                               The Attorney General of Texas
                                                  January 28. 1982
MARK WHITE
Attorney General


SupremeCourt Building
                             HonorableMike Driscoll                  opinion No. Ml+433
P. 0. BOX12.343              Harris County Attorney
AusIln. TX. 78711            1001 Preston, Suite 634                 Re:   Penalty filing fees
512147525Ql                  Houston. Texas 77002                    required by 1981 amendmentto
Telex 9lOl974.13S7                                             L     article 6626, V.T.C.S.
Telecopkr 51214750266 ’

                             Dear Mr. Driscoll:
1607Main St. suite 14w
oailas. TX. 75Ml                  The Sixty-seventh  Legislature amended article 6626, V.T.C.S.,
2141142.B944                 which deals with the recordingof certain legal instrumen:s,~by
                                                                                          adding
                             subsection (b). Acts 1981. 67th Leg*, ch. 206. at 498. You have
4324Alberta Ave. Suite 150   asked five questions concerning this    subsection, which reads as
ElPaso.TX. 79905             follows:
91-
                                      A deed or other conveyauceconveying an interest
                                      In real.property, If executed after December 31.
                                      1981. shall contain a mailing address of .each
                                      grantee appearingon the documentbr In a separate
                                      instrument signed by a grantor or grantee and
                                      attached to.thendocument. Failure to include an
SW Broadway.Suite 312
LUbbock#
       lx. 19401
                                      address of each grantee In the document or
wSf7476238                            attached instrumentdoes not affect the validity
                                      of the conveyance between the parties to the
                                      document. Any such deed or other conveyancewhich
4309N. Tenth.&tile B                  fails to includea maillng address of each grantee
MeAllen.TX. 78501
512m92.4S47
                                      appearing in the document or attached ,Snstrument
                                      may only be filed for record with the county clerk
                                      of the county In .which the real property is
200 Main Plaza,suite 400              situated after pay&eat ,of a pCnalty filing fee
smhtonio.Tx:    79205                 equal to the greater of (1) twice the statutory
512l22Ml91
                                      filing fee for the.filing of such documentsvith
                                      the county clerk. or (2) the"sinnof $25. .Upon
An Equal oppmunnyl                    accep~tanceby the couuty clerk of a deed or other
AfftfmatiwAction Empktyw              conveyancefor recordationand the payment of the
                                      filing fee as determinedby the county clerk, it
                                      shall be cqnclusivelypresumed that such deed or
                                      other conveyancemeets all filing fee requirements
                                      of this Subsection (b) of this Article 6626,
                                      prerequisite to the lawful filing of a deed or
                                        _. conveyance.
                                      orner
    You first ask:

             1. Is the county clerk constitutionally
         authorizedto collect the penalty filing fees set
         forth in article66261

     Article V. section 20 of the Texas Constitution establishesthe
office of county clerk and provides that the duties of- said office
shall be as "prescribedby the Legislature." You suggestno reason-
and we cannot imagine any -- why the collectionof the article 6626
penalty filing fee is not a "duty" which the legislature may
permissiblyimpose upon county clerks. gather, you contend that the
penalty filing fee provisions of article 6626 are invalid because
Hous,eBill No. 196. which enacted those p~ovisioas,violated article
III, section 35 of the Texas Constitution,
                                         which providesas follows:

         No bill (exceptgeneral appropriationbills, which
         may embrace the various subjectsand accounts,for
         and on account of which moneys are appropriated)
         shall contain more than one subject,which shall
         be expressed in its title. But if Any subject
         shall be embraced in an-act. which shall not be
         expressed in the title, such act shall be void
         only as to so much'thereof.as shall not be so
         expressed.

     Rouse Bill No. 196. which teenActed former article 6626 AS.
subsection (a) of ~the new statute and enacted subsection (b), was
entitled"An act relatingto a requirementthat grantees'addressesbe
in or attached-toany document~conveying real property." You contend
that this title did not afford fair notice of the penalty filing fee
provisionsas requiredby article III, Aection35. We disagree.

    Numerous cases have construed Article III. section 35. An
excellentstatement of its .lmportmay be found in Lee v. State. 352
S.W.2d 724, 725 (Tex. 1962).where the Texas SupremeCourt stated:

         It is well establishedthat the caption of an act
         should be liberallyconstruedso AS to uphold Its
         validity If at all possible... It has also been
         said that. ‘None of the provisionsof a statute
         should be regarded AS unconstitutional when they
         relate, directly or indirectly, to the      same
         subject, have a mutual conaectfon,and. are not
         foreign to the subject expressedin the title.‘...
         So long AS the caption stAtes the main subject of
         An Act.  it will also be construed to cover any
         subsidiary matters if they are reAsonAbly




                                p. 1485
, *       * BonornbleMike Driscoll- Page 3    (uw-433)




                     connected,germane,incidental,or relevantto the
                     main subject.

