-
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