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                       'THE   ATTORNEY             GENERAL
                                   QFTEXAS
                               AUSTIN,     TEXAS   'S'S?rlEi
CIIAwlru-      C. MARTIN
   AT-rORNEY   OEN&RAl-
                                    April 22, 1970


        Honorable Joe Resweber               Opinion No. M- 615
        County Attorney
        Harris County Courthouse             Re: Respective duties of the
        Houston, Texas 77002                     County Clerk in regard
                                                 to Probate matters in Pro-
                                                 bate Court No. 2, Harris
                                                 County, Texas

        Dear Sir:

               You have requested an opinion from this office on the

        following questions:

                    "1. What are the duties of the Probate Clerk
               with respect to the Probate Court?

                    "2 . Under whose directions are probate instru-
               ments to be filed, the Probate Court or the Probate
               Clerk?

                    "3 . Can the Probate Court require possession of
               any estate folder pending in its Court, and for what
               length of time?

                    "4 . Can the Probate Clerk require the Probate
               Judge to return an estate file folder to the Probate
               Clerk?

                    "5 . Can the Probate Judge direct the Probate
               Clerk as to which instrument will or will not be filed
               by the Court in estate matters?




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Honorable Joe Resweber, page 2(M-615)



          "6 . Can the Probate Clerk require all probate
     instruments whether acted upon or not by the Court
     to be filed in the estate file?

          "7 * Do estate files belong to the Probate Court
     or the Probate Clerk?"

     We will consider your questions in the order in which they
are stated.

         "1 . What are the duties of the Probate Clerk
    with respect to the Probate Court?"

     Section 11 of the Probate Code provides:

          "All applications for probate proceedings, com-
    plaints, petitions and all other papers permitted or
    required by law to be filed in the court in probate
    matters, 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 official signature."

     Section 13 of the Probate Code provides:

          "The county clerk shall keep a record book to be styled
     'Judge's Probate Docket,' and shall enter therein:

          (a) The name of each person upon whose person
     or estate proceedings are had or sought to be had.

           (b) The name of the executor or administrator
     or guardian of such estate or person, or of the
     applicant for letters.

           (c) The date of the filing of the original
     application for probate proceedings.




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 ,    1




Honorable Joe Resweber, page 3 (M-615)



          (d) A minute of each order, judgment, decree,
     and proceeding had in each estate, with the date
     thereof.

          (e) A number for each estate upon the docket
     in the order in which proceedings are commenced, and
     each paper filed in an estate shall be given the
     corresponding docket number of the estate.*

     Section 14 of the Probate Code provides:

           "The county clerk shall also keep a record book
     to be styled 'Claim Docket,' and shall enter therein
     all claims presented against an estate for approval
     by the court. This docket shall be ruled in sixteen
     columns at proper interval6 from top to bottom, with
     a short note of the contents at the top of each column.
     One or more pages shall be assigned to each estate.
     The following information shall be entered in the
     respective columns beginning with the first or margin-
     al column: The names of claimants in the order in which
     their claims are filed: the amount of the claim: its
     date; the date of filing: when due; the date from which
     it bears interest: the rate of interest; when allowed by
     the executor or administrator or guardian: the amount
     allowed: the date of rejection; when approved: the amount
     approved: when disapproved: the class to which the claim
     belongs: when established by judgment of a court: the
     amount of such judgment,"

     Section 15 of the Probate Code provides:

          "The county clerk shall keep a record book styled
     'Probate Minutes,' and shall enter therein in full all
     orders, judgments, decrees, and proceedings of the
     court, together with the following:

           (a) All applications for the probate of wills
     and for the granting of administration or guardian-
     ship.




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Honorable Joe Resweber, page 4 (M-615)



          (b) All citations and notices, whether pub-
     lished or posted, with the returns thereon.

          (c) All wills and the testimony upon which the
     same are admitted to probate, provided that the sub-
     stance only of depositions shall be recorded.

          (d)   All bonds and official oaths.

          (e) All inventories, appraisements,   and lists
     of claims.

          (f)   All exhibits and accounts.

          (g)   All reports of hiring, renting, or sale.

         (h) All applications for sale or partition of
    real estate and reports of sale and of commissioners
    of partition.

          (i) All applications for authority to execute
    leases for mineral development, or for pooling or
    unitization of lands, royalty, or other interest in
    minerals, or to lend or invest money.

          (j)   All repor? of lending or investing money."

