                     THE   ATTORNEY    GENERAL
                              OF TEXAS


                               i-Say
                                   17, 1988




     Honorable Sam W. Dick           opinion No.   JR-904
     Criminal District Attorney
     Fort Bend County Courthouse     Re: Recordability of certain
     Richmond, Texas 77469           documents by a county clerk
                                     (RQ-1376)

     Dear Mr. Dick:

          You ask:

                1. May a Clerk's Office properly     allow
             the'same document to be recorded more than
             once to correct an error (re-recorded)?   Or,
             must a new and separate corrected document be
             drafted for recordation  to correct an error
             or omission?

                2. In the event     a document    can    be
             recorded more than once    (re-recorded),   is
             some form    of additional    acknowledgement
             necessary to meet the recordation    reguire-
             ments?

                3. Where corrections are apparent on the
             face of the document, must the Clerk's Office
             screen and reject same from recordation  when
             the document otherwise meets the recordation
             requisites?

                4. Is the Clerk liable for substantive
             imperfections in a document if the same is
             recorded? Or, if the Clerk fails to record a
             document   that    meets   the    recordation
             requirements, is  the  Clerk exposed  to any
             potential liability?
-_
          The responsibilities of the district clerk and county
     clerk have been a source of frequent concern as reflected by
     numerous attorney general opinions addressing this subject.
     Attorney General Opinion JM-727 (1987) stated:




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Honorable Sam W. Dick - Page 2     (JM-904)




           The courts and this office have repeatedly
        characterized the powers and duties of the
        district clerk and county clerk as minis-
        terial functions.   See Benae V. Foster,   47
        S.W.2d 862 (Tex. Civ. APP- - Amarillo   1932,
        writ ref'd); Attorney General Opinion    Nos.
        J'M-694 (1987); JM-166 (1984); cf. Attorney
        General Opinion m-533  (1986).

     Section 11.004 of the Property Code requires the county
clerk to record "any instrument authorized or required to be
recorded   in that    clerk's office that    is proved    or
acknowledged according to law."   Subsection (b) of section
11.004 provides    that a county clerk who violates      any
provision of this section is subject to a civil penalty   of
not more than $500.00.

     Section 12.001 of the Property Code sets forth the
requirements for recording an instrument concerning real or
personal property.  Section 12.001 provides:

            (4 An instrument    concerning real
        personal property may be recorded if it hz:
        been acknowledged   or proved according  to
        law.1



   1. Section 121.004 of the Texas Civil Practice           and
Remedies Code sets forth the method of acknowledgement,      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.
                                        (Footnote Continued)




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.

5        Honorable Sam W. Dick - Page 3   (JI+904)


,-

                   (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 witnesses
                or acknowledged  before and certified by an
                officer authorized to take acknowledgements.

                    (c) This section does not require the
                 acknowledgement or prohibit the recording of
                 a financing statement, a security agreement


         (Footnote Continued)

              Section  121.009 of the Texas Civil Practice          and
         Remedies  Code provides    the requisites for proof         of
         acknowledgment by a witness as follows:

                     (a) To prove a   written   instrument    for
                 recording, at least one of the witnesses     who
                 signed the instrument must personally     appear
                 before an officer who is authorized    by this
                 chapter to take acknowledgments or proofs and
                 must swear:

                       (1) either that he saw the grantor     or
                    person who executed the instrument sign it
                    or that that person acknowledged     in the
                    presence of the witness that he executed the
                    instrument    for    the    purposes     and
                    consideration expressed in it; and

                       (2) that he signed the instrument at   the
                    request of the     grantor or person      who
                    executed the instrument.

                    (b) The officer must make a certificate  of
                 the testimony of the witness and must sign and
                 officially seal the certificate.

                     (c) The officer may take the testimony of a
                 witness only if the officer personally knows or
                 has satisfactory   evidence on the oath of a
                 credible witness that the individual testifying
                 is the person who signed the instrument as a
                 witness.   If evidence is used to identify the
                 witness who signed the instrument, the officer
                 must note the use of the evidence         in the
                 certificate of acknowledgment.




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Honorable Sam W. Dick - Page 4   (JM-904)




        filed as    a financing    statement,  or   a
        continuation statement filed for record under
        the Business & Commerce Code.

     Your first two questions   relate to the filing of a
document that has as its purpose the correction of an error
in an earlier   instrument. Each document presented to the
clerk for filing must be iudaed on its own merits.   If the
instrument meets the requirements for recording set forth in
section 12.001 the clerk is required to record the document.
It is not a duty of the clerk to determine whether the same
or a like document has been previously recorded.   The fact
that the instrument offered for recording may be for the
purpose of correcting an error in a previously      recorded
instrument is not a factor in determining whether it meets
the requirements of section 12.001.

     Your third question relates to the clerk's duty with
regard to obvious changes or corrections made on the face of
the instrument's   text.   YOU   direct our attention     to
handwritten  changes appearing   on an instrument without
initials or any other evidence of approval by the parties.
It is not a responsibility   of the clerk to determine   the
effect or legality of perceived changes or corrections    on
the body of the instrument offered for recording.  The clerk
is only required to record "any instrument authorized     or
required to be recorded in that clerk's office that is
proved or acknowledged according to law."     Property  Code
511.004.

     In your last question you inquire about potential
liability of the county clerk in the recording of documents.
Subsection (b) of section 11.004 makes a county clerk
subject to a civil penalty of not more than $500.00      for
failure to record any instrument authorized or required   to
be recorded  in that clerk's office that is proved        or
acknowledged according  to law. If the requirements      for
recording have been satisfied, the clerk is not liable   for
any substantive errors in the instrument.

                       SUMMARY

           Each document presented    to the county
        clerk for recording must be judged on its own
        merits.   If the document meets the reguire-
        ments of section 12.001 of the Property  Code
        the county clerk is required to record the
        document.   It is not the responsibility   of
        the clerk to determine the effect or legality
        of perceived changes or corrections appearing



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Honorable   Sam   W. Dick - Page 5   (x-904)




        on the face of the document presented      for
        recording.  Subsection (b) of section  11.004
        of the Property Code makes a county clerk
        subject to a civil penalty of not more than
        $500.00 for failure to record any instrum;;:
        authorized or required to be recorded in
        clerk's office that is proved or acknowledged
        according to law. If the requirements      for
        recording have been satisfied, the county
        clerk is not liable for any substantive
        errors in the instrument.




                                        JIM     MATTOX
                                        Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STKAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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