Hon. Robert S. Calvert        Opinion No. R-134
Comptroller of Public Accounts
Austin, Texas                 Re: Filing of tax liens
                                   pursuant to the pro-
                                   visions of House Bill
                                   00, Acts of the 60th
                                   Legislature, Regular
                                   Session, 1967, Chapter
Dear Mr. Calvert:                  681, Page 1789.
          your request for an opinion poses the following
questions:
          "Can the Comptroller pay the County Clerk
     the recording fee in advance of recordation?
          "Is the notice of State tax lien a type of
     instrument referred to in Article 3930 and if so,   ,'
     is it an instrument required to,be filed in the
     personal property records or the real property
     records of the county or does it fall under Sec-
     tion 9 requiring merely a reasonable fee?
          "Whether or not the filing and recording
     of the notice of State tax liens under Article
     1.07 (Title 122A) shall be rade at the expense
     of the County or at the expense of the State
     insofar as the filing fees, if any, are concerned?"'
          Article 3930, Revised Civil Statutes of Texas, 1925,
as amended, providing for fees of county clerks was amended
by House Bill 80, Act8 ofthe 60th LegisSature,jRegular Ses-
sion, Chapter 680, Page 1789. Article 3930 now provides that
the county clerks shall receive certain fees for filing and
recording including indexing each instrument, document, legal'
paper or record (exceptions not applicable) authorized, per-
mitted or required to be filed and recorded in the real prop-
erty records in the office of county clerk. you state in your
request that you notified each county clerk in the State to
submit their claims for recording fees on a purchase vowher
for the purpose of paying such fees.

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Bon. Robert 6. Calvert, page 2, (M-134)


          Article 4357, Vernon's Civil Statutes,~providemr
         "No warrant shall be prepared except on
    presentation to the warrant alerk of a properly
    audited claim, verified by affidavit to its
    correctness, the proper auditing,ofwhich claim
    shall be evidenced by the initials~writtenthere-
    on by the person auditing the same: and such claim
    so verified and audited shall be sufficient and
    the only authority for thenpreparation of a war-
    rant or warrants. Provided, that any claim for,
    the amount of Fifty Dollars ($50.00)or less
    msy be presented for payment with or without
    the affidavit as set forth above; if such claim,
    bs presented for payment without such affidavit,
    the claimant must certify under the pendlties'of
    perjury that to the best of his knowledge and
    belief the,claim is true and correct, and upon
    such certificatethe Comptrollermay issue war-
    rant in payment thereof. . . ."

          Article 4344, Vernon's Civil      Statutes   provides:
          ‘Among other duties the Comptroller shall:
          ". . . .

         "Require all accounts presented to him for
    settlement not otherwise provided for by law to
    be made on forms prescribed by him, all such
    accounts to be verified by affidavit as to the
    correctness,and he may administer the oath
    himself in any case in which he may deem it
    necessary.
          I                   ”                .
              .   .   .   .                                        .:

