Preparation, Execution, Proof, and Recording of Documents
Texas statutes require that a real property conveyance of an estate of more than one year must be in writing, subscribed, and delivered by the grantor or by the grantor’s agent authorized in writing. Tex. Prop. Code § 5.021. The following comments and suggestions relate to the preparation of instruments and documents used in any conveyance of real property. The term instrument is used throughout this chapter in the dual contexts of its statutory definitions and references and also generically as other documents.
No particular form is required for writing a monetary amount; it may be spelled out, written numerically, or both. Many attorneys prefer to write the amount in capital letters immediately followed by the numerical amount in parentheses—for example, ONE THOUSAND AND NO/100 DOLLARS ($1,000.00) or ONE THOUSAND, TWO HUNDRED FIFTY AND 10/100 DOLLARS ($1,250.10). If there is a variance between unambiguous written words and numbers, the written words control. Guthrie v. National Homes Corp., 394 S.W.2d 494, 495 (Tex. 1965). See also Tex. Bus. & Com. Code § 3.114.
Instruments have traditionally commenced with these captions, to indicate the county in which the instrument is to be recorded:
THE STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ________ ) (OR INSTRUMENT HEADING)
These captions are not required in modern conveyancing documents and are omitted from the forms in this manual. Even though instruments no longer need a caption, certificates of acknowledgment, which are the written record of the acknowledgment ceremony made by the presiding officer and appended to many real estate instruments, require a caption showing where the acknowledgment ceremony occurred. Captions are therefore included in the certificate of acknowledgment forms contained in this manual. See Tex. Civ. Prac. & Rem. Code § 121.007.
When a transaction requires more than one instrument (such as a deed, a note, and a deed of trust, or a note and a mechanic’s lien contract), all instruments should bear the same date. Conveyances can commence on a future date (Tex. Prop. Code § 5.041); thus, the effective date of an instrument can be different from the date of signing. Because instruments are adequately referred to by date, the expression “Executed this _____ day of _____” is unnecessary. Also, as a practical matter, all file copies should show the actual date of the original instrument to facilitate the subsequent amendment of the instrument or reference to it in other instruments relating to the transaction. When the deed has been dated one date and acknowledged on another, absent evidence regarding the actual date of delivery of the deed, the presumption arises that delivery occurred on the date of the deed, not the date of the acknowledgment. Bell v. Smith, 532 S.W.2d 680, 685 (Tex. App.—Fort Worth 1976, no writ).
Each instrument to be recorded should have a heading clearly identifying it at the top of the first page, below the notice of confidentiality required by Tex. Prop. Code § 11.008. Tex. Loc. Gov’t Code § 191.007(c).
§ 3.5Mailing Address of Grantee
The grantee’s mailing address should be shown on instruments conveying an interest in real property, such as deeds, deeds of trust, assignments of leases, and transfers of liens. Preferably, the address should appear in the instrument; it may also be given in a separate, signed writing attached to the instrument. For failure to show the address, the county clerk may assess a penalty filing fee equal to the greater of $25 or twice the statutory recording fee. Tex. Prop. Code § 11.003.
Forms in this manual that are considered to be conveyances provide for the grantee’s address. Some county clerks may require the grantee’s address on other instruments as well.
Although not required, including the preparer’s name and address may be useful for the parties and the public generally. Additionally, any instrument being traditionally recorded by the original paper being physically presented to the county clerk’s office should be labeled “Record and return to:” with the address of the designated recipient added. There is no need for that return instruction if the instrument is electronically filed in a county clerk’s office with that capability.
§ 3.7:1Specificity of Description
An accurate property description is essential to a valid conveyance. The property must be described with enough certainty that it can be readily identified from the description. The description should include the city, county, and state in which the property is located, and courses and distances in metes-and-bounds descriptions must be unambiguous. If a deed conveys only part of a tract of land and does not designate which part, for example, the description may be insufficient to convey title. See De Martinez v. De Vidaurri, 219 S.W.2d 823, 826 (Tex. App.—San Antonio 1949, writ ref’d n.r.e.). If the property has been depicted in a filed plat, the plat reference to the lot and block of the property should be used, along with the recording number of the plat.
The property description can include references to other recorded instruments, such as other deeds, but to depend solely on this reference as the entire description poses the danger that it may not match the intended description exactly or that it may be inaccurate or invalid. Conversely, if the metes-and-bounds description of the property is defective, but reference is made to another recorded instrument that contains a proper legal description of the property, the conveyance will probably be enforceable. Sorsby v. State, 624 S.W.2d 227, 232 (Tex. App.—Houston [1st Dist.] 1981, no writ).
The property description should be identical in all instruments relating to the same transaction, such as a deed and a deed of trust.
If the description is too long to fit the space provided in the form, it may be attached to the instrument and incorporated in it by a simple statement in the space provided for the description. An example of typical language for this purpose is “Two hundred acres of the Travis tract, out of the Domingo Losoya Survey No. 4, Abstract No. 10, Sunshine County, Texas, more particularly described in Exhibit A attached to this deed and by this reference incorporated in it.” This should be the identical language used as the caption or “lead-in” on the description attached as an exhibit. In this case, the attorney must make certain that the exhibit is actually attached and properly identified as the referenced exhibit.
The attorney should consider adding the phrase more or less to references to the quantity of property being conveyed. By doing this, the grantor may be relieved of liability arising from minor shortages. See Wooten v. State, 177 S.W.2d 56, 58 (Tex. 1944). This is the case whether the property has recently been surveyed or not because there typically are minor variations between surveys concerning measurements and area computations.
