eam88t oonvenienOe.*
          Senate Bill No. 335, Aots or the 48th Legislature,
Bs8u1~ Session 1943 ia an aot amending Artiole 5949, yer-
non’s ~Otated’Clvll’Statutea.    Said aot expressly repe6l.s
                                                                          518



      Honorable John R, Shook, Page 3


      Artloles    5950, 5951 5952 and 5953, Vernon's Annotated OiYil
32,                 Senate Bill No, 335, supra, expressly provides:
‘$    Statutes.

                 “This aot my be known and olted as the
            Notary Publlo Aot of 1943.”
                  We quote from said act es follows:
                   ”       At' the tine of suoh WdifiO6tiOn      th@
             County’Cis;k shall oolleot    the fees aI.lo:ved him
             by law ror administering the oath and 6PEorov~~
             and filing  the bond of suoh Rotary Publio, together
             with the fee allowed by law to the SeOretarY Or
             State for lssuw     a oomnission to suoh Notary Publls.
                           Any person appointed a Notary Publio
             befor~*e&&ing    upon his offiolal    duties
             sxsoute a bond in the slllp of One Thousmi %$oO)
             Dollars with two or more solvent individuals,      Or
             one solvent surety oompany authorized to do busl-
             ness in this State, 6s surety,     such bond to be aP-
             Proved by the CouMy Clerk or his aounty, payable
             to the Governor, and oonditloned for the faithful
             Eerformnoe or the duties or his offloel      and shall
             also take and subscribe the offi         ,oath Or Ori
             which shall be endorsed on said bond with the oer-
             tlfloat0  or the 0fri0id adminlsterlng the same.
             Said bond tihell.be deposited in the OfflOe Of the
             County Clerk and shall not be void on the first       rO-
             OoYerY and UBY bs sued on In the nam Of the Party
              lnjureh from the TV time until the whole amount
              ~ereot has been reoovered.     . . ,It
                 Artlole 5953, Vernon’s Annotated Civil Statutes,
       (now repealed) sxpres&y provided that notarial bonds must
       br recorded in the offloe of the Oounty Clerk.  However, the
       present law does not require such bonds to be reoordsda
                   The statutes or this State do not provide for any
        Orrtaih or spoolrio fee for the County Clerk in reoordinS
        Mtarial   bonds,  However Article 3930, Vernon’s Amotated
        ‘lvll statutes   provldes’that   the County Clerk shall reoelve
        ta’ Oents (lO#j for eaoh hundred nerds for recording 611
         papers required or permitted by law to be reoorded, not
         Othenrlse Provided for , lnoludlng certltloate  end seal.




                                                                  -
                                                                             519
$k
$
,A.       Honorable John R. Shook, P6ge 4


