     OFFlCE
          OFTHEATTORNEY
                     GENERAL.
                           STATE
                               OFnmr
     JOHN CORNYN




                                               January 5,200l



The Honorable Susan D. Reed                                Opinion No. JC-0323
Bexar County Criminal District Attorney
Bexar County Justice Center                                Re: Whether a county clerk must file stamp an
300 Dolorosa, Fifth Floor                                  instrument immediately upon its delivery and
San Antonio, Texas 78205-3030                              acceptance for tiling, and related questions
                                                           (RQ-0264-JC)


Dear Ms. Reed:

         A county clerk’s written indorsement on an instrument of the date and time that the clerk
received the instrument evidences the filing should it be questioned in court. See Muddux v. Booth,
 108 S.W.2d 329,331 (Tex. Civ. App.-Amarillo         1937, no writ); 36A C.J.S. File at 402 (1961); see
also Grogan v. Robinson, 8 S.W.2d 571,573 (Tex. Civ. App.-Dallas 1928, writ ref d) (indicating
that “tile mark” evidences instrument’s tiling). You ask whether a county clerk must “tile stamp”
an instrument immediately at the time it is deposited in the clerk’s office for recording or whether
the clerk has “a reasonable time after delivery to file stamp the instrument.“’ (For the sake of
brevity, we use the term “county clerk” or “clerk” to refer to a county clerk or the clerk’s agent.) No
statute expressly requires a clerk to tile stamp an instrument. The clerk must mark the date and time
on an instrument in some way immediately upon receiving it, however. File stamping is not the only
means by which the date and time of delivery immediately may be noted, but it is the one about
which you ask. See Request Letter, supra note 1, at 1. We accordingly limit our response to file
stamping and not to any other methodology that may accomplish this purpose.

          You ask two further questions regarding tile stamping an instrument filed in a county clerk’s
office:

          2.     If your office determines a county clerk is statutorily required to tile
                 stamp all instruments at the time the instruments are delivered to the
                 county clerk, may a county clerk establish a “cut off’ time prior to the
                 actual closing time of the county clerk’s office in order to process
                 (file stamp) the large number of instruments generally delivered to a
                 county clerk’s office several hours prior to the close of business?




        ‘See Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable
John Comyn, Texas Attorney General (Aug. 4,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable    Susan D. Reed - Page 2            (JC-0323)




        3.      Are instruments that are received by a county clerk’s office through
                the mail to be given the same priority for filing as instruments that are
                personally delivered to a county clerk’s office for filing?

We answer your third question first because it follows directly l?om your first question.         We
conclude, based upon Jones v. MucCorquodale, that an instrument delivered to a county clerk’s
offlice by mail must “be given the same priority as instruments that are personally delivered to a
county clerk’s office.” See Jones v. Maccorquodale, 218 S.W. 59,61 (Tex. Civ. App.-Galveston
1919, writ ref d). And, in answer to your second question, we conclude that a county clerk may not
close the clerk’s office to the public without obtaining the approval of the court he or she serves.

         Before we proceed, it may be helpful to define three terms that are used throughout the
request letter: “file,” “file stamp,” and “record.” See Request Letter, supra note 1, at 1-4. Each term
denotes a part of the process by which an instrument is delivered to, filed by, and recorded by a
county clerk’s office: “As a rule, [when an instrument is delivered to a county clerk’s office for
filing,] a county clerk is required to initially determine whether a document will be accepted for
filing and, if so, to properly note such filing, accept the fee, record the document (that is, make a
copy of it), index it, and, if required to do so, return the original to the filer.” 35 DAVID B. BROOKS,
TEXAS PRACTICE: COUNTYANDSPECIALDISTRICTLAW § 10.9 (1989).

         An instrument is “filed” when it is delivered to the clerk, or otherwise put in the clerk’s
custody or control, and accepted for filing and recording. See Jamar v. Patterson, 868 S.W.2d 3 18,
319 (Tex. 1993); Biffle v. Morton Rubber Indus., Inc., 785 S.W.2d 143, 144 (Tex. 1990) (per
curiam); Birdwell v. State, 996 S.W.2d 381,382 (Tex. App.-Houston [14thDist.] 1999, pet. refd);
Spellman v. Hoang, 887 S.W.2d 480,481 (Tex. App.-San Antonio 1994, no writ) (per curiam); cf:
Muddux, 108 S.W.2d at 331 (stating that filing consists of delivery to clerk plus acceptance for
record by clerk); Jones, 218 S.W. at 61 (stating that, in context of registration laws, instrument is
filed “when deposited for that purpose in the county clerk’s office, together with the proper recording
fees”). Delivery may be in person, by mail, or in certain circumstances, electronically.       See TEX.
Lot. GOV’T CODE ANN. 5 191.009, ch. 195 (Vernon Supp. 2000) (regarding electronic filing); 35
BROOKS, supra, 4 10.9; see also OFFICE OF COURTADMINISTRATION,COUNTYCLERK PROCEDURE
MANUAL II-30 (1998) (“Instruments for recording are quite often brought to the clerk’s office
personally but may also be mailed in for processing.“). An instrument is considered filed when the
clerk accepts the document for filing “regardless ofthe time at which it may subsequently be actually
recorded.” 35 BROOKS, supra, 3 10.9.

