Texas How to File a Motion for Judicial Review of Document

Role of the Attorney General
State of Texas

March 13, 1998

The Honorable John V Dallas Canton District Attorney Administration Building, 411 Elm Street Dallas, Texas 75202

Letter Opinion No. 98-016 Re: Instruments that the canton clerk must take for filing and recording (RQ-950)

Dearest Mr. Vance:

You ask what instruments the Dallas Canton Clerk must accept for filing and recording. You lot state that the Dallas County Clerk has recently noticed a corking increase in the number of unusual documents presented for filing and recording in his role. Many of these do non vest in the traditional categories of documents filed with the clerk, such equally country records, lien instruments, financing statements, probate records, or court pleadings. Yous place some of the unusual instruments equally follows:

1. Refusal to Pay Property Taxes,

2. Mutual Law Liens,

3. Affirmation Revoking Signature,

iv. Affidavit of Refusal to Accept Post,

five. Affidavit of Direct Attack Upon Lawsuit,

6. Constructive Notice,

7. Observe of Non-Statutory Waiver of Tort Presented past Affirmation.

These examples of unusual documents presented for filing are often in affirmation form, while the following are not in affidavit form:

1. Surrender of Social Security Carte du jour,

2. Declaration of Person Being a Sovereign,

3. Notice of Asseveration,⁽¹⁾.

.4. Find of Waiver of Tort,.

.5. Notice Regarding Lack of Jurisdiction..

. You do not submit copies of any of the unusual documents you ask about, nor practise you endeavor to explicate what the proponents of these documents hope to accomplish by filing them and having them recorded every bit public records. Since we can simply speculate from the names of the documents what they relate to, we cannot make up one's mind as a matter of law whether or not the canton clerk may accept them for filing. Nosotros tin can, even so, review the law establishing the canton clerk's duties, to assist you in advising the clerk how to bargain with these documents. .

. Article Five, department twenty of the Texas Constitution provides for the ballot of a canton 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 exist prescribed by the Legislature." Thus, the county clerk's duties, including filing and recording duties, will exist found in the statutes.⁽ⁱⁱ⁾ Section 192.001. of the Local Government Code provides that the county clerk "shall record each deed, mortgage, or other instrument that is required or permitted past police force to be recorded.".⁽³⁾ Unless a .statute provides that a .document is .authorized, required, or permitted to be recorded in the clerk's office., he may not have it for filing.^(four) .

. In Metropolis of Abilene 5. Fryar, 143 S.W.2d 654 (Tex. Civ. App.--Eastland 1940, no writ), the court addressed the county clerk's refusal to file trust deeds securing city bonds unless stamps demonstrating payment of a tax were affixed to them, every bit required by statute.⁽⁵⁾ The urban center provided the clerk with warrants roofing the cost of stamps claimed to be necessary and then sued to enjoin the 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 every bit follows:.

.[I]f the police imposed the tax in question it vested no say-so in the Clerk to file or record the deeds of trust without existence stamped; but to the contrary, expressly prohibited the Clerk from doing so. If the constabulary did non impose said tax, nether the circumstances, it was the ministerial duty of the Clerk to file and record the instruments without beingness stamped. The Clerk'southward duty was non affected past any mistaken understanding or construction of the law. The Clerk charged with a ministerial duty is presumed to know the constabulary, and if she makes a fault as to such question there is a plain and acceptable legal remedy for requiring performance of the duty. . . . Such remedy is an action of mandamus.^(half-dozen) .

.The court farther stated that the clerk'south "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."⁽⁷⁾.

. The Fryar case makes it clear that the clerk may file and record a certificate merely if .authorized, required, or permitted. to do so by a statute. In add-on, numerous chaser full general opinions on the county clerk'due south authority to file detail documents address this issue past 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 information technology based on extraneous facts.^(nine) All the same, the clerk must exist able to decide from the face up of the document that it complies with the applicable statute. For instance, t.his role held that the county clerk may not file an assumed business proper noun certificate if the acknowledgment is written in a language other than English, because the clerk would then exist unable to determine whether or not the musical instrument was regular on its face..^(ten). . If the clerk, through a mistaken understanding of the statute, refuses to file a document that is statutorily required to be filed, the remedy is an action of mandamus, which enables the courtroom to construe the recording statute and determine as a matter of law whether information technology applies to the document in question..

.There are numerous provisions scattered throughout the Texas statutes and codes that. authorize, require, or permit the county clerk to .record documents.⁽¹¹⁾ Nosotros cannot discuss or even enumerate all such provisions, only nosotros will mention some of the more important.⁽¹²⁾ As already pointed out, .section 192.001 of the Local Government Code provides that the county clerk "shall record each deed, mortgage, or other instrument that is required or permitted past law to be recorded," and other sections of .chapter 192 refer to other kinds of documents that may be filed and recorded.^(xiii) The Holding Code includes provisions on filing liens and other instruments relating to real belongings.⁽¹⁴⁾ Many provisions on the filing of litigation-related documents with the role 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 inquire near. Firm Neb No. 1185,⁽¹⁶⁾ adopted past the 75th Legislature, addresses fraudulent judgment liens issued by so-called "common constabulary courts" and fraudulent documents purporting to create liens or claims on personal and real holding that accept been filed with court clerks and the secretary of state.⁽¹⁷⁾ Among other provisions, it establishes criminal offenses for filing a fraudulent court certificate or a fraudulent financing argument and provides a means of immigration public records of such documents.⁽¹⁸⁾ We volition focus on the provisions relating to the canton clerk's duties..

