THE ATTORNEY GENERAL 

OF TEXAS 

i-Say 17, 1988 

-_ 

Honorable Sam W. 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) 

Dear Mr. Dick: 

You ask: 

1. May a Clerk's Office properly allow 

the'same document to be recorded more than 

once to correct an error (re-recorded)? Or, 

must a new and separate corrected document be 

drafted for recordation 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 

face of the document, must the Clerk's Office 

screen and reject same from recordation when 

the document otherwise meets the recordation 

requisites? 

4. Is the Clerk liable for substantive 

imperfections in a document if the same is 

recorded? Or, if the 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: 

p. 4464 
Honorable Sam W. Dick - Page 2 (JM-904) 

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 to be 

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 

not more than $500.00. 

Section 12.001 of the Property Code sets forth the 

requirements for recording 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 the method of acknowledgement, as 

follows: 

(a) To acknowledge a written instrument 

for recording, the grantor or person who 

executed the instrument must appear before an 

officer and must state that he executed the 

instrument for the 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 

of office. 

(Footnote Continued) 

p. 4465 
. 

5 

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/- 

Honorable Sam W. Dick - Page 3 (JI+904) 

(b) An instrument conveying real property 

may not be recorded unless it is signed and 

acknowledged by the grantor in the presence 

of two or more credible subscribing witnesses 

or acknowledged before and certified by an 

officer authorized to take acknowledgements. 

(c) This section does not require the 

acknowledgement or prohibit 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 a witness as follows: 

(a) To prove a written instrument for 

recording, at least one of the witnesses who 

signed the instrument must personally appear 

before an officer who is authorized by this 

chapter to take acknowledgments or proofs 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 the witness 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 a certificate of 

the testimony of the witness and must 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 the person who signed the instrument as a 

witness. If evidence is used to identify the 

witness who signed the instrument, the officer 

must note the use of the evidence in the 

certificate of acknowledgment. 

p. 4466 
Honorable Sam W. Dick - Page 4 (JM-904) 

filed as a financing statement, or a 

continuation statement filed for record under 

the Business & Commerce Code. 

Your first two questions relate to the filing of a 

document that has as its purpose the correction of an error 

in an earlier instrument. Each document presented to the 

clerk for filing must be iudaed on its own merits. If the 

instrument meets the requirements for recording set forth in 

section 12.001 the clerk is required to record the document. 

It is not a duty of the clerk to determine 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 in a previously recorded 

instrument is not a factor in determining 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 or any other evidence of approval by the parties. 

It is not a responsibility of the clerk to determine the 

effect or legality of perceived changes or corrections on 

the body of the instrument offered for recording. The clerk 

is only 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 in the recording of documents. 

Subsection (b) of section 11.004 makes a county clerk 

subject to a civil penalty of not more 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 is not liable for 

any substantive errors in the instrument. 

SUMMARY 

Each document presented to the county 

clerk for recording must be judged on its own 

merits. If the document meets the reguirements of section 12.001 of the Property Code 

the county clerk is required to record the 

document. It is not the responsibility of 

the clerk to determine the effect or legality 

of perceived changes or corrections appearing 

p. 4467 
Honorable Sam W. Dick - Page 5 (x-904) 

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 a civil penalty of not more than 

$500.00 for failure to record any instrum;;: 

authorized or required to be recorded in 

clerk's office that is proved or acknowledged 

according to law. If the requirements for 

recording have been satisfied, the county 

clerk is not liable for any substantive 

errors in the instrument. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STKAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 4468