Alabama Advisory Opinions February 28, 2000: AGO 2000-097 (February 28, 2000)

AGO 2000-097.

Dear Mr. Williamson:

This opinion of the Attorney General is issued in response to your request.

Is the Probate Clerk, who is performing the duties of the Probate Judge during a vacancy in that Office, entitled to the Probate Judge's salary?

In your letter of request, you state that on August 31, 1999, Honorable John W. Waters, the Probate Judge of Bullock County, resigned and you assumed those duties, pursuant to section 12-13-15 of the Code of Alabama. You state in your letter that the Bullock County Probate Judge no longer participates in the fee system. That section provides that:

Whenever a vacancy shall occur in the office of the probate judge, the chief clerk in that office, appointed and qualified as authorized by law, shall, during such vacancy and until the qualification of a lawful successor, perform all the duties of that office which he is authorized by law to perform when there is no vacancy, but must not receive money on decrees or executions or become the custodian of trust funds pertaining to the court. He may make all necessary orders for the continuance of cases and proceedings pending in the court.

All such duties are to be performed, during such vacancy, by such chief clerk in his own name as clerk of the probate court, and he is entitled to the lawful fees therefor. . . .

The Chief Clerk of the Probate Court has broad powers that include the power "[t]o do all other acts and things and perform all other duties, ministerial and judicial, where there is no contest, that the probate judge may do and perform." ALA. CODE § 12-13-14 (1995). These powers are broad enough to include most of the duties performed by the Probate Judge, including the power to certify the names on voter lists, pursuant to section 17-4-138 of the Code of Alabama.

The Chief Clerk of the Probate Court has very limited increased authority in the event of a vacancy in the Office of Probate Judge. By statute, he may still only perform those "duties of that office which he is authorized by law to perform when there is no vacancy," with the exception that he may make arrangements to continue cases and proceedings pending in the Probate Court until there is a new Probate Judge to dispose of them. Id.

Because the Bullock County Probate Judge's Office no longer operates on the fee system, the only "lawful fees" to which the Probate Judge and, therefore, the Chief Clerk, who is performing the duties of the Probate Judge during a vacancy, is entitled to receive is the five cents per name fee that the Probate Judge receives, pursuant to section 17-4-138 of the Code of Alabama, for preparing the list of qualified electors which he must furnish to the election inspectors before an election. No provision of state law entitles the Chief Clerk of the Probate Office to any other additional compensation for performing the duties he is statutorily required to perform during a vacancy in the Office of the Probate Judge.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Troy R. King of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/CJS/TRK

18351v2/10725