Honorable T. J. Rodgers Opinion No. C-714 

District Attorney 

Young County Re: Under Article 14.21, V.C.S., 

Graham, Texas Taxation-General, what is 

the authority of the County 

Judge to act as agent or 

representative of the 

Comptroller of Public 

Accounts and related 

Dear Mr. Rodgers: questions? 

You have requested an opinion of this office on the 

,following questions: 

"1 . Under Article 14.21 what is the authority 

of the county judge to act as agent or representative 

of the Comptroller of Public Accounts? Is it 

necessary that the county judge be designated in 

writing as such by the Comptroller? 

"2 . Under Article 14.22 may the county judge 

designate a representative in a bank, safe deposit 

company or other institution having possession and 

control of papers of a decedent as his agent or 

representative to turn over a will, deed or 

insurance policies to the representative of the 

decedent's estate? 

“3. Does a will delivered to the clerk of the 

probate court have to be filed by the clerk and 

retained In his possession until application for 

probate is made? If there is no necessity for 

probating the will but is filed only as a muniment 

of title, is the clerk still required to retain 

same in his possession and what record, if any, 

is made of it?" 

Article 14.21, Vernon's Civil Statutes, TaxationGeneral, reads in part: 

"No safe deposit company, trust company, 

corporation, bank or other institution, person 

or persons, having in possession or under control 

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Hon. T. J. Rodgers, page 2 (C-714) 

securities, deposits, or other assets belonging 

to a decedent, who was a resident or non-resident, 

or belonging to such a decedent and one or more 

persons, shall deliver the same to the executors, 

administrators heirs, or legal representatives 

of said decedekt or to the survivor or survivors 

when held in the'joint names of a decedent and 

one or more other persons, or upon their order 

or request, unless notice of the time and place 

of such Intended delivery or transfer be served 

upon the Comptroller at least ten (10) days 

prior to said delivery of transfer, and delivery 

to be made only in the presence of the Comptroller 

or his duly authorized agent, who may be the 

County Judge of the county in which said transfer 

transpires, unless the Comptroller, in writing, 

consents to the transfer without his presence. 

And it shall be lawful for the said ComptrolLer, 

or his representative, to examine all of said 

securities, deposits, or assets at the time of 

such delivery or transfer. . . ." 

The statute provides that the County Judge may act 

as the agent of the Comptroller if so authorized by the Comptroller. 

Agency has been defined by the Texas courts: 

"Agency is a legal relationship which is 

based upon a contract, express or implied, of the 

parties or created by the law, by virtue of which 

one party is employed and authorized to act for 

another. The party so employed is the agent and 

the one who so emolovs him is the orincioal. _ _ _' 

Great Southern Life fnsurance Co. v. Wiliiams,-lj5- 

S.W.2d 241 (Tex.Civ.App, 1939, error dism., judgm. 

car.); Hawkins v. Murphy & Bolanz, 112 S.W. 136 

(Tex.Civ.App. 1908, error dism.). 

Since the statute provides that the County Judge "may" 

be the Comptroller's authorized agent, the County Judge does 

not automatically become the Comptroller's agent for the purposes 

of Article 14.21. The agency is not created by law since the 

County Judge is not required to act as the Comptroller's agent. 

Consequently. the laws of contract are applicable; and there must 

be an offer-and acceptance to act as Agent Amber Petroleum Co. 

v. Beech. 111 S.W. 668 (Tex.Civ.Aoo. 1908.'no writ history). 

7i .ithough'written authorization to-act as the Comptrollerls'agent 

is not required by Article 14.21, it woul.d be good practice to 

acquire such authorization in writing from the Comptroller. 

