12.2017

HONORABLE NANCY TANNER

Potter County Judge

500 S. Fillmore, Suite 103

Amarillo, Texas 79101

(806) 379-2250

Email: shannonbarnett@mypottercounty.com

Court Policy Regarding "Pro Se" Applicants

(Applicants without an Attorney)

People who represent themselves in court are called "pro se" or "self-represented" litigants.

You are not required to have a lawyer to file papers or to participate in a case in court. You have

a right to represent yourself. However, a pro se may not represent others. Under Texas law, only a

licensed attorney may represent the interests of third-party individuals or entities, including

guardianship wards and probate estates. See Steele v. McDonald, 202 S. W. 3d 926 (Tex. App. -

Waco, 2006.), and the authorities cited in that opinion. Therefore, individuals applying for letters

testamentary, letters of administration, determinations of heirship, and guardianships of the person

or estate must be represented by a licensed attorney. The only time a pro se applicant may proceed

in court is when truly representing only himself or herself.

Frequently Asked Questions

Q: What is a pro se?

A: A pro se is an individual who has not hired a lawyer and appears in court to represent

himself and no other person or entity.

Q: Can I still serve as an executor, administrator, or guardian even though I'm not a lawyer?

A: Yes. One need not be a lawyer to serve as an executor, administrator, or guardian.

However, the executor, administrator, or guardian must be represented by counsel.

Q: But I'm the only one that needs letters testamentary. As executor, how would I be

representing the interests of others?

A: As executor of a decedent's estate, you don't represent only yourself. An executor

represents the interests of beneficiaries and creditors. This responsibility to act for the

benefit of another is known as a fiduciary relationship. It gives rise to certain legal

obligations and responsibilities that require legal expertise. The attorney you hire

12.2017

represents you in your capacity as executor and assists you in representing those for whom

you are responsible.

Q: If I get the paperwork from a law library or the internet, can I fill it out and file it? Isn't that

what lawyers do?

A: Lawyers don't just fill out forms. Lawyers (1) determine what method of probate or

guardianship is appropriate in a particular situation, (2) create or adapt any necessary

paperwork, and (3) advise the client about the ongoing responsibilities of a fiduciary.

Unless you are a lawyer, you're creating legal pleadings while acting as a fiduciary would

constitute the unauthorized practice of law.

Q: As a pro se, what proceedings can I do on my own?

A: The only proceedings you can handle as a pro se are those in which you truly would be

representing only yourself. For example, a pro se applicant may probate a will as a

muniment of title when he or she is the sole beneficiary under the will, and there are no

debts against the estate other than those secured by liens against real estate. This procedure

can be a viable option in some situations, but not in others. Whether a muniment of title is

the correct probate procedure for a particular situation is a legal decision best made by a

lawyer.

Q: What procedures should I follow if I want to probate a will as a muniment of title as a pro

se applicant?

A: As stated above, whether a muniment of title is the correct probate procedure for a

particular situation is a legal decision best made by a lawyer; Court staff cannot guide you

or advise what you should do in your case. If you decide to proceed with your case without

an attorney, the County Law Library has reference materials that may be helpful. Note the

following: (1) To probate a will as a muniment of title, each applicant must be able to swear

on personal knowledge that there are no debts against the estate other than those secured

by liens against real estate. Anyone falsely swearing that the estate has no creditors -

including Medicaid estate recovery is subject to a perjury charge. (2) In a pro se application

to probate a will as a muniment of title, all beneficiaries under the will must be applicants,

and all beneficiaries must testify at the hearing. (3) The will being offered for probate must

be the signed original, or you will need to follow the additional procedural requirements

for proving up a will in court. You will need to research what's required for a self-proved

will at the Law Library. If you discover that the will is a copy or is not self-proved, Court

staff can give you information about what the additional procedural requirements are, but

you will need to create all additional documents.

