How to File a Motion for Judicial Review of Documentation or Instrument

Part of the Attorney General
Country of Texas

March thirteen, 1998

The Honorable John 5 Dallas County Commune Attorney Administration Building, 411 Elm Street Dallas, Texas 75202

Alphabetic character Stance No. 98-016 Re: Instruments that the county clerk must accept for filing and recording (RQ-950)

Dear Mr. Vance:

Y'all inquire what instruments the Dallas County Clerk must accept for filing and recording. You lot state that the Dallas County Clerk has recently noticed a groovy increase in the number of unusual documents presented for filing and recording in his role. Many of these do not belong in the traditional categories of documents filed with the clerk, such as state records, lien instruments, financing statements, probate records, or court pleadings. You place some of the unusual instruments as follows:

1. Refusal to Pay Property Taxes,

2. Mutual Law Liens,

three. Affidavit Revoking Signature,

4. Affidavit of Refusal to Accept Post,

5. Affidavit of Direct Assail Upon Lawsuit,

6. Effective Notice,

7. Find of Non-Statutory Waiver of Tort Presented past Affidavit.

These examples of unusual documents presented for filing are often in affidavit form, while the following are non in affidavit form:

1. Surrender of Social Security Menu,

2. Declaration of Person Beingness a Sovereign,

3. Notice of Asseveration,⁽ⁱ⁾.

.iv. Notice of Waiver of Tort,.

.five. Notice Regarding Lack of Jurisdiction..

. You do non submit copies of any of the unusual documents you inquire virtually, nor do you attempt to explain what the proponents of these documents hope to accomplish by filing them and having them recorded equally public records. Since nosotros can only speculate from the names of the documents what they relate to, nosotros cannot determine as a matter of law whether or not the canton clerk may take them for filing. We can, withal, review the constabulary establishing the canton clerk's duties, to help yous in advising the clerk how to deal with these documents. .

. Article Five, section 20 of the Texas Constitution provides for the election of a county clerk, who will be clerk of the county and commissioners courts and recorder of the canton, and "whose duties, perquisites and fees of office shall be prescribed past the Legislature." Thus, the county clerk'due south duties, including filing and recording duties, volition exist institute in the statutes.⁽ⁱⁱ⁾ Section 192.001. of the Local Government Code provides that the county clerk "shall record each human action, mortgage, or other musical instrument that is required or permitted by law to exist recorded.".^(three) Unless a .statute provides that a .document is .authorized, required, or permitted to exist recorded in the clerk's office., he may non accept it for filing.⁽⁴⁾ .

. In Urban center of Abilene v. Fryar, 143 Southward.W.2d 654 (Tex. Civ. App.--Eastland 1940, no writ), the court addressed the canton clerk'south refusal to file trust deeds securing city bonds unless stamps demonstrating payment of a revenue enhancement were affixed to them, every bit required by statute.^(v) The city provided the clerk with warrants roofing the price of stamps claimed to be necessary and and so sued to enjoin the clerk from cashing the warrants. The court, explaining why the city had no right to litigate the question of its revenue enhancement liability in an injunction adjust, described the clerk's duty as follows:.

.[I]f the constabulary imposed the revenue enhancement in question it vested no authority in the Clerk to file or record the deeds of trust without existence stamped; but to the contrary, expressly prohibited the Clerk from doing then. If the police force did not impose said tax, under the circumstances, it was the ministerial duty of the Clerk to file and tape the instruments without beingness stamped. The Clerk'due south duty was not afflicted by any mistaken understanding or construction of the constabulary. The Clerk charged with a ministerial duty is presumed to know the constabulary, and if she makes a error equally to such question there is a obviously and adequate legal remedy for requiring performance of the duty. . . . Such remedy is an action of mandamus.^{(half dozen)} .

.The court further stated that the clerk's "sole duty, other than to supply the stamps if requested, was.

.to obey the statutory prohibition non to file or tape the instruments unless they were stamped."⁽⁷⁾.

