THE ATTORSEY GENERAL 

OF TEXAS 

August 12, 1987 

.JlM MA.l-rox 

A-~SEY DESERAL 

Ronorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Opinion No. JM-767 

He: Filing of financing statements with a county clerk under 

section 9.403(d) of the Texas 

Business and Commerce Code 

Dear Mr. Driscoll: 

You seek clarification of the county clerk’s responsibility for 

filing financing statements under section 9.403(d) of the Texas 

Business’ and Commerce Code. Your specific concern Is whether the 

clerk may refuse to file financing statements that do not appear to 

comply with certain requirements in section 9.402(a) of the code. As 

will be shown in the discussion to follow, the clerk’s responsibility 

under section 9.403(d) does not include the responsibility or 

authority to “enforce” section 9.402(a). 

Chapter 9 of the Business and Commerce Code governs the legal 

enforceability of “security agreements ,I’ agreements that create 

security interests In personal property to secure the payment or 

performance of an obligation. See 59.102. 

ass= 

The primary purpose of a 

security agreement is to enforcement of the’ underlying 

obligation. To enforce a security interest against third parties, 

such as prospective lenders or buyers, the security interest must be 

“perfected.” Villa V. Alvarado State Bank, 611 S.W.2d 483, 486-87 

(Tex. App. - Waco 1981, no writ). A financing statement must be filed 

to perfect all security interests except those expressly excepted in 

. the code. Sec. 9.302. Filing is intended as notice to third parties 

that an enforceable security interest &y exist in the described 

property of the debtor. 611 S.W.2d at 486-87. Section 9.402 relates 

to the formal requisites of financing statements. 

Section 9.402(a) provides, in part: 

A financing statement is sufficient if it gives 

the names of the debtor and the secured party, is 

signed by the debtor, gives an address of the 

secured party from which information concerning 

the security interest may be obtained, gives a 

mailing address of the .drbtor and contains a 

statement indicating the types, or describing 

the items, of collateral. . . . A copy of the 

security agreement is sufficient as a financing 

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Ronorable Mike Driscoll - Page 2 (JM-767) 

statement If it contains the above information and 

is signed by the debtor. A carbon, photographic 

or other reproduction of a security agreement or a 

financing statement Is sufficient as a financing 

statement If the security agreement so provides or 

if the original has been filed in this state. 

(Emphasis added). 

Tour specific question is whether the county clerk must accept for 

filing a reproduction of a security agreement or financing statement 

when the security agreement is not signed and it does not show on Its 

face that the original has been filed in Texas. In other words, you 

ask whether the county clerk must determine whether a copy of .the 

security agreement or financing statement is “sufficient” as a 

financing statement within the meaning of section 9.402(a). 

Authorities are split regarding the exact nature of the 

signatures required by section 9-402 of the Uniform Commercial Code, 

section 9.402 In the Texas Business and Commerce Code. See Sommers v. 

International Business Machines, 640 F.2d 686, 691 (5thCir. 1981) 

(copy of security agreement must actually be signed); but see J.K. 

Merrill 6 Son. Inc. v. Carter, 702 P.2d 787. 791-92 (Idaho 1985) (copy 

of signed original will suffice) (and conflicting authorities cited 

therein). None of these authorities, however, address your basic 

concern, i.e. whether the officer must determine the 

“sufficiency” 

filing 

of the financing statement prior to accepting it for 

filing. These authorities address essentially the legal meaning of 

“sufficient” in section9.402. The context of these authorities makes 

it clear, however, that the “sufficiency” requirements In section 

9.402 relate to enforcing a security interest against a third party, 

not to the prerequisites for filing the financing statement. The 

question of “sufficiency” under section 9.402 is a legal question for 

the courts, not a question for the filing officer. 

The filing officer’s filing and recording responsibilities are 

set forth in section 9.403(d): 

Except as provided in Subsection (g) [special 

filing and indexing for property relating to real 

p*ope*tyl a filing officer shall mark each 

financing statement with a file number and with 

the date and hour of filing and shall hold the 

financing statement or a microfilm or other 

photographic copy thereof for public inspection. 

In’ addition the filing officer shall index the 

financing statements according to the name of the 

debtor and shall note in the index the file number 

and .the address of the debtor given in the 

financing statement. The filing off ice? shall 

mark each continuation statement with the date and 

hour of filing and shall note it in the index of 

the original financing statement. 

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Honorable Mike Driscoll - Page 3 (JM-767) 

P 

Nothing in this provision or in any other provision of chapter 9 of 

the code refers to any responsibility of the filing officer to accept 

only financing statements that are legally “sufficient” within the 

meaning of section 9.402(a). 

Sections 9.402(a) and 9.403(d) are independent provisions of the 

code. The filing officer’s responsibility under subsection (d) of 

section 9.403 is governed by section q.403. This duty is ‘simply to 

accept, record, and index financing statements as soon as the 

appropriate fees, as provided in subsection (e) of section 9.403. are 

tendered. The order of the filing of financing statements is of vital 

importance because it relates to priorities between conflicting 

security interests. See 59.312; see, e.g., Borg-Warner Acceptance 

Corporation v. Wolfe i%y National Bank, 544 S.W.2d 947 (Tex. Civ. 

APP . 

- Dallas 1976, no writ). It is in the self-interest of the 

filing party to assure that the financing statement is legally 

sufficient; it is not the filing officer’s responsibility to datermine 

whether the financing statement is legally sufficient to perfect a 

security interest. Of course, the clerk has the authority to require 

that financing statements be legible and contain the information 

necessary to record and index the statements. As indicated, however, 

under section 9.403(d) the clerk’s responsibility is to record 

correctly the order of filing and to index financing statements, not 

to verify or question the correctness of the information- in the 

financing statement. When the legislature defines the duty of a 

county clerk as a duty simply to file certain ‘documents. that duty is 

generally deemed ministerial rather than discretionary. See R.E. 

Turrentine v. Lasane. 389 S.W.2d 336, 337 (Tex. Clv. App. - Wax1965, 

no wit). Such a duty cannot be expanded to enforcing other 

provisions related to the legal effect of the documents filed. See, 

s, Attorney General Opinion Nos. JM-508 (1986) ; C-695 (1966). 

SUMMARY 

Sections 9.402(a) and 9.403(d) of the Texas 

Business and Commerce Code are independent 

provisions. The filing officer’s legal responsibility with regard to filing financing statements, 

and authority is governed by section 9.403, cot by 

section 9.402. The filing officer may not refuse 

to file financing statements that do not appear to 

be legally “sufficient” within the meaning of 

section 9.402(a). 

Very J truly yours, 

JIM MATTOX 

Attorney General of Texas 

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Honorable Mike Driscoll - Page 4 (JM-767) 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman. Opinion Committee 

Prepared by Jennifer Riggs 

Assistant Attorney General 

p. 3598