### THE ATTORSEY GENERAL OF TEXAS
August 12, 1987 .JlMMA.l-rox A-~SEY DESERAL

Ronorable MikeDriscoll Harris County Attorney 1001Preston, Suite 634 Houston, Texas 

### 77002 Opinion No. JM-767

He: Filing of financing statementswith acounty clerk under section 9.403(d) of the Texas Business andCommerceCode

DearMr. 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 mayrefuse 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 anobligation. See 59.102.
ass= Theprimary 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,nowrit). Afinancing statement mustbe 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, inpart:

Afinancing statement is sufficient if it gives the names of the debtor andthe secured party, is signed by the debtor, gives an address of the secured party from which information concerning the security interest maybe 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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statement If it contains the above information and is signed by the debtor. Acarbon, photographic
or other reproduction of asecurity agreement or a financing statement Is sufficient as a financing statement If the security agreement soprovides 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 asecurity agreement or financing statement whenthe security agreement is not signed and it does not showonIts 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 theTexas Business andCommerceCode. SeeSommersv. International Business Machines, 640 F.2d 686, 691 (5thCir. 1981) (copy of security agreement must actually be signed); but see J.K. Merrill 6Son. Inc. v. Carter, 702P.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. Thecontext of these authorities makes it clear, however, that the “sufficiency” requirements In section 9.402 relate to enforcing asecurity interest against athird party, not to the prerequisites for filing the financing statement. The question of “sufficiency” under section 9.402 is alegal question for the courts, not aquestion 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 andindexing 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 nameof the debtor andshall note in the index the file number and .the address of the debtor given in the financing statement. The filing office? shall markeach 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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P Nothing in this provision or in any other provision of chapter 9of

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) and9.403(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. Theorder of the filing of financing statements is ofvital 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. Ofcourse, the clerk has the authority to require that financing statements be legible and contain the information necessary to record andindex the statements. Asindicated, 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 aduty simply to file certain ‘documents. that duty is generally deemed ministerial rather than discretionary. See R.E. Turrentine v. Lasane. 389S.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 maynot refuse to file financing statements that donot 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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MARYKELLER Executive Assistant Attorney General

JUDGEZOLLIESTEAKLEY Special Assistant Attorney General

RICKGILPIN Chairman. Opinion Committee Prepared byJennifer Riggs Assistant Attorney General

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