. The Fryar case makes it clear that the clerk may file and record a document only if .authorized, required, or permitted. to exercise then by a statute. In addition, numerous attorney general opinions on the county clerk's say-so to file detail documents address this event by construing the relevant statutes.⁽⁸⁾ If a document covered by a filing statute is regular on its face, the clerk may non refuse to file it based on extraneous facts.⁽⁹⁾ However, the clerk must exist able to make up one's mind from the face up of the certificate that information technology complies with the applicable statute. For example, t.his role held that the county clerk may non file an assumed business name certificate if the acknowledgment is written in a language other than English language, because the clerk would then exist unable to determine whether or not the instrument was regular on its face..^(x). . If the clerk, through a mistaken understanding of the statute, refuses to file a certificate that is statutorily required to be filed, the remedy is an activeness of mandamus, which enables the court to construe the recording statute and determine as a matter of police force whether it applies to the document in question..

.There are numerous provisions scattered throughout the Texas statutes and codes that. authorize, crave, or let the county clerk to .tape documents.⁽¹¹⁾ We cannot discuss or even enumerate all such provisions, but nosotros will mention some of the more of import.⁽¹²⁾ Equally already pointed out, .section 192.001 of the Local Regime Code provides that the county clerk "shall tape each human action, mortgage, or other musical instrument that is required or permitted by law to be recorded," and other sections of .affiliate 192 refer to other kinds of documents that may be filed and recorded.⁽¹³⁾ The Property Lawmaking includes provisions on filing liens and other instruments relating to existent belongings.^(fourteen) Many provisions on the filing of litigation-related documents with the office of the clerk are found in the Texas Rules of Civil Procedure.^(fifteen) .

. Newly enacted legislation may assist the clerk in dealing with some of the unusual documents you lot inquire about. House Bill No. 1185,⁽¹⁶⁾ adopted by the 75th Legislature, addresses fraudulent judgment liens issued by and then-called "common law courts" and fraudulent documents purporting to create liens or claims on personal and real belongings that have been filed with court clerks and the secretary of state.⁽¹⁷⁾ Among other provisions, it establishes criminal offenses for filing a fraudulent courtroom document or a fraudulent financing argument and provides a means of clearing public records of such documents.^(eighteen) We will focus on the provisions relating to the county clerk's duties..

. Business firm Bill No. 1185 amended the standing education requirement applicable to county clerks, district clerks, and county and district clerks to require at least one hr regarding fraudulent court documents and fraudulent document filings.⁽¹⁹⁾ It also added subchapter J to Government Lawmaking chapter 51,^(twenty) which permits a person against whom a fraudulent judgment or lien against existent or personal holding has been filed to accept information technology removed. A document is presumed to exist fraudulent if it is "a purported judgment or other document purporting to memorialize an human activity, an order, a directive, or process of . . . a purported court or a purported judicial entity non expressly created or established under the constitution or the laws of this country or of the United States."⁽²¹⁾ A document is also presumed to be fraudulent if information technology "purports to create a lien or assert a claim confronting real or personal property or an interest in real or personal belongings" and the lien is not provided for by law, created by consent of the obligor, debtor, or owner of the holding or a representative of that person, or an equitable, constructive, or other lien imposed past a court.⁽²²⁾ .

. When the clerk of a court reasonably believes that a previously filed judgment, court order, or lien is fraudulent, he or she shall notify the person against whom the purported judgment or club is rendered, or who is afflicted by the purported lien.⁽²³⁾ The written notice is to be provided not later than the 2nd business twenty-four hour period after the date that the document or musical instrument is offered or submitted for filing, or, if it has already been filed or recorded, not later than the second business day afterward the engagement that the clerk becomes aware that the document or instrument may exist fraudulent.⁽²⁴⁾ Persons who have reason to believe that their interests are afflicted by a fraudulent certificate may file a motion with the commune clerk requesting the court to determine the status of the certificate.⁽²⁵⁾ Subchapter J describes in detail the kind of fraudulent documents it applies to and sets out the text of a suggested motion for judicial review of a document. Information technology also provides that a clerk of a court, including a county courtroom, "shall post a sign in messages at least ane inch in height, that is clearly visible to the general public in or near the clerk'due south office stating that it is a crime to intentionally or knowingly file a fraudulent courtroom record or a fraudulent instrument with the clerk."⁽²⁶⁾ .