POSTING OF NOTICE/CITATION:

**Court has discretion to require posting beyond what's required in statute. EC 51.001

***Issued upon request TRCP 99(a)

1. Probate of Written Will produced in Court EC 258.001

Probate of Written Will not produced in Court EC 258.002

2. For Letters of Administration EC 303.001

3. Determination of Heirship - do posting and service EC 202.053

- posted in county of proceeding and county of last residence

4. Appointment of Temporary Administrator EC 452.006

5. Notice to take Deposition on written questions EC 51.203

6. Notice of Sale of Real Property EC 356.253

7. Notice of Sale of Personal Property EC 356.102

8. Reinstatement of Administrator EC 361.054

9. Successor Administrator (unless immediate necessity per court) EC 361.152

10. Account for Final Settlement EC 362.005

NOTICE BY PERSONAL REPRESENTATIVE:

1. Notice to Holders of Secured or Recorded Claims EC 308.053

2. Notice to each beneficiary named in the Will EC 308.002

3. Execute Mineral Deed EC 358.054

4. Notice to heirs/beneficiaries on Acct. for Final Settlement EC 362.005

NO NOTICE NEEDED:

1. Successor Administrator (if court finds immediate need) EC 361.152

Posted Notice on Application for Letters Testamentary

STATE OF TEXAS

COUNTY OF POTTER

TO ALL PERSONS INTERESTED IN THE ESTATE OF ______________________________________________________

_______________________________________________________, Deceased, Cause No. ________________

___________________________________________________________, Applicant(s), filed in County Court of Potter

County, Texas, on the _______ day of ________________, 20________, an

_______________________________________________________________________________________________________

of ______________________________, Deceased, with the alleged will accompanying the application.

This Application may be acted on by the Court at any call of the docket on or after the ______ day of _________________,

20____ at 10:00 A.M., that being the first Monday next after the expiration of ten days from the date of posting this citation at the

Potter County Courthouse, 500 S. Fillmore, Amarillo, Texas. All persons interested in this case are cited to appear before this

Honorable Court by filing a written contest or answer to this Application should they desire to do so. To ensure its consideration,

you or your attorney must file any objection, intervention, or response in writing with the County Clerk of Potter County, Texas on

or before the above-noted date and time.

The officer executing this citation shall post the copy of this citation at the Courthouse door of the County in which this

proceeding is pending, or at the place in or near the Courthouse where public notices customarily are posted, for not less than ten

days before the return day thereof, exclusive of the date of posting and shall return the original copy of this citation to the clerk

stating in a written return thereon the time when and the place where he posted such copy.

GIVEN UNDER MY HAND AND SEAL of said Court of Potter County, Texas, at the office of the County Clerk in Amarillo,

Potter County, Texas, on the _________ day of ______________________________, 20 ________.

JULIE SMITH, County Clerk, Potter County, Texas

500 S. Fillmore, Room 201, Amarillo, Tx 79101

P.O. Box 9638, Amarillo, Texas 79105-9638

By Deputy: ____________________________________

____________________________________

ATTORNEY FOR APPLICANT:

_______________________________________

_______________________________________

_______________________________________

_______________________________________

----------------------------------------------------------------------------Officer’s Return------------------------------------------------------------------------------

Came to hand on the _________ day of __________________, ________, at ____________o’clock _____.M., and executed on the

_________day of ______________________, ________, by posting a copy of the above citation for ten days, exclusive of the day of

posting, before the return date hereof, at the County Courthouse door of Potter County, Texas, or at the place in or near the Potter

County Courthouse where public notices customarily are posted.

To certify which witness my hand officially. Brian Thomas

Potter County Sheriff

Potter County, Texas

By Deputy ______________________________________

______________________________________________

Printed Name of Server

Fees Paid $____________

LETTERS TESTAMENTARY THE STATE OF TEXAS

COUNTY COURT

CAUSE NO. _____________________________ ESTATE OF _____________________________

I, JULIE SMITH, County Clerk and Clerk of the County Court, in and for said County, do hereby certify that on the_______ day of _____________________, 20_____.

_____________________________________________

was appointed Independent Executor, of the Will and Estate of:

_______________________________________________________, Deceased

and that said appointee is fully and legally authorized and empowered to act as the Independent Executor, without bond, of the Will and of the above named Estate, having qualified by filing the oath on the ___________ day of _____________________ 20____. I further certify that said appointment is still in full force and effect.