If included in the body of the form, the description should be indented and set out in block form, to make it easily identifiable in the instrument.
§ 3.7:3Description of Platted Property
Traditionally the lot, block, addition or subdivision numbers, and recording number of the plat designating the property are used for describing the platted property. A typical description using the lot, block, and addition numbers takes the following form:
Lot _____, Block _____, _____ Addition, [city], [county] County, Texas, according to the map or plat thereof recorded in Volume _____, Page _____, of the [Real Property Records/[insert other words of similar import]] of [county] County, Texas.
§ 3.7:4Description by Metes and Bounds
Metes-and-bounds descriptions are the most common type used for property outside urban areas and for unplatted urban land. These descriptions have been a steady source of litigation. Metes-and-bounds descriptions, as well as other types of property descriptions, have been liberally construed by the courts. When obvious errors have occurred in a property description, courts will generally attempt to find and correct the error to give effect to the conveyance. See Poitevent v. Scarborough, 124 S.W. 87 (Tex. 1910). Calls of distance have been held to be the weakest, and calls of distance and quantity must yield to well-established corners. Warren v. Swanzy, 361 S.W.2d 479, 484 (Tex. App.—Beaumont 1962, writ ref’d n.r.e.). A missing call in a metes-and-bounds description may be supplied when the omitted call was the only logical one that would make the description close. See Mansel v. Castles, 55 S.W. 559 (Tex. 1900).
It is common to refer to recorded instruments in descriptions, subrogation clauses, releases, transfers, and the like. The reference consists of volume and page recording information or another particular numbering sequence of the appropriate county. From the earliest days, the particular records were named after the instruments themselves—that is, deed records, deed-of-trust records, mechanic’s lien records, and so on—and the reference would be, for example, the following:
recorded in Volume _____, Page _____, Deed of Trust Records of _____ County, Texas
The Texas Local Government Code authorizes microfilming and electronic storage of public records by county clerks. See Tex. Loc. Gov’t Code §§ 204.002, 205.002. Records are referred to by volume and page numbers in some counties, by film code numbers in other counties, and by county clerk file numbers or other means particular to specific microfilming or electronic storage systems in other counties. In counties employing microfilming, the clerk may consolidate the records (1) relating to real property and (2) relating to an individual, a business entity, or a governmental agency other than a property record or court record into a single class known as “Official Public Records.” See Tex. Loc. Gov’t Code § 193.008.
An instrument recorded under the microfilm system may be referred to as the following:
recorded in Film Code No. _____ through _____ (or Volume _____, Page _____ or County Clerk File No. _____ or Instrument No. _____), Official Public Records of _____ County, Texas
Section 11.007 of the Texas Property Code provides a uniform system of references to be used in every county whether a microfilm system is in effect or not. A reference in an instrument to the volume and page number, film code number, or county clerk file number of the “real property records” (or words of similar import) for a particular county is equivalent to a reference to deed records, deed-of-trust records, or other specific records to provide effective notice to all persons of the existence of the referenced instrument. Tex. Prop. Code § 11.007. Uniform references for all recorded instruments can be in the following manner:
recorded in Film Code No._____ through _____ (or Volume _____, Page _____ or County Clerk File No. _____ or Instrument No. _____) of the Official Public Records of _____ County, Texas
In various Texas counties, there may be nonstatutory variations in indexing real property records, which the practitioner should identify before referring back to a previously recorded instrument in a new instrument.
§ 3.8:1Beneath Signature Lines
If names are not legibly typed or printed under each signature, the county clerk may double the filing fee for every nonconforming page. Tex. Loc. Gov’t Code § 191.007(e), (h). If there are no printed signature lines, they should be added below the text of the instrument, unless an instrument is promulgated by the Texas legislature and contains text below the proposed signature space. See, for example, the statutory durable power of attorney (Tex. Est. Code § 752.051) and the directive to physicians (Tex. Health & Safety Code § 166.032).
§ 3.8:2Person with Physical Disability
If an individual who is physically unable to sign or to make a mark on an instrument presented for notarization so directs, a notary public may sign the individual’s name, in the presence of a witness who has no legal or equitable interest in any property that is the subject of the document. The notary public must require identification of the witness in the same manner as from an acknowledging person under section 121.005 of the Texas Civil Practice and Remedies Code. The notary should then write the following beneath the signature: “Signature affixed by notary in the presence of (name of witness), a disinterested witness, under section 406.0165, Government Code.” Tex. Gov’t Code § 406.0165(b).
If the person signing cannot sign the person’s name, but can only make a mark, an “X” should be marked in place of the signature, with the signatory’s name typed beneath the mark, followed by “, the person’s mark.”
§ 3.8:4Original Signatures for Paper Instruments
A paper instrument concerning real or personal property may not be recorded or serve as notice of the paper document unless the paper document contains an original signature or signatures that are acknowledged, sworn to with a proper jurat, or proved according to law. A paper document or instrument can instead be attached as an exhibit to a paper affidavit or other instrument that has an original signature or signatures that are acknowledged, sworn to with a proper jurat, or proved according to law. An original signature is not required for an electronic instrument or other document that complies with chapter 15 of the Texas Property Code, chapter 195 of the Texas Local Government Code, chapter 43 of the Texas Business and Commerce Code, or other applicable law. A “paper document” means a document that is not electronically received by a county clerk. See Tex. Prop. Code § 12.0011.
§ 3.8:5Electronic/Digital Signatures
Contracts are routinely signed electronically, a method both convenient and efficient. The recodified Texas Uniform Electronic Transactions Act applies to any electronic record or electronic signature created, generated, sent, communicated, received, or stored on or after January 1, 2002. Tex. Bus. & Com. Code § 322.004.
