The Attorney General of Texas
January 28. 1982
MARK WHITE
Attorney General
SupremeCourt Building
HonorableMike Driscoll opinion No. Ml+433
P. 0. BOX12.343 Harris County Attorney
AusIln. TX. 78711 1001 Preston, Suite 634 Re: Penalty filing fees
512147525Ql Houston. Texas 77002 required by 1981 amendmentto
Telex 9lOl974.13S7 L article 6626, V.T.C.S.
Telecopkr 51214750266 ’
Dear Mr. Driscoll:
1607Main St. suite 14w
oailas. TX. 75Ml The Sixty-seventh Legislature amended article 6626, V.T.C.S.,
2141142.B944 which deals with the recordingof certain legal instrumen:s,~by
adding
subsection (b). Acts 1981. 67th Leg*, ch. 206. at 498. You have
4324Alberta Ave. Suite 150 asked five questions concerning this subsection, which reads as
ElPaso.TX. 79905 follows:
91-
A deed or other conveyauceconveying an interest
In real.property, If executed after December 31.
1981. shall contain a mailing address of .each
grantee appearingon the documentbr In a separate
instrument signed by a grantor or grantee and
attached to.thendocument. Failure to include an
SW Broadway.Suite 312
LUbbock#
lx. 19401
address of each grantee In the document or
wSf7476238 attached instrumentdoes not affect the validity
of the conveyance between the parties to the
document. Any such deed or other conveyancewhich
4309N. Tenth.&tile B fails to includea maillng address of each grantee
MeAllen.TX. 78501
512m92.4S47
appearing in the document or attached ,Snstrument
may only be filed for record with the county clerk
of the county In .which the real property is
200 Main Plaza,suite 400 situated after pay&eat ,of a pCnalty filing fee
smhtonio.Tx: 79205 equal to the greater of (1) twice the statutory
512l22Ml91
filing fee for the.filing of such documentsvith
the county clerk. or (2) the"sinnof $25. .Upon
An Equal oppmunnyl accep~tanceby the couuty clerk of a deed or other
AfftfmatiwAction Empktyw conveyancefor recordationand the payment of the
filing fee as determinedby the county clerk, it
shall be cqnclusivelypresumed that such deed or
other conveyancemeets all filing fee requirements
of this Subsection (b) of this Article 6626,
prerequisite to the lawful filing of a deed or
_. conveyance.
orner
You first ask:
1. Is the county clerk constitutionally
authorizedto collect the penalty filing fees set
forth in article66261
Article V. section 20 of the Texas Constitution establishesthe
office of county clerk and provides that the duties of- said office
shall be as "prescribedby the Legislature." You suggestno reason-
and we cannot imagine any -- why the collectionof the article 6626
penalty filing fee is not a "duty" which the legislature may
permissiblyimpose upon county clerks. gather, you contend that the
penalty filing fee provisions of article 6626 are invalid because
Hous,eBill No. 196. which enacted those p~ovisioas,violated article
III, section 35 of the Texas Constitution,
which providesas follows:
No bill (exceptgeneral appropriationbills, which
may embrace the various subjectsand accounts,for
and on account of which moneys are appropriated)
shall contain more than one subject,which shall
be expressed in its title. But if Any subject
shall be embraced in an-act. which shall not be
expressed in the title, such act shall be void
only as to so much'thereof.as shall not be so
expressed.
Rouse Bill No. 196. which teenActed former article 6626 AS.
subsection (a) of ~the new statute and enacted subsection (b), was
entitled"An act relatingto a requirementthat grantees'addressesbe
in or attached-toany document~conveying real property." You contend
that this title did not afford fair notice of the penalty filing fee
provisionsas requiredby article III, Aection35. We disagree.
Numerous cases have construed Article III. section 35. An
excellentstatement of its .lmportmay be found in Lee v. State. 352
S.W.2d 724, 725 (Tex. 1962).where the Texas SupremeCourt stated:
It is well establishedthat the caption of an act
should be liberallyconstruedso AS to uphold Its
validity If at all possible... It has also been
said that. ‘None of the provisionsof a statute
should be regarded AS unconstitutional when they
relate, directly or indirectly, to the same
subject, have a mutual conaectfon,and. are not
foreign to the subject expressedin the title.‘...
