Can a Texas county clerk re-record a corrected deed, and is the clerk on the hook for mistakes inside the documents people file?

Texas AG Opinion JM-904: What a County Clerk Must (and Must Not) Do When Recording Documents

Plain-English summary

A county clerk's recording desk is not a place where anyone reviews whether your deed is a good deed. This opinion, prompted by four questions from the Fort Bend County district attorney, spells out how narrow the clerk's job really is. The clerk's duties here are ministerial, meaning the clerk checks the boxes the statute lists and records the document, without passing judgment on what the document accomplishes.

The first two questions were about corrections. If a deed had an error, could the same document be re-recorded to fix it, or did someone have to draft a brand-new corrected document? The Attorney General said each document is judged on its own merits. If the instrument meets the recording requirements in section 12.001 of the Property Code (essentially, it is acknowledged or proved according to law), the clerk must record it. It is not the clerk's job to figure out whether the same or a similar document was already on file, and the fact that a document is offered to correct an earlier one does not change the analysis. So a corrective re-recording is fine as long as it independently satisfies the recording requirements.

The third question was about visible edits: handwritten changes on the face of an instrument, with no initials or other sign that the parties approved them. Must the clerk screen those out and refuse to record? No. It is not the clerk's responsibility to decide the effect or legality of changes written on the document. The clerk records "any instrument authorized or required to be recorded in that clerk's office that is proved or acknowledged according to law," and that is the whole test.

The fourth question was about the clerk's own exposure. The risk runs in one direction. Under section 11.004(b), a clerk who refuses to record a qualifying instrument faces a civil penalty of up to $500. But the clerk is not liable for substantive errors inside a document that met the recording requirements. In other words, the danger for a clerk is wrongly turning a good document away, not recording a document that later turns out to have problems of its own.

Currency note

This opinion was issued in 1988. Later statutes, court decisions, and 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 mentioned here.

The Property Code and Civil Practice and Remedies Code provisions cited here have been amended since 1988, and recording practice now includes electronic recording that did not exist then. Anyone with a current recording question should check the present versions of Property Code sections 11.004 and 12.001 and the acknowledgment rules, along with any local e-recording procedures. The durable point survives the updates: a county clerk's recording function is ministerial, the clerk records what is properly acknowledged without judging its legal effect, and the clerk's liability is for wrongful refusal to record, not for defects inside a properly recorded instrument.

Common questions

Can I re-record the same deed to fix a mistake?
Under this opinion, yes, if the document independently meets the Property Code's recording requirements. The clerk judges each document on its own merits and does not check whether a similar one was already recorded.

Will the clerk reject my document because of handwritten corrections on it?
The clerk is not supposed to. Deciding the effect or legality of changes on the face of an instrument is not the clerk's job. The clerk records instruments that are proved or acknowledged according to law.

Is the county clerk responsible if a recorded deed turns out to be defective?
No. If the recording requirements were satisfied, the clerk is not liable for substantive errors in the instrument itself.

What happens if a clerk refuses to record a valid document?
The clerk can be subject to a civil penalty of up to $500 under section 11.004(b) of the Property Code for failing to record an instrument that is authorized or required to be recorded and is properly proved or acknowledged.

Background and statutory framework

The powers and duties of the district clerk and county clerk have long been characterized by the courts and the Attorney General as ministerial functions (Attorney General Opinion JM-727 (1987), quoting Benge v. Foster, 47 S.W.2d 862 (Tex. Civ. App. - Amarillo 1932, writ ref'd), and citing Attorney General Opinions JM-694 (1987), JM-166 (1984), and JM-533 (1986)). Section 11.004 of the Property Code requires the county clerk to record "any instrument authorized or required to be recorded in that clerk's office that is proved or acknowledged according to law," and section 11.004(b) makes a clerk who violates the section subject to a civil penalty of not more than $500. Section 12.001 sets the requirements for recording an instrument concerning real or personal property: the instrument may be recorded if it has been acknowledged or proved according to law, a conveyance of real property may not be recorded unless signed and acknowledged by the grantor before two or more credible subscribing witnesses or an authorized officer, and the section does not require acknowledgment of, or prohibit recording of, a financing statement, security agreement, or continuation statement under the Business & Commerce Code. The method of acknowledgment and the requisites for proof of acknowledgment by a witness are set out in sections 121.004 and 121.009 of the Civil Practice and Remedies Code.