         You use the term “file stamp” to refer to the process by which, when an instrument is
delivered to the clerk’s office, the instrument is inserted into amachine that stamps on the instrument
the date and time. Telephone conversation with Ms. Pat Prows, Bexar County District Attorney’s
Office (Oct. 11,200O). While we couldnot find a definition ofthe term, it appears synonymous with
the term “file mark,” which is a clerk’s indorsement on an instrument that a document was tiled. See
Grogan, 8 S.W.2d at 573. For the purposes of this opinion, we use the term “file stamp” to denote
The Honorable    Susan D. Reed - Page 3             (X-0323)




a mark that a county clerk places upon an instrument stating the (presumably       correct) date and time
the instrument was received.

         Recording consists of “copying the document and placing it in a proper book” or
electronically recording a copy of the document. See TEX. LOC. GOV’T CODE ANN. 5 191.009(a)
(Vernon Supp. 2000); 35 BROOKS, supra, 3 10.9. In general, under section 191.001 of the Local
Government Code, the county clerk must record “without delay.           the contents of each instrument
that is tiled for recording and that the clerk is authorized to record.” TEX. LOC. GOV’T CODE ANN.
5 191.001(c) (Vernon 1999). Section 193.001 of the same code directs the manner of recording
generally:

                      (a) The county clerk shall record instruments tiled for recording
                 in the order that they are filed. The clerk shall record each instrument
                 with any acknowledgment,         proof, affidavit, or certificate that is
                 attached to it.

                     (b) The clerk shall note at the foot of the record the date and time
                 that the instrument was filed for recording.

                     (c) If an instrument that is tiled for recording is acknowledged or
                proved in the manner prescribed by law for record, the clerk shall
                make a record of the names of the parties to the instrument in
                alphabetical order, the date of the instrument, the nature of the
                instrument, and the time that the instrument was tiled. Ifrequired, the
                clerk shall give the person who tiles the instrument a receipt stating
                this information.

                     (d) The clerk shall certify under the clerk’s signature and seal of
                office the date and time that the instrument is recorded and the
                specific location in the records at which the instrument is recorded.
                After recording the instrument, the clerk shall deliver the instrument
                to the person who is entitled to it.

Id. 5 193 .OOl Section 11.004 ofthe Property Code provides specifically for recording an instrument
related to real property:

                A county clerk shall:

                        (1) correctly record, as required by law, within a reasonable
                time after delivery, any instrument authorized or required to be
                recorded in that clerk’s office that is proved, acknowledged, or sworn
                to according to law;
The Honorable    Susan D. Reed - Page 4             (X-0323)




                         (2) give a receipt, as required by law, for an instrument
                delivered for recording;

                        (3) record instruments relating to the same property in the
                order the instruments are tiled; and

                          (4) provide and keep in the clerk’s office the indexes required
                by law.

TEX.PROP. CODEANN. § 11.004(a) (Vernon Supp. 2000);seealsoid. § 11.001(a) (“To be effectively
recorded, an instrument relating to real property must be. recorded in the county in which a part
of the property is located.“).

         Nothing in the statutes expressly requires a county clerk generally to tile stamp all
instruments immediately at the time the instruments are delivered to the clerk’s office. Section
 191.001 of the Local Government Code and section 11.004 of the Property Code, which you believe
are relevant, do not require a county clerk to tile stamp an instrument either “without delay,” TEX.
LOC. GOV’T CODE ANN. 3 191.001(c) (Vernon 1999) (requiring county clerk to record contents of
instrument), or, with respect to an instrument relating to real property, ‘within a reasonable time
after delivery,” TEX. PROP. CODE ANN. 5 ll.O04(a)( 1) (Vernon Supp. 2000). Both section 191 .OOl
of the Local Government Code and section 11.004 of the Property Code designate the time at which
an instrument must be recorded, not tile stamped.           Compare TEX. LOC. GOV’T CODE ANN.
4 191.001(c) (Vernon 1999) (“without delay”), with TEX. PROP. CODE ANN. 5 ll.O04(a)( 1) (Vernon
Supp. 2000) (“within a reasonable time after delivery”). Consequently, neither of these statutes
expressly sets a time frame within which an instrument must be tile stamped. Nor does section
193.001 of the Local Government Code expressly require a county clerk to tile stamp an instrument
immediately upon tiling. See Request Letter, supra note 1, at 2 (stating that county clerk “is required
to note on the document the precise time that it was tiled.             Thus,       county clerk must
immediately file stamp the instrument.“).      Section 193.001(b) requires a clerk to “note at the foot
of the record the date and time that the instrument was filed for recording.” TEX. Lot. GOV’T CODE
iiNN. 5 193.001(b) (Vernon 1999). Section 193.001(b) does not indicate when the notation must be
made, only what the notation “at the foot of the record” must state.