One likely exception, however, is Texas home equity loans, which the Texas Constitution requires to be closed only at the office of the lender, a title company, or an attorney. Tex. Const. art. XVI, § 50(a)(6)(N); 7 Tex. Admin. Code § 153.15. Such loans may not be closed at a borrower’s home or office. In 2013, the Texas Supreme Court clarified that if a power of attorney is used to close a home equity loan, the power of attorney must have been executed at the office of the lender, a title company, or an attorney. Finance Commission of Texas v. Norwood, 418 S.W.3d 566 (Tex. 2013).
Other exceptions to the Act are electronic records and signatures related to wills, codicils, or testamentary trusts and UCC transactions under Texas Business and Commerce Code (1) section 1.108 (related to modification of the Electronic Signatures in Global and National Commerce Act (15 U.S.C. §§ 7001–7031)), (2) section 1.206 (“Presumptions”), and (3) chapters 2 and 2A (“Sales” and “Leases,” respectively). See Tex. Bus. & Com. Code § 322.003(b) (“1.107” corrected to “1.108” in item 1 above).
The Act also applies only if each party has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct. Tex. Bus. & Com. Code § 322.005. Proof of consent is required to establish the validity of the signature.
The Act defines an electronic signature as “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.” Tex. Bus. & Com. Code § 322.002(8). An electronic record is “a record created, generated, sent, communicated, received, or stored by electronic means.” Tex. Bus. & Com. Code § 322.002(7). A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. If a law requires a record to be in writing, an electronic record satisfies the law. If a law requires a signature, an electronic signature satisfies the law. Tex. Bus. & Com. Code § 322.007. If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient. Tex. Bus. & Com. Code § 322.008.
The benefits of having documents signed electronically depend on their enforceability. Electronic signatures can present several issues when a dispute arises between the parties to the contract. For a paper document with a handwritten, wet-ink signature, the genuineness of the signature can be proved by direct evidence like testimony by (1) an eyewitness, (2) a witness familiar with the signatory’s handwriting, or (3) an expert who has compared the signature against a genuine specimen. That type of testimony is seldom available or valid when electronic signatures are used.
As with paper documents, an electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to attribute the electronic record or electronic signature to the person. The effect of an electronic record or electronic signature attributed to a person is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties’ agreement, if any, and otherwise as provided by law. Tex. Bus. & Com. Code § 322.009. See Aeroteck, Inc. v. Boyd, 624 S.W.3d 199 (Tex. 2021) (concerning validity and enforceability of documents presented for signature in electronic onboarding system to new hire who later denied signing one of presented documents).
The practitioner should not engage in electronic transactions or attempt to obtain an electronic signature without the use of commercially available electronic transaction software. Whenever an electronic document is called into question, the party trying to rely on the document must prove or authenticate the document much in the same manner as a nonelectronic document, by proving that the document was signed by the person it is being used against, that is, that the signature was valid and the document is a true and correct copy.
An electronic signature must be properly authenticated and verified, and so must employ security and verification systems. A security procedure is a “procedure employed for the purpose of verifying that an electronic signature, record, or performance is that of a specific person or for detecting changes or errors in the information in an electronic record,” including “the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures.” Tex. Bus. & Com. Code § 322.002(13). Security procedures may include requiring personal identifying information—such as a Social Security number or an address—to register for an account; assigning a unique identifier to a user and then tying that identifier to the user’s actions; maintaining a single, secure system for tracking user activities that prevents unauthorized access to electronic records; business rules that require users to complete all steps in a program before moving on or completing it; and time stamps showing when users completed certain actions.
The parties’ names in the text of an instrument should be followed by their status—for example, “John J. Doe and Jane R. Doe, spouses.” Use an individual’s middle name or middle initial to help avoid confusion with other individuals with similar names. For a married woman or widow, a name such as “Mrs. John Doe” should never be used.
Ordinarily, titles showing a person’s rank or profession, such as “Captain John J. Doe” or “John J. Doe, M.D.,” should not be used unless they are part of the legal name. Use the labels “Sr.” and “Jr.” in appropriate instances to distinguish between the ancestor and the legally named “Jr.”
Whenever possible, to maintain uniformity of names in the chain of title, all legal instruments to be filed should use precisely the same name for an individual as that used in instruments already recorded, or, if a name is incorrect, the correct name should be used and the correction should be explained in a note following the name. If the party’s legal name changes between conveyances, the change should be explained in a note following the name. For example, if the title has been conveyed to Helen J. Doe, a single woman, and she later conveys the title as Helen D. Jones, the fact that she was formerly known as Helen J. Doe or was conveyed title as Helen J. Doe should be noted.
If the property being conveyed or encumbered is homestead property, the record title holder’s spouse is required to join in any conveyance or encumbrance. See Tex. Fam. Code § 5.001; Tex. Const. art. XVI, § 50(a)(5)(A); Tex. Prop. Code §§ 41.001(b)(3), 53.254(c).
If the grantor or grantee is a legal entity rather than a person, it should be specifically identified by the type of entity and state of formation.
A description usually follows the name of a financial institution but may be unnecessary if the name adequately describes the institution—for example, “First National Bank of Sunshine,” “Sunshine Federal Credit Union,” or “Sunshine Federal Land Bank Association.”
