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# TEKE ATTBRNEY GENERAL OF -XAS

Honorable Joe Resweber County Attorney of Harris County Harris County Courthouse Houston, Texas 77002

Dear Mr.Resweber: Opinion No M-l66 Re: Under Article 1970-l 1Oa,1, Vernon’s Civil Statutes (Acts 60th Legislature, R.S , 1967, Ch 712, pi 1835), whether the “Congressional Certificate” now in use by the Harris County Probate Court No. 1isvalid since the instrument to which it is sometimes attached issigned in one capacity and the certificate issigned in another capacity, In your request for an opinion from this office you state the following: “ ‘The Honorable Jack Smith, Judge of the Probate Court of Harris County, has directed the following inquiry to this office concerning the recently passed Chapter 712,Acts ofthe 60th Legislature, Regular Session, 1967, codified asArticle 1970-11Oa1,VACS.: “ ‘Is the “‘Congressional Certificate” now being used by the Probate Court No. 1of Harris County, Texas, valid, since the instrument to which it is sometimes attached was signed in one capacity, and the certificate 1sslgned in another capacity?’ ” The certificate which isnow being used, reads, inpart,.asfoilows:

‘“I,Jack Smith, sole and presiding judge of Probate Court No, 1, formerly designated Probate Court, in and for Harris County, Texas, do hereby certify that the foregoing attestation and certificate of R EdTurrentine, Jr, is in due form oflaw,

.” Section 1 of Article 1970-l lOa, Vernon’s Civil Statutes, reads as follows: “Section One, There ishereby created aCounty Court to be held in and for Harris County, to be called the Probate Court ofHams County ” Section 13of said Article 1970-l 1Oaprovides: “Set 13 The County Clerk of Harris County shall be the Clerk ofthe Probate Court of Harris County, The seal of the Court shall be the same asthat -798-Honorable Joe Resweber, page 2(M-166)

provided by law for County Courts, except that the sealshall contain the words

‘Probate Court of Harris County~.’The Sheriff ofHarris County shall, in person or by deputy, attend the said Court when required by the Judge thereof ” Almost all of the sixteen sections of this statute refer to the Probate Court of Harris County, Texas.

Section 1 of Chapter 712, p, 1835, Acts 60th Legislature, R S., 1967, provides asfollows: “Section 1 Article 1970-l 10a of Vernon’s Annotated Civil Statutes shall be amended so that the Probate Court ofHarris County shall hereafter be known as the Probate Court No 1ofHarris County, Texas, and the seal of said Court shall hereafter be the same as that provided by law for county courts, except that the seal shall contain the words: ‘Probate Court No 1 of Harris County, Texas.‘, and said seal shall bejudicially noticed.” It is clear that this Article, asenacted by the 60th Legislature, in effect, attempts to amend both Section 1and Section 13, supra, by reference, and ofcourse wasnot published at length in the statute, asrequired by the Constitution ofTexas,

Section 36 ofArticle III ofthe Texas Constitution states that: “No law shall be revived or amended by reference to its title; but in such case the Act revived, or the section or sections amended, shall be reenacted and published at length,” In Henderson v Cify of Galveston, 102 Tex 163, 114 SW 108 (1908), the Court states: “By referring to the charter it will be seen that section 34, the one amended, is not reenacted in the amendatory act; the amendment being accomplished by the addition of adistinct provision conferring additional powers upon the board of commissioners Section 36,Art 3,

### ofthe Constitution, provides: ‘No law shall be revived or amended by reference to its title; but m such case the act revived or the section or sections amended shall be *e-enacted and published at length ’In its language and structure the statute plainly violates this provision By its very terms it undertakes to amend Section 34 of the charter, and that section as amended is not re-enacted, and of course cannot be published at length in the new statute Nor isthere anything in the nature of the provision to take it out of the operation ofthe Constitution It isnot only named an amendment. but it issuch in its character It adds aprowsion to the existing section, and this. according to UN authority judlclal orparliamentary, ofwhich we know anything, isunamendment -199.Honorable Joe Resweber, page 3(M-166)