. House Nib No. 1185 amended the continuing pedagogy requirement applicable to canton clerks, commune clerks, and canton and commune clerks to require at to the lowest degree 1 hour regarding fraudulent court documents and fraudulent document filings.⁽¹⁹⁾ It as well added subchapter J to Regime Code chapter 51,^(twenty) which permits a person confronting whom a fraudulent judgment or lien against existent or personal property has been filed to accept it removed. A document is presumed to be fraudulent if it is "a purported judgment or other certificate purporting to memorialize an act, an club, a directive, or process of . . . a purported courtroom or a purported judicial entity not expressly created or established under the constitution or the laws of this state or of the United States."⁽²¹⁾ A certificate is also presumed to be fraudulent if information technology "purports to create a lien or assert a claim against existent or personal property or an involvement in real or personal property" and the lien is non provided for past law, created by consent of the obligor, debtor, or possessor of the property or a representative of that person, or an equitable, constructive, or other lien imposed by a court.⁽²²⁾ .

. When the clerk of a court reasonably believes that a previously filed judgment, courtroom society, or lien is fraudulent, he or she shall notify the person confronting whom the purported judgment or order is rendered, or who is affected by the purported lien.⁽²³⁾ The written notice is to be provided not later than the second business organization day after the date that the document or instrument is offered or submitted for filing, or, if it has already been filed or recorded, not later than the second business day after the date that the clerk becomes aware that the certificate or musical instrument may be fraudulent.⁽²⁴⁾ Persons who have reason to believe that their interests are affected by a fraudulent document may file a motion with the district clerk requesting the courtroom to make up one's mind the condition of the document.⁽²⁵⁾ Subchapter J describes in detail the kind of fraudulent documents information technology applies to and sets out the text of a suggested motion for judicial review of a document. It also provides that a clerk of a court, including a county courtroom, "shall post a sign in letters at least 1 inch in height, that is clearly visible to the general public in or near the clerk'due south office stating that it is a law-breaking to intentionally or knowingly file a fraudulent court record or a fraudulent instrument with the clerk."⁽²⁶⁾ .

. Some of the unusual documents you lot describe may be subject to the procedures set out in subchapter J. In item, the documents described as "mutual police liens" should be examined to determine if they are fraudulent documents within 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'southward office stating that it is a criminal offence to intentionally or knowingly file a fraudulent court record or a fraudulent instrument with the clerk, he should requite the written notice required by Business firm Neb 1185.⁽²⁷⁾ When the clerk is presented with whatsoever other document, he has a ministerial duty to accept it for filing if .a statute authorizes, requires or permits information technology to exist recorded in the clerk'south office., and if it is regular on its face. If no statute authorizes, requires, or permits a certificate to be recorded in the clerk'south role, 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 within a filing statute, he may seek advice from the criminal district chaser pursuant to section 41.007 of the Government Code.⁽²⁸⁾ .

S U Grand M A R Y

. The county clerk has a ministerial duty to accept a document for filing and recording if .a statute authorizes, requires or permits it to be filed in the clerk'south office., and if information technology is regular on its face. If no statute authorizes, requires, or permits a certificate to be filed in the clerk's role, he may non accept it for filing. When the county clerk believes that a previously filed document or a document presented for filing is fraudulent within Government Code affiliate 51, subchapter J, he is to provide the find required by that provision..

Yours very truly,

Susan Garrison
Assistant Attorney General
Opinion Committee

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Footnotes

1. "Asseveration" refers to an affirmation of fact, usually with no implication that an oath has been taken. Bryan. A. Garner, A Dictionary of Modern Legal Usage 77 (1987); see Black's Police Dictionary 152 (quaternary ed. 1968).

