Untitled Texas Attorney General Opinion

Honorable James E. Barlow Opinion No. c-695 Criminal Dlstrlct Attorney Bexar county HE: Whether the County San Antonio, Texas Clerk has the duty to record a deed con- ATTN: Mr. Vernon T. Sanford, Jr. veylng real property Assistant Criminal District located within a sub- Attorney division in the absence County Affairs Section of proof that Article 974a, V.C.S., has been complied with and re- Dear Mr. Barlow: lated questions. In your recent letter, you requested an Attorney General’s Opinion with reference to problems arising as a result of the failure of subdividers of land within the corporate limits or extraterrltorlaljurisdictionof the City OS San Antonio to re- cord maps or plats of aubdlvlsionaor re-eubdivlaiona. In that connection, you stated that such subdividershave been “selling their subdivided lots by means of deeds referring to an unrecorded plat Sollowed by a metes and bounds description and sometimes by means of deeds containing only a metes and .-. bounds description” (without any reference to the unrecorded pl&ta reflecting subdividedacreage out of which the tracts con-. veyed by such deeds are carved); and you ask if the County Clerk la required, upon request, to file and record such deeds, when properly acknowledged, under the provisions of Article 6626, Vernon’s Civil Statutes, or if the County Clerk, prior to filing such deeds, Is burdened with the duty to determine the location of the land covered by such deeds and, upon determining that such land is located within the city or extraterritorial Juris- diction thereof, to refuse to file and record such deeds until the provisions of Article g4a, Vernon’s Civil Statutes, iS applicable, are complied with. When requested to file and record any deed, including “deeds referring to an unrecorded plat followed by a metes and bounds description” or I’deedacontaining only a metes and bounds description” (without any reference to the unrecorded plats re- flecting subdlvlded acreage out OS which the tracts covered by such deeds are carved), the County Clerk is governed by the pro- visions of said Article 6626, the pertinent portions of which are as follows: -3346- . - L-1 Honorable James E. Barlow, page 2 (C-695) "The Sollowlng Instrumentsof writing which shall have been acknowledgedor proved according to law, are authorized to be recorded, viz: all deeds, . . . or other Instrumentsof writing con- cerning any lands or tenements, . . . provided, however, that In cases of aubdlvlalonor re-aub- dlvlalon of real property no map or plat of any such subdivision or re-subdivisionshall be filed or recorded unless and until the same shall have been authorized by the CommissionersCourt of the county In which the real estate'Is situated by order duly entered In the minutes of said Court, except in cases of the partition or other subdl- vision through a court of record; provided that where the real estate Is situated within the cor- porate limits or within five miles of the corpor- ate limits of any incorporatedcity or town, the' governing body thereof or the ,cltyplanning com- mission, as the case may be, as provided in Artl- cle g4a, Vernon's Texas Civil Statutes, shall perform the duties hereinaboveImposed upon the 'CommlssIoneraCourt.n Said Article 6626 clearly authorizes the recording of all properly acknowledged deeds, Including-suchdeeds containing the types of descriptions referred to hereinabove. In that regard, the Sollowlng holding reflects the duty placed upon the County Clerk: '"It la the duty of the county clerk to re- cord all deposited written Instrumentsauthorized, required or permitted to be recorded in his office. "The clerk's mlnlsterlalduty to record la properly enforced by mandamus." Turrentlne vs. Iaaane, 389 S.W.2d 336 (Tex.Clv.App.,1965). Prior to the filing and recording of maps or plats of aub- divisions or re-subdlvlslons,said Article 6626 requires proper authorization of such maps or plats In the manner therein set forth; however, no prior authorizationIs therein required as a prerequisite to the filing and recording of any other lnatru- ments of writing (specificallyIncluding deeds) concerning any lands or tenements. - Furthermore, said Article 97&a, and Article 427b, Vernon's Penal Code, to which you referred In your aforementioned letter, provide for the Imposition of certain duties only In connection with the preparation, filing and recording of plans, maps, plats -3347- , &-’ . Honorable James E. E&Wow, page 3 (c-695) or replata of aubdlvlalona or additions and not ln,any con- nection whatsoever with deeds. Finally, Article 1137h, Vernon's Penal Code, which you also mentioned In your letter to this office, makes any party "subdividing or re-subdividingany real estate" guilty of a misdemeanor IS such party uses "the aubdlvlslon~aor re-aub- division's description In any deed of conveyance or contract of sale delivered to a purchaser unless and until the map and plat of such aubdlvlalon or re-subdivisionshall have been duly authorized (as therein provided) and such map and plat thereof has actually been filed for record with the Clerk of the County Court of the county in which the real estate Is situated." Said Article 1137h la applicable, there- Sore, only to parties subdividing or resubdlvldlngreal estate and Is not applicable to County Clerks In the performance of their official duties. As to such parties subdividing and resubdlvldlng real estate, it should also be noted that said Article 1137h provides for a Sine and/or conflnement~lnthe county jail upon conviction of such misdemeanor. In answer to your request for clarlSlcatlonof Attorney General's Opinion No. V-934 (1949) wherein It Is stated that the owner of a subdivision "Is not authorized to subdivide his tract unless he complies with the provisions of (said Article) gi'4a;"and, "IS the owner falls to make a map or plat as required, the County Clerk should refuse to record the field notes submitted to his office," It Is our opinion that the field notes of a subdivision cannot be recorded in the plat records unless the field notes are accompanied by _H- a duly authorized map or platof such subdivision for record- ing, and It Is our further oprnlon that the term "field notes" as used therein does not refer to or mean metes and bounds &;;rlptlona contained In deeds of conveyance or contracts of . SUMNARY The County Clerk is re ulred by the provisions of Article B626, V.C.S., to file and record upon request prop- erly acknowledged deeds, notwlthstand- lng a failure of compliance with the provisions of Article q4a, V.C.S., with reference to the recordatlon of plats (or plans, maps or replats) of -3348- . .3 * .., I . . Honorable James E. Barlow, page 4 (c-695) subdlvlalona or additions, out of which the tracts of land deacrlbed In such deeds are carved. Very truly yours, WAQOONERCARR Assistant Attorney General CDJjr/lre APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Larry Craddock John Reeves Pat Bailey Roger Tgler APPROVED FOR THE ATTORNEY GENERAL By: T. B. Wright -3349-