WITNESS MY HAND AND OFFICIAL SEAL OF OFFICE, this ________ day of _____________________ 20____.

JULIE SMITH, County Clerk Potter County, Texas By: _____________________________, Deputy

Mr. Attorney

P.O. Box 5678

Amarillo, Texas 79105

Re: # 123456 Estate of : _______________________, Deceased

Dear Mr. Harkins

In accordance with §355.002 of the Texas Estates Code, you are hereby notified that the following claim(s)

has been deposited in the office of the County Clerk of Potter County Texas.

Person/Firm filing Claim Date Deposited Amount

1301 Coulter Properties, LLC 10/19/2018 $36,182.89

Respectfully yours,

Julie Smith

Clerk of the County Court,

Potter County, Texas

By: _____________________Deputy

Printed Name of Deputy Here

CC: Anyone

LETTERS OF ADMINISTRATION

THE STATE OF TEXAS County Court

Cause No. __________________ ESTATE OF __________________________________

I, JULIE SMITH, County Clerk and Clerk of the County Court, in and for Potter County, Texas, hereby certify

that on the ______ day of ___________________, 20_________, the Court, having jurisdiction over the Probate Matter

of has appointed

_____________________________________________

as the Administrator of the Estate of:

_____________________________________, Deceased

and the aforementioned appointee, having taken the oath prescribed by law, is duly qualified and fully and

legally authorized and empowered to act on behalf of the above named Estate.

WITNESS MY HAND AND OFFICIAL SEAL OF OFFICE, this ______ day of _________________, 20_____.

JULIE SMITH, County Clerk

Potter County, Texas

By: _____________________________, Deputy

____________________________

(Updated 3/2019)

LETTERS TESTAMENTARY

(§306 Estates Code)

In summary, a Simple Probate should go as follows:

Application to Probate Will (If pink slip in folder the original will has yet to be filed)

Last Will and Testament

Fees to file new Probate case are paid

Hearing date is set (10 days after the 1st Monday – in CC office our cut off day and time is each Thursday at 3pm)

Clerk posts notice of Citation

On day of court, the Judge swears all parties in giving testimony & the following are presented by the Attorney or

Executor:

Proof of Death

Order Probating Will

Oath of Executor/Executrix

Clerk reads Oath to Executor/Executrix and it is signed in Clerks presence. Oaths may signed before a

notary but it cannot be before the date the Judge signs the Order Appointing. If oath predates Judge’s

order appointing executor a new Oath has to be signed.

Occasionally, the Oath is not signed on hearing date, therefore Letters Testamentary cannot be issued.

Once signed oath is presented to Clerk Letters can issue.

Letters are only issued to Executor or his/her attorney. Letters may be issued until case is closed. Request for letters

after case is closed will result in a document entitled “Certification as to Letters” which verifies that the Executor did

qualify and served in that appointed capacity.

NOTE: Letters of Testamentary are NOT recordable in OPR

Affidavit of Notice to Beneficiaries (per §308.002 Estates Code) is filed.

Not later than 60 days after date of Order probating, Executor or Administrator shall give notice to each

beneficiary named in Will.

Not later than 90 days after date of Order probating, personal representative files affidavit with Clerk

Inventory due within 90 days after Executor qualifies unless Court grants an extension §309.051 Estates Code:

Inventory & Appraisement is filed with an Order Approving. If filed after 90 days and no order granting

extension filing fees will apply.

No hearing date required

Give Inventory and Order to Judge (some Judges prefer to review this with case file)

In lieu of Inventory the Executor/Administrator may file and “Affidavit in Lieu of Inventory” in accordance

with §309.056 Estates Code. Judge may want to see Affidavit and if not, time stamp and place in file. No

fees may be charged for Affidavit in Lieu of Inventory.

Case remains active/open until an affidavit/order closing has been submitted by the attorney, applicant or Judge.

