Role of Texas County Clerks as Recorder of Real Property Records

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

There is often confusion regarding the nature of the role of the County Clerk as the custodian of real property records versus the custodian of court documents related to suits in the County Courts at Law. In fact, many young lawyers and inexperienced legal professionals share this confusion. 

Fact is, three distinct types of documents are filed with the County Court of any given County in Texas:  "instruments," "court documents" and "miscellaneous records."  I generally define these document types  as follows:  

• Instruments are "recorded," and are generally public records such as deeds, liens and judgments. Many of these instruments deal with the conveyance of ownership in real property, including Deed records, deeds of trust, liens, and abstracts.

• Court documents are the judicial records (pleadings and Orders) related to cases litigated in the County Courts of a given texas County. They are usually "filed," but not recorded.

• Miscellaneous records, such as birth certificates, death certificates, certain financing statements and marriage licenses.  These records are maintained in accordance with the Texas Constitution (Art. V Sec. 20), which mandates that the elected County Clerk of each county shall be the "recorder of the county."

For purposes of real property records,  Chapter 12 of the Texas Property Code largely governs the requirements of documents to be recorded with the County Clerk.  

For example, a County Clerk may not record an "instrument conveying real property" unless the instrument is (1) signed; and (2) acknowledged or sworn to by the grantor in the presence of two or more subscribing witnesses or (3) acknowledged or sworn to before and certified by an officer authorized to take acknowledgments or oaths. 

Similarly, but still distinctly different, an "instrument concerning real or personal property" may be recorded only if the instrument has been (1) acknowledged; (2) sworn to with a proper jurat, or (3) proved according to law.  NOTE:  An acknowledgment and a jurat are not the same thing. "A jurat is a certificate added to an affidavit stating when, before whom, and where it was made, while an acknowledgment is a declaration of fact to give it legal validity." 

Another example of a recording requirement is that all instruments must be in English, and a deed, mortgage, or deed of trust that transfers an interest in real property to or from an individual must include a confidentiality notice.

Upon determining that an instrument should be accepted for filing, the county clerk is required to -- without imposing additional requirements -- actually accept the instrument by taking physical possession of the instrument, and collecting applicable fees.  These days, Clerks in some counties will scan the original instrument, index it and return it to the person requesting the recording.

Once the clerk has actually accepted the instrument and the appropriate filing fee has been collected, the instrument is considered to be filed. At that time, it is assigned a unique number which is stamped or written on the original instrument for the purpose of identification. An instrument is considered to be a public record at the time the instrument is filed.

Evidence that a given instrument was filed at a certain date and time is created by the county clerk's act of noting the date and time of filing "at the foot of the record" by placing what is known as a "file stamp" or a "file mark" on the instrument. 

For every type of instrument that the county clerk records, he or she must maintain an index so that individual instruments may be located alphabetically by the last name of the parties. The index must state the specific location in the records at which the instrument is stored. The clerk must generally maintain at least one index for real property instruments and another index for all other instruments. Individual instruments are indexed. 

NOTE:  The information on this post was taken largely from the County Clerk Procedural Manual published by the Texas Office of Court Administration.