          Artidle 3932 provides that no oounty clerk shall be'          .'
com#elled to file or record any instrumentof writing permit&d
or'requiredby law to k, recorded until the payment or tender,
of payment of all legal f&es for such filing or rec?rding,has
been made. Prior to the enactment of House Bill 80, no fees
were required to be ,paidby the State of Texas. Article 3952e.
Sections 1 and 3, Vernon's Civil Statutes. House Bill.00 now
requbes  fees to be paid by the State. However, House Bill
80 wntains no provisions which amend or repeal the provisions
ot Articles 4344 or 4357. Therefore, it is our opinion that
Atticle 3932, Article 3930, Article 4344 and 4357 must be oon-
strued together and each statute complied with. Therefoxe,
                                  - 620 -
: it is necessary before payment of a fee by the State that the
  county clerk present a claim to the Comptrol.lerfor services
  rendered in order to authorize the Comptroller to issue a war-
  rant for the payment of services rendered to the State by the
  county clerk. The Comptroller is not authorized to issue a
  warrant in advance of the submitting of such a claim. Since
  such a claim could not be presented prior to the filihg and
  recording by the county clerk, in answer to your first ques-
  tion, the Comptroller is not authorized to issue a warrant in
  payment of a recording fee in advance of recordation.
           Your second question refers to the filing:and record-
 ing of State tax liens pursuant to the provisions of Article
 1.07 and l.O7A, Title 122A, Taxation General. Article 1.07 estab-
 lishes for the State a preferred lien first and prior to any
 and all other existing liens. Article 1.07A provides:,
           "Every county clerk shall, at the expense
      of the county, provide a suitable well-bound
      book, to be called 'State Tax Liens,' upon which,
      on the filing of tax claims under the provisions
      of this Act, such clerk shall enter the name of
      such person, firm, corporation, association, joint
      stock company, syndicate, copartnership, agency,
      trustee, or receiver against whom the State has
      assessed such tax,to be due, the date of assess-     e
      ment and the amount alleged to be due, noting
      therein the date and hour of such record. He
      shall at the same time enter it upon the alpha-
      betical index to such state tax lien, showing the
      name of each person, firm, corporation, asaocia-
      tion, joint stock company, syndicate, copartner-
      ship, agency, trustee, or receiver liable for such
      tax and the number of the page of the book upon which
      the state tax lien is recorded. He shall leave a space
      at the foot of.each such state tax lien for the
      entry of credits upon and satisfaction of such
      state tax lien, and'shall enter the same when prop-
      erly shown."
           Article 1.07B provides:
           "When any state tax lien has been so recorded
      and indexed, it shall, from the date of such record
      and index, operate as a lien upon all of the real
      estate of the person, firm, corporation, association,
      joint stock company, syndicate, copartnership, agency,
      trustee, or receiver situated in the county where
      such record and index are made, and upon all real

                               - 621 -
    .1   .




         Hon. Robert S. Calvert, page 4, (M-134)


             estate which such person, firm, corporation, associa-
             fion, joint stock company, syndicate, copartnership,
             agency, trustee, or receiver may thereafter acquire,,
             situated in said county. Satisfaction of any state
             tax lien may be shown by a receipt; acknowledgment or
             release signed by a representative of the State agency
             that filed such lien, and acknowledged or proved,
             for record as required for deeds.'                I'

                   In answer to your second question, in view of the'
         provisions of Article l.O7A, you are advised that the "State
         Tax',Lien"constitutes an instrument, document, legal paper or
         record, authorized, submitted or required to be filed in the
         real property records, within the meaning of Subdivision 2 of
         Section 1 of Article 3930, as amended by House Bill SO.
                   In answer to your third question, you are advised    "
         that Article 1.07A requires the county clerk to provide a sui,t-
         able well-bound book to be called State tax liens and the main-
         tenance of this book is at the expense of the county. This Ar-
         ticle has no application to the amount of fees due the county
         clerk for filing and recording the liens presented to him by
         the State. Therefore, you are advised that the fee for fil-
         ing and recording the notice of State tax liens is to be paid
         by the State by warrants issued by the Comptroller upon claims
         presented pursuant to Article 4357.

                                SUMMARY
                                -------

                   The State is required to pay filing and re-
              cording fees provided in Article 3930, Subdivis-
              ion 2, as amended by House Bill 80; Acts of the
              60th Legislature, where the State tenders for
              filing and recording State tax liens established
              pursuant to the provisions:of Article 1.07, Title
              122A,,Taxation General. The Comptroller may not
              issue a warrant, however, for the vavment of fees
              until a claim fbr such fees is fil&d-with the
              Comptroller by the county clerk in compliance with
i
              Article 4357, Vernon's Civil Statutes. State tax
              liens should be recorded in the real property
              records.




                                                   *
                                                General of .Texas
.   .




        Json.. Robert s.       Calvart, page 5,       04-134)        ‘.



        Prepared by        John    Rwves
        Assistant       Attorney     GWeral,
        APPROVED    :
        OPINZON     COMMI~E
        Hawthorne Phillip8, Chaiaan,
        Kerns Taylor, Co4b&rman

        w. V. Gmpport
        John Grace
        Raymond Gregory
        Roger Tyler
        STAFF LEGAL ASSISTANT
        A. J. Carubbi, Jr.




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