Untitled Texas Attorney General Opinion ( 1941 )

GeraldC.Mann
AttorneyGeneral
Honorable John R. Shook
Criminal District Attorney
San Antonio, Texas
Dear Sir: Attention: Abe San Miguel
Opinion No. O-3827
Re: Duty of the county clerk
with reference to accept-
ing and recording deeds
with certain restrcitive
clauses.
We quote as follows from your recent letter request-
ing a legal opinion from this department:
"The Consul General of Mexico has asked us
to secure an opinion from you concerning the legal-
ity of restrictive clauses contained in deeds where-
by the sale of real estate in the State of Texas to
Mexicans and the possession thereof by Mexicans are
prohibited.
"If such a clause as quoted above is illegal
in being contrary to public policy, would the Coun-
ty Clerk be justified in refusing to records an in-
strument containing such a restriction?"
We have concluded that it would be improper for this
department to write upon the first question involving the legal-
ity of certain restrictive clauses in deeds. This matter is
peculiarly one of private rights. We have consistently deemed
it our duty, under the statutes, to refrain from writing upon
such questions.
This is accentuated by the necessary answer to your
second question. It is the duty of the county clerk to record
Honorable John R. Shook, Page 2
such deeds irrespective of the legality or illegality of the
restrictive clauses mentioned.
It is well settled that it is the duty of the coun-
ty clerk to accept for recordation onstruments delivered to
him for such purpose which have been acknowledged or approved
according to law. Articles 6626 and 6631; 36 Tex. Jur. 417.
It was early declared in the case of Brockenbourough v. Melton,
55 Tex. 493, that:
"The clerk of the county court was required
to record all instruments of writing authorized
and required to be recorded."
In First National Bank v. McElroy, 112 S.W. 801, 804,
the court declared that:
"The duties of a recording officer are
ministerial."
The county clerk may be compelled by mandamus to re-
cord such instruments. In Hollis v. Parkland Corp., 40 S.W.
(2d) 53, this was done, the Commission of Appeals pointing out:
"The plat appears to be duly acknowledged
as required by law, and bears the approval of
the city planning commissioner. This is all
that the Act calls for as a prerequisite to the
recording of the plat in the office of the coun-
ty clerk. * * *."
Moreover the clerk is liable for a penalty or for dam-
ages if he fails to preform his statutory duties with respect to
the recording of instruments delivered to him for such purpose.
See Article 6652; Carlisle and CO. v. King, 133 S.W. 241: 36
Tex. Jur. 426, Para. 24.
It is therefore the duty of the county clerk to accept
deeds for recordation containing the restrictive clauses described
in your letter notwithstanding any questions which might arise ap-
pertaining to their legality.
Yours very truly
ApprovedAug. 15, 1941 ATTORNEY GENERAL OF TEXAS
/s/ GeraldC. Mann
ArrImmYm OF TEXAS By /s/ ZollieC. Steaklay
Zollie C. Steakley
zcs:Rs Assistant
Approved:Opinion
Catmittee
By: BWB,Chai=