$,        prior  to the enaotmsnt of Senate Bill No, 335, supre, when
!.’       notarial bonds were required to be reoorded in the offloe oi
1
:..       the County Clerk this statute  (Article 3930) pennltted the
“!        County Clerk to oharge ten cents (log) for cash hundred words
$         ror reoordlng a notarial bond. Prior to the enaotmsnt or
          said Senate Bill No. 335 the County Clerk was entitLed to
          obsrge One Dollar ($1.001 ror the oommiselon of 6 Notary Pub-
          110, whlsh was to be remitted to the Secretary of Stats, and
~2        rifty Sante (5Oc) ror admInIstering the oath or oriloe, rlrty
          osnts (5Og) for approving the bond and ten oents (104) for
g         eaoh hundred words for recording the bond of a Notary Publlo.
-z-       (Artloles ‘3930 and 3914, Vsrnon’s Annotated Civil Statutes),
:q.
ik
                     As heretoiore stated, Senate’ Bill Ho. 335, supra,
3
          &es not require notarial bonds to be reoorded.     Therefore,
-?        it necessarily  follows that the County Clerk should not charge
.$:.      e ree or rirty cents (50#) ior recording the bond as meatloned
          in your letter or any other fee.
.&
                     :?lth referenoe to your second question you are ad-
          vised that it 1s our opinion that where the oath 1s admlnls-
          tered to a Notary Publio by an outside authority the Count
          Clerk is not entitled to oolleot a ree of fifty cents (50#7
          for admlnlcterlng the oath.    Artlole 3930, Vernon’s hnnotated
          %V il Statutes,   expressly provides thet the County Clerk Is
          entitled to a rc0 or fifty cents (50s) for a&nlnlsterlng the
          octh to e Note     Publlo. Before the County Olerk would be
          entitled tn sus1-91fee he would have to administer the oath.
                    “It la well established in this State that statutes
          Prssorlbing fees for publio orrloers are atrlotly construed;
          and hence e right to fees may not rest in impllOatiOn. An
          orricer may not claim or reach any money without 6 law au-
          thnrizing him to do so, and olearly   fixing the amount to whloh
          he 1s entitled. n (See Taxes Jurlsprudenss, Vol. 34, pages 5080
          9-10-3.1 and authorltles cited therein).
                      Ye now oonslder your third question.  Senate’Bill
          ‘O* 335, supra, expressly provides that *said bond shall be
          dePoslted in the office of ths County Clerkn. 'Seoonvtrue
           this Provision of the aot as requiring the Notary Pub110 to
           ‘Us his olriolal bond in the ofilos   of the County Clerk.
          Ry your third qusstlsn you seek our opinion as to whsther r~
           not Senate Blli No. 335, requires the County Clerk to index
      :   notarm- bogs, ; ;j’e answer this question in the nsgatlve.
                                                                  520


Honorable John R. Shook, Page 5


           There are several statutes whioh require the County
Clerk to keep alphabetloal indexes and oross indexes to oer-
tain books and reoords in his ofiioe.    Ronever, Iye fail to
find any statute requiring a County Clerk to keep an index
of notarial bonds. As heretofore stated, the Notary Publio
must rile his offioial  bond with the County Clerk.    In the
ease of Holman v, Ohevaillier’s   Admr., 14 Tex. 337, the oourt
defines and explains the filing   of paperer
            “The flling by the party in our practice oon-
     slsts simply in plaoing the paper in the hands of
     the ale&, to be preserved and kept by bin in his
     offioial    custody as an arohlve or reoord, of whioh
     his offioe beoomss thenoeforward the only ‘proper
     repository.      Thou&h the anolent mode of filing
     papers has gone into disuse, the phraseology of
     the anoient praotioe is retained in the oommonex-
     presdons *to file I, Ito put on file’,        ‘to take
     off the files’,     eto., from ‘filum’,    the thread,
     string or wire usod in anoient praotioe for con-
     neoting the papers together.        The terni ‘fflel  is
     also used to denote the papar plaoed with the olerk
     and assigned by the law to his offloial         keeping.
     A file is a reoord of the court.        St is the duty
     of the olerk, when a paper is thus ylaoed in his
     custody or *filed* with him, to indorse upon it
     the date of its reoeptlon and retain it In hie of-
     fice, subjeot to inspection by whomsoever it mey
     ooncern, and that is r;hat Is mean by his tfilingt
     the paper. But Nhere the law requires or authorizes
     a party to file it, it slmplv mans that he shall
     Plaoe it in the official     custody of the olerk.
     That is all that is required of him.”
           31th reference to the amaunt of fees to be oharged
:OtarY Publies for qualifying you-are. advised that the Coullty
Qef‘k la entitled to oharge One Dollar ($1.00) for the oom-
sssion   of a Rotary Publio whioh is to be remitted to the
"eoretmY   of State, and firty cents (5Od) for sdnMsterinf3
the oath of offfoe when the oath is administered by the
‘OuntY Clerk, fifty oents (504) for approving the bond and
rioe oentS (54) for filing the same.
                                           Yours very truly
 : ; i:GYZrPdhY19, 19M                ATTOXTXY
                                             GZZZUL OF TEXAS ,-