So long AS the caption stAtes the main subject of
An Act. it will also be construed to cover any
subsidiary matters if they are reAsonAbly
p. 1485
, * * BonornbleMike Driscoll- Page 3 (uw-433)
connected,germane,incidental,or relevantto the
main subject.
In C. Hayman ConstructionCompany V. American IndemnityCompany. 473
S.W.Zd 62, 66 (Tex. Civ. App. - Dallas 1971. no writ), the court said:
The test of sufficiencyof a legislativetitle $s
,whetherit gives reasonablenotice of the contents
of the bill to an average legislatoror interested
citizen. If such person interestedin legislation
on a particular subject would be prompted by the
title to examine the body of the Bills for
provisions relating to that subject, then the
. title is sufficient,but if he wbtildbe likely to
get the impression that further reading is
unnecessary because the bill does not relate to
that subject, then thi bill, if enacted, is
unconstitutionalto the extent that ft deals with
that subject.
s
In our opinion, House Bill No. 196 comportedwith article III,
eection 35. Its title expressed the general subject of the bill,
"is., the requirementthat grantees' Addressesbe in or attached to
documentsconveying real property.And we believe its penalty filing
fee provisionswere reasonably,conuected And germane to that subject.
. We also believe .that the wording of the title - particularlythe
presence therein of the word "requirement"- is such that its readers
would have been encouragedto read further. A statutory"requirement"
will usually be accompaniedby A penalty provision;thus, readers of
the title of House Bill No. 196 could reasonablyhave been expectedto
peruse the bill to discover the penalty that would be Loaposedif the
requirementwere not met.
WA thereforeconclude that House Bill No. 196 did not contravene
article III. section 35 of the Texas Constitution,and we answer your
first questionin the affirmative.
You next ask:
2. When a deed or other conyeyance is
tendered to the county clerk for filing and
recording without containing or having attached
the mailing address of each grantee. should the
county clerk collect only the penalty filing fee,
or should the clerk collect that fee in 'addition
to the regular filing fee?
The language of subsection (b) of article 6626 is reasonably
susceptibleof either construction. The bill,analysis of House Bill
p. 1486
, HonorableMike Driscoll- rage 4 (Mw-433)
.
No. 196 offers no clue as to the proper interpretation. We must
therefore choose the interpretationwhich finds the most support in
the language of the statute,and which, in our opinion.best reflects
the legislature'sintent. See RailroadCmmissio~ of Texas v. Miller,
434 S.W.Zd 670 (Tex. 1968).-
We believe the most plausible interpretationis .that county
clerks are to collect only the penalty filing .fee. First, the
legislature'schoice of languageis significant. In our opinion, the
term "penalty filing fee" signifies something complete, viz., a fee
which is the entire filing fee to be collected,not a penalty fee to
be coupled with the regular filing fee. Had the legislatureintended
the latter. we think it would have selected a different term - for
example,"penalty." Second.other statutesprovidingfor penalty fees
do not contemplatethat such fees wfll be combinedwith the regular
filing fee. See, e.g.. V.T.C.S. art. 3930(c). Finally, we believe
that if the legislaturehad meant for the penalty fee to be added to
the regular filing fee.- it would likely have said so clearly and
unequivocally.
.
Your third questionIs:
If a conveyance conveying an interest in real
property does not conform to article 3930(c),
V.T.C.S..such as by not having the grantor'sname
.
typed or printed under his signature.and does,not
contain or have attached thereto the mailing
address for each grantee, should the county clerk
calculatethe fee under said article 3930(c)first
and then double the amouqt so calculated to
determine the recording fee under article 66269
If not. how should such fee be calculated?
Articles 3930. 3930a-1. and 3930(b),V.T.C.S..prescribe fees to
be charged by county clerks for performingvarious tasks, including
filing and recording certain legal documents. Article 3930(c),
V.T.C.S..providesin pertinentpart as follows:
Section 1. (a) Each legal paper offered or
presented to a 'countyclerk and county recorder
for filing or for recording other"than fees
authorized in Article 3930(b)...should maet the
requirementsspecified in Subsections(b) through
(8) of this section.
. ..
Sec. 2. (a) The filing fee or recordingfee
for each page of a legal paper which is offered or
p. 1487
. . nonoraole HZKe Drlscoll- Page 9 (MU-433)
presented for filing or for recordingto a county
clerk or county recorder and which fails to meet
the requirementsfor, or which is deficient in.
one or m&e of the items specifiedin Section 1 of
this article, shall be equal to twice the regular
filing fee or recording fee provided by statute
for that page.