LETTERS OF TEMPORARY ADMINISTRATION THE STATE OF TEXAS

CAUSE NO. ______________ ESTATE OF _______________________________, DECEASED

I, JULIE SMITH, County Clerk and Clerk of the County Court, in and for Potter County, Texas, hereby certify that on the ______ day of _________________, 20 ________,

_______________________________________________________ was granted Letters of Temporary Administration upon the Estate of:

______________________________________________________________, Deceased

with such rights and which order has been duly recorded in the Probate Minutes of said court therefore, and I further certify that the said

________________________________________________________________

has taken the oath prescribed by law and is duly qualified and fully and legally authorized and empowered to act on behalf of the above name Estate and that said appointment is still in full force and effect. All is more fully set out in the attached order appointing Temporary Administrator (powers included). WITNESS MY HAND AND OFFICIAL SEAL OF OFFICE, this ________ day of ____________________, 20______. JULIE SMITH, County Clerk Potter County, Texas By: ___________________________________, Deputy ________________________________

Temporary Administration

(Immediate Need Exists)

EC Chapter 452

Application for Appointment is filed EC §452.002

*Application must be verified and include an affidavit that:

states the name, address, and interest of the applicant;

states the facts showing an immediate necessity for the appointment of a temporary

administrator;

lists the requested powers and duties of the temporary administrator;

states that the applicant is entitled to letters of temporary administration and is not

disqualified by law from serving as a temporary administrator; and

describes the property that the applicant believes to be in the decedent's estate.

(* For informational purposes only. Not the Clerk’s responsibility to make sure application

meets the requirements)

Order of Appointment EC §452.003

The order appointing a temporary administrator must:

designate the appointee as "temporary administrator" of the decedent's estate;

specify the period of the appointment, which may not exceed 180 days unless the

appointment is made permanent under Section 452.008;

define the powers given to the appointee; and

set the amount of bond to be given by the appointee.

Bond must be filed within 3 days of being set (holidays/weekends excluded)

If Bond in the format of Cash Bond, place in to Registry of Court

Surety Bond needs to be approved by the Judge

Clerk may issue Letters once bond and oath have been received.

Oath requirements EC §305.053

Issuance of Letter of Temporary Administration EC §452.005

Not later than the third day after the date an appointee qualifies as temporary

administrator, the county clerk shall issue to the appointee letters of temporary

administration that list the powers to be exercised by the appointee as ordered by the

court. (In order to prevent clerical errors, attached a certified copy of the Order to the

letters)

Notice of Appointment EC §452.006

*a) On the date the county clerk issues letters of temporary administration: (1) the county clerk shall post on the courthouse door a notice of the appointment to all interested persons; and (2) the appointee shall notify, by certified mail, return receipt requested, the decedent's known heirs of the appointment. (b) A notice required under Subsection (a) must state that: (1) an heir or other interested person may request a hearing to contest the appointment not later than the 15th day after the date the letters of temporary administration are issued; (2) if no contest is made during the period specified by the notice, the appointment continues for the period specified in the order appointing a temporary administrator; and (3) the court may make the appointment permanent.

(*Instances have occurred where Letters were not requested or issued. Go ahead and issue the Notice

required under this section)

Permanent Appointment EC §452.008

At the end of a temporary administrator's period of appointment, the court by written order may

make the appointment permanent if the permanent appointment is in the interest of the estate.

Accounting EC §452.151

ACCOUNTING. At the expiration of a temporary appointment, the temporary administrator shall file

with the court clerk:

(1) a sworn list of all estate property that has come into the temporary administrator's possession; (2) a return of all sales made by the temporary administrator; and (3) a full exhibit and account of all the temporary administrator's acts as temporary administrator.

Sec. 452.152. Closing Temporary Administration

(a) The court shall act on the list, return, exhibit, and account filed under Section 452.151.

(b) When letters of temporary administration expire or become ineffective for any cause, the

court immediately shall enter an order requiring the temporary administrator to promptly

deliver the estate remaining in the temporary administrator's possession to the person legally

entitled to possession of the estate.

(c) On proof of delivery under Subsection (b), the temporary administrator shall be discharged

and the sureties on the temporary administrator's bond shall be released as to any future

liability.

