Untitled Texas Attorney General Opinion ( 2006 )

ATTORNEY GENERAL OFTEXAS
GREG ABBOTT
February 23,2006
Mr. Carl Reynolds Opinion No. GA-0404
Administrative Director
Office of Court Administration Re: Whether the seal placed on certified copies of
Post Office Box 12066 documents recorded in the county clerk’s office
Austin, Texas 7871 l-2066 must be raised (RQ-0384-GA)
Dear Mr. Reynolds:
You seek our opinion on “whether a county clerk may properly place a county clerk’s
certificate on each page of a document by means other than impressing a raised seal on each page
of the document along with the clerk’s signature.“’ You tell us that the Local Government Code
requires county clerks to place the county clerk’s certificate on each page or part of a page of
certified papers but that no statute defines “county clerk’s certificate.” Request Letter, supra note
1, at 1. You further inform us that county clerks disagree about the requirements of a clerk’s
certificate. See id. Specifically, you write that
[s]ome clerks contend that that [sic] the county clerk’s certificate can
only be placed on a page of a document by impressing a raised seal
upon the page and by including the clerk’s signature along with the
raised seal. They sometimes will refuse to accept certified copies
from other county clerks who do not use a raised seal on each page of
the document. Other county clerks do not believe that a raised seal
must be impressed upon each page along with the clerk’s signature.
For example, one clerk uses paper containing a visible watermark on
each page of a certified document that states “OFFICE OF COUNTY
CLERK CERTIFIED COPY” and contains a visible image of the
county seal. This clerk impresses a raised seal only on the
document’s last page, which also contains information identifying the
type of record, the number of pages, and the clerk’s stamped
signature.
Id. (citation omitted). You ask whether the seal that is placed on every page must be raised on every
page or whether it may be raised only on the last page of the document. See id.
‘Letter Tom Carl Reynolds, Administrative Director, Office of Court Administration, to Honorable Greg Abbott,
Attorney General of Texas (Aug. 22, 2005) (on file with the Opinion Committee, also available at http://www.oag
.state.tx.us) [hereinafter Request Letter].
Mr. Carl Reynolds - Page 2 (GA-0404)
The office of the county clerk is an elected constitutional office. See TEX. CONST. art. V,
6 20 (“There shall be elected for each county, by the qualified voters, a County Clerk, who shall hold
his office for four years, who shall be the clerk of the County and Commissioners Courts and
recorder of the county, whose duties, perquisites and fees of office shall be prescribed by the
Legislature . . . .“); see also TEX. Lot. GOV’T CODE ANN. 0 191 .OOl(a) (Vernon 1999); Tex. Att’y
Gen. Op. No. GA-0203 (2004) at 3. A primary duty of the county clerk is to serve as the county
recorder. See TEX. CONST. art. V, $20; TEX. Lot. GOV’T CODE ANN. $ 191.001(a). “The county
clerk shall record, exactly, without delay, and in the manner provided . . . , the contents of each
instrument that is filed for recording and that the clerk is authorized to record.” TEX. LOC. GOV’T
CODE ANN. 9 19 1.OO1(c) (Vernon 1999). Chapter 192, Local Government Code, expressly provides
for specific instruments to be recorded. See id. ch. 192 (Vernon 1999 & Supp. 2005). The Local
Government Code also directs the manner in which the county clerk should record and index
recorded documents. See id. ch. 193. The Local Government Code requires that “[o]n demand, the
county clerk shall give an attested copy of any instrument that is recorded in the clerk’s office.” Id.
3 191.004(a) (Vernon Supp. 2005); see also Tex. Att’y Gen. Op. No. GA-0203 (2004) at 3 (“The
clerk provides an ‘attested,’ or certified, copy of an instrument recorded in the clerk’s office . . . .“).
And the county clerk is required to “use the county court seal to authenticate all of the clerk’s official
acts as county recorder.” TEX. Lot. GOV’T CODE ANN. 9 191.001(b) (Vernon 1999).
Chapter 118 of the Local Government Code governs the fees to be charged by county
officers. See id. ch. 118 (Vernon 1999 & Supp. 2005). Section 118.011 sets out the fee schedule
for fees that the county clerk shall collect for rendition of certain services. See id. 0 118.01 l(a)
(Vernon Supp. 2005). Section 118.052 establishes a similar fee schedule for certain services
rendered by the clerk of a county court2 See id. 6 118.052. Both sections establish a fee for
“Certified Papers.” See id. $0 118.01 l(a)(3), .052(3)(B). In both sections, the fee for “Certified
Papers” has two components: a fee for the clerk’s certificate and a fee for copying each page or
part of a page. See id. $5 118.01 l(a)(3), .052(3)(B). Section 118.014 clarifies that the “fees for
‘Certified Papers’ under section 118.0 11 are for the county clerk’s certificate that shall be placed on
each page or part of a page, and a fee for copying each page or part of a page, of a notice, statement,
license or document that the clerk is authorized or required to issue.” Id. 5 118.014(a) (Vernon
1999). The language of section 118.060 is almost identical with respect to the fees charged under
section 118.052(3). See id. 3 118.060(a).
Sections 118.014 and 118.060 use the term “clerk’s certificate.” See id. $6 118.014(a),
.060(a). Though undefined by Texas statute or judicial opinion, clearly the clerk’s certificate
referred to in sections 118.014 and 118.060 is the same clerk’s certificate referenced in sections
118.011 and 118.052. See id. $0 118.011, .052 (Vernon Supp. 2005). The clerk’s certificate is that
which makes a copy of a document a “certified copy” distinguishable from a “noncertified copy.”