A deed by a corporation, if signed by an officer when recorded, constitutes prima facie evidence that execution was authorized by appropriate resolution of the board of directors; if the deed is executed by anyone other than an officer, it should be accompanied by a certified copy of the board of directors’ resolution. Before August 28, 1989, the deed had to be executed by the president or a vice-president to constitute that prima facie evidence. Filing a certified copy of the appropriate resolution provides an additional safeguard to establish the validity of the corporate conveyance. Neither a corporate seal nor attestation by the corporate secretary is required in Texas unless required by the bylaws of the corporation.
§ 3.10:1Necessity for Acknowledgment
Instruments may be recorded only if they have been acknowledged, proved, or sworn to according to law. See Tex. Prop. Code §§ 11.004(a)(1), 12.001, 12.0011. County clerks may record an instrument only if it contains original signatures that are duly acknowledged, sworn to with a proper jurat, or otherwise proved in compliance with applicable law. The recordation of an instrument not duly acknowledged, otherwise proved, or sworn is a nullity and is not constructive notice of its contents. See, e.g., Sanchez v. Telles, 960 S.W.2d 762, 767 (Tex. App.—El Paso 1997, writ denied); Reserve Petroleum Co. v. Hutcheson, 254 S.W.2d 802, 806 (Tex. App.—Amarillo, 1952, writ ref’d n.r.e.).
Instruments may be acknowledged by an online notary public who has been authorized by the Texas secretary of state to perform online notarizations. See Tex. Gov’t Code ch. 406, subch. C.
An instrument filed after September 1, 2007, containing a defective acknowledgment is considered lawfully recorded and is constructive notice of its contents after it has been of record for two years. Tex. Civ. Prac. & Rem. Code § 16.033(c).
Generally, the absence of an acknowledgment will not affect the validity of a deed, mortgage, or conveyance between the parties or affect the instrument as a conveyance. See, e.g., Haile v. Holtzclaw, 414 S.W.2d 916, 928 (Tex. 1967). However, by statute, certain instruments must include an acknowledgment. These include subdivision plats, powers of attorney, extensions of real estate lien debt, and management certificates by property owners’ associations. See Tex. Loc. Gov’t Code § 212.004(c); Tex. Est. Code § 751.002; Tex. Civ. Prac. & Rem. Code § 16.036; Tex. Prop. Code § 209.004. Failure of the acknowledgment may render the instrument a nullity, even between the parties to the instrument.
§ 3.10:2Distinguishing Acknowledgment and Certificate of Acknowledgment
Though used interchangeably, the terms acknowledgment and certificate of acknowledgment refer to two different concepts. An acknowledgment is a statutory ceremony in which a person who has executed an instrument appears before a competent officer and declares the instrument to be that person’s act and deed. A certificate of acknowledgment is the written record of that proceeding made by the officer and appended to the instrument. To effect a valid acknowledgment, there must be both a valid ceremony of acknowledgment and a valid certificate of acknowledgment. See Tex. Civ. Prac. & Rem. Code § 121.004; Punchard v. Masterson, 101 S.W. 204 (Tex. 1907).
§ 3.10:3Short-Form Certificate of Acknowledgment
Many practitioners prefer to use the short-form certificate of acknowledgment when the acknowledgment is taken in Texas and if the acknowledger is within one of the six categories of persons or entities specified by statute. Those categories are—
1.natural persons;
2.natural persons acting by attorneys-in-fact;
3.partnerships;
4.corporations;
5.public officers, trustees, executors, administrators, guardians, or other representative signers; and
6.limited liability companies.
Tex. Civ. Prac. & Rem. Code § 121.008.
§ 3.10:4Ordinary (Long-Form) Certificate of Acknowledgment
The ordinary, or long-form, certificate should be used if instruments are to be executed outside Texas or in instances in which the acknowledger does not fall within one of the six categories for which short-form certificates may be used. Some practitioners have adapted various short-form certificates for use in Texas that do not fit the literal definition of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 121.008. The practitioner should use the long-form certificate in all instances in which the acknowledger is not within one of the classes specified by the statute.
§ 3.10:5Electronic Certificate of Acknowledgment
The electronic notarial certificate should be used if the instrument acknowledgment is taken by an online notary public in accordance with Tex. Gov’t Code ch. 406, subch. C.
§ 3.11Requirements of Valid Ceremony of Acknowledgment
A valid ceremony of acknowledgment requires—
1.a competent officer to take the acknowledgment (see Tex. Civ. Prac. & Rem. Code § 121.001);
2.a personal appearance by the acknowledger before the officer (see Tex. Civ. Prac. & Rem. Code § 121.004(a));
3.the identification of the acknowledger by the officer (see Tex. Civ. Prac. & Rem. Code § 121.005); and
4.a statement by the acknowledger that the acknowledger has executed the instrument for the purposes and consideration stated in the instrument (see Tex. Civ. Prac. & Rem. Code § 121.004(a)).
There are additional requirements for electronic notarial certificates (see Tex. Gov’t Code ch. 406, subch. C).
§ 3.11:1Competent Officer to Take Acknowledgment
Acknowledgments Taken within Texas: Acknowledgments taken in Texas may be made before—
1.a notary public;
2.a clerk of a district court (or deputy district clerk);
3.a judge of a county court;
4.a clerk of a county court (or deputy county clerk);
5.a federal judge, justice, or magistrate; or
6.certain other public officers for specific statutory instruments.
28 U.S.C. §§ 459, 636(a)(2); Tex. Civ. Prac. & Rem. Code § 121.001(a).
Acknowledgments Taken outside Texas but inside the United States or Its Territories: Acknowledgments taken outside Texas but inside the United States or its territories may be made before—
1.a notary public;
2.a clerk of a court of record having a seal;
3.a commissioner of deeds appointed under the laws of Texas; or
4.a federal judge, justice, or magistrate.
