Untitled Texas Attorney General Opinion ( 1988 )

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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Honorable Travis S. Ware - Page 2 (JM-883)
(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
p. 4314
Honorable Travis S. Ware - Page 3 (JR-883)
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.
p. 4315
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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