The conclusionthat a penalty fee computedunder article 3930(c)
is to be used in computing the,article 6626 penalty filing fee can
only be reached if one accepts the followingpropositions: (1) the
term "statutoryfiling fee" in article 6626 signifiessomethingother
than the regular filing fees prescribedby articles3930. 3930a-1,and
3930(b); and (2) when articles 3930(c) and 6626 are both violated,
county clerks are obliged to look first to article 3930(c). compute
the penalty under that statute, and then use that figure in computing
the article 6626 penalty filing fee.
In our opinion, neither of these propositionsis defensible.
First, we believe the term "statutory filing fee" refers to the
regular filing fees contemplated by articles 3930, 3930a:1. and
3930(b).and that it does not embracea penalty fee resultingfrom the
application of article 3930(c). Second, the conclusion that the
article 3930(c) penalty fee is to.be used in calculatingthe article
~6626penalty filing fee assumes a correlationbetween those statutes
which, in our o&iinion.simply does not exist. Articles 3930(c) and
6626 each sets forth its own requiremanteand prescribes its ovn
penalty, and we believe that in computing a penalty under either
statute, no penalty exacted under the other should be taken into
account. Thus, where an individual tenders for recording a legal
paper which violates both statutes, he will pay a combined fee
consisting of the penalty fees required by each, which will be
determinedindependentlyby referring to the regular fees established
by articles3930, 3930a-1,and 3930(b).
Your fourth question is essentiallyaa follows:
Which of the followinginstrumentsconstitute
'conveyance conveying an interest fn real
iroperty'within the meaning of article 66262
..
a. Deed of Trust
b. Mechanic's and Materialman's Lien
Contract
C. Earnest Money Contract covering real
property
p. 1488
. nouoraolenuke Driscoll- Page 6 (NW-433)
: .
d. Contractof Sale of real property
e. Certifiedcopy c&Probated Will
f. Certified copy of Judgment in eminent
domain case
g. Certifiedcopy of Judgment in partition
case
h. Lease of Real Estate
I. Mineral Lease
.
.I. Abstractof Judgment l
k. CondominiumDeed
It is suggestedthat the legislature'sintent in enactingarticle
6626 was to reach conveyanceswhich create a new taxable interestla
the grantee, and that the phrase "conveyancecdnveyingau interestin
real estate" should be construedas embracingonly those Instruments
which have this effect. Language in the bill analysisof House Bill
No. 196 is offered in support of this contention. Even if we assume
that the foregoingis au accurate statementof the legislature'sreal
motive, however, the fact Is that the wordiug of the phrase.in
question is such that only one interpretetionis reasonable: article
6626 embraces x instrument which conveys m interest in real
estate. Just as courts must, we must take statutesas we find them,
and we way not resort to extrinsic aids in construingstatuteswhen
the statutorylanguagein questionis clear and unambiguous. Railroad
Commissionof Texas v. Miller,m; Rx parte Roloff. 510 S.W.Zd 913
(Tex. 1974). If anyone is to limit the scope of article 6626;it must
be the legislature,and not this office.
A succinct and workable definitionof "conveyance"can be found
'in Texas ElectricRy. Companyv. Neale, 244 S.W.2d 329, 332 (Tex.Civ.
APP. - Waco 1951).rev'd on other grounds,252 S.W.Zd 451 (Tax. 1952):
[It is] an instrument in writing whereby the
grantor conveys to the grantee,some tlght. title
or interestin or to raal property.~
Before it can be determined whether certain of the foregoing
legal instruments are within article 6626, it is necessary to
understandtheir meaning. A "deed of trust":
p. 1489
Honorable Mike Driscoll- Page 7 (m-433)
tak[es] the place and serv[es] the uses of a
common-lawmortgage,by which the legal title to
real property is placed in one or more trustees,
to secure the repaymentof a sum of money or the
performanceof other conditions.
Black's Law Dictionary 503 (4th Ed.). It is, in legal effect, a
mortgage with the power to sell on default. Phillipsv. Campbell,480
S.W.Zd 250. 253 (Tex. Civ. App. - Houston [14th Dist.) 1972, writ
ref'd n.r.e.). A "mechanic'slien" is:
A claim createdby law for the purpose of securing
priority of payment of the price or value of work
. performed and materials furnish&d in erecting or
repairing a building or other structure,and as
such attaches to the land .a8well as buildingsand
improvementserectedthereon.