            In C. Hayman ConstructionCompany V. American IndemnityCompany. 473
            S.W.Zd 62, 66 (Tex. Civ. App. - Dallas 1971. no writ), the court said:

                      The test of sufficiencyof a legislativetitle $s
                     ,whetherit gives reasonablenotice of the contents
                      of the bill to an average legislatoror interested
                      citizen. If such person interestedin legislation
                      on a particular subject would be prompted by the
                      title to examine the body of the Bills for
                      provisions relating to that subject, then the
                .     title is sufficient,but if he wbtildbe likely to
                      get the impression that further reading is
                      unnecessary because the bill does not relate to
                      that subject, then thi bill, if enacted, is
                      unconstitutionalto the extent that ft deals with
                      that subject.
                                                           s
                In our opinion, House Bill No. 196 comportedwith article III,
            eection 35. Its title expressed the general subject of the bill,
            "is., the requirementthat grantees' Addressesbe in or attached to
            documentsconveying real property.And we believe its penalty filing
            fee provisionswere reasonably,conuected  And germane to that subject.
      .     We also believe .that the wording of the title -    particularlythe
            presence therein of the word "requirement"- is such that its readers
            would have been encouragedto read further. A statutory"requirement"
            will usually be accompaniedby A penalty provision;thus, readers of
            the title of House Bill No. 196 could reasonablyhave been expectedto
            peruse the bill to discover the penalty that would be Loaposedif the
            requirementwere not met.

                WA thereforeconclude that House Bill No. 196 did not contravene
            article III. section 35 of the Texas Constitution,and we answer your
            first questionin the affirmative.

                 You next ask:

                           2. When a deed or other conyeyance is
                      tendered to the county clerk for filing and
                      recording without containing or having attached
                      the mailing address of each grantee. should the
                      county clerk collect only the penalty filing fee,
                      or should the clerk collect that fee in 'addition
                      to the regular filing fee?

                The language of subsection (b) of article 6626 is reasonably
            susceptibleof either construction. The bill,analysis of House Bill




                                              p. 1486
    ,       HonorableMike Driscoll- rage 4   (Mw-433)
.




            No. 196 offers no clue as to the proper interpretation. We must
            therefore choose the interpretationwhich finds the most support in
            the language of the statute,and which, in our opinion.best reflects
            the legislature'sintent. See RailroadCmmissio~ of Texas v. Miller,
            434 S.W.Zd 670 (Tex. 1968).-

                 We believe the most plausible interpretationis .that county
            clerks are to collect only the penalty filing .fee. First, the
            legislature'schoice of languageis significant. In our opinion, the
            term "penalty filing fee" signifies something complete, viz., a fee
            which is the entire filing fee to be collected,not a penalty fee to
            be coupled with the regular filing fee. Had the legislatureintended
            the latter. we think it would have selected a different term - for
            example,"penalty." Second.other statutesprovidingfor penalty fees
            do not contemplatethat such fees wfll be combinedwith the regular
            filing fee. See, e.g.. V.T.C.S. art. 3930(c). Finally, we believe
            that if the legislaturehad meant for the penalty fee to be added to
            the regular filing fee.- it would likely have said so clearly and
            unequivocally.
                                                         .
                 Your third questionIs:

                     If a conveyance conveying an interest in real
                     property does not conform to article 3930(c),
                     V.T.C.S..such as by not having the grantor'sname
        .
                     typed or printed under his signature.and does,not
                     contain or have attached thereto the mailing
                     address for each grantee, should the county clerk
                     calculatethe fee under said article 3930(c)first
                     and then double the amouqt so calculated to
                     determine the recording fee under article 66269
                     If not. how should such fee be calculated?

                Articles 3930. 3930a-1. and 3930(b),V.T.C.S..prescribe fees to
            be charged by county clerks for performingvarious tasks, including
            filing and recording certain legal documents. Article 3930(c),
            V.T.C.S..providesin pertinentpart as follows:

                          Section 1. (a) Each legal paper offered or
                     presented to a 'countyclerk and county recorder
                     for filing or for recording other"than fees
                     authorized in Article 3930(b)...should maet the
                     requirementsspecified in Subsections(b) through
                     (8) of this section.

                          . ..

                          Sec. 2. (a) The filing fee or recordingfee
                     for each page of a legal paper which is offered or




                                             p. 1487
.   .   nonoraole   HZKe   Drlscoll- Page 9     (MU-433)




                    presented for filing or for recordingto a county
                    clerk or county recorder and which fails to meet
                    the requirementsfor, or which is deficient in.
                    one or m&e of the items specifiedin Section 1 of
                    this article, shall be equal to twice the regular
                    filing fee or recording fee provided by statute
                    for that page.

