526
1
b
1
, OFFICE OF THE A-ITORNEY GENERAL OF TEXAS
b AUSTIN
Honorablo John R. Shook
Criminal Dis triot Attorney
Bexar County
San Antonio, Texas
Attention: Hr. T. H. Ridgewoy
Dear Sir a
Your letter equestlng the opinion
of this department o ed therein reads as
r0ii0ws:
on the amun
mmeotion we wish to direot your at-
tion Four of tho recent law emoted
by the 48th Legislature:
At the time 0r suoh qualirioation the
COunti’iierk shall oolleot the fees alloTied him by
law for administering the oath and approving end
filing the bond of suoh Notary Publio, together
.
Honorable Tohn R, Shook, Page 2
wlth the tee allowed by law to the Seoretarp of
State for lssul~ a sonmission to suoh Notary
Publio. ’
%u will observe from Seotion 4 thet the
reoordlng clerk shall oolleot for administering
the oath, approving and filing the bond together
with the ree allowed by law to the Seoretarg Of
the State. Ro mention 1s nade or any fee for
reoording the bond as provided by the prsVlOUs
statute*
*The rirst question is whether or not the
County Clerk should ohorge a fee of 504 for re-
cording the bond aa provided for by the previous
statutea. The seoond question is, in oases where
the oath is administered by an outside authority,
should the County Clerk oolleot the fee of 50#
upon the oath. The third question is whether or
not it Is neoessary under the law as reoently
mended by the Legislature, for the County Clerk
to index the bonds when they do not have to be
reoorded, In order to raollltate in looatlng then
after they are filed, If so, oould a oharge be
made ror same, in plaoe OS recording.
*Due to the State wide lmportanoe of these
three questlone we deea it advisable for us to
submit the questions to you for determination.
"?iedo not know or any deolsion 0r any Court
that night aid us in determining these questions.
Our County Clerk Is under the impression that he
should oharge the 5Og provided for by the preYlOU
law ror reoordlng the bond lfi view of the faot
that the filing and retention of the bonds in his
oifloe would, in a manner, oonstitute a reoord of
the same.
“Theso questions are very urgent at this time
and we would like to request an oplnlon at your
eam88t oonvenienOe.*
Senate Bill No. 335, Aots or the 48th Legislature,
Bs8u1~ Session 1943 ia an aot amending Artiole 5949, yer-
non’s ~Otated’Clvll’Statutea. Said aot expressly repe6l.s
518
Honorable John R, Shook, Page 3
Artloles 5950, 5951 5952 and 5953, Vernon's Annotated OiYil
32, Senate Bill No, 335, supra, expressly provides:
‘$ Statutes.
“This aot my be known and olted as the
Notary Publlo Aot of 1943.”
We quote from said act es follows:
” At' the tine of suoh WdifiO6tiOn th@
County’Cis;k shall oolleot the fees aI.lo:ved him
by law ror administering the oath and 6PEorov~~
and filing the bond of suoh Rotary Publio, together
with the fee allowed by law to the SeOretarY Or
State for lssuw a oomnission to suoh Notary Publls.
Any person appointed a Notary Publio
befor~*e&&ing upon his offiolal duties
sxsoute a bond in the slllp of One Thousmi %$oO)
Dollars with two or more solvent individuals, Or
one solvent surety oompany authorized to do busl-
ness in this State, 6s surety, such bond to be aP-
Proved by the CouMy Clerk or his aounty, payable
to the Governor, and oonditloned for the faithful
Eerformnoe or the duties or his offloel and shall
also take and subscribe the offi ,oath Or Ori
which shall be endorsed on said bond with the oer-
tlfloat0 or the 0fri0id adminlsterlng the same.
Said bond tihell.be deposited in the OfflOe Of the
County Clerk and shall not be void on the first rO-
OoYerY and UBY bs sued on In the nam Of the Party
lnjureh from the TV time until the whole amount
~ereot has been reoovered. . . ,It
Artlole 5953, Vernon’s Annotated Civil Statutes,
(now repealed) sxpres&y provided that notarial bonds must
br recorded in the offloe of the Oounty Clerk. However, the
present law does not require such bonds to be reoordsda
The statutes or this State do not provide for any
Orrtaih or spoolrio fee for the County Clerk in reoordinS
Mtarial bonds, However Article 3930, Vernon’s Amotated
‘lvll statutes provldes’that the County Clerk shall reoelve
ta’ Oents (lO#j for eaoh hundred nerds for recording 611
papers required or permitted by law to be reoorded, not
Othenrlse Provided for , lnoludlng certltloate end seal.