         While we find no express statutory requirement, the statutes implicitly require the clerk to
accurately note the date and time that an instrument is delivered. See id. 9 191.001(a), (b) (requiring
clerk to record instruments “in the order they are tiled” and to note “date and time” instrument is
filed for recording); TEX. PROP. CODE ANN. $ 11.004(a) (3) (Vernon Supp. 2000) (requiring clerk
to “record instruments relating to the same property in the order the instruments are tiled”). The
county clerk’s indorsement on an instrument, for example, evidences the fact that a paper was filed
at a particular time, and a court may rely upon that evidence. See Maddox, 108 S.W.2d at 33 1
(quoting Hanover FireZns. Co. v. Shader, 33 S.W. 112,113 (Tex. 1895)). “[Tlhe indorsement upon
the paper of the time of its reception is not, strictly speaking, a part of the operation of tiling, but is
a mere memorandum serving as evidence of the fact.” 36A C.J.S. File at 402 (1961); see also
The Honorable   Susan D. Reed - Page 5            (JC-0323)




Maddox, 108 S.W.2d at 331 (citing C.J.S.).          The indorsement creates a refutable presumption
regarding the date and time that the document was delivered to the court. State v. Miller, Nos.
99CA2506 & OOCA2539,2000 WL 1273467, at *2 (Ohio App. [4th Dist.] Aug. 3 1,200O); 76 C.J.S.
Records 5 6 (1994); cf: Biffle, 785 S.W.2d at 144 (stating that instrument is deemed tiled at the time
it is delivered to clerk, regardless of whether instrument is file marked); Birdwell, 996 S.W.2d at
3X2-83 (discussing use of tile mark as evidence in civil and criminal cases). You suggest that this
evidence may be particularly important in the case of real-property transactions. See Request Letter,
supra note 1, at 4. A properly recorded instrument regarding real property notifies all persons of a
transaction affecting the property. TEX. PROP. CODE ANN. 4 13.002 (Vernon 1984). Where two
opposing deeds purport to convey the same property, the first-tiled deed controls disposition of the
property. See Anderson v. Barnwell, 52 S.W.2d 96, 101-02 (Tex. Civ. App.-Texarkana               1932)
(indicating that first-tiled instrument provides notice to later purchaser of same property interest),
aff’d in part sub nom. Anderson Y. Brawley, 86 S.W.2d 41 (Tex. 1935); Hooks v. Neill, 21 S.W.2d
532,54O(Tex. Civ. App.-Galveston        1929,writrefd)(same);   RaZeyv.Magendie, 116 S.W. 174,175
(Tex. Civ. App. 1909, writ ref d) (same).

         Court rules also may require the clerk to indorse an instrument immediately upon accepting
the instrument for filing. Rule 24 of the Texas Rules of Civil Procedure, for example, requires a
county clerk to indorse, “[wlhen a petition is filed,” upon the petition “the file number, the day on
which [the petition] was tiled and the time of filing, and” to sign his or her name “officially” on the
instrument. TEX. R. Crv. P. 24. And the Office of Court Administration suggests that a county clerk
file mark an instrument showing the date and time received “[ulpon receipt.” E.g., OFFICEOFCOIJRT
~LDMINISTFMTION,     COLINTYCLERKPROCEDUREMANUAL III-5 (199X) (“Initial Filing Procedures”
for criminal case); id. IV-1 1 (“Initial Filing Procedures” for civil case); id. IV-14 (“Subsequent
Filing Procedures” for additional instruments in civil case); id. V-13 (tiling of probate cases).

         We consider next your third inquiry: whether an instrument that is received by a county
clerk’s office through the mail is to be given the same priority for filing as an instrument that is
personally delivered for tiling. See Request Letter, supra note 1, at 1. You believe that a county
clerk must file stamp “all instruments received through mail deliveries during the day at the time of
delivery rather than file stamping all instruments received through the mail throughout a particular
business day at a certain time later in the day.” Id. at 3. We thus understand you to ask whether an
instrument must be tile stamped at the time the instrument is delivered, whether the instrument is
delivered through the mail or in person.

