Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 7, 2009
The Honorable Elizabeth Murray-Kolb Opinion No. GA-0702
Guadalupe County Attorney
101 East Court Street, Suite 104 Re: Indexing certain real-property instruments
Seguin, Texas 78155-5779 under chapter 193 of the Local Government Code
(RQ-0728-GA)
Dear Ms. Murray-Kolb:
You ask how a county clerk should index real-property instruments that have been accepted
for filing and recording in accordance with Property Code section 12.0011(b)(2), which authorizes
a county clerk to file and record certain instruments concerning real property that the clerk has
received in a nonelectronic form.! See TEx. PROP. CODE ANN. § 12.0011 (b)(2) (Vernon Supp. 2008).
Section 12.0011 does not address indexing these recorded instruments.
In a county that does not maintain records on microfilm, instruments may be indexed in two
ways.2 Under the first method, a county clerk may divide the instruments into seven classes, one of
which encompasses instruments "relating to real property, known as 'Official Public Records of Real
Property.'" TEx. Loc. GOV'TCODEANN.§§ 193.002(a), .008(a), (b)(I) (Vernon 2008); see also id
§ 193 .008(d) (authorizing consolidation into a single class). Instruments so classified and recorded
"must be alphabetically indexed and cross-indexed in the indexes to that official public record under
the names ofthe parties identified in the instrument." Id. § 193.009(a) (emphasis added); see also
id § 193.002(b) (providing for indexing as required by sections 193.009, 193.010, and 193.011).
Alternatively, a county clerk may forgo classifying instruments as provided above and index real-
property related instruments in a "cross-index that contains the names ofthe grantors and grantees
in alphabetical order." Id § 193.003(b) (emphasis added).3
Under Property Code section 12.0011 (b)(2), a paper document concerning real property may
be recorded or "serve as notice of the" document if it "is attached as an exhibit to a paper affidavit
lSee Request Letter (available at http://www.texasattorneygeneral.gov).
2your office indicates that Guadalupe County does not maintain records on microfilm. Telephone
Conversations with Robert E. Edinger, Assistant Guadalupe County Attorney (Sept. 12 & Dec. 17,2008).
3The statute also makes provisions for indexing a deed made by a sheriff, an executor, an administrator, a
guardian, an attorney, a commissioner, or a trustee. See TEX. Loc. GOV'T CODE ANN. § 193.003(b) (Vernon 2008).
The Honorable Elizabeth Murray-Kolb - Page 2 (GA-0702)
or other document that has an original signature or signatures that are acknowledged, sworn to with
a proper jurat, or proved according to law." TEx. PROP. CODE ANN. § 12.0011 (b)(2) (Vernon SUpp.
2008) (emphasis added). You provide as examples two instruments-each a type of "affidavit or
other document" referenced in section 12.00 11 (b)-submitted for recording pursuant to this statute.
See Request Letter (Exhibits 2 & 3). These instruments correct or amend deeds of trust and are
executed by a title company or servicing-bank representative instead of the grantor and grantees
under the deeds of trust that they purportedly amend or correct, which deeds mayor may not be
attached as exhibits. See id. In your view, unless these and similar instruments are indexed under
the names of the original grantor and grantee rather than "only ... the name of the sign[e]r of the
document containing an original signature," ''the actual Grantor(s) or Grantee(s) may be totally
unaware that some type of' instrument relating to their real property has been filed and recorded.
Request Letter at 2. Moreover, you express concern that an instrument indexed under the name of
the signer "would ... never show up when searching the indexes under the names of the original
Grantor(s) or Grantee(s)." Id.
Local Government Code sections 193.002, 193.003, and 193.009 do not expressly address
indexing of the particular types of instruments about which you ask, and we find no other provision
that does so. In the absence of legislative direction, we believe a county clerk has the discretion to
index su~h instruments in a manner consistent with the purposes of the indexing statutes and within
the constraints ofthe existing statutory framework for the following reasons. First, sections 193.002,
193.003, and 193.009 do not prohibit a clerk from indexing instrunients under names in addition to
those specified by the particular statute or under the most appropriate index heading. Cf Murray
v. Cadle Co., 257 S. W.3d 291,297 (Tex. App.-Dallas 2008, pet. denied) (construing Property Code
section 52. 004(b), which requires a county clerk to index abstracts ofjudgment by the names of the
plaintiff and the defendant, to neither "mandate, or prohibit, particular headings for the alphabetical
index to the real property records"). Second, a primary purpose of indexing statutes is to give notice
of instruments that may affect title to the subject real property. See TEx. GOV'T CODE ANN.
§ 311.023(1) (Vernon 2005) (authorizing a court, in construing a statute, to consider the "object
sought to be attained"); cf Wilson v. Dvorak, 228 S.W.3d 228,234-35 (Tex. App.-San Antonio
·2007, pet. denied) (articulating the primary purpose of statutes requiring indexing of abstracts of
judgment). Discretion to index the Property Code section 12.0011 (b)(2) instruments under additional
names and the most appropriate heading, when necessary, promotes this purpose and an index's
usefulness. Cf Von Stein v. Trexler,23 S.W. 1047, 1049 (Tex. Civ. App.-San Antonio 1893, no
writ) (suggesting that abstracts ofjudgment should be indexed by the defendant land owner's name;
to list only the plaintiff would "greatly impair" the index's usefulness). Thus, for instance, the types
of section 12.0011(b)(2) instruments about which you inquire could be indexed under the name of
the signer-as a grantor or as a party identified in the instrument-and under the names of the
original grantor and grantee.
The Honorable Elizabeth Murray-Kolb - Page 3 (GA-0702)
SUMMARY
,
In the absence of legislative direction, a county clerk has
discretion to index an instrument accepted for filing and recording
under Property Code section 12.0011(b)(2) in a manner consistent
with the purposes of the indexing statutes and within the constraints
ofthe statutory framework set out in Local Government Code chapter
193.
Very truly yours,
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General, Opinion Committee