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 'atwenty-one page application and a $100.00 fil: ing fee, to lease an area of alleged vacant unsurveyed School Land inBrazoria and Galveston Counties, from Mr. Dan Purvis of Alice, Texas.

"'Thisapplication was in the form prescribed by law, andbore the certificates of the County Surveyors ofGalveston and Brazoria Gounties to the effed-tthat the samehad been filed andrecorded in their offices.
"The application and filLng feewere accepted by this office and set up on our records asM. A..~$699, and asyet 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 ofwhich is attached hereto) in which he stated that hehad 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 tomark the application "cancelled."Honorable Sascom Giles, page 2

### O-33.97-

'Iwould appreciate the benefit ofyour opinioh as to thevalidity of this application, end the proper steps which should be taken by this office andby the County Surveyor, Mr. Munson, in regard to it."
Since you state that the application was in the form prescribed by lawwe assume that your question as to thevalidity of this applicat'cn is based solely upon the circumstances surrounding the filing of same with the County Surveyor ofBrazoria County.

It is the opinion of this department that the County Surveyor of Srazoria County must record the application in question in abook kept byhim for that purpose and the fact that the check given for thepayment of the filing fee was returned unpaid does not authorize him or you toma'kethe application cancelled.

Article 542lc, Section 

### 6,Subsection c,Vernon's Annotated Statutes, provides as follows:

"Any applicant who claims that avacancy exists-and desires,to lease orpurchase same shall file in duplicate with the County Surveyor of the county in which any part of the land is situated awritten application to purchase or lease same under theprovisions of thisAct. -::- 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 anddate of filing, ~shallreturn one application to the applicant and shall record theother in abook to bekept 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 theCommissioner who shall note thereon the date of filing. Applicant shall alsopay- .

Honorable Bascom Giles, page 

### 3O-3197

a filing fee of OneHundred collars ($100) to the Commissioner. Failure to fife the apr;lication with the Commissioner within the time fixed, and topay the filing fee, shall be awaiver of all rights under the application. As between applicants, priority shall date from the time of filing with the surveyor. 9 + (o(

Itwill 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 acheck oreven do his services free insofar as thevalidity 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 theCommissioner within the time fixed, and topay the filing fee, application" sha1.1be awaiver of al rights under the

refers to the filin,gfee of One Hundred Dollars tobe 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 deedby the County Clerk in the case ofAmerican Exchange Bank ofDallas, et al
v. Colonial Trust Company, 

### 186S. !'v'. 

### 361,the c&ret had the following to,say:

"itisso Therefore, if he has the legal right to refuse to receive an instrument inhis official custody unless the fees for recording bepaid him in advance itmust, it is thought,'be immediatbly or seasonably exercised LIponthe tender cf the instrument for record. By sodoing andrefusing to receive the instrument inhis official custody for record the legal effect would not attach ofbeing deemed filed for record. But, when the clerk receives and retains the instument inhis c,fficial custody, it is filed within the meaning of the law. It is not intended by the article tc clothe the clerk with thepower ofmaking or defeating rights respecting registration. -:C -‘.:- 3. If the clerk, though,. ..

Honorable Bascom Giles, page 4 

### O-3197

rec6lvee andretains the instrument inhis official custody awaiting payment of his @es, he, in legal effect waives his personsl privilege of requiring payment, andmust file and record, as required by law, the indtrument so received. 4:i:- i?The clerk's indorsing on the deed oftrust thedate cf its reception, andholding and retaining it inhis official custody with intention to actually enter of record if the recording feewas remitted, would ccnstitutte, it is thought, the instrument as filed within the meaning of the law. iti:- iti"

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

in 

### 1339. W. 24.1,on rehearing 133 9. W.

### i64. W& note inyour letter that the application received byyour office bore a certificate from the County Surveyor ofBrazoria 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 OFTEXAS

D. D. Mahon Assistant DDM:mp/PAM

m&cxL APPROVED L2, 

### 1941 GERALD C. MANN ATTORNEY GENERAL OF TEXAS APPROVED OPINION COMMITTEE BYBWB, CHAIRMAN