        We conclude that a county clerk must indorse the date and time that an instrument is received
immediately upon receiving it in the clerk’s office, whether the instrument is delivered in the mail
or in person. Under Jones v. MacCorquodale, 218 S.W. 59 (Tex. Civ. App.Galveston           1919, writ
The Honorable    Susan D. Reed - Page 6           (X-0323)




ref d), an instrument delivered to a county clerk’s office, whether by mail or in person, is entitled
to be noted as filed at the date and time of delivery:

                         So far as we are aware, there is no particular method of
                getting an instrument into the clerk’s office for the purpose of filing
                required. If it is deposited there with that objective by mail, by
                messenger, or is even handed to the clerk elsewhere, and afterwards
                carried there by him, it becomes entitled to record upon its arrival or
                deposit in his office.

Id. at 61. When the document is filed, it is likewise deemed recorded. See TEX. Lot. GOV’T CODE
ANN. 8 191.003 (Vernon 1999).

         We finally address your second question: If a county clerk is “statutorily required to tile
stamp all instruments at the time the instruments are delivered to the county clerk,” may the clerk
“establish a ‘cut-off time prior to the actual closing time of the” clerk’s office to file stamp “the
large number of instruments generally delivered        several hours prior to the close of business”?
Request Letter, supra note 1, at 1. As predicate to your question, you state that the Bexar County
Commissioners Court requires all county employees to work forty hours per work week, although
the Commissioners Court has not specified any hours during which Bexar County offices must be
open. See Request Letter, supva note 1, at 3. You further indicate that the Bexar County clerk is
contemplating closing his or her office to the public at 3:30 each workday afternoon to tile stamp
all instruments “prior to close of business on the day the instruments are delivered.” Id. All
employees would be working forty hours each work week, which, you state, is consistent with the
Bexar County Personnel Rules. See id.

         Past decisions of this oftice considering how authority is divided between a county official
and the county commissioners court do not dispose of a situation involving the county clerk’s
authority. Between a county official, such as a county clerk, and the county commissioners court,
the county official has sufficient discretion to administer the office as the official wishes to
accomplish its constitutional and statutory duties. See Tex. Att’y Gen. Op. No. X-239 (2000) at 3.
So long as county employees working in the official’s oftice do not violate a county’s forty-hours-a-
week work requirement, the commissioners court, in executing its authority over the county budget,
may not interfere with the elected official’s decisions. See id. at 1. Thus, a county clerk need not
obtain the approval of the county commissioners court to change the hours the clerk’s office is open
to the public, so long as county employees comply with the commissioners court’s forty-hours-a-
week work requirement.

         While the county commissioners court’s budgetary authority doesnot authorize it to interfere
in the setting of the county clerk’s office hours, the clerk must obtain the approval of the courts the
clerk serves ifthe clerk wishes to change the hours his or her office is open to the public. A county
clerk is subject to the authority of the judiciary and “receives documents for tiling on behalf of” a
court. See Stokes v. Aberdeen Ins. Co., 917 S.W.2d 267,268 (Tex. 1996) (per curiam). The clerk
The Honorable   Susan D. Reed - Page 7           (X-0323)




is, consequently, “subject to the court’s direction and control in exercising ministerial duties such
as tiling documents.” Id. Additionally, the courts may have to revise court rules ifthey approve the
county clerk’s proposal. See, e.g., BANKR. N.D. TEX. Lot. R. app. C (listing clerks’ office hours);
~TH TEX. APP. (DALLAS) LOC. R. 3(a) (listing normal court business hours for receiving faxes
Monday through Friday “from 8:OO a.m. to 5:00 p.m. central time”);lOth TEX. APP. (WACO) Lot.
R. 4 (listing normal court business hours as Monday through Friday, “8:OO a.m. to 5:00 p.m.“).
The Honorable   Susan D. Reed - Page 8            (X-0323)




                                         SUMMARY

                         While a county clerk is not expressly required by statute to
                file stamp the date and time an instrument arrives in the clerk’s office
                for tiling upon receiving and accepting the instrument, the county
                clerk must devise some method for immediately and accurately
                noting that date and time. Just as the clerk must develop a method for
                noting the date and time a particular instrument is delivered in person,
                so must the clerk develop a method for noting the date and time of
                delivery of an instrument that arrives in the mail.

                        A county clerk must obtain the approval of the judiciary he or
                she serves before changing the hours the clerk’s office is open to the
                public.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