28 U.S.C. §§ 459, 636(a)(2); Tex. Civ. Prac. & Rem. Code § 121.001(b).
Acknowledgments Taken outside the United States or Its Territories: Acknowledgments taken outside the United States or its territories may be made before—
1.a minister, commissioner, or chargé d’affaires of the United States who is a resident of and is accredited in the country in which the acknowledgment is taken;
2.a consul general, consul, vice-consul, commercial agent, vice-commercial agent, deputy consul, or consular agent of the United States who is a resident of the country in which the acknowledgment is taken; or
3.a notary public or other official authorized to administer oaths in the jurisdiction in which the acknowledgment or proof by affidavit is taken.
Tex. Civ. Prac. & Rem. Code § 121.001(c).
The preferred method of taking an acknowledgment outside the United States is to use a U.S. foreign service officer authorized in item 1 or 2 above. A form for acknowledgment by a foreign service officer of the United States is included as form 3-32 in this chapter.
If an acknowledgment is taken before a foreign notary public or any other official authorized to administer oaths in the jurisdiction in which the acknowledgment is taken as authorized in Texas Civil Practice and Remedies Code section 121.001(c)(3), it is advisable for the attorney to comply with the Hague Convention on Legalization of Foreign Public Documents, if the instrument is executed in a country that has adopted the Hague Convention, and to seek certification and authentication of the document through an embassy or consular office for a country that has not adopted it. For additional information, see www.hcch.net, https://travel.state.gov/content/travel.html, and, more specifically, https://travel.state.gov/content/travel/en/records-and-authentications/authenticate-your-document/authentications-and-apostilles.html.
Acknowledgments Taken of Military Personnel and Their Spouses: A commissioned officer of the United States Armed Forces or of a United States Armed Forces auxiliary may take an acknowledgment of a written instrument of a member of the armed forces, a member of an armed forces auxiliary, or a member’s spouse. Tex. Civ. Prac. & Rem. Code § 121.001(d). A form for a military acknowledgment is included as form 3-33.
Territorial Limitations on Officer’s Authority: Texas notaries may take an acknowledgment anywhere in the state but not outside the boundaries of Texas. Tex. Gov’t Code § 406.003.
Time Limitations on Officer’s Authority: The term of a notary’s appointment is four years. Tex. Gov’t Code § 406.002. Reapplication may be made for successive terms. Tex. Gov’t Code § 406.011. Texas law requires that the expiration date of the notary’s commission appear as part of the notary’s seal. See Tex. Gov’t Code § 406.013(a).
The authority of other intrastate officers is limited to the terms of their offices.
Interested Officers Disqualified to Take Acknowledgment: A party to an instrument may not take an acknowledgment for that instrument because one who is financially or beneficially interested in a transaction is disqualified from taking an acknowledgment concerning the transaction. Dyson Descendant Corp. v. Sonat Exploration Co., 861 S.W.2d 942, 948 (Tex. App.—Houston [1st Dist.] 1993, no writ).
A beneficiary or trustee of a trust may not take an acknowledgment of an instrument to which the trust is a party. Nor may a trustee of a deed of trust take an acknowledgment for that instrument. See Rothschild v. Dougher, 20 S.W. 142 (Tex. 1892).
Generally, an agent of a party to an instrument is also disqualified to take an acknowledgment if that agency appears on the face of the instrument. To be disqualified, however, the agent must have discretionary authority to negotiate the terms of a particular transaction for the principal. See Sample v. Irwin, 45 Tex. 567 (1876); Uvalde Rock Asphalt Co. v. Warren, 59 S.W.2d 272 (Tex. App.—Galveston 1933), aff’d, 91 S.W.2d 321 (Tex. 1936). But if the agent is a mere salaried employee of a party to an instrument, the agent is not disqualified from taking an acknowledgment of that instrument. Director, Dallas County Child Welfare v. Thompson, 667 S.W.2d 282 (Tex. App.—Dallas 1984, no writ); Anderson v. Pioneer Building & Loan Ass’n, 163 S.W.2d 421, 425 (Tex. App.—Waco 1942, writ ref’d w.o.m.).
An officer or director of a corporation may not take an acknowledgment of an instrument to which the corporation is a party. A shareholder of a corporation is likewise disqualified if the corporation has one thousand or fewer stockholders and the officer taking the acknowledgment owns more than one-tenth of one percent of the issued and outstanding stock. Tex. Civ. Prac. & Rem. Code § 121.002(b).
Generally, an acknowledgment taken by an interested officer is void and may not be reformed or corrected. However, effect will be given to such an acknowledgment to protect an innocent purchaser who relies on the instrument as constructive notice and has no knowledge of the disqualifying interest of the officer. To render an acknowledgment ineffective because of a disqualifying interest of the notary, the officer’s financial or beneficial interest must appear on the face of the instrument or be otherwise known to the party relying on the instrument. Constructive notice of the disqualifying interest may come from a prior recorded instrument. See, e.g., Gulf Production Co. v. Continental Oil Co., 164 S.W.2d 488, 493–94 (Tex. 1942); Dyson Descendant Corp., 861 S.W.2d at 948.
§ 3.11:2Personal Appearance before Officer
An acknowledgment is invalid unless the acknowledger personally appears before the competent officer. Tex. Civ. Prac. & Rem. Code § 121.004(a). An acknowledgment taken over the telephone or otherwise made without personal contact with the acknowledger fails to satisfy the statutory requirements of an acknowledgment ceremony.
The acknowledger’s appearance before the officer may be online. See Tex. Gov’t Code § 406.110(a).
