Honorable E. L. Bhelton
County Auditor
Cleburme, Texas

Dear Sir:                                  Opinion Ho. o-2178
                                           R0: Whether lien instrument dated
                                                December 1, 1935, has to be
                                               ~stamped under Article 7047e,
                                                .vernon’B Civil statutes.

           a your letter of April 4, @JO, you request OU+ opinionas to
whether a deed bated December1, 1935, ntlpulatlng an assumed consideration
of $7,000.00 and Welch has never been filed for record but is offered for
filing at this date is subject to the state stamp tax.

            Article   70b7-3, Vernon’s Civil Statutes,   reads in part as follows:

            “(a) Except as herein otherwise provided there is hereby
     levied eyedasrcased a tax of Ten (lO$) Cents on each One Hundrea
        100.00 Dollars or fractfon~ thereof, over the first Two Hundred
     It 200.00 j Dollars, en all notes an& obligations secured by chattel
     mmtgage, deed of drust, machanic’r lien contract, veobor’e lien,
     conditional sale* Contract an& aI2 instruments of a SFmllar nature
     vhieh are filed or recorded in the office of the County Clerk un&er
     the Registration Laws of this State; provided that tie tax 6hal.l be
     levied on instruments seourfng an amotmt~of Two Hun&red($200.00)
     Dollara, or less.     After the effective date of this Act, except as
     hereinafter provided, no such instrument shall be filed or recorded
     by any County Clurk in this State until there has been affixed to
     such instrument @tamps In accordance with the provietpns of this
     eectioq + * *”

            From a reabing of the above statute It is seen iihat the tax 18 not
due until and unless the instrument of security Is presented for record.    It
fr further provldad that except as provided. in the Act no such instrwnent
shall be filed for record until it has been stamped in accordance with the
provisions of the Ilet.   &J excaptlon iw’ma4e as to instrument8 dated prior
to the effective date of i&e act.    In auf conference *inion UQ. 3061, dated
June 17, 1930, we axpMslea the view that the tax in questloa, is la+& upon
the privilege of using the recorde of the office of the coun%y clerk, rathert
Honorable E. L. Shelton, Page‘$2



than being a tax upon the n&e or other obligation secured by the mortgage
or other lien.     m 0~ opinion Ro. o-1328 we held that a deed would be
required to be&r the stamps where the gurchaeer waatherein required to
afmumea pre-exi.eting lndebteduese w&re the deed in which the vendor's lien
had been originally created bad been recorded wlthout payment of the tax.
Our opinion follmm that the inatmment with which you are concerned muat
be stamped before it is recorded.   I~I this connection it Is aammed that
the vendor's lien has not been paid and released of record.

                                                  Yourlr vely truly,

                                             ATTORNEY
                                                    (I&I~ERALoFTI++X~L~

                                             By     /a/ I3lean R. LewI.8
                                                            Assistaat



Approved April 15, ,lp&

/a/ ciEliAmc. l.fANI?

ATPORNEY-OFT~

APPROVED:Opinion Committee, by B.W.B., Chairman
