How should a Texas county clerk index a correction or amendment to a deed signed by a title company, not the original owners?

TX AG Opinion GA-0702: How should a county clerk index a deed correction?

Plain-English summary

The Guadalupe County Attorney asked how a county clerk should index real-property instruments accepted for filing and recording under Property Code section 12.0011(b)(2), which lets a clerk record certain paper instruments concerning real property. Section 12.0011 does not say how to index those recorded instruments.

In a county that does not keep records on microfilm (as Guadalupe County does not), instruments may be indexed in two ways. Under one, the clerk divides instruments into classes, one of which is the "Official Public Records of Real Property," and those must be alphabetically indexed and cross-indexed under the names of the parties identified in the instrument. Alternatively, the clerk may skip that classification and index real-property instruments in a cross-index of grantor and grantee names in alphabetical order.

The instruments in question were corrections or amendments to deeds of trust, executed by a title company or servicing-bank representative rather than the original grantor and grantee, whose deeds might or might not be attached. The Guadalupe County Attorney worried that if such an instrument were indexed only under the signer's name, the actual grantor or grantee might never learn it was filed, because it would not appear in a search under their names. The Attorney General found that sections 193.002, 193.003, and 193.009 do not specifically address indexing these instruments, and no other provision does either. In the absence of legislative direction, a clerk has discretion to index them in a way consistent with the indexing statutes' purposes and within the existing framework. The statutes do not prohibit indexing under additional names or the most appropriate heading, and a primary purpose of indexing is to give notice of instruments that may affect title. So, for example, a section 12.0011(b)(2) instrument could be indexed under the signer's name (as a grantor or a party identified in the instrument) and under the names of the original grantor and grantee.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Property Code and Local Government Code indexing provisions may have been amended since 2009. Confirm the current statutes before relying on this opinion.

Who this opinion affected (as of 2009)

County clerks: The opinion concluded a clerk has discretion to index section 12.0011(b)(2) instruments consistent with the indexing statutes' purposes, including under additional names and the most appropriate heading.

Property owners: The opinion addressed the concern that an instrument indexed only under a signer's name might escape a search under the original grantor's or grantee's name, and said the clerk may index under those names too.

Title companies and lenders: The opinion bore on how their deed corrections and amendments, signed by their representatives, may be indexed so the affected owners can find them.

Common questions

How does a clerk index a deed correction signed by a title company?
The opinion said the clerk has discretion, and may index it under the signer's name and under the names of the original grantor and grantee.

Does the law require a particular heading?
No. The opinion noted the statutes neither mandate nor prohibit particular index headings for these instruments, so the clerk may use the most appropriate one.

Why index under the original owners' names?
The opinion explained that a primary purpose of indexing is to give notice of instruments that may affect title, and indexing under the owners' names makes the index more useful and serves that purpose.

Is there a single required method?
No. The opinion found no legislative direction specific to these instruments, leaving the clerk discretion within the existing statutory framework.

Background and statutory framework

Property Code section 12.0011(b)(2) lets a clerk record certain paper instruments concerning real property, but does not address indexing them (Tex. Prop. Code Ann. § 12.0011(b)(2) (Vernon Supp. 2008)). A non-microfilm county may either classify instruments, with the real-property class indexed and cross-indexed under the parties' names, or use a grantor-grantee cross-index (Tex. Loc. Gov't Code Ann. §§ 193.002(a), (b), 193.008(a), (b)(1), (d), 193.009(a), 193.003(b) (Vernon 2008)). Because the indexing statutes do not specifically address these instruments and do not prohibit indexing under additional names (Murray v. Cadle Co., 257 S.W.3d 291, 297 (Tex. App.-Dallas 2008, pet. denied)), and a primary purpose of indexing is to give notice of instruments affecting title (Tex. Gov't Code Ann. § 311.023(1) (Vernon 2005); Wilson v. Dvorak, 228 S.W.3d 228, 234-35 (Tex. App.-San Antonio 2007, pet. denied); Von Stein v. Trexler, 23 S.W. 1047, 1049 (Tex. Civ. App.-San Antonio 1893, no writ)), a clerk has discretion to index them under additional names and the most appropriate heading.

Citations

Statutes:

• Tex. Prop. Code Ann. § 12.0011(b)(2) (Vernon Supp. 2008)
• Tex. Loc. Gov't Code Ann. §§ 193.002(a), (b), 193.003(b), 193.008(a), (b)(1), (d), 193.009(a) (Vernon 2008)
• Tex. Gov't Code Ann. § 311.023(1) (Vernon 2005)

Cases:

• Murray v. Cadle Co., 257 S.W.3d 291, 297 (Tex. App.-Dallas 2008, pet. denied)
• Wilson v. Dvorak, 228 S.W.3d 228, 234-35 (Tex. App.-San Antonio 2007, pet. denied)
• Von Stein v. Trexler, 23 S.W. 1047, 1049 (Tex. Civ. App.-San Antonio 1893, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0702
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0702.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

April 7, 2009

The Honorable Elizabeth Murray-Kolb
Guadalupe County Attorney
101 East Court Street, Suite 104
Seguin, Texas 78155-5779

Opinion No. GA-0702

Re: Indexing certain real-property instruments 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.[1] 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'T CODE ANN. §§ 193.002(a), .008(a), (b)(1) (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 of the 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 of the 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 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 12.0011(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 may or 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 such instruments in a manner consistent with the purposes of the indexing statutes and within the constraints of the existing statutory framework for the following reasons. First, sections 193.002, 193.003, and 193.009 do not prohibit a clerk from indexing instruments 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 of judgment 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 of judgment 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.

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 of the 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

[Footnote 1: See Request Letter (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: Your 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).]

[Footnote 3: The 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).]