§ 3.11:3Acknowledger Must Be Identified by Officer
An officer may not take an acknowledgment unless the officer knows the acknowledger or has satisfactory evidence that the acknowledging person is the same person who executed the instrument. Tex. Civ. Prac. & Rem. Code § 121.005(a).
The law does not prescribe the extent of acquaintance necessary for the acknowledger to be known to the officer. The acquaintance may be of one year or one hour. However, mere introduction by another may be insufficient for the acknowledger to be known to the officer.
Satisfactory evidence of the identity of an acknowledger not known to the officer may be made only by the oath of a credible witness personally known to the officer, by a current identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person, or, in the case of a deed or other instrument relating to a residential real estate transaction, by a current passport issued by a foreign country. Tex. Civ. Prac. & Rem. Code § 121.005(a). The most common examples seen are driver’s licenses and passports. However, the form provided in Texas Civil Practice and Remedies Code section 121.010 provides for identification only by personal knowledge or oath of a witness.
There are specific identity verification requirements in the instance of online notarizations. See Tex. Gov’t Code § 406.110(b).
§ 3.11:4Acknowledger Must Acknowledge Signature before Officer
An officer may not take a valid acknowledgment by simply sitting in mute observation of a person signing the instrument. To effect a valid ceremony of acknowledgment, the acknowledger must state to the officer that the acknowledger executed the instrument in the capacity and for the purposes and consideration stated in the instrument. The officer should treat the acknowledgment as a scripted ceremony and obtain from the acknowledger, as applicable, the following declarations.
1.Individual Acknowledgment. A natural person must acknowledge to the officer that the acknowledger executed the instrument for the purposes and consideration expressed in the instrument.
2.Attorney-in-Fact. An acknowledger executing an instrument as attorney-in-fact for a principal must acknowledge that the acknowledger executed the instrument as the act of the principal for the purposes and consideration expressed in the instrument.
3.Partnership. An acknowledger executing a document on behalf of a partnership must acknowledge that the acknowledger executed the instrument as the act of the partnership for the purposes and consideration expressed in the instrument.
4.Corporate Acknowledgment. A corporate officer or agent must acknowledge that the acknowledger executed the instrument in the capacity stated, as the act of the corporation, for the purposes and consideration expressed in the instrument.
5.Public Officer, Trustee, Executor or Administrator of an Estate, Guardian, or Other Representative Signer. An acknowledger executing a document as a public officer, trustee, executor or administrator of an estate, or guardian or in another representative capacity must acknowledge that the acknowledger executed the instrument by proper authority in the capacity stated and for the purposes and consideration expressed in the instrument.
6.Limited Liability Company Acknowledgment. A member, manager, authorized officer, or agent must acknowledge that the acknowledger executed the instrument in the capacity stated, as the act of the limited liability company, for the purposes and consideration expressed in the instrument.
Tex. Civ. Prac. & Rem. Code § 121.006(b).
There are now “notaries public” (Tex. Gov’t Code ch. 406, subch. A) and “online notaries public” (Tex. Gov’t Code ch. 406, subch. C). An online notary public is an officer commissioned as a traditional notary public who is also commissioned and authorized to perform online notarizations by using two-way video and audio conference technology under subchapter C, chapter 406, of the Texas Government Code. To become an online notary public, a notary public must complete a separate electronic application, provide an e-mail address, and further certify that he or she will comply with the standards developed by the Texas secretary of state for online notaries. Tex. Gov’t Code § 406.105.
Online Notarization Procedures: A Texas online notary public may perform an online notarization while physically located within the boundaries of Texas at the time of notarization. However, the signing party (or principal) may be located anywhere. Tex. Gov’t Code § 406.110(a). Using two-way video and audio conference technology that meets the requirements of subchapter C, chapter 406, of the Texas Government Code, the online notary public shall verify the identity of the principal creating an electronic signature at the time the signature is taken. Tex. Gov’t Code § 406.110(b).
In performing an online notarization, an online notary public affixes an electronic signature and electronic seal to an electronic notarial certificate that is capable of independent verification and renders any subsequent modifications evident. Tex. Gov’t Code § 406.109(d). The electronic notarial certificate for an online notarization must include a notation that the notarization is an online notarization. Tex. Gov’t Code § 406.110(d). Other requirements for the electronic notarial certificate are contained in Tex. Gov’t Code § 406.101(4). An online notary public shall take reasonable steps to ensure that any registered device used to create an electronic signature is current and has not been revoked or terminated by the device’s issuing or registering authority. Tex. Gov’t Code § 406.109(a). In addition, an online notary public’s electronic signature may be used only for performing online notarizations. If performing a notarization for a paper document with a signer who is physically present, the notary public would sign the notarial certificate in the traditional manner. Tex. Gov’t Code § 406.109(c).
Fees: The online notary public may charge the same fees as a traditional notary authorized by Tex. Gov’t Code § 406.024, and may charge an additional fee not to exceed $25 for performing an online notarization. Tex. Gov’t Code § 406.111. The fee must be included in the electronic record for each online notarization. Tex. Gov’t Code § 406.108(a).
Recordkeeping and Public Information: Texas also requires an online notary public to maintain a secure electronic record of electronic documents notarized by the officer. An online notary public shall record:
1.the date and time of each notarization;
2.the type of notarial act;
3.the type, the title, or a description of the electronic document or proceeding;
4.the printed name and address of each principal involved in the transaction or proceeding;
5.the evidence of identity of each principal involved in the transaction or proceeding in the form of:
a.a statement that the person is personally known to the online notary public;
b.a notation of the type of identification document provided to the online notary public;
c.a record of the identity verification made under Tex. Gov’t Code § 406.110, if applicable; or
d.the following:
i.the printed name and address of each credible witness swearing to or affirming the person’s identity; and
ii.for each credible witness not personally known to the online notary public, a description of the type of identification documents provided to the online notary public;
6.a recording of any video and audio conference that is the basis for satisfactory evidence of identity and a notation of the type of identification presented as evidence; and
7.the fee, if any, charged for the notarization.