‘I “But no authority cited, and none that we know of, has held that a section ofastatute may be amended by adding words to it; without re-enacting the entire section as amended, and such a !tolding would becondemned by the plain words of the Constitution “ “It may be true that this act was and isassusceptible of aseasy an understanding, in connection with that of which it isan amendment by the Legislature in its passage, by the courts and by the public as ifthe original section, with the new provision included, has been re-enacted and published at large. As much, perhaps, might be said in favor of many statutes which do not conform to the Constitution. It may even be doubted ifthe good accomplished by the constitutional provision compensates for the inconvenience It causes. But it must be remembered not only that the provision is intended to prevent the mischiefs against whicl? it isdirected, but that it seeks to accomplish this by a comprehensive and unbending yule, striking down all statutes which do not conform to it From that rule the Constitution makes no e.uceptions, and neither the Legislature nor the courts have the right to make them (Emphasis added )In 28 USCA I738, it is provided, in part, that the records andjudicial proceedings of any court of a state, or copies thereof, shall be proved or admitted in other courts within the United States and its territories or possessions by the attestation ofthe clerk and the seal of the court annexed; if a seal exists, together with a certificate of the judge of the court that said attestation isin proper forms

Also, in Section 4 of Arbcle 373 1a, Vernon’s Civil Statutes,, it isprovided that if the office in which the record iskept iswithin the United States, the certificate may be made by ajudge of the court of record of the dtstrict or political subdivision in which the record iskept, authenticated by the seal ofhis office

Wetherefore agree with your conclusion that Section 1ofChapter 712,p. 1835, Acts 60th Legislature, R S , 1967, is unconstitutional; nevertheless, the Probate Court ofHarris County still exists and the judge of that court had the authority to make the certifications at all times, although the certificate is defective on its face in erroneously reciting the designatton of the court asProbate Court No 1pursuant to the unconstitutional statute, Under the general rule, the court’s act is not void when the court in fact had jurisdiction and such a defect would not preclude the certificate from being effective 30 Am Jur 2d 171,Judgments, Set I9

Since the certification ISnot void, it is settled that the Lawpresumes the validity and regularity of the official acts of public officers wrthin the lme of their official duty, which presumption obtains, until overcome by proof, as to all acts mvolving the performance ofminis- -800-. .

Honorable Joe Resweber, page 4 (M-166)

terial or administrative duties. In 30 Am Jur 2d 118, Evidence, Section 989, it is stated:

“The federal statute relatmg to the authentication ofjudicial records provides that the records and judicial proceedings of any court of any state; territory, or possession of the United States, or copies thereof, shall be proved or admitted in other courts within the United States and its territories and possessions by the attestation of the clerk and the seal of the court annexed, ifa seal exists, together with a certificate of ajudge of the court that the said attestation is in proper form A record of ajudgment so authenticated proves Itself without further evidence, and such authenticated transcript is sufficient without proof of the laws ofthe sister state showing the orgamzation andjurisdiction of the courts. If the court in which the record was made has been abolished, and its records transferred to another court, these facts need not be shown by proof of the statutes of the state authorizing the change; the certificate of the clerk settmg out such facts, together with the usual certificate of the judge that the attestation isin proper form, is all that is needed A transcript of a record from another state properly authenticated by certificates of the judge and clerk of court asrequired by the act of Congress, which shows that the record ts among those ofthe court ofwhich they are officers. isprima facie admissible in evidence, although the record itself purports to belong to another court, .‘~ SUMMARY Although Section 1 of Chapter 712, p 1835) A& 60th Legislature, R S , 1367, is unconstitutional, the “Congressional Certificate” now in use by the Harris County Probate Court No 1 is not void so as to preclude its effectiveness

Prepared by Jac!cSparks Assistant Attorney General APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman. 1

Honorable Joe Resweber, page 5(M-166)

W.V. Geppert Brandon Bickett Alan Minter Alvin Zimmerman A.J. CARUBBI, JR. Staff Legal Assistant

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