-
519
$k
$
,A. Honorable John R. Shook, P6ge 4
$, prior to the enaotmsnt of Senate Bill No, 335, supre, when
!.’ notarial bonds were required to be reoorded in the offloe oi
1
:.. the County Clerk this statute (Article 3930) pennltted the
“! County Clerk to oharge ten cents (log) for cash hundred words
$ ror reoordlng a notarial bond. Prior to the enaotmsnt or
said Senate Bill No. 335 the County Clerk was entitLed to
obsrge One Dollar ($1.001 ror the oommiselon of 6 Notary Pub-
110, whlsh was to be remitted to the Secretary of Stats, and
~2 rifty Sante (5Oc) ror admInIstering the oath or oriloe, rlrty
osnts (5Og) for approving the bond and ten oents (104) for
g eaoh hundred words for recording the bond of a Notary Publlo.
-z- (Artloles ‘3930 and 3914, Vsrnon’s Annotated Civil Statutes),
:q.
ik
As heretoiore stated, Senate’ Bill Ho. 335, supra,
3
&es not require notarial bonds to be reoorded. Therefore,
-? it necessarily follows that the County Clerk should not charge
.$:. e ree or rirty cents (50#) ior recording the bond as meatloned
in your letter or any other fee.
.&
:?lth referenoe to your second question you are ad-
vised that it 1s our opinion that where the oath 1s admlnls-
tered to a Notary Publio by an outside authority the Count
Clerk is not entitled to oolleot a ree of fifty cents (50#7
for admlnlcterlng the oath. Artlole 3930, Vernon’s hnnotated
%V il Statutes, expressly provides thet the County Clerk Is
entitled to a rc0 or fifty cents (50s) for a&nlnlsterlng the
octh to e Note Publlo. Before the County Olerk would be
entitled tn sus1-91fee he would have to administer the oath.
“It la well established in this State that statutes
Prssorlbing fees for publio orrloers are atrlotly construed;
and hence e right to fees may not rest in impllOatiOn. An
orricer may not claim or reach any money without 6 law au-
thnrizing him to do so, and olearly fixing the amount to whloh
he 1s entitled. n (See Taxes Jurlsprudenss, Vol. 34, pages 5080
9-10-3.1 and authorltles cited therein).
Ye now oonslder your third question. Senate’Bill
‘O* 335, supra, expressly provides that *said bond shall be
dePoslted in the office of ths County Clerkn. 'Seoonvtrue
this Provision of the aot as requiring the Notary Pub110 to
‘Us his olriolal bond in the ofilos of the County Clerk.
Ry your third qusstlsn you seek our opinion as to whsther r~
not Senate Blli No. 335, requires the County Clerk to index
: notarm- bogs, ; ;j’e answer this question in the nsgatlve.
520
Honorable John R. Shook, Page 5
There are several statutes whioh require the County
Clerk to keep alphabetloal indexes and oross indexes to oer-
tain books and reoords in his ofiioe. Ronever, Iye fail to
find any statute requiring a County Clerk to keep an index
of notarial bonds. As heretofore stated, the Notary Publio
must rile his offioial bond with the County Clerk. In the
ease of Holman v, Ohevaillier’s Admr., 14 Tex. 337, the oourt
defines and explains the filing of paperer
“The flling by the party in our practice oon-
slsts simply in plaoing the paper in the hands of
the ale&, to be preserved and kept by bin in his
offioial custody as an arohlve or reoord, of whioh
his offioe beoomss thenoeforward the only ‘proper
repository. Thou&h the anolent mode of filing
papers has gone into disuse, the phraseology of
the anoient praotioe is retained in the oommonex-
presdons *to file I, Ito put on file’, ‘to take
off the files’, eto., from ‘filum’, the thread,
string or wire usod in anoient praotioe for con-
neoting the papers together. The terni ‘fflel is
also used to denote the papar plaoed with the olerk
and assigned by the law to his offloial keeping.
A file is a reoord of the court. St is the duty
of the olerk, when a paper is thus ylaoed in his
custody or *filed* with him, to indorse upon it
the date of its reoeptlon and retain it In hie of-
fice, subjeot to inspection by whomsoever it mey
ooncern, and that is r;hat Is mean by his tfilingt
the paper. But Nhere the law requires or authorizes
a party to file it, it slmplv mans that he shall
Plaoe it in the official custody of the olerk.
That is all that is required of him.”
31th reference to the amaunt of fees to be oharged
:OtarY Publies for qualifying you-are. advised that the Coullty
Qef‘k la entitled to oharge One Dollar ($1.00) for the oom-
sssion of a Rotary Publio whioh is to be remitted to the
"eoretmY of State, and firty cents (5Od) for sdnMsterinf3
the oath of offfoe when the oath is administered by the
‘OuntY Clerk, fifty oents (504) for approving the bond and
rioe oentS (54) for filing the same.
Yours very truly
: ; i:GYZrPdhY19, 19M ATTOXTXY
GZZZUL OF TEXAS ,-