             The conclusionthat a penalty fee computedunder article 3930(c)
        is to be used in computing the,article 6626 penalty filing fee can
        only be reached if one accepts the followingpropositions: (1) the
        term "statutoryfiling fee" in article 6626 signifiessomethingother
        than the regular filing fees prescribedby articles3930. 3930a-1,and
        3930(b); and (2) when articles 3930(c) and 6626 are both violated,
        county clerks are obliged to look first to article 3930(c). compute
        the penalty under that statute, and then use that figure in computing
        the article 6626 penalty filing fee.

             In our opinion, neither of these propositionsis defensible.
        First, we believe the term "statutory filing fee" refers to the
        regular filing fees contemplated by articles 3930, 3930a:1. and
        3930(b).and that it does not embracea penalty fee resultingfrom the
        application of article 3930(c). Second, the conclusion that the
        article 3930(c) penalty fee is to.be used in calculatingthe article
        ~6626penalty filing fee assumes a correlationbetween those statutes
        which, in our o&iinion.simply does not exist. Articles 3930(c) and
        6626 each sets forth its own requiremanteand prescribes its ovn
        penalty, and we believe that in computing a penalty under either
         statute, no penalty exacted under the other should be taken into
        account. Thus, where an individual tenders for recording a legal
        paper which violates both statutes, he will pay a combined fee
         consisting of the penalty fees required by each, which will be
         determinedindependentlyby referring to the regular fees established
        by articles3930, 3930a-1,and 3930(b).

              Your fourth question is essentiallyaa follows:

                        Which of the followinginstrumentsconstitute
                       'conveyance conveying an interest fn real
                    iroperty'within the meaning of article 66262
                                                         ..
                           a.   Deed of Trust

                           b.   Mechanic's    and    Materialman's Lien
                                Contract

                           C.   Earnest Money Contract covering real
                                property




                                              p. 1488
        . nouoraolenuke Driscoll- Page 6      (NW-433)

:   .




                        d.   Contractof Sale of real property

                        e.   Certifiedcopy c&Probated Will

                        f.   Certified copy of Judgment in eminent
                             domain case

                        g.   Certifiedcopy of Judgment in partition
                             case

                        h.   Lease of Real Estate

                        I.   Mineral Lease
              .
                        .I. Abstractof Judgment          l




                        k.   CondominiumDeed

               It is suggestedthat the legislature'sintent in enactingarticle
          6626 was to reach conveyanceswhich create a new taxable interestla
          the grantee, and that the phrase "conveyancecdnveyingau interestin
          real estate" should be construedas embracingonly those Instruments
          which have this effect. Language in the bill analysisof House Bill
          No. 196 is offered in support of this contention. Even if we assume
          that the foregoingis au accurate statementof the legislature'sreal
          motive, however, the fact Is that the wordiug of the phrase.in
          question is such that only one interpretetionis reasonable: article
          6626 embraces x     instrument which conveys m     interest in real
          estate. Just as courts must, we must take statutesas we find them,
          and we way not resort to extrinsic aids in construingstatuteswhen
          the statutorylanguagein questionis clear and unambiguous. Railroad
          Commissionof Texas v. Miller,m;      Rx parte Roloff. 510 S.W.Zd 913
          (Tex. 1974). If anyone is to limit the scope of article 6626;it must
          be the legislature,and not this office.

               A succinct and workable definitionof "conveyance"can be found
         'in Texas ElectricRy. Companyv. Neale, 244 S.W.2d 329, 332 (Tex.Civ.
          APP. - Waco 1951).rev'd on other grounds,252 S.W.Zd 451 (Tax. 1952):
                   [It is] an instrument in writing whereby the
                   grantor conveys to the grantee,some tlght. title
                   or interestin or to raal property.~


              Before it can be determined whether certain of the foregoing
          legal instruments are within article 6626, it is necessary to
          understandtheir meaning. A "deed of trust":




                                             p.   1489
Honorable Mike Driscoll- Page 7   (m-433)




         tak[es] the place and serv[es] the uses of a
         common-lawmortgage,by which the legal title to
         real property is placed in one or more trustees,
         to secure the repaymentof a sum of money or the
         performanceof other conditions.

Black's Law Dictionary 503 (4th Ed.). It is, in legal effect, a
mortgage with the power to sell on default. Phillipsv. Campbell,480
S.W.Zd 250. 253 (Tex. Civ. App. - Houston [14th Dist.) 1972, writ
ref'd n.r.e.). A "mechanic'slien" is:

         A claim createdby law for the purpose of securing
         priority of payment of the price or value of work
    .    performed and materials furnish&d in erecting or
         repairing a building or other structure,and as
         such attaches to the land .a8well as buildingsand
         improvementserectedthereon.

