### THE ATTORNEY GENERAL OF TEXAS
i-Say 17,1988

-_ Honorable SamW. 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)
DearMr. Dick:
You ask: 1. May a Clerk's Office properly allow the'same document tobe recorded more than once to correct an error (re-recorded)? Or, must anew and separate corrected document be drafted forrecordation 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 reguirements? 3. Where corrections are apparent on the faceof the document, must the Clerk's Office screen and reject same fromrecordation when the document otherwise meets the recordation requisites? 4. Isthe Clerk liable for substantive imperfections ina document if the same is recorded? Or, ifthe 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:

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The courts and this office have repeatedly characterized the powers and duties of the district clerk and county clerk as ministerial 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 tobe 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 notmore than $500.00. Section 12.001 of the Property Code sets forth the requirements forrecording 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 law.1 acknowledged or proved according to

1. Section 121.004 of the Texas Civil Practice and Remedies Code sets forth themethod ofacknowledgement, as follows: (a)To acknowledge a written instrument

for recording, the grantor or person who executed the instrument must appear before an officer andmust state that he executed the instrument forthe 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 ofoffice. (Footnote Continued)

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(b)An instrument conveying real property may notbe recorded unless it is signed and acknowledged by the grantor inthe presence of two ormore credible subscribing witnesses oracknowledged before and certified by an officer authorized to take acknowledgements. (c)This section does not require the acknowledgement orprohibit 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 awitness as follows:

(a)To prove a written instrument for recording, at least one of thewitnesses who signed the instrument must personally appear before an officer who isauthorized by this chapter to take acknowledgments orproofs 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 thewitness 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 acertificate of the testimony of thewitness andmust 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 theperson who signed the instrument as a witness. Ifevidence is used to identify the witness who signed the instrument, the officer must note the use of the evidence in the certificate of acknowledgment.

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filed as a financing statement, or a continuation statement filed forrecord under the Business &Commerce Code.
Your first two questions relate to the filing of a document that has as itspurpose the correction of an error inan earlier instrument. Each document presented to the clerk for filingmust be iudaed on itsownmerits. If the instrument meets the requirements forrecording set forth in section 12.001 the clerk isrequired to record the document. It isnot aduty of the clerk todetermine 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 ina previously recorded instrument isnot a factor indetermining 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 orany other evidence of approval by the parties. It isnot a responsibility of the clerk to determine the effect or legality ofperceived changes or corrections on thebody of the instrument offered for recording. The clerk isonly 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 inthe recording ofdocuments. Subsection (b) of section 11.004 makes a county clerk subject to acivil penalty of notmore 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 isnot liable for any substantive errors inthe instrument.
SUMMARY Each document presented to the county clerk forrecording must be judged on its own merits. If the document meets the reguirements of section 12.001 of the Property Code the county clerk isrequired to record the document. It isnot the responsibility of the clerk todetermine the effect or legality ofperceived changes or corrections appearing

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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 acivil penalty ofnotmore than $500.00 for failure to record any instrum;;: authorized or required tobe recorded in clerk's office that isproved oracknowledged according to law. If the requirements for recording have been satisfied, the county clerk is not liable for any substantive errors inthe instrument.

JIM MATTOX Attorney General of Texas
MARY KELLER FirstAssistant Attorney General
LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STKAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Tom G. Davis Assistant Attorney General

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