Black's Law Dictionary1132 (4th Ed.). See 38 Tex. Jur. 2d Mechanic's
Liens 551 et seq. An "earnestmoney coGct"‘calls for a deposit to
be made to a stakeholder to bind a sale. Such deposit is used as
forfeit monev or liauidated damages in the event the sale is not
completed. See CowmanTV.Allen Uo&ments, Inc., 500 S.W.2d 223 (Tex.
Civ. App. - Texarkana 1973, no writ). A "contractof sale" gives each
party -to the contract'the right to specific performance-so .as to
effect a conveyance of the property. Under such contract, the
purchaserdoes not presentlyacquirea completeand Indefeasibletitle
to the property purchased. the execution .end delivery of a deed
notwithstanding. Padre Sands, Inc. v. Cawood. 595 S.W.2d 896 (Tex.
Civ: App. - Corpus Christ1 1980, writ ref'd n.r.e.); 58 Tex. Jur.Zd
Vendor and Purchaser 002. 3. A "lease of real estate" conveys a
portion of an owner's interestin an estate in land to a lessee for a
shorter term than the owner'*. It passes a present interest in the
land to the lessee. Black's Law Dictionary (4th Ed.) at 1035. A
"mineral lease" is an agreement which permits the use of land to
explore ,forminerals; if minerals are discovered,the lease affords
the right to take the minerals either for a definite term or for so
long as they can be produced in paying quantitiesupon the reserved
royalty. Gordon v. Empire Gas and Fuel Company,63 F.2d 407 (5th Cir.
1933);Attorney General OpinionMW-402 (1981). :_
In our opinion, deeds of trust are within the scope of article
6626, as are mineral leases. lease8 of real egtate. and condominium
deeds. These instrumentsclearlyconvey an intekest in real estate to
the grantee. Gn the other hand, mechanic'sliens. contracts of sale.
and earnest mosey contracts convey no title to or Interest in real
estate,end are thereforenot within the statute.
p. 1490
. WonorableMike Driscoll- Page 8 (Mw-433)
. -
A certified copy of a probated will is not, in ,our opinion.
vithin article 6626. The actual transfer of title to any property
devised to the beneficiarywill take place when the executor of the
estate executesan executor‘sdeed, not when the certifiedcopy of the
probatedwill is recorded. Certifiedcopies of judgmentsin partition
cases are also not “conveyances.” Nor are abstracts of judgment,
vhich merely afford evidenceof the judgmentin a particularcase, see
article 5447. V.T.C.S., or certified copies of judgments in emin=
domainproceedings.
You finally ask:
5. Which party in each of the .. above
. instrumentswhich constitutea fconveyanceof an
interest in real property’ is the ‘grantee’ as
contemplatedby article6626?
We believe the ansver to this question plainly 5s that the
“grantee” will be the person or entity to whom the int’erestis
conveyed. This will be apparent from the face of. then instrument
itself.
SUMMARY
1:. county clerks are constitutionally
authorieed to collect the penalty filing fees
prescribedby article 6626, V.T.C.S.
2. Where article 6626 is violated~,county
clerks are to collect only the penalty filing fee,
not the penalty filing fee plus the regular filing
fee.
3. Where article 3930(c). V.T.C.S., and
article 6626 are both violated,the penalty filing
fee under article 6626 is to be computedwithout
referenceto the penalty fee prescribedby article
3930(c).
4. Deeds of trust, mineral leases, leares
of real estate and condominiumdeeds”are,within
the scope of article 6626. Mechanic’s liens.
earnestmoney contracts,cohtractsof sale of real
estate, certified copies of probated vills,
certified copies of judgments In partitioncases,
and abstracts of judgments are not vithin said
article.
p. 1491
. -
5. The “grantee” in a conveyanceconveying
an interest in real estate is the person or entity.
,namedas such in the instrument.
M A RR WEITE
AttorneyGeneral of Texas
JOHN W. FAINTER,.JR.
First AssistantAttorney General
.
RIC&lB E. GRAY III
ExecutiveAssistantAttorney General
Preparedby Jon Bible
AssistantAttorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison,Chairman
Rick Gilpin
Jim Moallinger ..
Bruce Youngblood
..
p. 1492