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 un-
  surveyed 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 re-
  corded in their offices.

        "The application and filLng fee were ac-
  cepted 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 author-
  ity 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 ap-
 plication 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 sur-
      veyor a filing fee cf 'ive uollars ($5). The sur-
      veyor 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 there-
      on 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 appli-
      cants, priority shall date from the time of filing
      with the surveyor. 9 + (o(

           It will be seen from the reading of the abcve stat-
ute that the Five Dollar filing fee is a fee allowed the ccunty
surveyor for his services in filing and recording, the apnli-
cation 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 fil-
ing 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 applica-
tion with the Commissioner within the time fixed, and to pay
the filing fee, sha1.1 be a waiver of al rights under the
application" 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 Cur-
veyor .

           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:
            "itis 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 in-
      strument 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 re-
      ceives 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 re-
     ception, 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 the
Supreme Court, 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