Temporary Administration Quick Reference Guide

o Application Filed

o Judge hears case

o Order Appointing Temp. Administrator is issued by Judge and should

include Powers and Duties of Temp. Administrator as well as set

bond.

o Oath and Bond should be received by Clerk within 3 day of Order

Appointing (holidays/weekends excluded)

o Clerk issues Letters with Certified Copy of Order attached

o Clerk issues Notice to “All Interested Persons” that Temp. Admin has

been granted

o Order granting Temp. Admin. is good for 180 days

o If Temporary does not turn to permanent, then an Accounting and

Order Closing should be entered.

o Clerk should receive order to release bond, if cash bond was posted.

Posted Citation – Application for Sale of Real Property

STATE OF TEXAS

COUNTY OF POTTER

To all persons interested in the Estate of:

____________________________________________________________________________________________,

Subject, Cause No. ________________, in the County Court of Potter County, Texas

_____________________________________________ filed in the County Court of Potter County, Texas, on the ______ day

of _________________, 20 ______, an application for an order to sell the following real property of

_______________________________________________________________________’s Estate situated in _____________________

County, Texas. Legal description and physical address of property being sold as follows:

___________________________________________________________________________________________________________

___________________________________________________________________________________________________________

___________________________________________________________________________________________________________

This Application and any opposition to it may be acted on by the Court at any call of the docket on or after the _________

day of _________________, 20_____ at 10:00 A.M., that being the first Monday next after the expiration of ten days from the date

of posting this citation at the Potter County Courthouse, 500 S. Fillmore, Amarillo, Texas. All persons interested in this case are cited

to appear before this Honorable Court by filing a written contest or answer to this Application should they desire to do so. To

ensure its consideration, you or your attorney must file any objection, intervention, or response in writing with the County Clerk

of Potter County, Texas on or before the above-noted time and date.

The officer executing this citation shall post the copy of this citation at the Courthouse door of the County in which this

proceeding is pending, or at the place in or near the Courthouse where public notices customarily are posted, for not less than ten

days before the return day thereof, exclusive of the date of posting and shall return the original copy of this citation to the clerk

stating in a written return thereon the time when and the place where he posted such copy.

GIVEN UNDER MY HAND AND SEAL of said Court of Potter County, Texas at the office of the County Clerk in Amarillo, Potter

County, Texas, on the ________ day of _________________________________, 20_________.

JULIE SMITH, County Clerk, Potter County, Texas

500 S. Fillmore, Room 201, Amarillo, Tx 79101

P.O. Box 9638, Amarillo, Texas 79105-9638

By Deputy: ____________________________________

_____________________________________

ATTORNEY FOR APPLICANT:

_______________________________________

_______________________________________

_______________________________________

_______________________________________

-------------------------------------------------------------------------Officer’s Return------------------------------------------------------------------------------

Came to hand on the _________ day of __________________________ at ____________o’clock _____.M., and executed on the

_________day of _________________. ______, by posting a copy of the above citation for ten days, exclusive of the day of posting,

before the return date hereof, at the County Courthouse door of Potter County, Texas, or at the place in or near the Potter County

Courthouse where public notices customarily are posted.

To certify which witness my hand officially. Brian Thomas

Potter County Sheriff

Potter County, Texas

By Deputy ______________________________________

______________________________________________

Printed Name of Deputy

Fees Paid $____________

Temporary Restraining Order

THE STATE OF TEXAS,

To: Lettie Helen Harrell

4624 Valerie Street

Bellaire, TX 77401

Greetings:

Whereas Samuel Edward Harrell filed a petition in the County Court at Law No. 1 of Potter County,

Texas, on this the 8th day of August, 2016, in a suit numbered 604-1 on the docket of said Court, wherein

Samuel Edward Harrell, Plaintiffs, and Defendants, alleging, all of which is more fully shown by a true and

correct copy of plaintiff’s petition which is attached hereto; and upon presentation of said petition to him and

consideration thereof, the Honorable W.F. “Corky” Roberts, Judge of said court, made the following order

thereon: August 8, 2016.