‘The county clerk is also clerk of the county court, See TEX. CONST.art. V, $ 20 (“There shall be elected for
each county, by the qualified voters, a County Clerk, who shall hold his office for four years, who shall be clerk of the
County and Commissioners Courts and recorder of the county, whose duties, perquisites and fees of office shall be
prescribed by the Legislature . . . .“); see also TEX. GOV’T CODEANN. 4 25.0010(b) (Vernon 2004) (“The county clerk
shall serve as clerk of each statutory county court.“); TEX. Lot. GOV’T CODE ANN. 9 192.006(a) (Vernon 1999)
(providing that the county clerk is custodian of the records of the county court in civil and criminal cases and probate
matters).
Mr. Carl Reynolds - Page 3 (GA-0404)
See id. $4 118.0145(a), .0605(a) (Vernon 1999). Certification signifies that the copy is a “true copy.”
See Tex. Attorney Gen. v. Litten, 999 S.W.2d 74,78 n.7 (Tex. App.-Houston [ 14th Dist.] 1999, pet.
denied) (quoting BLACK’SLAW DICTIONARY287 (4th ed. 1968)); see also Tex. Att’y Gen. Op. No.
GA-0203 (2004) at 3. A county clerk puts the clerk’s certificate on a copy of an original document
to certify or attest to the fact that the copy is an exact reproduction of the original. See Litten, 999
S.W.2d at 78 n.7; Tex. Att’y Gen. Op. No. GA-0203 (2004) at 3. The Office of Court
Administration’s Manual for County Clerks appears to equate the placing of the seal and the clerk’s
signature on a document with certification. See OFFICEOF COURT ADMINISTRATION,COUNTY
CLERKMANUALII-20 (2003) (stating that the “clerk, by affixing his or her seal and signature, swears
that the copy is a true and exact replica of the recorded instrument in its entirety.“) Other than
requiring placement of the county seal and clerk’s signature on each page of a document, neither
chapter 118 nor any other Texas statute dictates the exact prerequisites and contours of the clerk’s
certificate. See generally TEX. Lot. GOV’T CODE ANN. ch. 118 (Vernon 1999 & Supp. 2005).
Similarly, section 191 .OO1(b), Local Government Code, requires the placement of the seal on every
page of the document that is to be certified, but does not address whether the seal must be raised on
one, all, or any of the pages of the document. See id. 5 191.001(b) (Vernon 1999).
While the recording of documents is a ministerial task of the county clerk, see Turrentine v.
Lasane, 389 S.W.2d 336, 337 (Tex. Civ. App.-Waco 1965, no writ) (holding that the “clerk’s
ministerial duty to record is properly enforced by mandamus”); see also Tex. Att’y Gen. Op. Nos.
JM-508 (1986) at 3, JM-3 10 (1985) at 3; Tex. Att’y Gen. LO-98-016 at 7 (concluding that the
“county clerk has a ministerial duty to accept a document for filing and recording if a statute
authorizes, requires or permits it to be filed in the clerk’s office, and if it is regular on its face.“), the
clerk nevertheless is an elected county officer with a certain sphere of authority. See TEX. CONST.
art. V, 0 20; Tex. Att’y Gen. Op. No. GA-0203 (2004) at 3 (“As an elected officer, the clerk occupies
a sphere of authority within which another elected officer may not interfere.“). The sphere of
authority of the county clerk includes records in the clerk’s office. See Tex. Att’y Gen. Op. No.
GA-0203 (2004) at 3.
A “county officer retains control over the accomplishment of the officer’s constitutional and
statutory duties,” Tex. Att’y Gen. Op. No. JC-0239 (2000) at 3 (concluding that “[a]n elected county
official’s authority to accomplish the constitutional or statutory purposes of his or her office
encompasses the authority to dismiss his or her employees for all or part of a day for any reason” that
does not violate the constitution), and has “sufficient discretion to administer the office as the official
wishes.” Tex. Att’y Gen. Op. No. JC-0323 (2001) at 5. With regard to public functionaries,
discretion has been defined as the “power or right to act officially, according to what appears just
and proper under the circumstances.” Permanent Rd. Comm ‘rs v. Johnson, 23 1 S.W. 859,860 (Tex.
Civ. App.-Dallas 192 1, no writ) (quoting Bd. of Comm ‘rs of Rio Grande County v. Lewis, 28 Colo.
378, 65 P. 51 (1901)). Unlike ministerial duties that “require obedience to orders or the
performance of a duty to which the actor has no choice,” Deaver v. Bridges, 47 S.W.3d 549, 553
(Tex. App.-San Antonio 2000, no pet.), discretion involves choice in the absence of hard-and-fast
rules. See The Styria v. Morgan, 186 U.S. 1, 9 (1902); Tex. Att’y Gen. Op. No. GA-0353 (2005)
at 4. Texas statutes do not mandate that the seal placed on every page of a document as part of the
clerk’s certificate be raised. We therefore conclude that a county clerk has discretion to determine
whether the seal placed on every page of the document must be raised. A document that bears a
clerk’s certificate is a certified document.
Mr. Carl Reynolds - Page 4 (GA-0404)
SUMMARY
Texas statutes do not mandate that the seal placed on every
page of a document as part of the clerk’s certificate be raised. As an
elected officer the county clerk has discretion to determine whether
the seal placed on every page of the document must be raised. A
document that bears a clerk’s certificate is a certified document.
d Attorney &r&al of Texas
BARRY R. MCBEE
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee