Honorable Bascom Giles 

Commissioner, General Land Office 

Austin, Texas 

Dear Sir: Opinion No. O-3197 

Re: Status of application to lease 

where bad check accepted by 

county surveyor for filing fee. 

On February 20, 1941, we received your request for 

an opinion on the following matter: 

"On January 14, 1941, this office received 

'a twenty-one page application and a $100.00 fil: 

ing fee, to lease an area of alleged vacant unsurveyed School Land in Brazoria and Galveston 

Counties, from Mr. Dan Purvis of Alice, Texas. 

"'This application was in the form prescribed 

by law, and bore the certificates of the County 

Surveyors of Galveston and Brazoria Gounties to 

the effed-t that the same had been filed and recorded in their offices. 

"The application and filLng fee were accepted by this office and set up on our records 

as M. A..~$699, and as yet no further action 

has been had thereon by this office, 

"On February 13, 194fS' a letter WES received 

from Mr. Adriance Munson, iountv Surveyor of 

Brazoria County, (Photostatic copy of which is 

attached hereto) in which he stated that he had 

been given a check for $5.00 by Mr. Purvis~to 

cover the cost of filing this applicetion, on 

January 4, and that on January 21, before he 

had copied the instrument into his records, the 

check was returned unpaid, and requesting authority from this office to mark the application 

"cancelled." 
Honorable Sascom Giles, page 2 O-33.97- 

'I would appreciate the benefit of your 

opinioh as to the validity of this application, 

end the proper steps which should be taken by 

this office and by the County Surveyor, Mr. 

Munson, in regard to it." 

Since you state that the application was in the 

form prescribed by law we assume that your question as to 

the validity of this applicat'cn is based solely upon the 

circumstances surrounding the filing of same with the County 

Surveyor of Brazoria County. 

It is the opinion of this department that the County 

Surveyor of Srazoria County must record the application in 

question in a book kept by him for that purpose and the fact 

that the check given for the payment of the filing fee was 

returned unpaid does not authorize him or you to ma'ke the application cancelled. 

Article 542lc, Section 6, Subsection c, Vernon's 

Annotated Statutes, provides as follows: 

"Any applicant who claims that a vacancy 

exists-and desires, to lease or purchase same shall 

file in duplicate with the County Surveyor of the 

county in which any part of the land is situated 

a written application to purchase or lease same 

under the provisions of this Act. -::- a>3? 

"Contemporaneously with the filing of the 

application, the applicant shall pay to said surveyor a filing fee cf 'ive uollars ($5). The surveyor shall mark on ths original and duplicate 

the exadt hour and date of filing, ~shall return 

one application to the applicant and shall record 

the other in a book to be kept by him for that 

purpose. The application which is returned to 

the applicant shall, within ten (10) days after 

the date of filing with the surveyor of the county, 

be filed with the Commissioner who shall note thereon the date of filing. Applicant shall also pay 
- . 

Honorable Bascom Giles, page 3 O-3197 

a filing fee of One Hundred collars ($100) to the 

Commissioner. Failure to fife the apr;lication 

with the Commissioner within the time fixed, and 

to pay the filing fee, shall be a waiver of all 

rights under the application. As between applicants, priority shall date from the time of filing 

with the surveyor. 9 + (o( 

It will be seen from the reading of the abcve statute that the Five Dollar filing fee is a fee allowed the ccunty 

surveyor for his services in filing and recording, the apnlication which he could demand in legal tender before accepting 

$he application for filing and recording, but he may accept 

a check oreven do his services free insofar as the validity 

of the filing is 'concerned. Once he has accepted it for filing and recording the rights acquired by filing immediately 

attach and the county surveyor cannot disturb ordestroy them. 

The provision in the above act "failure to file the application with the Commissioner within the time fixed, and to pay 

the filing fee, 

application" 

sha1.1 be a waiver of al rights under the 

refers to the filin,g fee of One Hundred Dollars 

to be paid the Commissioner of the General Land Office and 

not the Five Dollar filing fee to be paid to the County Curveyor . 

In dealing with the recording of a deed by the County 

Clerk in the case of American Exchange Bank of Dallas, et al 

v. Colonial Trust Company, 186 S. !'v'. 361, the c&ret had the 

following to,say: 

"it is so Therefore, if he has the legal right 

to refuse to receive an instrument in his official 

custody unless the fees for recording be paid him 

in advance it must, it is thought,'be immediatbly 

or seasonably exercised LIpon the tender cf the instrument for record. By so doing and refusing to 

receive the instrument in his official custody for 

record the legal effect would not attach of being 

deemed filed for record. But, when the clerk receives and retains the instument in his c,fficial 

custody, it is filed within the meaning of the law. 

It is not intended by the article tc clothe the 

clerk with the power of making or defeating rights 

respecting registration. -:C -‘.:- 3.If the clerk, though, 
. . . 

Honorable Bascom Giles, page 4 O-3197 

rec6lvee and retains the instrument in his official 

custody awaiting payment of his @es, he, in legal 

effect waives his personsl privilege of requiring 

payment, and must file and record, as required by 

law, the indtrument so received. 4: i:- i? The clerk's 

indorsing on the deed of trust the d ate cf its reception, and holding and retaining it in his official 

custody with intention to actually enter of record 

if the recording fee was remitted, would ccnstitutte, 

it is thought, the instrument as filed within the 

meaning of the law. it i:- iti" 

See also Carlisle &company v. King, et al, b 

Supreme Court, 

the 

in 133 9. W. 24.1, on rehearing 133 9. W. i64. 

W& note in your letter that the application received by your 

office bore a certificate from the County Surveyor of Brazoria 

County that same had been filed and recorded in his office 

brining this situation clearly within the American Exchange 

National Bank case, supra. 

Sincerely yours 

ATTORNEY GENERAL OF TEXAS 

D. D. Mahon 

Assistant 

DDM:mp/PAM 

m&cxL 

APPROVED L2, 1941 

GERALD C. MANN 

ATTORNEY GENERAL OF TEXAS 

APPROVED OPINION COMMITTEE 

BY BWB, CHAIRMAN