## E Y GENERAL

GWAID C. MANN AUSTIN ~I.TEXAS

AlTORNEY GENE-I.

Honorable W. A. Davis State Registrar State Board ofHealth Austin, Texas Dear Sir: OpinionNO. o-2672 He: Whether special county judge electedby a bar may passupon delayed registration of birth certificates. This will acknowledge receipt of your letter of August 22, 1940, supplementedby yours of September 14, requesting the opinion of this department as to whether or not a special county judge electedby the members of the Webb County Bar in the sbsence from ths county of the regular oountg judge,may pass upon the delayed reglztratlon of blrth certlflcatesas provldsd for In House Bill No. 614, Aats 1939,Forty-sixth Legislature, page 346.
House Bill No. 614, supra, reads Ln part as follows:

“lAndprovided further, that any citizen of the State of Texas wishing to fFle the record of any birth ordeath, not prevlouslgregistered, may submit to the Probate Court in the county where the birth ordeath occurred,a record of that birth ordeath written on the adopted forms of birth and death certificates. The certlficate shall be substantiatedby the affidavit of the medical attendant present at the time of the birth, or in case ofdeath, the affidavit of the physician last in attendanceupon the deceased, or theundertaker who buried the body. When the affidavit of the medical attendant orundertaker cannot be secured, the certificate shall be supported by the affidavit of some personwho was acquaintedwith the facts surroundingthe blrth or death, at the time the birth or death occurred, with a second affidavit of some personwho is acquaintedwlth the facts surroundingthe djlrth or death, and who is not related to the Individual by blood or marriage. The Probate Court shall require such other informationor evidenceas may be deemed necessary to establishthe cltlzenshipHonorable W. A. Davis, page 2 o-2672

of the individual filing the certificate,and the truthfulness of the statementsmade in that record. The Clerk of the said Court shall forward the certificate to the State Bureau ofVital Statistics with an order from the Court of the State Registrar that the record be, or be not, accepted. The State Registrar is authorized to accept the certificate when verified in the above manner, and shall issue certified copies of such records as provided for in Section 21 of thisAct. Such certified copies shall be prima facie evidence in all Courts and places of the facts stated thereon. The State Bureau ofVital Statistics shall furnish the formsupon which such recordsare filed,and no other form shallbe used for that purpose.'" Article 1934,Vernon's Annotated Civil Statutes,provides for the election of a special county judge in the absence of the regular county judge,and this article reads as follows:

“Ifa county judge fails to appear at the time appointed for holding the court, or should he be absentduring the term orunable or unwllllng to hold the court, a special county judgemay be elected In likemanner as is provided for the election of a specialdistrict judge. The special county judge so elected shall have all the authority of the county judgewhile in the trial and dlsposltion of any case pending in said court during the absence, inability, or such refusal of the county judge. Similar electionsmay be held at any time during the term, to supply the absence, failure or inability of the county judge, or any special judge,to perform the duties of the offlco. When a special county judge shall have been so elected, the clerk shall enterupon the mlnutes of the court.a record such as is provided for in like cases in a dlstrlct court.'"
It will be noted that Article 1934 provides for the election of a special county judge in the absence of a regular county judge “In like manner as is provided for the election of a specialdlstrlct judge".

Articles 1887 through 1862, ofVernon's Annotated Civil Statutes, reads as follows:

"Article 1887. Should the judge of a district court on the first or any futureday of a term, fall or refuse to hold the court, theHonorable W. A. Davis, page 

### 3 o-2672

practicing lawyers of the court presentmay elect from among thelr number a special judgewho shall hold the court and proceedwith the business thereof.‘I “Article 

### 1888. Such election shallbe by bal .lot,and eachpracticing lawyer in attendance at such court shallbe entitled to participate In such electionand shall be entitled to one vote. A majority of the votes of the lawyers partlclpatlng shall be necessary to the election of such special judge.” “Article 

### 1889. The election shall be conducted as follows: The sheriff or constable shallmake proclamationat the court housedoor that the election of a special judge of the court is about to be made by the practicing lawyers present; the clerk shall thenmake a list of the practicing lawyerspresent; and such lawyers shall then organize and hold the election.” "Article 1890. Should the sheriff, constable, and clerk, or either of them, fall or refuse to act, the saidpracticing lawyersmay neverthelessproceed to organize themselves into such electoralbody, and appoint a sheriff and clerk pro tempore to do the duties of such officers respectively.” “Article

### 18%. The clerk shall enterupon the minutes of the court a record of the election of such special judge, showing: “1

. The names of all the practicing lawyers present and participating In such election. “2

. The fact that the public proclamation was made at the court housedoor that such election was about to take place. 

### "3

. The number of ballots polled at such electionand the number polled for eachperson, and the result of the election. 

### "4

. That the oath prescribedby law has been duly administered to the special judge.”
“Art lcle 1892

. The record of such proceedings,HonorableW. A. Davis, page 

### 4 O-2672

substantiallycomplyingwith the requirements of the law, shall be conclusive evidence of the election and qualification of such special judge."
We mst assume (In the absence of facts to the contrary) the the provisions ofArticle 3.934 and likewise,Articles 1887- 1892, have been strictly followed,and also that the conditions therein statedglvlng rise to the appointment of a special county judgewere present.

This being true, a special county judge so electedhas, in the language of the statute, "allthe authority of a county judge in the trial and disposition of any case pending In said courtduring the absence.

. . of the county judge”; and you are respectfullyadvised that in the opinion of this department such duly elected special county judgemay entertainproceedings for the delayed reglstratlon of births as provided for In House Bill No. 

### 614,Acts 1939,Forty-sixth Legislature. Very truly yours ATTORNEY GENERAL OF TEXAS

JDS:LM:wc By s/JamesD. Smullen JamesD. Smullen Asslstant

APPROVm OCT 7, 1940 s/Gerald C. Mann ATTORNEY.GENWAL OF TEXAS Approved OpMion Committeeby s/BWB Chairman