. Some of the unusual documents you describe may be discipline to the procedures set out in subchapter J. In particular, the documents described equally "common law liens" should exist examined to determine if they are fraudulent documents inside the legislation. .

. If the county clerk is presented with fraudulent documents for filing, despite the criminal penalties for filing such documents and the sign in the clerk's part stating that information technology is a crime to intentionally or knowingly file a fraudulent court tape or a fraudulent musical instrument with the clerk, he should give the written detect required past House Pecker 1185.⁽²⁷⁾ When the clerk is presented with whatever other document, he has a ministerial duty to have information technology for filing if .a statute authorizes, requires or permits information technology to exist recorded in the clerk's office., and if information technology is regular on its face. If no statute authorizes, requires, or permits a certificate to be recorded in the clerk's office, he may not accept it for filing. If the Dallas County Clerk is unable to determine whether a particular document or blazon of document is inside a filing statute, he may seek advice from the criminal district attorney pursuant to section 41.007 of the Government Code.⁽²⁸⁾ .

Southward U Chiliad Chiliad A R Y

. The county clerk has a ministerial duty to have a document for filing and recording if .a statute authorizes, requires or permits it to exist filed in the clerk'south part., and if it is regular on its face. If no statute authorizes, requires, or permits a document to exist filed in the clerk's office, he may not accept information technology for filing. When the county clerk believes that a previously filed certificate or a document presented for filing is fraudulent within Government Code chapter 51, subchapter J, he is to provide the discover required by that provision..

Yours very truly,

Susan Garrison
Banana Attorney General
Opinion Committee

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Footnotes

ane. "Asseveration" refers to an affidavit of fact, normally with no implication that an oath has been taken. Bryan. A. Garner, A Lexicon of Mod Legal Usage 77 (1987); see Black's Constabulary Lexicon 152 (4th ed. 1968).

