                            April 5, 1988




Honorable  Travis S. Ware                   opinion   No. JM-883
Criminal District Attorney
Civil Division                              Re: Requirements   of acknow-
P. 0. BOX 10536                             ledgment    and    jurat    in
Lubbock, Texas    79408                     instruments  recorded    by   a
                                            county clerk (RQ-1339)

Dear   Mr. Ware:

      You ask whether      a jurat     may be    included within       an
acknowledgment.      A  jurat is     a certificate       added    to   an
affidavit   stating    when, before       whom,   and where     it was
made, while an acknowledgment         is   a declaration     of a    fact
to qive it legal validity.         Webster's    Ninth New Collegiate
Dictionary.          *
                &Hilv-           o    *                              nc.,
590 S.W.2d 723. 729 (Tex.        Civ. ADD. - San Antonio,          1979,
no writ).     Yoi have' submitted        a--document    in which      the
substance   of the jurat and the acknowledgment           are combined
in a   single paragraph      over the notary's          signature     and
seal.   Your concern is that an instrument           which contains a
combination   of    the two   places a greater burden           on    the
county clerk in examining        the instrument      to determine      if
there is compliance     with the requisites       of both affidavits
and acknowledgments.

       Section     12.001   of the   Property     Code   provides:

             (4 An   instrument  concerning    real
         personal property may be recorded    if it                hz:
         been acknowledged    or proved   according                 to
         law.

             (b) An instrument   conveying   real property
         may not be recorded unless it is signed        and
         acknowledged  by the grantor in the      presence
         of two or more credible subscribing      witness-
         es or acknowledged    before and certified      by
         an officer   authorized   to   take   acknowledg-
         ments.




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            (c) This section      does   not    require    the
        acknowledgment    or prohibit    the recording       of
        a financing    statement,    a security     agreement
        filed   as   a     financing    statement,      or    a
        continuation     statement     filed    for     record
        under the Business & Commerce        Code.

      You cite Attorney     General Opinion           O-4622  (1942)   as
authority   for    the   proposition     that          before    certain
instruments  can be    recorded,   they must          be both sworn    to
and acknowledged.

      In Attorney    General   Opinion    O-4622   it was    stated:

           Under     Article     6626   of   Revised      Civil
        Statutes     the   only    instruments      which    are
        entitled to be recorded are those that              have
        been    either    acknowledged      as   provided     by
        Article   6603 of     the Revised Civil       Statutes
        or those     proved    under    the    provisions     of
        Article   6612, 6613 and       6614 of the      Revised
        Civil    Statutes       [these   requirements        now
        appear in     section     12.001 of     the    Property
        Code].

           You ask whether an affidavit,     in order to
        be recorded should have a jurat and also       an
        acknowledgment.     It takes the jurat to    make
        the instrument     an   affidavit.   Before   the
        County Clerk can      be required  to record   an
        affidavit   it must be acknowledged.

      In addressing    the responsibilities            of the    district
and county clerk in      filing instruments,          Attorney    General
Opinion JM-727,    (1987) stated:

            The    courts     and    this     office      have
        repeatedly     characterized     the   powers      and
        duties of    the    district    clerk   and    county
        clerk as ministerial       functions.    &g     Benae
        v. Foster    47 S.W.2d     862 (Tex. Civ. App.        -
        Amarillo   i932, writ ref'd): Attorney        General
        Opinion Nos. JM-694       (1987); JM-166      (1984);
        a    Attorney General Opinion JM-533         (1986).                7




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          Section 11.004      of     the    Property   Code   provides    in
    relevant part:

                 (a) 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    or acknowledged
                according   to law;

          Neither   Attorney     General    Opinion     O-4662    nor   the
    statutes place any responsibility         upon the county clerk to
    determine   the   correctness    of   an affidavit      or its    jurat
    contained   in an instrument      presented    to the county      clerk
    for recording.      Section     11.004    requires     the   clerk    to
    record    "any  instrument      authorized     or   required     to  be
    recorded   in that clerk's office that is          roved or    acknow-
    ledaed according      to   law."     Subsection'     (b) of    section
    11.004 provides     that    a county clerk        who   violates    any
    provision   of this section is       subject to civil penalty         of
P
    not more than     $500.00.    It is    not the responsibility         of
    the county clerk to determine        if an affidavit     contained    in
    an acknowledgment    has the required jurat.

          A jurat     has   been defined     as   @Ia certificate      by   a
    competent   officer that      the writing     was sworn     to by     the
    person who signed it."        Hill v. Floatina Docks of America,
    Inc., 590 S.W. at 729.        An acknowledgment     does not require
    the exact     words as    long as    it contains      language     which
    possesses   the    requisite   meaning    or represents      the    same
    facts.    Williams v. Cruise       130 S.W.2d 908 (Tex. Civ. App.
    - Beaumont    1939, writ ref'd).       The instrument     to which the
    acknowledgment     is attached may be considered        in   determin-
    ing the    sufficiency    of   the acknowledgment.         Sheldon     v.
    Farinacci,    535 S.W.2d     938 (Tex. Civ.     APP. - San      Antonio
    1976, no    writ).      The specimen     acknowledgment      you    have
    submitted   contains the recitation         "who after swearing        to
    the truth of      the statements     contained    herein"    preceding
    the requisite     acknowledgment    recitations    and reflects that
    it is duly     signed under     the hand     and seal     of a notary
    public.    See    section    121.004    Texas Civ.     Prac.    & Rem.




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Honorable   Travis   S. Ware   - Page   4 04-883)




Code.1  No reason is perceived    why a jurat may not      appear
in an acknowledgment.      It is unnecessary     to answer   your
second question since     it is predicated    on   an answer    to
your first inquiry    that a jurat    and acknowledgment     must
appear separately   on an instrument.

      A jurat may be included within an acknowledgment.         It
is not the function of    the county clerk to determine        the
sufficiency  of  a jurat   appearing   in   an instrument    that
meets the requirements   for recording    set forth in    section
12.001 of the Property Code.

                           SUMMARY

           A   jurat    may    be   included     within     an
        acknowledgment.      It is not the function         of
        the county clerk to determine        the sufficien-
        cy of   a jurat     appearing   in   an   instrument
        that meets    the requirements       for   recording
        set forth in section 12.001 of the           Property
        Code.




                                          JIM      MATTOX
                                          Attorney  General   of Texas




    1.   Section    121.004     sets     forth     the   method     of
acknowledgment,     as follows:
    (a) To acknowledge     a written    instrument   for   recording,
the grantor      or person   who executed      the instrument     must
appear before an officer and         must state that he      executed
the    instrument      for  the    purposes     and    consideration
expressed    in it.
    (b) The officer shall:
          (1) make a certificate     of the acknowledgment:
          (2) sign the certificate:      and
          (3) seal the certificate     with the seal of
              office.




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Honorable   Travis    S. Ware   - Page    5 (JM-883)




MARY KELLER
First Assistant      Attorney   General

LOU MCCREARY
Executive  Assistant     Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney         General

RICK GILPIN
Chairman,  Opinion     Committee

Prepared by Tom G. Davis
Assistant Attarney General




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