Untitled Texas Attorney General Opinion ( 2009 )


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  •                                 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
    

Document Info

Docket Number: GA-0702

Judges: Greg Abbott

Filed Date: 7/2/2009

Precedential Status: Precedential

Modified Date: 2/18/2017