Tex. Gov’t Code § 406.108(a). As an additional requirement, an online notary shall take reasonable steps to maintain a backup for the required electronic record and protect the backup record from unauthorized use. Tex. Gov’t Code § 406.108(b). The required electronic record shall be maintained for at least five years after the date of the transaction or proceeding. Tex. Gov’t Code § 406.108(c). Finally, entries in the online notary’s records are public information. An online notary public shall, on payment of all fees, provide a certified copy of any record in the notary public’s records to any person requesting the copy. An online notary public shall keep the online notary public’s electronic record, electronic signature, and electronic seal secure and under the online notary’s exclusive control at all times. Tex. Gov’t Code § 406.109(b).
§ 3.12Requirements for Valid Certificate of Acknowledgment
A valid certificate of acknowledgment must—
1.be in English;
2.contain a caption showing where the acknowledgment was taken;
3.recite the official capacity of the officer taking the acknowledgment;
4.recite a personal appearance before the officer;
5.recite that the acknowledger was identified by the officer;
6.recite that the acknowledger acknowledged the instrument;
7.identify the acknowledger;
8.recite the date of the acknowledgment;
9.bear the signature of the officer; and
10.bear the official seal of the officer.
See sections 3.12:1 through 3.12:11 below for more detailed information. Online notarizations are controlled by subchapter C, chapter 406 of the Texas Government Code. See section 3.11:5 above.
The legislature has prescribed statutory forms for an ordinary (long-form) certificate of acknowledgment and certain short-form certificates of acknowledgment. See Tex. Civ. Prac. & Rem. Code §§ 121.007, 121.008. The short-form certificates of acknowledgment are preferred for acknowledgments taken within Texas. Short-form certificates of acknowledgment should not be used for acknowledgments taken outside the state of Texas. This chapter includes examples of both ordinary and short-form certificates of acknowledgment. Short-form certificates of acknowledgment are shown in this chapter for acknowledgers falling within the classes identified in Texas Civil Practice and Remedies Code section 121.008.
Ordinary (long-form) certificates of acknowledgment are shown in this chapter for all acknowledgers, and a separate form is included as form 3-29 in this chapter. Electronic certificates of acknowledgment that meet minimum statutory requirements for use in online notarizations are included as forms 3-30 and 3-31.
Short-form certificates of acknowledgment do not require that the certificate state how the officer identified the acknowledger. In all other respects, short-form certificates of acknowledgment must contain all essential elements of a certificate of acknowledgment. For an ordinary, or long-form, certificate, it is necessary that the officer state in the certificate either that the officer personally knows the acknowledger or that evidence of a witness or an identification card or other document was used to identify the acknowledger. Tex. Civ. Prac. & Rem. Code § 121.005(b).
The ordinary, or long-form, certificate of acknowledgment has different statutory requirements than the short-form does; in either case, substantial compliance with the statutory forms is all that is required. Literal compliance is not essential as long as, on balance, the certificate shows that substantially all things required by law to be done have been done. See Williams v. Cruse, 130 S.W.2d 908 (Tex. App.—Beaumont 1939, writ ref’d) (construing an ordinary certificate of acknowledgment).
On March 13, 2020, Texas Governor Greg Abbott declared a state of disaster for all Texas counties due to the COVID-19 pandemic. On April 27, 2020, the Office of the Governor temporarily suspended section 121.006(c)(1) of the Texas Civil Practice and Remedies Code to the extent necessary to allow for appearance before a notary public via videoconference to acknowledge real estate instruments such as mortgages, avoiding the need for in-person contact during the pandemic. The temporary suspension was initially in effect until the earlier of May 30, 2020, or the lifting or expiration of the disaster declaration. The suspension was subsequently indefinitely extended until the COVID-19 disaster declaration is lifted or the suspension is terminated by the Office of the Governor. Documents executed while this suspension is in effect, and under its terms, will remain valid after the termination of this suspension. Nothing in the suspension prevents traditional notarization or an online notarization under chapter 406 of the Texas Government Code. Guidance on the suspension can be viewed at https://gov.texas.gov/uploads/files/press/Office_of_the_Attorney_General_Guidance.pdf.
Any document acknowledged while the suspension is in effect, and in accordance with its terms, shall continue to be considered duly acknowledged and fully compliant with Texas law after the termination of the suspension. All county clerks in Texas shall accept for recording in the public records all documents signed and notarized by means of the two-way audio-video communication described in the suspension.
The following conditions shall apply whenever the suspension is invoked:
•A notary public shall use two-way audio-video communication technology that allows for direct and contemporaneous interaction between a person signing a document and the notary public by sight and sound.
•A notary public shall verify the identity of a signatory at the time the signature is taken by using two-way audio-video communication technology. A notary public may verify identity by:
•personal knowledge of the signatory;
•analysis based on the signatory’s remote presentation of a government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the signatory, and is of sufficient quality to allow for identification; or
•an introduction of the signatory by oath of a credible witness who personally knows the signatory, and who is personally known to the notary public.