You are therefore commanded to desist and refrain from any and all of the following acts:

(a) Changing account names, authorizations, signers, or beneficiaries; moving or releasing funds or

assets; granting access to or any control over; or accessing accounts, assets or funds of Edward C.

Harrell, including without limitation accounts at the following financial institutions:

(1) Merrill Lynch;

(2) Juba Adams Wilson & Associates;

(3) Stout Safe Storage;

(4) Stout Gold and Silver

(5) Sprott Global Resource Investments, Ltd.

(b) Presenting a General Durable Power of Attorney to any financial institution where Edward C.

Harrell is an account holder, for purposes of moving, removing, using, spending, or shifting funds

and/or assets, of Edward C. Harrell, or changing or modifying account information, authorized

signers, or beneficiaries;

(c) Holding themselves out as attorney-in-fact of Edward C. Harrell;

(d) Otherwise using or acting or purporting to act for or on behalf of Edward C. Harrell, whether

through a General Durable Power of Attorney or otherwise

Until and pending the hearing of such petition upon plaintiff’s application for a temporary injunction before the

judge of said court on August 17, 2016 at 1:30 pm in the courtroom of the County Court at Law No. 1, 500 S.

Fillmore, Suite 405, Amarillo, Texas 79101 when and where you will appear to show cause why injunction

should not be granted upon such petition effective until final decree in such suit.

Issued the 10th day of August, 2016.

Given under my hand and seal of said Court of Potter County, Texas at the office of the Potter County

Clerk in Amarillo, Texas, on the 10th day of August, 2016

Julie Smith, County Clerk

County Court at Law No. 1, Potter County

By: ________________________________

Kourtney Bass

RETURN OF SERVICE Case No. ____________ Court #_________________ Style of Case: ________________________________________________ Executed when copy is delivered: This is a true copy of the original citation, was delivered to defendant ___________________________, on the _____ day of ______________________, 20_____. Sheriff Brian Thomas Potter County, Texas By:_______________________, Deputy ADDRESS FOR SERVICE: ___________________________________________________________________________________________

OFFICER’S RETURN Came to hand on the _____ day of ______________________, 20____, at _____________, o’clock ____.m., and executed in _______________________ County, Texas by delivering to each of the within named person, a true copy of this Citation with the date of delivery endorsed thereon, together with the accompanying copy of the ________________________, at the following times and places, to-wit: Name Date/Time Place, Course and Distance from Courthouse ______________________ ______________ ______ ___________________________________________ And not executed as to the defendant(s), _____________________________________________________________________ The diligence used in finding said defendant(s) being: _____________________________________________________________________________________ and the cause or failure to execute this process is: _____________________________________________________________________________________ and the information received as to the whereabouts of said defendant(s) being: _____________________________________________________________________________________ FEES: Serving Petition and Copy $________ Total $________ Sheriff Brian Thomas Potter County, Texas By:__________________________, Deputy ________________________________ Affiant

COMPLETE IF YOU ARE A PERSON OTHER THAN A SHERIFF, CONSTABLE, OR CLERK OF THE COURT.

In accordance with Rule 107: The officer or authorized person who serves, or attempts to serve, a citation shall sign the return. The signature is not required to be verified. If the return is signed by a person other than a sheriff, constable or the clerk of the court, the return shall be signed under penalty of perjury and contain the following statement: “My name is _______________________, my date of birth is _______________, and my address is (First, Middle, Last) ____________________________________________________________________________________. (Street, City, Zip) I DECLARE UNDER PENALTY OF PERJURY THAT THE FORGOING IS TRUE AND CORRECT. Executed in _____________County, State of ______, on the _________day of ___________________________. ______________________________ Declarant/Authorized Process Server ______________________________

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(up

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2.3

1.1

8)

 

  

CERTIFICATIONASTOLETTERSOF_____________________________

THESTATEOFTEXASCOUNTYCOURT

CAUSENO.________________

ESTATEOF____________________________

I,JULIESMITH,CountyClerkandClerkoftheCountyCourt,inandforsaidCounty,doherebycertifythat_________________________________________qualifiedas_______________________________________oftheEstateof______________________________________________________,ProbateNo._________________________onthe________dayof___________________________,________.