Applying those provisions, the Attorney General answered the four questions. On the first two, a document offered to correct an error in an earlier instrument must be judged on its own merits; if it meets section 12.001's requirements, the clerk is required to record it, and it is not the clerk's duty to determine whether the same or a like document was previously recorded, so the corrective purpose is not a factor. On the third, the clerk is not responsible for determining the effect or legality of perceived changes or corrections on the body of an instrument (for example, handwritten changes without initials); the clerk's obligation is only to record instruments proved or acknowledged according to law under section 11.004. On the fourth, section 11.004(b) exposes the clerk to the $500 civil penalty for failing to record a qualifying instrument, but if the recording requirements have been satisfied the clerk is not liable for substantive errors in the instrument.

Citations

Statutory authority:

• Property Code section 11.004 (duty to record; section 11.004(b), $500 civil penalty)
• Property Code section 12.001 (recording requirements; acknowledgment or proof)
• Civil Practice and Remedies Code sections 121.004 (method of acknowledgment), 121.009 (proof of acknowledgment by witness)
• Business & Commerce Code (financing statement, security agreement, continuation statement)

Cases:

• Benge v. Foster, 47 S.W.2d 862 (Tex. Civ. App. - Amarillo 1932, writ ref'd) (Texas court of civil appeals; clerk's recording duties are ministerial)

Prior Attorney General materials referenced: JM-727 (1987); JM-694 (1987); JM-166 (1984); JM-533 (1986).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-904
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0904.pdf

Original opinion text

Best-effort transcription from a scanned PDF (pdftotext -layout). Minor OCR errors remain and obvious ones are corrected here (for example, the opinion number is JM-904 throughout; the case name is Benge v. Foster; prior opinions read JM-694 and JM-533); the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

May 17, 1988

Honorable Sam W. Dick
Criminal District Attorney
Fort Bend County Courthouse
Richmond, Texas 77469

Opinion No. JM-904

Re: Recordability of certain documents by a county clerk (RQ-1376)

Dear Mr. Dick:

You ask:

1. May a Clerk's Office properly allow the same document to be recorded more than once to correct an error (re-recorded)? Or, must a new and separate corrected document be drafted for recordation to correct an error or omission?

2. In the event a document can be recorded more than once (re-recorded), is some form of additional acknowledgement necessary to meet the recordation requirements?

3. Where corrections are apparent on the face of the document, must the Clerk's Office screen and reject same from recordation when the document otherwise meets the recordation requisites?

4. Is the Clerk liable for substantive imperfections in a document if the same is recorded? Or, if the Clerk fails to record a document that meets the recordation requirements, is the Clerk exposed to any potential liability?

The responsibilities of the district clerk and county clerk have been a source of frequent concern as reflected by numerous attorney general opinions addressing this subject. Attorney General Opinion JM-727 (1987) stated:

The courts and this office have repeatedly characterized the powers and duties of the district clerk and county clerk as ministerial functions. See Benge v. Foster, 47 S.W.2d 862 (Tex. Civ. App. - Amarillo 1932, writ ref'd); Attorney General Opinion Nos. JM-694 (1987); JM-166 (1984); cf. Attorney General Opinion JM-533 (1986).

Section 11.004 of the Property Code requires the county clerk to record "any instrument authorized or required to be recorded in that clerk's office that is proved or acknowledged according to law." Subsection (b) of section 11.004 provides that a county clerk who violates any provision of this section is subject to a civil penalty of not more than $500.00.