Black's Law Dictionary1132 (4th Ed.). See 38 Tex. Jur. 2d Mechanic's
Liens 551 et seq. An "earnestmoney coGct"‘calls for a deposit to
be made to a stakeholder to bind a sale. Such deposit is used as
forfeit monev or liauidated damages in the event the sale is not
completed. See CowmanTV.Allen Uo&ments, Inc., 500 S.W.2d 223 (Tex.
Civ. App. - Texarkana 1973, no writ). A "contractof sale" gives each
party -to the contract'the right to specific performance-so .as to
effect a conveyance of the property. Under such contract, the
purchaserdoes not presentlyacquirea completeand Indefeasibletitle
to the property purchased. the execution .end delivery of a deed
notwithstanding. Padre Sands, Inc. v. Cawood. 595 S.W.2d 896 (Tex.
Civ: App. - Corpus Christ1 1980, writ ref'd n.r.e.); 58 Tex. Jur.Zd
Vendor and Purchaser 002. 3. A "lease of real estate" conveys a
portion of an owner's interestin an estate in land to a lessee for a
shorter term than the owner'*. It passes a present interest in the
land to the lessee. Black's Law Dictionary (4th Ed.) at 1035. A
"mineral lease" is an agreement which permits the use of land to
explore ,forminerals; if minerals are discovered,the lease affords
the right to take the minerals either for a definite term or for so
long as they can be produced in paying quantitiesupon the reserved
royalty. Gordon v. Empire Gas and Fuel Company,63 F.2d 407 (5th Cir.
1933);Attorney General OpinionMW-402 (1981). :_

     In our opinion, deeds of trust are within the scope of article
6626, as are mineral leases. lease8 of real egtate. and condominium
deeds. These instrumentsclearlyconvey an intekest in real estate to
the grantee. Gn the other hand, mechanic'sliens. contracts of sale.
and earnest mosey contracts convey no title to or Interest in real
estate,end are thereforenot within the statute.




                                  p. 1490
        . WonorableMike Driscoll- Page 8   (Mw-433)
.   -



              A certified copy of a probated will is not, in ,our opinion.
         vithin article 6626. The actual transfer of title to any property
         devised to the beneficiarywill take place when the executor of the
         estate executesan executor‘sdeed, not when the certifiedcopy of the
         probatedwill is recorded. Certifiedcopies of judgmentsin partition
         cases are also not “conveyances.” Nor are abstracts of judgment,
         vhich merely afford evidenceof the judgmentin a particularcase, see
         article 5447. V.T.C.S., or certified copies of judgments in emin=
         domainproceedings.

              You finally ask:

                       5. Which party in each of the ..    above
             .     instrumentswhich constitutea fconveyanceof an
                   interest in real property’ is the ‘grantee’ as
                   contemplatedby article6626?

             We believe the ansver to this question plainly 5s that the
         “grantee” will be the person or entity to whom the int’erestis
         conveyed. This will be apparent from the face of. then instrument
         itself.

                                     SUMMARY

                        1:. county clerks are constitutionally
                   authorieed to collect the penalty filing fees
                   prescribedby article 6626, V.T.C.S.

                        2. Where article 6626 is violated~,county
                   clerks are to collect only the penalty filing fee,
                   not the penalty filing fee plus the regular filing
                   fee.

                        3. Where article 3930(c). V.T.C.S., and
                   article 6626 are both violated,the penalty filing
                   fee under article 6626 is to be computedwithout
                   referenceto the penalty fee prescribedby article
                   3930(c).

                       4.   Deeds of trust, mineral leases, leares
                   of real estate and condominiumdeeds”are,within
                   the scope of article 6626. Mechanic’s liens.
                   earnestmoney contracts,cohtractsof sale of real
                   estate, certified copies of probated vills,
                   certified copies of judgments In partitioncases,
                   and abstracts of judgments are not vithin said
                   article.




                                           p. 1491
.   -




                      5. The “grantee” in a conveyanceconveying
                 an interest in real estate is the person or entity.
                 ,namedas such in the instrument.




                                              M A RR   WEITE
                                              AttorneyGeneral of Texas

        JOHN W. FAINTER,.JR.
        First AssistantAttorney General
                                                    .
        RIC&lB E. GRAY III
        ExecutiveAssistantAttorney General

        Preparedby Jon Bible
        AssistantAttorney General

        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison,Chairman
        Rick Gilpin
        Jim Moallinger ..
        Bruce Youngblood




                                                        ..




                                          p. 1492
