Untitled Texas Attorney General Opinion ( 1941 )


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  • 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=
    

Document Info

Docket Number: O-3827

Judges: Gerald Mann

Filed Date: 7/2/1941

Precedential Status: Precedential

Modified Date: 2/18/2017