Section 12.001 of the Property Code sets forth the requirements for recording an instrument concerning real or personal property. Section 12.001 provides:

(a) An instrument concerning real or personal property may be recorded if it has been acknowledged or proved according to law.[1]

(b) An instrument conveying real property may not be recorded unless it is signed and acknowledged by the grantor in the presence of two or more credible subscribing witnesses or acknowledged before and certified by an officer authorized to take acknowledgements.

(c) This section does not require the acknowledgement or prohibit the recording of a financing statement, a security agreement filed as a financing statement, or a continuation statement filed for record under the Business & Commerce Code.

Your first two questions relate to the filing of a document that has as its purpose the correction of an error in an earlier instrument. Each document presented to the clerk for filing must be judged on its own merits. If the instrument meets the requirements for recording set forth in section 12.001 the clerk is required to record the document. It is not a duty of the clerk to determine whether the same or a like document has been previously recorded. The fact that the instrument offered for recording may be for the purpose of correcting an error in a previously recorded instrument is not a factor in determining whether it meets the requirements of section 12.001.

Your third question relates to the clerk's duty with regard to obvious changes or corrections made on the face of the instrument's text. You direct our attention to handwritten changes appearing on an instrument without initials or any other evidence of approval by the parties. It is not a responsibility of the clerk to determine the effect or legality of perceived changes or corrections on the body of the instrument offered for recording. The clerk is only required to record "any instrument authorized or required to be recorded in that clerk's office that is proved or acknowledged according to law." Property Code 11.004.

In your last question you inquire about potential liability of the county clerk in the recording of documents. Subsection (b) of section 11.004 makes a county clerk subject to a civil penalty of not more than $500.00 for failure to record any instrument authorized or required to be recorded in that clerk's office that is proved or acknowledged according to law. If the requirements for recording have been satisfied, the clerk is not liable for any substantive errors in the instrument.

SUMMARY

Each document presented to the county clerk for recording must be judged on its own merits. If the document meets the requirements of section 12.001 of the Property Code the county clerk is required to record the document. It is not the responsibility of the clerk to determine the effect or legality of perceived changes or corrections appearing on the face of the document presented for recording. Subsection (b) of section 11.004 of the Property Code makes a county clerk subject to a civil penalty of not more than $500.00 for failure to record any instrument authorized or required to be recorded in that clerk's office that is proved or acknowledged according to law. If the requirements for recording have been satisfied, the county clerk is not liable for any substantive errors in the instrument.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

[1] Section 121.004 of the Texas Civil Practice and Remedies Code sets forth the method of acknowledgement, as follows:

(a) To acknowledge a written instrument for recording, the grantor or person who executed the instrument must appear before an officer and must state that he executed the instrument for the purposes and consideration expressed in it.

(b) The officer shall:

(1) make a certificate of the acknowledgment;

(2) sign the certificate; and

(3) seal the certificate with the seal of office.

Section 121.009 of the Texas Civil Practice and Remedies Code provides the requisites for proof of acknowledgment by a witness as follows:

(a) To prove a written instrument for recording, at least one of the witnesses who signed the instrument must personally appear before an officer who is authorized by this chapter to take acknowledgments or proofs and must swear:

(1) either that he saw the grantor or person who executed the instrument sign it or that that person acknowledged in the presence of the witness that he executed the instrument for the purposes and consideration expressed in it; and

(2) that he signed the instrument at the request of the grantor or person who executed the instrument.

(b) The officer must make a certificate of the testimony of the witness and must sign and officially seal the certificate.

(c) The officer may take the testimony of a witness only if the officer personally knows or has satisfactory evidence on the oath of a credible witness that the individual testifying is the person who signed the instrument as a witness. If evidence is used to identify the witness who signed the instrument, the officer must note the use of the evidence in the certificate of acknowledgment.