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I 

Hon. T. J. Rodgers, page 

Article 14.22, 

reads as follows: 

3 (c-714) 

Vernon's Civil Statutes, Taxation-General, 

"When It is made to appear to a County Judge 

in this State that a safe deposit company, trust 

company, bank, person, or corporation has in its 

possession or under its control papers of a 

jurisdiction 

decedent 

of whose estate such court has 

that the decedent has leased from such a coi&zEation 

a safe deposit box, and that such papers or such 

safe deposit box may contain a will of the decedent, 

or a deed to a burial plot in which the decedent 

is to be Interred, or a policy of insurance issued 

in the name of the decedent and payable to a named 

beneficiary, he may make an order directing such 

deposit company, trust company, bank, person, or 

corporation to permit a person named in the order 

to examine such papers or safe deposit box in the 

presence of himself, or his duly authorized 

representative, or a representative of the 

Comptroller, and an officer of such safe deposit 

company, trust c,ompany, bank or corporation, or 

agent of such person, and if such documents are 

found among such papers, or in such box, to 

deliver said will to the clerk of the probate 

court of such county, or said deed to such persons 

as may be designated in such order, or said policy 

of insurance to the beneficiary named therein. 

The Clerk of said court shall furnish a receipt 

upon the delivery of the will to him." As 

amended Acts 1963, 59th 

6 7; eff. July 1, 1965. 

Leg., p. 833, ch. 402, 

Article 14.22 comprehends the presence of three separate 

individuals, the person named in the order to examine the papers 

of a decedent or safe deposit box; an officer of the safe deposit 

company, trust company, bank or corporation, or agent of such 

person; and the county judge, or his authorized representative 

or a representative of the Comptroller. Pursuant to the statute, 

the oerson designated in the order to examine the paoers of 

a decedent or safe deposit box must do so in the presence of 

the other two individuals and then deliver the enumerated 

papers so found to parties designated by the statute. There 

is nothing in the statute which would prohibit the person 

designated to examine the papers of a decedent or safe deposit 

box from being an officer or employee of the safe deposit 

company, trust company, bank or corporation; however, such 

person may not at the same time also serve as the County 

Judge's representative or act in behalf of the holder. 

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Hon. T. J. Rodgers, page 4 (C-714) 

In answering your third question, we must look to 

Article 1942, Vernon's Civil Statutes, and Section 71(e) of the 

Texas Probate Code. 

Article 1942 reads as follows: 

"They fiounty clerks7 shall be keepers of the 

records, bozks , papers aiid proceedings of their 

respective courts in civil and criminal cases and 

in matters of probate, 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." 

And Section 71(e), Texas Probate Code, reads as follows: 

"If there shall be submitted to the bounty7 

clerk an affidavit to the effect that thetestaf;or 

of any will deposited with the clerk has died, or 

if the clerk shall receive any other notice or proof 

of the death of such testator which shall suffice to 

convince him that the testator is deceased, the 

clerk shall notify by registered mail with return 

receipt requested the person or persons named on 

the indorsement of the wrapper of the will that the 

will is on deposit in his office, and, upon request, 

he shall deliver the will to such person or persons, 

taking a receipt therefor. If the notice by 

registered mail is returned undelivered, or if a 

clerk has accepted a will which does not specify 

on the wrapper the person or persons to whom it 

shall be delivered, the clerk shall open the wrapper 

and Inspect the will, If an executor is named in 

the will, he shall be notified by registered mail, 

with return receipt requested, that the will is 

on deposit, and, upon request, the clerk shall 

deliver the will to the person so named as executor. 

If no executor is named in the will, or if the 

person so named is deceased, or fails to take the 

will within thirty days after the clerk's notice 

to him is mailed, or if notice to the person so 

named is returned undelivered, the clerk shall 

give notice by registered mail, with return receipt 

requested, to the devisees and legatees named in 

the will that the will is on deposit, and, upon 

request, the clerk shall deliver the will to any 

or all of such devisees and legatees." 

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. . 

