THE ATTORNEY GENERAL
OF TEXAS
i-Say
17, 1988
Honorable Sam W. Dick opinion No. JR-904
Criminal District Attorney
Fort Bend County Courthouse Re: Recordability of certain
Richmond, Texas 77469 documents by a county clerk
(RQ-1376)
Dear Mr. Dick:
You ask:
1. May a Clerk's Office properly allow
the'same document to be recorded more than
once to correct an error (re-recorded)? Or,
must a new and separate corrected document be
drafted for recordation to correct an error
or omission?
2. In the event a document can be
recorded more than once (re-recorded), is
some form of additional acknowledgement
necessary to meet the recordation reguire-
ments?
3. Where corrections are apparent on the
face of the document, must the Clerk's Office
screen and reject same from recordation when
the document otherwise meets the recordation
requisites?
4. Is the Clerk liable for substantive
imperfections in a document if the same is
recorded? Or, if the Clerk fails to record a
document that meets the recordation
requirements, is the Clerk exposed to any
potential liability?
-_
The responsibilities of the district clerk and county
clerk have been a source of frequent concern as reflected by
numerous attorney general opinions addressing this subject.
Attorney General Opinion JM-727 (1987) stated:
p. 4464
Honorable Sam W. Dick - Page 2 (JM-904)
The courts and this office have repeatedly
characterized the powers and duties of the
district clerk and county clerk as minis-
terial functions. See Benae V. Foster, 47
S.W.2d 862 (Tex. Civ. APP- - Amarillo 1932,
writ ref'd); Attorney General Opinion Nos.
J'M-694 (1987); JM-166 (1984); cf. Attorney
General Opinion m-533 (1986).
Section 11.004 of the Property Code requires the county
clerk to record "any instrument authorized or required to be
recorded in that clerk's office that is proved or
acknowledged according to law." Subsection (b) of section
11.004 provides that a county clerk who violates any
provision of this section is subject to a civil penalty of
not more than $500.00.
Section 12.001 of the Property Code sets forth the
requirements for recording an instrument concerning real or
personal property. Section 12.001 provides:
(4 An instrument concerning real
personal property may be recorded if it hz:
been acknowledged or proved according to
law.1
1. Section 121.004 of the Texas Civil Practice and
Remedies Code sets forth the method of acknowledgement, as
follows:
(a) To acknowledge a written instrument
for recording, the grantor or person who
executed the instrument must appear before an
officer and must state that he executed the
instrument for the purposes and consideration
expressed in it.
(b) The officer shall:
(1) make a certificate of the
acknowledgment:
(2) sign the certificate: and
(3) seal the certificate with the seal
of office.
(Footnote Continued)
p. 4465
.
5 Honorable Sam W. Dick - Page 3 (JI+904)
,-
(b) An instrument conveying real property
/-
may not be recorded unless it is signed and
acknowledged by the grantor in the presence
of two or more credible subscribing witnesses
or acknowledged before and certified by an
officer authorized to take acknowledgements.
(c) This section does not require the
acknowledgement or prohibit the recording of
a financing statement, a security agreement
(Footnote Continued)
Section 121.009 of the Texas Civil Practice and
Remedies Code provides the requisites for proof of
acknowledgment by a witness as follows:
(a) To prove a written instrument for
recording, at least one of the witnesses who
signed the instrument must personally appear
before an officer who is authorized by this
chapter to take acknowledgments or proofs and
must swear:
(1) either that he saw the grantor or
person who executed the instrument sign it
or that that person acknowledged in the
presence of the witness that he executed the
instrument for the purposes and
consideration expressed in it; and
(2) that he signed the instrument at the
request of the grantor or person who
executed the instrument.
(b) The officer must make a certificate of
the testimony of the witness and must sign and
officially seal the certificate.
(c) The officer may take the testimony of a
witness only if the officer personally knows or
has satisfactory evidence on the oath of a
credible witness that the individual testifying
is the person who signed the instrument as a
witness. If evidence is used to identify the
witness who signed the instrument, the officer
must note the use of the evidence in the
certificate of acknowledgment.
p. 4466
Honorable Sam W. Dick - Page 4 (JM-904)
filed as a financing statement, or a
continuation statement filed for record under
the Business & Commerce Code.
Your first two questions relate to the filing of a
document that has as its purpose the correction of an error
in an earlier instrument. Each document presented to the
clerk for filing must be iudaed on its own merits. If the
instrument meets the requirements for recording set forth in
section 12.001 the clerk is required to record the document.
It is not a duty of the clerk to determine whether the same
or a like document has been previously recorded. The fact
that the instrument offered for recording may be for the
purpose of correcting an error in a previously recorded
instrument is not a factor in determining whether it meets
the requirements of section 12.001.
Your third question relates to the clerk's duty with
regard to obvious changes or corrections made on the face of
the instrument's text. YOU direct our attention to
handwritten changes appearing on an instrument without
initials or any other evidence of approval by the parties.
It is not a responsibility of the clerk to determine the
effect or legality of perceived changes or corrections on
the body of the instrument offered for recording. The clerk
is only required to record "any instrument authorized or
required to be recorded in that clerk's office that is
proved or acknowledged according to law." Property Code
511.004.
In your last question you inquire about potential
liability of the county clerk in the recording of documents.
Subsection (b) of section 11.004 makes a county clerk
subject to a civil penalty of not more than $500.00 for
failure to record any instrument authorized or required to
be recorded in that clerk's office that is proved or
acknowledged according to law. If the requirements for
recording have been satisfied, the clerk is not liable for
any substantive errors in the instrument.
SUMMARY
Each document presented to the county
clerk for recording must be judged on its own
merits. If the document meets the reguire-
ments of section 12.001 of the Property Code
the county clerk is required to record the
document. It is not the responsibility of
the clerk to determine the effect or legality
of perceived changes or corrections appearing
p. 4467
Honorable Sam W. Dick - Page 5 (x-904)
on the face of the document presented for
recording. Subsection (b) of section 11.004
of the Property Code makes a county clerk
subject to a civil penalty of not more than
$500.00 for failure to record any instrum;;:
authorized or required to be recorded in
clerk's office that is proved or acknowledged
according to law. If the requirements for
recording have been satisfied, the county
clerk is not liable for any substantive
errors in the instrument.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STKAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4468