2. See Comm'rs Court of Titus Canton v. Agan, 940 S.Westward.2nd 77 (Tex. 1997) (construing similar language in Tex. Const. art. XVI, section 44(a), pertaining to county treasurer). 3. See too Local Gov't Lawmaking � 191.001 (duty of clerk to tape contents of each instrument filed for recording that clerk is authorized to record). iv. Turrentine v. Lasane, 389 Due south.W.2nd 336, 337 (Tex. Civ. App.--Waco 1965, no writ) (citing statutes that plant duty of county clerk to record all deposited written instruments authorized, required or permitted to be recorded in his office). 5. Quondam article 7047e, V.T.C.South. (1925), imposed a stamp tax on certain promissory notes. See ..Act of October. 26, 1936, 44th Leg., 3d C.S., ch. 495, fine art. 4, � 9, 1936 Tex. Gen. Laws.. 2040, 2080, repealed by ..Act of May 21, 1941, 47th Leg., R.S., ch. 449, � one, 1941 Tex. Gen. Laws.. 723, 723. half-dozen. City of Abilene v. Fryar, 143 S.W.2d 654, 657 (Tex. Civ. App.--Eastland 1940, no writ) (citation omitted). vii. Id. at 659. 8. Attorney General Opinions JM-1277 (1990) (county clerk may not have cash bond in satisfaction of bond requirement in statute regulating charitable raffles); JM-825 (1987) (county clerk may not file assumed business name certificate if acknowledgment is written in a foreign linguistic communication); H-1155 (1978) (county clerk may non reject to file pleadings that appear inadequately certified but may flag them or otherwise bring them to the attending of the court); Yard-511 (1969) at iv (unprobated will may non be recorded by county clerk except when fastened every bit an showroom to an otherwise recordable affirmation of heirship); C-695 (1966) at 3 (field notes of a subdivision cannot be recorded in plat records unless accompanied by map or plat of subdivision); 5-1529 (1952) at 13 (county clerk must take a certificate of nomination that is regular on its face up, and may not make up one's mind questions of illegality in the nomination that depend upon an investigation of extraneous facts); V-1450 (1952) at 3-4 (clerk has authority and duty to file birth and death certificates but as provided by statute). nine. Attorney General Opinions WW-908 (1960) at 9; V-1529 (1952) at 13 (county clerk must accept certificate of nomination that is regular on its face, and may not determine questions of illegality in nomination that depend upon an investigation of extraneous facts). 10. Attorney General Opinion JM-825 (1987) at 2; run into also Attorney Full general Opinion H-1155 (1978) at 2 (clerk may exercise discretion with respect to documents offered for filing merely when expressly authorized by applicable statute). 11. See, e.grand., Five.T.C.South. art. 5192 (stevedore'south bond); Agric. Code � 144.041 (livestock brands); Bus. &. Com. Code �� 9.401 (certain security interests), 35.07 (utility security interests), 36.ten (certificate assumed name nether which business is conducted or professional services rendered). 12. The statutes and rules of procedure that qualify, permit, or require the county clerk to take documents for filing are included in the General Alphabetize to Vernon'due south Texas Statutes and Codes, Annotated, if the district attorney's office or the county clerk wishes to compile a listing of them. See also Texas Dep't of Housing and Customs Diplomacy, Guide to Texas Laws for Canton Officials 82-94 (1995-96 ed.) (list of statutes stating duties and authority of county clerk). 13. See Local Gov't Code �� 192.002 (military discharge records), .004 (judgment lien and "every other instrument that is intended to create a lien"), .005 (certain probate records). fourteen. Prop. Code �� 11.001(a) (instruments relating to real property), 12.013 (judgment or abstract of judgment); chs. 14 (federal taxation liens and other liens), 52 (judgment liens), 53 (mechanic'southward, contractor's, or materialman'south lien). 15. Meet Tex. R. Civ. P. 21 (filing of pleadings, pleas, and motions). 16. ..Act of May 10, 1997, 75th Leg., R.S., ch. 189, 1997 Tex. Sess. Police Serv... 1045, 1045 (adopting and amending provisions to be codification in Penal Lawmaking, Government Code, and other codes). 17. ..Senate Research Heart, Nib Assay, H.B. 1185, 75th Leg., R.S. (1997),.. see Attorney General Opinion DM-389 (1996) (background on fraudulent judgment liens). 18. ..Act of May 10, 1997, supra, �� 8, 10, xiv, 1997 Tex. Sess. Law Serv... 1045, 1048-50 (to be codified at Penal Lawmaking �� 37.thirteen, .101; Gov't Code � 51.901). 19. Id. � xiii, 1997 Tex. Sess. Law Serv. 1045, 1050 (to be codified at Gov't Code � 51.605(c)). 20. Id. � fourteen, at 1045, 1050-56 (to exist codified at Gov't Lawmaking �� 51.901 - .905). 21. Id. � 14, at 1045, 1050 (to be codified at Gov't Code �� 51.901(c)(ane)). 22. Id. (to be codified at Gov't Code �� 51.901(c)(ii)). 23. Id. (to be codified at Gov't Lawmaking � 51.901(a)). 24. Id. (to be codified at Gov't Code � 51.901(b)). 25. Id. � 14, at 1045, 1051-56 (to be codified at Gov't Code � 51.902 - .903). 26. Id. � xiv, at 1045, 1056 (to exist codified at Gov't Lawmaking � 51.904). 27. Business firm Neb 1185 amended Holding Code section 12.013 to provide that a judgment or an abstruse of a judgment of a court may be recorded if the judgment is of a court "expressly created or established under the constitution or laws of this country or of the United States; . . . that is a court of a foreign state and that is recognized by an Human action of congress or a treaty or other international convention to which the United States is a party; or . . . of any other jurisdiction, territory, or protectorate entitled to full faith and credit in this state nether the Constitution of the Usa," and the judgment is attested under the signature and seal of the clerk of the court that rendered it. See Attorney General Opinion DM-389 (1996) (commune or county clerk need not accept for filing document indicating on its face up that it proceeds from a purported land or local courtroom not named in the constitution or statutes of the land of Texas). Even though a fraudulent judgment is not authorized to be recorded, House Pecker 1185 contemplates that the clerk will as a practical matter accept such documents on occasion then implement the find provisions. 28. A "criminal commune attorney" inside the Texas Constitution is a class or kind of district attorney. Loma County v. Sheppard, 178 S.W.2nd 261 (Tex. 1944); see also Attorney General Opinion JM-727 (1987).

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