. . 

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-l 66 

Re: Under Article 1970-l 1 Oa, 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. 1 is valid 

since the instrument to which it is sometimes attached is signed in one capacity and 

the certificate is signed 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 7 12, Acts of the 60th Legislature, Regular Session, 1967, 

codified as Article 1970- 1 1 Oa 1, V A C S.: 

“ ‘Is the “‘Congressional Certificate” now being used by the Probate 

Court No. 1 of Harris County, Texas, valid, since the instrument to which it is 

sometimes attached was signed in one capacity, and the certificate 1s slgned in 

another capacity?’ ” 

The certificate which is now being used, reads, in part,. as foilows: 

‘“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 Ed Turrentine, Jr, is 

in due form of law, .” 

Section 1 of Article 1970-l lOa, Vernon’s Civil Statutes, reads as follows: 

“Section One, There is hereby created a County Court to be held in and 

for Harris County, to be called the Probate Court of Hams County ” 

Section 13 of said Article 1970-l 1 Oa provides: 

“Set 13 The County Clerk of Harris County shall be the Clerk of the 

Probate Court of Harris County, The seal of the Court shall be the same as that 

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Honorable Joe Resweber, page 2 (M- 166) 

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

‘Probate Court of Harris County~.’ The Sheriff of Harris 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 

as follows: 

“Section 1 Article 1970-l 10a of Vernon’s Annotated Civil Statutes 

shall be amended so that the Probate Court of Harris County shall hereafter be 

known as the Probate Court No 1 of Harris 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 be judicially noticed.” 

It is clear that this Article, as enacted by the 60th Legislature, in effect, attempts 

to amend both Section 1 and Section 13, supra, by reference, and of course was not published at 

length in the statute, as required by the Constitution of Texas, 

Section 36 of Article III of the 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 a distinct provision conferring additional powers 

upon the board of commissioners Section 36, Art 3, of the 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 is there anything in the nature of 

the provision to take it out of the operation of the Constitution It is not only 

named an amendment. but it is such in its character It adds a prowsion to the 

existing section, and this. according to UN authority judlclal or parliamentary, 

of which we know anything, is un amendment 

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Honorable Joe Resweber, page 3 (M-166) 

‘I 

“But no authority cited, and none that we know of, has held that a 

section of a statute may be amended by adding words to it; without re-enacting 

the entire section as amended, and such a !tolding would be condemned by the 

plain words of the Constitution 

“ 

“It may be true that this act was and is as susceptible of as easy an understanding, in connection with that of which it is an amendment by the Legislature in its passage, by the courts and by the public as if the 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 if the 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 is directed, 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 U S C A I738, it is provided, in part, that the records and judicial 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 of the 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 is in proper forms 

Also, in Section 4 of Arbcle 373 1 a, Vernon’s Civil Statutes,, it is provided that if 

the office in which the record is kept is within the United States, the certificate may be made by 

a judge of the court of record of the dtstrict or political subdivision in which the record is kept, 

authenticated by the seal of his office 

We therefore agree with your conclusion that Section 1 of Chapter 7 12, p. 1835, 

Acts 60th Legislature, R S , 1967, is unconstitutional; nevertheless, the Probate Court of Harris 

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 as Probate Court No 1 pursuant 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 17 1, Judgments, Set I9 

Since the certification IS not void, it is settled that the Law presumes 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 of minis- 

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. . 

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 of judicial 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, if a 

seal exists, together with a certificate of a judge of the court that the said attestation is in proper form A record of a judgment so authenticated proves Itself without further evidence, and such authenticated transcript is sufficient 

without proof of the laws of the sister state showing the orgamzation and jurisdiction 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 is in 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 as required by the act of Congress, which shows 

that the record ts among those of the court of which they are officers. is prima 

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!c Sparks 

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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