Texas Attorney General Opinion: LO98-016 Page: 3 of 7
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(L098-016)
The Honorable John Vance - Page 3
clerk from cashing the warrants. The court, explaining why the city had no right to litigate the
question of its tax liability in an injunction suit, described the clerk's duty as follows:
[I]f the lawimposed the tax in question it vested no authority in the Clerk to
file or record the deeds of trust without being stamped; but to the contrary,
expressly prohibited the Clerk from doing so. If the law did not impose said
tax, under the circumstances, it was the ministerial duty of the Clerk to file
and record the instnnmments without being stamped. The Clerk's duty was not
affected by any mistaken understanding or construction of the law. The
Clerk charged with a ministeral duty is presumed to know the law, and if she
makes a mistake as to such question there is a plain and adequate legal
remedy for requiring performance of the duty .... Such remedy is an action
of mandamus'
The court further stated that the clerk's "sole duty, other than to supply the stamps if requested, was
to obey the statutory prohibition not to file or record the instruments unless they were stamped."
The Fryar case makes it clear that the clerk may file and record a document only if
authorized, required, or permitted to do so by a statute. In addition, numerous attorney general
opinions on the county clerk's authority to file particular documents address this issue by construing
the relevant statutes. If a document covered by a filing statute is regular on its face, the clerk may
not refuse to file it based on extraneous facts.' However, the clerk must be able to determine from
the face of the document that it complies with the applicable statute. For example, this office held
that the county clerk may not file an assumed business name certificate if the acknowledgment is
written in a language other than English because the clerk would then be unable to determine
'Cty ofAbilene v. Fymar, 143 S.W.2d 654, 657 (Tx. Civ. App.-Eastland 1940, no writ) (citation omitted).
Id. at 659.
Atuomey Geneal Opinions JM-1277 (1990) (county clerk may not accept cash bond in satisfaction of bond
requirement in statute reguating charitable raffles); JM-825 (1987) (county clerk may not file assumed business name
certificate if acknowledgment is written in a foreign language); H- 1155 (1978) (county clerk may not refuse to file
Spleadings that appear inadequately certified but may flag them or otherwise bring them to the attention of the court);
M-511 (1969) at 4 (unprobated will may not be recorded by county clerk except when attached as an exhibit to an
otherwise recordable affidavit 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); V-1529 (1952) at 13 (county clerk must accept a certificate
of nomination that is regular on its face, and may not determine 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 only as provided by statute).
9Attorney Geneal 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).
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Texas. Attorney-General's Office. Texas Attorney General Opinion: LO98-016, text, March 13, 1998; (https://texashistory.unt.edu/ark:/67531/metapth277312/m1/3/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.