Theaffidavitorclosingletterwasfiledinthisofficeon______________________________,_________.TOCERTIFYWHICH,WITNESSMYHANDANDOFFICIALSEALOFOFFICE,THIS_____________dayof_______________________,_________,atAmarillo,TX.

JULIESMITH,CountyClerk PotterCounty,Texas By:_____________________________,Deputy ________________________ 

THE ATTORNEYGENERAL OF TEXAS

AURTIN, TFXAS 78711

September 24, 1974

The Honorable Homer A. Davis County Attorney Hartley County Box 1110 D&hart, Texas 79022

Opinion No. H- 410

Re: Authority of county clerk to issue certified copy of letters testamentary after estate has been closed.

Dear Mr. Davis:

Your letter to us asks:

I would like to know what authority, if any, the County Clerk of Hartley County has to issue a Certified Copy of Letters Testamentary after an estate has been closed.

The duties of a county clerk as recorder of public records are determined by the Legislature in accordance with Article 5, 5 20 of the Texas Constitution. Article 1942, V. T. C. S., provides that county clerks shall be keepers of the records, books, papers and proceedings of their respective courts, including matters of probate. Article 6591, V. T. C. S., requires the clerk to record all instruments of writing “authorized or required to be recorded in the county clerk’s office . . . .” Article 6600, V. T. C. S., requires him to “give attested copies whenever demanded of all papers recorded in his office . . . .‘I Therefore, the answer to your question depends on whether the clerk is authorized to record letters testamentary.

We have not found any provision in the Texas Probate Code, or any other statute, which authorizes the clerk to record the letter testamentary itself. However, the clerk is authorized by the Texas Probate Code to record such facts as the name of the executor to whom letters testamentary

p. 1911

The Honorable Homer A. Davis page 2 (H-410)

are issued, Texas Probate Code, $13, and each order, judgment, decree and proceeding of the probate court, $15. Among the orders, decrees and judgments of the Probate Code which will appear in both the Judge’s Probate Docket, 5 13, and in the Probate Minutes, $15, will be a full and complete copy of the order granting letters testamentary.

The letters testamentary themselves, however, are not official orders; decrees or acts of the court such as the clerk is authorized to record.’ They are rather:

. . . a certificate of the clerk of the court granting the same, attested by the seal of such court, and stating that the executor . . . has duly qualified as such as the law requires, the date of such qualifica- tion, and the name of the deceased. Texas Probate Code, $183.

The distinction between facts which are required to be recorded and a letter testamentary is recognized in $186 of the Texas Probate Code which provides:

Letters testamentary, of administration, or of guardianship, or a certificate of the clerk of the court which granted the same, under the seal of such court, that said letters have been issued, shall be sufficient evidence of the appointment and qualification of the personal representative of an estate . . . and of the date of qualification.

The Legislature has not required the exhibit of a certified letter testamentary as evidence of an executor’s appointment and qualification. It is sufficient for the clerk when requested, simply to certify that letters testamentary have been issued.

Attorney General Opinion V-575 (1948) reached the same conclusion.

The County Clerk may not record in the probate minutes a copy of letters of administration,

p. 1912

, -. -

The Honorable Homer A. Davis page 3 (H-410)

testamentary or guardianships. Neither is he authorized to issue such letters to third persons. However, after such letters have been issued to the proper persons, the County Clerk may then issue a certificate of such facts which may appear of record.

Thus, the county clerk is authorized to certify from the record that letters testamentary were issued and any other recorded facts per- tinent to a particular estate. However, since letters testamentary are not authorized to be recorded in the probate records, the county clerk has no authority to issue certified copies of s~uch letters.

SUMMARY

Although a county clerk can certify from the record that letters testamentary were issued to a personal representative, the clerk has no authority to issue certified copies of letters testamentary.

// Attorney General of Texas

DAVID M. KENDALL, Chairman Opinion Committee

lg p. 1913