HonorableJames 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 CriminalDistrict locatedwithin a subAttorney division in the absence County Affairs Section of proof that Article 974a, V.C.S., has been compliedwith 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 subdividersof land within the corporate limits or extraterrltorlaljurisdiction of the City OS San Antonio to record maps or plats of aubdlvlsionaor re-eubdivlaiona.

In that connection,you stated that such subdividers have been “selling their subdivided lots by means of deeds referring to an unrecordedplat Sollowedby a metes and bounds description and sometimesby means of deeds containing only a metes and

.- . bounds description” (withoutany reference to the unrecorded pl&ta reflecting subdividedacreage 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 determiningthat 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 compliedwith.
When requested to file and record any deed, including “deeds referring to an unrecordedplat followed by a metes and bounds description”or I’deeda containing only a metes and bounds description” (withoutany reference to the unrecordedplats reflecting subdlvldedacreage out OS which the tracts coveredby such deeds are carved), the County Clerk is governedby the provisions of said Article 6626, the pertinent portions of which are as follows: -3346-. - L-1

HonorableJames E. Barlow, page 2 (C-695)

"The Sollowlng Instruments of writing which shall have been acknowledgedor proved according to law, are authorizedto be recorded,viz: all deeds,

. . . or other Instrumentsof writing concerning any lands or tenements,

. . . provided, however, that In cases of aubdlvlalonor re-aubdlvlalon of real propertyno map or plat of any such subdivisionor re-subdivision shall be filed or recorded unless and until the same shall have been authorizedby the Commissioners Court of the county In which the real estate' Is situatedby order duly entered In the minutes of said Court, except in cases of the partitionor other subdlvision through a court of record;provided that where the real estate Is situatedwithin the corporate limits or within five miles of the corporate limits of any incorporated city or town, the' governingbody 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 hereinaboveImposed upon the 'CommlssIonera

Court.n
Said Article 6626 clearly authorizesthe recording of all properlyacknowledgeddeeds, Including-such deeds containing the types of descriptionsreferredto hereinabove.

In that regard, the Sollowlngholding reflects the duty placed upon the County Clerk:

'"It la the duty of the county clerk to record all depositedwritten Instrumentsauthorized, required or permitted to be recorded in his office.
"The clerk'smlnlsterlalduty to record la properly enforced by mandamus." Turrentlnevs. Iaaane, 389 S.W.2d 336 (Tex.Clv.App., 1965).
Prior to the filing and recordingof maps or plats of aubdivisionsor re-subdlvlslons, said Article 6626 requiresproper authorizationof such maps or plats In the manner therein set forth; however, no prior authorizationIs therein required as a prerequisiteto the filing and recordingof any other lnatruments of writing (specifically Includingdeeds) concerningany lands or tenements. - Furthermore, said Article 97&a, and Article 427b, Vernon's Penal Code, to which you referred In your aforementionedletter, provide for the Impositionof certain duties only In connection with the preparation,filing and recordingof plans, maps, plats -3347-&-’

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

or replata of aubdlvlalonaor 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 "subdividingor re-subdividing any real estate" guilty of a misdemeanor IS such party uses "the aubdlvlslon~aor re-aubdivision'sdescription In any deed of conveyanceor contract of sale delivered to a purchaser unless and until the map and plat of such aubdlvlalonor re-subdivisionshall 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 subdividingor resubdlvldlngreal estate and Is not applicable to County Clerks In the performanceof their official duties. As to such parties subdividingand resubdlvldlngreal estate, it should also be noted that said Article 1137h provides for a Sine and/or conflnement~lnthe county jail upon convictionof such misdemeanor.

In answer to your request for clarlSlcatlonof Attorney General'sOpinion No. V-934 (1949)wherein It Is stated that the owner of a subdivision "Is not authorized to subdivide his tract unless he complieswith 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 subdivisioncannot be recorded in the plat records unless the field notes are accompaniedby _H - a duly authorizedmap or platof such subdivisionfor 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 B626, V.C.S., to file and record upon request properly acknowledgeddeeds, notwlthstandlng a failure of compliancewith the provisions of Article q4a, V.C.S., with reference to the recordatlonof plats (or plans, maps or replats) of

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. . HonorableJames E. Barlow, page 4 (c-695)

subdlvlalonaor additions, out of which the tracts of land deacrlbed In such deeds are carved.
Very truly yours, WAQOONERCARR

AssistantAttorney 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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