    Section 16 of the Probate Code provides:

         "The county clerk shall keep a record book styled
    'Probate Fee Book,' and shall enter therein each item
    of costs which accrues to the officers of the court,
    together with witness fees, if any, showing the party
    to whom the costs or fees are due, the date of the
    accrual of the same, the estate or party liable there-
    for, and the date on which any such costs or fees are
    paid."




                           -2938-
Honorable Joe Resweber, page 5 (~-615)



     Section 17 of the Probate Code provides:

          "The county clerk shall properly index each
     record book and shall keep it open for public
     inspection, but shall not let it out of his custody."

     Section 23 of the Probate Code provides:

          "All decisions, orders, decrees, and judgments
     of the county court in probate matters shall be
     rendered in open court except in cases where it is
     otherwise specially provided.  The probate minutes
     shall be approved and signed by the judge on the
     first day of each month except, however, that if
     the first day of the month falls on a Sunday, such
     approval shall be entered on the preceding or
     succeeding day."

     Section 108 of the Probate Code provides:

          "The provisions, rules and regulations which
     govern estates of decedents shall apply to and
     govern guardianships, whenever the same are appli-
     cable and are not inconsistent with any provision
     of this Code."

     Section 6 of Article 1970-llOa.2, Vernon's Civil Statutes,
reads as follows:

         "Sec. 6. The practice and procedure in the Pro-
    bate Court No. 2 of Harris County shall be the same
    as that provided by law generally for the county
    courts of this State; and all statutes and laws of the
    State as well as all Rules of Court relating to pro-
    ceedings therefrom, shall, as to all matters within the
    jurisdiction of said Court, apply equally thereto."




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Honorable Joe Resweber, page 6 (~-615)



     Section 15 of Article 1970-llOa.2, Vernon's Civil Statutes,
reads as follows:

          "Sec. 15. The County Clerk of Harris County
     shall be the Clerk of the Probate Court No. 2 of
     Harris County. The seal of the Court shall be the
     same as that provided by law for county courts except
     that the seal shall contain the words 'Probate Court
     No. 2 of Harris County, Texas.', and said seal shall
     be judicially noticed. The Sheriff of Harris County
     shall, in person or by deputy, attend the Court when
     required by the Judge thereof."

     There appears to be no question that the County Clerk of
Harris County is to serve Probate Court No. 2 of Harris County
in the same manner provided by law for the County Court for Pro-
bate Court No. 1 of Harris County.

     Article 1942, Vernon's Civil Statutes which pertains to
custody of records by County Clerks, reads as follows:

          "They shall be keepers of the records, books,
     papers and proceedings of their respective courts
     in civil and criminal cases and in matters of pro-
     bate, 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."

     The statutes quoted above clearly indicate that the County
Clerk shall be the keeper of all instruments filed in the Probate
Courts of the State.

     It must be borne in mind, though, that one of the prime tasks
of a clerk of court is to serve the court and in many respects he
is an officer of the court and subject to the court's control. In
the performance of his duties as a ministerial officer of the court,
the clerk is subject to the con,trol of the court. 15 Am.Jur.2d 527,




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Honorable Joe Resweber, page 7 (M-615)



Clerks of Court, Sec. 21. The duty of the clerk is purely
ministerial when it is prescribed by statute. People v. May,
95 N.E. 999 (Sup.Ct.111. 1911, writ dismd.).  15 Am.Jur.2d 528,
Clerks of Court, Sec. 21. As indicated above by statutory
authority, it is the duty of the County Clerk to make and keep
an accurate record of the proceedings in his court and of what
the court orders and adjudges.

     The statutes quoted above plainly indicate that the County
Clerk is custodian of the probate records.

     It is our opinion that the prime function of the office of
a County Clerk is to serve his Court, being the official custo-
dian of the Court records and he is charged by law with the
strict duty to preserve said records. The duties of the County
Clerk with respect to the Probate Courts are:

     (1) to serve in a ministerial capacity for the court,
     (2)   act as custodian of its records,

     (3)   receive money in his official capacity as authorized
           by statute,

     (4)   keep the seal of the court,

     (5)   file all papers tendered for filing and docket all
           motions, and

     (6)   issue and prepare all process a party or his agent
           or attorney may direct.

     Your question No. 2 reads as follows:

          "2 . Under whose directions are probate instru-
     ments to be filed, the Probate Court or the Probate
     Clerk?"




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Honorable Joe Resweber, page 8 (M-615)



     In reading the provisions of Sections 11, 13, 14, 15, and
16, Probate Code, supra, it seems clear that the Probate in-
struments are to be filed under the direction of the County
Clerk.