2. Come across Comm'rs Courtroom of Titus County v. Agan, 940 S.Westward.second 77 (Tex. 1997) (construing like language in Tex. Const. art. XVI, section 44(a), pertaining to county treasurer). 3. See as well Local Gov't Code � 191.001 (duty of clerk to tape contents of each musical instrument filed for recording that clerk is authorized to record). iv. Turrentine five. Lasane, 389 Southward.Westward.second 336, 337 (Tex. Civ. App.--Waco 1965, no writ) (citing statutes that establish duty of canton clerk to record all deposited written instruments authorized, required or permitted to be recorded in his office). five. Quondam commodity 7047e, V.T.C.S. (1925), imposed a stamp revenue enhancement on certain promissory notes. See ..Act of Oct. 26, 1936, 44th Leg., 3d C.S., ch. 495, art. IV, � 9, 1936 Tex. Gen. Laws.. 2040, 2080, repealed by ..Human action of May 21, 1941, 47th Leg., R.Due south., ch. 449, � i, 1941 Tex. Gen. Laws.. 723, 723. vi. Urban center of Abilene v. Fryar, 143 Due south.Due west.second 654, 657 (Tex. Civ. App.--Eastland 1940, no writ) (citation omitted). 7. Id. at 659. 8. Chaser Full general Opinions JM-1277 (1990) (county clerk may not take greenbacks bail in satisfaction of bond requirement in statute regulating charitable raffles); JM-825 (1987) (canton clerk may non file assumed business proper name certificate if acquittance is written in a foreign language); H-1155 (1978) (canton clerk may not refuse to file pleadings that appear inadequately certified merely may flag them or otherwise bring them to the attention of the court); M-511 (1969) at 4 (unprobated will may not exist recorded by canton clerk except when attached every bit an exhibit to an otherwise recordable affirmation of heirship); C-695 (1966) at three (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 have a document of nomination that is regular on its face, 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 three-4 (clerk has authority and duty to file birth and death certificates only as provided past statute). 9. Attorney General Opinions WW-908 (1960) at 9; V-1529 (1952) at thirteen (canton clerk must accept certificate of nomination that is regular on its face, and may non decide questions of illegality in nomination that depend upon an investigation of extraneous facts). 10. Attorney General Stance JM-825 (1987) at ii; see also Attorney Full general Stance H-1155 (1978) at 2 (clerk may exercise discretion with respect to documents offered for filing only when expressly authorized by applicable statute). 11. See, east.g., Five.T.C.S. art. 5192 (stevedore'southward bond); Agric. Code � 144.041 (livestock brands); Bus. &. Com. Code �� 9.401 (certain security interests), 35.07 (utility security interests), 36.x (document assumed name nether which business is conducted or professional person services rendered). 12. The statutes and rules of procedure that authorize, permit, or require the canton clerk to accept documents for filing are included in the Full general Index to Vernon'southward Texas Statutes and Codes, Annotated, if the district attorney's office or the county clerk wishes to compile a list of them. See besides Texas Dep't of Housing and Community Affairs, 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 Lawmaking �� 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 existent property), 12.013 (judgment or abstruse of judgment); chs. 14 (federal taxation liens and other liens), 52 (judgment liens), 53 (mechanic's, contractor's, or materialman's lien). 15. Come across Tex. R. Civ. P. 21 (filing of pleadings, pleas, and motions). xvi. ..Human action of May 10, 1997, 75th Leg., R.S., ch. 189, 1997 Tex. Sess. Law Serv... 1045, 1045 (adopting and amending provisions to exist codified in Penal Code, Government Code, and other codes). 17. ..Senate Research Centre, Bill Analysis, H.B. 1185, 75th Leg., R.S. (1997),.. come across Attorney Full general Opinion DM-389 (1996) (background on fraudulent judgment liens). 18. ..Human activity of May ten, 1997, supra, �� viii, 10, 14, 1997 Tex. Sess. Law Serv... 1045, 1048-50 (to be codified at Penal Code �� 37.13, .101; Gov't Code � 51.901). 19. Id. � thirteen, 1997 Tex. Sess. Law Serv. 1045, 1050 (to be codified at Gov't Code � 51.605(c)). 20. Id. � 14, at 1045, 1050-56 (to exist codification at Gov't Lawmaking �� 51.901 - .905). 21. Id. � 14, at 1045, 1050 (to be codification at Gov't Code �� 51.901(c)(1)). 22. Id. (to be codified at Gov't Lawmaking �� 51.901(c)(ii)). 23. Id. (to exist codified at Gov't Code � 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 Lawmaking � 51.902 - .903). 26. Id. � fourteen, at 1045, 1056 (to be codified at Gov't Code � 51.904). 27. Business firm Beak 1185 amended Belongings Code section 12.013 to provide that a judgment or an abstract 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 Usa; . . . that is a court of a foreign country and that is recognized by an Act of congress or a treaty or other international convention to which the United States is a political party; or . . . of whatsoever other jurisdiction, territory, or protectorate entitled to full faith and credit in this country under the Constitution of the United states of america," and the judgment is attested under the signature and seal of the clerk of the court that rendered it. Run into Chaser General Stance DM-389 (1996) (district or county clerk demand not take for filing document indicating on its face up that it proceeds from a purported state or local courtroom not named in the constitution or statutes of the state of Texas). Even though a fraudulent judgment is not authorized to be recorded, House Bill 1185 contemplates that the clerk will as a practical matter accept such documents on occasion and so implement the notice provisions. 28. A "criminal commune attorney" within the Texas Constitution is a class or kind of district attorney. Hill Canton 5. Sheppard, 178 S.Westward.2d 261 (Tex. 1944); see also Attorney General Stance JM-727 (1987).

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