Untitled Texas Attorney General Opinion ( 1966 )

Honorable James E. Barlow Opinion No. c-695
Criminal Dlstrlct Attorney
Bexar county HE: Whether the County
San Antonio, Texas Clerk has the duty
to record a deed con-
ATTN: Mr. Vernon T. Sanford, Jr. veylng real property
Assistant Criminal District located within a sub-
Attorney division in the absence
County Affairs Section of proof that Article
974a, V.C.S., has been
complied with and re-
Dear Mr. Barlow: lated questions.
In your recent letter, you requested an Attorney General’s
Opinion with reference to problems arising as a result of the
failure of subdividers of land within the corporate limits or
extraterrltorlaljurisdictionof the City OS San Antonio to re-
cord maps or plats of aubdlvlsionaor re-eubdivlaiona.
In that connection, you stated that such subdividershave
been “selling their subdivided lots by means of deeds referring
to an unrecorded plat Sollowed by a metes and bounds description
and sometimes by means of deeds containing only a metes and
.-. bounds description” (without any reference to the unrecorded
pl&ta reflecting subdividedacreage out of which the tracts con-.
veyed by such deeds are carved); and you ask if the County Clerk
la required, upon request, to file and record such deeds, when
properly acknowledged, under the provisions of Article 6626,
Vernon’s Civil Statutes, or if the County Clerk, prior to filing
such deeds, Is burdened with the duty to determine the location
of the land covered by such deeds and, upon determining that
such land is located within the city or extraterritorial Juris-
diction thereof, to refuse to file and record such deeds until
the provisions of Article g4a, Vernon’s Civil Statutes, iS
applicable, are complied with.
When requested to file and record any deed, including
“deeds referring to an unrecorded plat followed by a metes and
bounds description” or I’deedacontaining only a metes and bounds
description” (without any reference to the unrecorded plats re-
flecting subdlvlded acreage out OS which the tracts covered by
such deeds are carved), the County Clerk is governed by the pro-
visions of said Article 6626, the pertinent portions of which
are as follows:
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Honorable James E. Barlow, page 2 (C-695)
"The Sollowlng Instrumentsof writing which
shall have been acknowledgedor proved according
to law, are authorized to be recorded, viz: all
deeds, . . . or other Instrumentsof writing con-
cerning any lands or tenements, . . . provided,
however, that In cases of aubdlvlalonor re-aub-
dlvlalon of real property no map or plat of any
such subdivision or re-subdivisionshall be filed
or recorded unless and until the same shall have
been authorized by the CommissionersCourt of the
county In which the real estate'Is situated by
order duly entered In the minutes of said Court,
except in cases of the partition or other subdl-
vision through a court of record; provided that
where the real estate Is situated within the cor-
porate limits or within five miles of the corpor-
ate limits of any incorporatedcity or town, the'
governing body thereof or the ,cltyplanning com-
mission, as the case may be, as provided in Artl-
cle g4a, Vernon's Texas Civil Statutes, shall
perform the duties hereinaboveImposed upon the
'CommlssIoneraCourt.n
Said Article 6626 clearly authorizes the recording of all
properly acknowledged deeds, Including-suchdeeds containing
the types of descriptions referred to hereinabove.
In that regard, the Sollowlng holding reflects the duty
placed upon the County Clerk:
'"It la the duty of the county clerk to re-
cord all deposited written Instrumentsauthorized,
required or permitted to be recorded in his office.
"The clerk's mlnlsterlalduty to record la
properly enforced by mandamus." Turrentlne vs.
Iaaane, 389 S.W.2d 336 (Tex.Clv.App.,1965).
Prior to the filing and recording of maps or plats of aub-
divisions or re-subdlvlslons,said Article 6626 requires proper
authorization of such maps or plats In the manner therein set
forth; however, no prior authorizationIs therein required as
a prerequisite to the filing and recording of any other lnatru-
ments of writing (specificallyIncluding deeds) concerning any
lands or tenements. -
Furthermore, said Article 97&a, and Article 427b, Vernon's
Penal Code, to which you referred In your aforementioned letter,
provide for the Imposition of certain duties only In connection
with the preparation, filing and recording of plans, maps, plats
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Honorable James E. E&Wow, page 3 (c-695)
or replata of aubdlvlalona or additions and not ln,any con-
nection whatsoever with deeds.
Finally, Article 1137h, Vernon's Penal Code, which you
also mentioned In your letter to this office, makes any party
"subdividing or re-subdividingany real estate" guilty of a
misdemeanor IS such party uses "the aubdlvlslon~aor re-aub-
division's description In any deed of conveyance or contract
of sale delivered to a purchaser unless and until the map
and plat of such aubdlvlalon or re-subdivisionshall have
been duly authorized (as therein provided) and such map and
plat thereof has actually been filed for record with the
Clerk of the County Court of the county in which the real
estate Is situated." Said Article 1137h la applicable, there-
Sore, only to parties subdividing or resubdlvldlngreal estate
and Is not applicable to County Clerks In the performance of
their official duties. As to such parties subdividing and
resubdlvldlng real estate, it should also be noted that said
Article 1137h provides for a Sine and/or conflnement~lnthe
county jail upon conviction of such misdemeanor.
In answer to your request for clarlSlcatlonof Attorney
General's Opinion No. V-934 (1949) wherein It Is stated that
the owner of a subdivision "Is not authorized to subdivide
his tract unless he complies with the provisions of (said
Article) gi'4a;"and, "IS the owner falls to make a map or
plat as required, the County Clerk should refuse to record
the field notes submitted to his office," It Is our opinion
that the field notes of a subdivision cannot be recorded in
the plat records unless the field notes are accompanied by
_H- a duly authorized map or platof such subdivision for record-
ing, and It Is our further oprnlon that the term "field notes"
as used therein does not refer to or mean metes and bounds
&;;rlptlona contained In deeds of conveyance or contracts of
.
SUMNARY
The County Clerk is re ulred by the
provisions of Article B626, V.C.S.,
to file and record upon request prop-
erly acknowledged deeds, notwlthstand-
lng a failure of compliance with the
provisions of Article q4a, V.C.S.,
with reference to the recordatlon of
plats (or plans, maps or replats) of
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Honorable James E. Barlow, page 4 (c-695)
subdlvlalona or additions, out of
which the tracts of land deacrlbed
In such deeds are carved.
Very truly yours,
WAQOONERCARR
Assistant Attorney General
CDJjr/lre
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Larry Craddock
John Reeves
Pat Bailey
Roger Tgler
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright
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