     Your question No. 3 reads as follows:

          "3 . Can the Probate Court require possession of
     any estate folder pending in its Court, and for what
     length of time?“

      There of course is no question but that the Judge of the
Probate Court can require possession of any estate folder pend-
ing in its Court, as it is necessary for the Court to have the
Probate instruments before him whereby the Court may perform
his Judicial function in entering orders pertaining to the Es-
tate.

     After the Probate Judge has entered any necessary orders
and performs such judicial functions as is necessary in regard
to an estate then such files should be returned to the Probate
Clerk whereby the Probate Clerk can properly record such orders
of the Court.

     Your question No. 4 reads as follows:

           "4 . Can the Probate Clerk require the Probate
     Judge to return an estate file folder to the Probate
     Clerk?"

     You have advised this office that the Clerk of the Court has
placed Deputy Clerks in each Court served to make available for
Judicial action by the Court the records which have been filed
in each Probate matter.  It therefore appears that technically
speaking the Probate Clerk, through his Deputy, has in his pos-
session at all times the Probate records.




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Honorable Joe Resweber, page 9 (M-615)



       Your question No. 5 reads as follows:

            "5 . Can the Probate Judge direct the Probate
       Clerk as to which instrument will or will not be
       filed by the Court in estate matters?"

     It appears from reading Sections 11, 13, 14, 15, 16, 23 and
108, of the Probate Code, supra, that the Probate Clerk is fully
apprised as to what instruments are to be filed and recorded in
regard to estate matters, and in particular, Section 15, which
requires the Probate Clerk to enter therein in full all orders,
judgments, decrees, and proceedings of the Court. For any such
order, judgment or decree of the Court to be recorded, such order,
judgment or decree, would of necessity, have to be signed and
approved by the Probate Judge before such could become an order,
judgment or decree of the Court. The Court held in Blackwood v.
Blackwood's Estate, 92 Tex. 478, 47 S.W. 483 (1898) that orders
not entered are void: see also Burton v. McGuire, 41 S.W.2d 238
(Tex.Comm.App. 1931), and Teaoue v. Swasey, 102 S.W. 458 (Tex.
Civ.App. 1907, error dism.).

       Your question No. 6 reads as follows:

            "6. Can the Probate Clerk require all probate
       instruments whether acted upon or not by the Court
       to be filed in the estate file?"

     No answer is made to this question and your attention is
directed to our answer to your question No. 5, supra.

       Your question No. 7 reads as follows:

            "7 . Do estate files belong to the Probate Court
       or the Probate Clerk?"

     Estate files in all Probate cases, belong in the custody and
possession of the Probate Clerk, until such time as it becomes




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Honorable Joe Resweber, page 10 (M-615)



necessary for the Probate Judge to have such estate files in its
possession for the purpose of entering any proper judgments,
orders or decrees in such estate matters.  These files should re-
main with the Judge of the Probate Court for such reasonable
time as may be necessary for the Judge to make and enter his or-
der, judgment, or decree in regard to such estate. After such
order, judgment, or decree has been entered by the Probate Judge
then such estate file should be returned to the Probate Clerk.


                         SUMMARY

          1. The duties of the County Clerk with respect
     to the Probate Courts are (1) to serve in a ministerial
     capacity for the court (2) act as custodian of its
     records (3) receive money in his official capacity as
     authorized by statute (4) keep the seal of the court
     (5) file all papers tendered for filing and docket
     all motions (6) issue and prepare all process a party
     or his agent or attorney may direct.

          2.  Probate instruments are to be filed under the
     direction of the County Clerk since the duties of the
     Office of the County Clerk are prescribed by statute.

          3. The Probate Court can require that the County
     Clerk provide him with the file of a particular case
     in order that the Court may perform its judicial func-
     tions, but the Court cannot operate in derogation of
     the Clerk's function as custodian of the records by
     holding the files when it is not performing judicial
     functions.

          4. The County Clerk having a Deputy Clerk serving
     each Court is technically in possession of the Probate
     records at all times.




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Honorable Joe Resweber, page 11 (M-615)



              5.  Sections 11, 13, 14, 15, and 16 of the Probate
         Code fully apprise the Probate Clerk as to which instru-
         ments are to be filed.

              6.  The estate files belong in the possession of
         the Probate Clerk subject to being turned over to the
         possession of the Probate Judge for the purpose of
         entering any proper judgments, orders, or decrees in
         such estate matter, or other judicial functions.




                                   Attor@   General of Texas

Prepared by John H. Banks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman

John Grace
Woodrow Curtis
Gordon Cass
Fisher Tyler

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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