Hon. T. J. Rodgers, Page 5 (c-714) 

Section 75, Texas Probate Code, and Section 14.22, 

Vernon's Civil Statutes, require the delivery of the will to the 

clerk after the death of the testator. Section 71, Texas Probate 

Code, is concerned with the depositing of the will with the 

clerk during the testator's lifetime. Even though the two former 

statutes do not indicate whether the clerk may return the will 

after filing It is the opinion of this office, in the light of 

Section 71(e), that the will once filed with the clerk, may, 

thereafter, be delivered to the executor, or the devisees or 

legatees under the will prior to probate. All wills delivered 

to the clerk under the above statutes must be numbered in 

consecutive order and indexed. In the absence of a request 

for delivery of the will by one of the above parties, it is the 

clerk's duty under Article 1942 to retain and preserve the will. 

As concerns the second part of your third question, it 

must be oointed out that a will mav not be used as a muniment 

of title-unless it has been probated, Ochoa v. Miller 

463 (1883); Moursund v. Priess, 84 Tex. 554 19 S.W. f7~9(%$'); 

White v. White, 142 Tex. 499, 179 S.W.2d 53; (1944). 

Section 89 of the Texas Probate Code allows the 

probating of,wills as Muniments of Title. 

II 

. . . In each instance where the Court is 

satisfied that a will should be admitted to probate, 

and where the Court is further satisfied that there 

are no unpaid debts owing by the estate of the 

testator, excluding debts secured by liens on real 

estate, or for other reason finds that there is 

no necessity for administration upon such estate, 

the Court may admit such will to probate as a 

Munlment of Title." 

If the will is probated as a Muniment of Title, Section 

33 of the Texas Probate Code applies. 

Section 93 reads as follows: 

"All original wills, together with the probate 

thereof, shall be deposited in the office of the 

county clerk of the county wherein the same shall 

have been probated, and shall there remain, except 

during such time as they may be removed for 

inspection to another place upon order by the 

court where probated. If the court shall order 

an original will to be removed to another place 

for inspection, the person removing such original 

will shall give a receipt therefor, and the clerk 

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I . 

Hon. T. J. Rodgers, page 6 (C-714) 

of the court shall make and retain a copy of such 

original will." Acts 1955, 54th Leg., P. 88, ch. 55. 

Since the foregoing cases and statutes indicate that 

a will must be probated before it may be used as a muniment of 

title, a will used as a munlment of title should be filed, 

probated, and recorded as in the case of normal probated wills 

and retained accordingly. 

SUMMARY 

The County Judge is not required by statute 

to act as the Comptroller's agent under Section 

14.21, Vernon's Civil Statutes, but may be his 

agent if authorized. 

In accordance with Section 14.22, Vernon's 

Civil Statutes, the person designated in the 

County Judge's order to examine the papers and 

safety deposit box of a decedent may be an officer 

of the bank, safe deposit company or other 

institution having possession and control of the 

papers of the decedent. However, the person so 

designated may not at the same time serve as 

the County Judge's representative or act in behalf 

of the holder. 

All wills delivered to the clerk under either 

14.22 or the Texas Probate Code must be numbered 

in consecutive order and indexed. In the absence 

of a request to deliver the will of the decedent 

to the executor or devisees or legatees under the 

will, it is the clerk's duty under Article 1942, 

Vernon's Civil Statutes, to retain and preserve 

the will. 

A will may not be used as a muniment of title 

unless probated; and once probated, Section 90 of 

the Texas Probate Code requires the county clerk 

to retain possession of the original will, and 

probate thereof, in the absence of a court order 

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Hon. T. J. Rodgers, page 7 (C-714) 

allowing the probated will to be removed to another 

place for Inspection. 

Very truly yours, 

WAGGONER CARR 

Att,orney Oeneral 

By: 

Wade Anderson 

Assistant 

WA:ml 

APPROVED 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

Pat Bailey 

James McCoy 

Gordon Cass 

Bill Allen 

Marietta Payne 

APPROVED FOR THE ATTORNEY GENERAL 

By: T. B. Wright 

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