Honorable James E. Barlow Opinion No. c-695 

Criminal Dlstrlct Attorney 

Bexar county HE: Whether the County 

San Antonio, Texas Clerk has the duty 

to record a deed conATTN: Mr. Vernon T. Sanford, Jr. veylng real property 

Assistant Criminal District located within a subAttorney division in the absence 

County Affairs Section of proof that Article 

974a, V.C.S., has been 

complied with and reDear Mr. Barlow: lated questions. 

In your recent letter, you requested an Attorney General’s 

Opinion with reference to problems arising as a result of the 

failure of subdividers of land within the corporate limits or 

extraterrltorlal jurisdiction of the City OS San Antonio to record maps or plats of aubdlvlsiona or re-eubdivlaiona. 

In that connection, you stated that such subdividers have 

been “selling their subdivided lots by means of deeds referring 

to an unrecorded plat Sollowed by a metes and bounds description 

and sometimes by means of deeds containing only a metes and 

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bounds description” (without any reference to the unrecorded 

pl&ta reflecting subdivided acreage out of which the tracts con-. 

veyed by such deeds are carved); and you ask if the County Clerk 

la required, upon request, to file and record such deeds, when 

properly acknowledged, under the provisions of Article 6626, 

Vernon’s Civil Statutes, or if the County Clerk, prior to filing 

such deeds, Is burdened with the duty to determine the location 

of the land covered by such deeds and, upon determining that 

such land is located within the city or extraterritorial Jurisdiction thereof, to refuse to file and record such deeds until 

the provisions of Article g4a, Vernon’s Civil Statutes, iS 

applicable, are complied with. 

When requested to file and record any deed, including 

“deeds referring to an unrecorded plat followed by a metes and 

bounds description” or I’deeda containing only a metes and bounds 

description” (without any reference to the unrecorded plats reflecting subdlvlded acreage out OS which the tracts covered by 

such deeds are carved), the County Clerk is governed by the provisions of said Article 6626, the pertinent portions of which 

are as follows: 

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Honorable James E. Barlow, page 2 (C-695) 

"The Sollowlng Instruments of writing which 

shall have been acknowledged or proved according 

to law, are authorized to be recorded, viz: all 

deeds, . . . or other Instruments of writing concerning any lands or tenements, . . . provided, 

however, that In cases of aubdlvlalon or re-aubdlvlalon of real property no map or plat of any 

such subdivision or re-subdivision shall be filed 

or recorded unless and until the same shall have 

been authorized by the Commissioners Court of the 

county In which the real estate' Is situated by 

order duly entered In the minutes of said Court, 

except in cases of the partition or other subdlvision through a court of record; provided that 

where the real estate Is situated within the corporate limits or within five miles of the corporate limits of any incorporated city or town, the' 

governing body thereof or the ,clty planning commission, as the case may be, as provided in Artlcle g4a, Vernon's Texas Civil Statutes, shall 

perform the duties hereinabove Imposed upon the 

'CommlssIonera Court.n 

Said Article 6626 clearly authorizes the recording of all 

properly acknowledged deeds, Including-such deeds containing 

the types of descriptions referred to hereinabove. 

In that regard, the Sollowlng holding reflects the duty 

placed upon the County Clerk: 

'"It la the duty of the county clerk to record all deposited written Instruments authorized, 

required or permitted to be recorded in his office. 

"The clerk's mlnlsterlal duty to record la 

properly enforced by mandamus." Turrentlne vs. 

Iaaane, 389 S.W.2d 336 (Tex.Clv.App., 1965). 

Prior to the filing and recording of maps or plats of aubdivisions or re-subdlvlslons, said Article 6626 requires proper 

authorization of such maps or plats In the manner therein set 

forth; however, no prior authorization Is therein required as 

a prerequisite to the filing and recording of any other lnatruments of writing (specifically Including deeds) concerning any 

lands or tenements. - 

Furthermore, said Article 97&a, and Article 427b, Vernon's 

Penal Code, to which you referred In your aforementioned letter, 

provide for the Imposition of certain duties only In connection 

with the preparation, filing and recording of plans, maps, plats 

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, 

Honorable James E. E&Wow, page 3 (c-695) 

or replata of aubdlvlalona or additions and not ln,any connection whatsoever with deeds. 

Finally, Article 1137h, Vernon's Penal Code, which you 

also mentioned In your letter to this office, makes any party 

"subdividing or re-subdividing any real estate" guilty of a 

misdemeanor IS such party uses "the aubdlvlslon~a or re-aubdivision's description In any deed of conveyance or contract 

of sale delivered to a purchaser unless and until the map 

and plat of such aubdlvlalon or re-subdivision shall have 

been duly authorized (as therein provided) and such map and 

plat thereof has actually been filed for record with the 

Clerk of the County Court of the county in which the real 

estate Is situated." Said Article 1137h la applicable, thereSore, only to parties subdividing or resubdlvldlng real estate 

and Is not applicable to County Clerks In the performance of 

their official duties. As to such parties subdividing and 

resubdlvldlng real estate, it should also be noted that said 

Article 1137h provides for a Sine and/or conflnement~ln the 

county jail upon conviction of such misdemeanor. 

In answer to your request for clarlSlcatlon of Attorney 

General's Opinion No. V-934 (1949) wherein It Is stated that 

the owner of a subdivision "Is not authorized to subdivide 

his tract unless he complies with the provisions of (said 

Article) gi'4a;" and, "IS the owner falls to make a map or 

plat as required, the County Clerk should refuse to record 

the field notes submitted to his office," It Is our opinion 

that the field notes of a subdivision cannot be recorded in 

the plat records unless the field notes are accompanied by 

_H - a duly authorized map or platof such subdivision for recording, and It Is our further oprnlon that the term "field notes" 

as used therein does not refer to or mean metes and bounds 

&;;rlptlona contained In deeds of conveyance or contracts of 

. 

SUMNARY 

The County Clerk is re ulred by the 

provisions of Article B 626, V.C.S., 

to file and record upon request properly acknowledged deeds, notwlthstandlng a failure of compliance with the 

provisions of Article q4a, V.C.S., 

with reference to the recordatlon of 

plats (or plans, maps or replats) of 

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Honorable James E. Barlow, page 4 (c-695) 

subdlvlalona or additions, out of 

which the tracts of land deacrlbed 

In such deeds are carved. 

Very truly yours, 

WAQOONERCARR 

Assistant Attorney General 

CDJjr/lre 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Larry Craddock 

John Reeves 

Pat Bailey 

Roger Tgler 

APPROVED FOR THE ATTORNEY GENERAL 

By: T. B. Wright 

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