•During the two-way audio-video communication:
•the notary public shall attest to being physically located in Texas;
•the signatory shall attest to being physically located in Texas;
•the signatory shall affirmatively state what documents are being signed; and
•the signatory’s act of signing shall be close enough to the camera for the notary public to observe it clearly.
•A recording of the two-way audio-video communication of the notarial act shall be kept by the notary public for two years from the date of the notarial act.
•The signatory shall send the original signed documents by courier, U.S. Mail, or overnight carrier directly to the notary public for the notary public to sign and to affix the official stamp or seal.
•The official date and time of the notarization shall be the date and time when the notary public witnessed the signatory signing the documents during the two-way audio-video communication.
The documents shall include, whether in a notarial certificate, a jurat, or an acknowledgement, language substantially similar to the following: “This notarization involved the use of two-way audio-video communication pursuant to the suspension granted by the Office of the Governor on April 27, 2020, under section 418.016 of the Texas Government Code.”
Office of the Tex. Governor, “Office of the Attorney General Guidance,” https://gov.texas.gov/uploads/files/press/Office_of_the_Attorney_General_Guidance.pdf (last visited March 15, 2021).
§ 3.12:1Certificate Must Be in English
The certificate of acknowledgment and the remainder of the instrument may not be recorded unless they are in English or comply with Tex. Prop. Code § 11.002. For those illiterate in English, no special form of a certificate of acknowledgment is specified. However, prudence may dictate that an affidavit of an interpreter be executed and attached to the instrument. An affidavit of an interpreter is included as form 3-38 in this chapter.
An instrument acknowledged outside the United States or its territories in accordance with Texas Civil Practice and Remedies Code section 121.001(c)(3) that contains a certificate, stamp, or seal of a notary public or other official before whom the acknowledgment was taken or an apostille relating to the acknowledgment, any portion of which is not in English, may be recorded and operate as constructive notice from the date of filing if—
1.a correct English translation of any non-English portion of the certificate, stamp, seal, or apostille is recorded with the original instrument;
2.the accuracy of the translation is sworn to before an officer authorized to administer oaths; and
3.any apostille relating to the acknowledgment complies with the Hague Convention dated October 5, 1961, entitled “Convention Abolishing the Requirement of Legalisation for Foreign Public Documents,” a copy of which can be obtained online at www.hcch.net.
§ 3.12:2Certificate Must Identify Location of Acknowledgment
Each separate certificate of acknowledgment must bear a caption or other indication of where the acknowledgment was taken so that it can be determined that the officer taking the acknowledgment acted within the scope of the officer’s geographic authority. Each separate certificate of acknowledgment must contain its own caption. See Tex. Civ. Prac. & Rem. Code §§ 121.007, 121.008.
§ 3.12:3Certificate Must Recite Capacity of Officer
It is not enough that the officer taking the acknowledgment take it correctly within the officer’s official capacity. The certificate of acknowledgment must recite the official capacity of the officer on the instrument. See Gulf, Colorado & Santa Fe Railway Co. v. Carter, 24 S.W. 1083 (Tex. App.—Dallas 1893, no writ).
§ 3.12:4Certificate Must Recite Personal Appearance by Acknowledger before Officer
The certificate of acknowledgment must state that the acknowledger made a personal appearance before the officer. Statutory short forms for certificates of acknowledgment accomplish this by stating that the acknowledgment was taken “before me.” See Tex. Civ. Prac. & Rem. Code §§ 121.006–.008.
§ 3.12:5Certificate Must Recite That Acknowledger Was Identified by Officer
For an ordinary, or long-form, certificate of acknowledgment, the certificate must recite how the officer identified the acknowledger by the accepted statutory methods. The certificate of acknowledgment must state that the acknowledger was—
1.known to the officer;
2.identified to the officer by the oath of a credible witness personally known to the officer;
3.identified by a current identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person; or
4.in the case of a deed or other instrument relating to a residential real estate transaction, identified by a current passport issued by a foreign country.
This requirement does not apply to short-form certificates of acknowledgment. Tex. Civ. Prac. & Rem. Code § 121.005.
§ 3.12:6Certificate Must Recite That Signatory Acknowledged Instrument
The certificate of acknowledgment must recite that the signatory acknowledged the execution of the instrument. Failure to state this essential fact renders the certificate fatally defective. See Tex. Civ. Prac. & Rem. Code §§ 121.007, 121.008.
A long-form certificate of acknowledgment should contain all the components required for a valid ceremony of acknowledgment. See section 3.11 above.
Short-form certificates of acknowledgment require only an abbreviated statement of acknowledgment. Generally, each short-form certificate of acknowledgment requires only a statement that the instrument was “acknowledged.” However, short-form certificates of acknowledgment for attorneys-in-fact, partnerships, corporations, and limited liability companies must additionally state that the instrument was acknowledged “on behalf of ” the principal, partnership, corporation, or limited liability company. The short-form certificate of acknowledgment for a public officer, trustee, executor, administrator, guardian, or other representative signer must state that the instrument was acknowledged by the representative signer “as (title of representative) of (name of entity or person represented).” Tex. Civ. Prac. & Rem. Code § 121.008.
§ 3.12:7Certificate Must Identify Acknowledger
The certificate of acknowledgment must show that the person acknowledging the instrument is the same person who signed it. A slight variance between the name of the person shown to have signed and the name of the person shown to have acknowledged the instrument may, but will not necessarily, invalidate the certificate. See, e.g., Cheek v. Herndon, 17 S.W. 763 (Tex. 1891).
Pronouns may be employed in certificates of acknowledgment as a substitute for the name of the acknowledger given elsewhere in the certificate. As with the names for which they substitute, errors in the use of pronouns may, but will not necessarily, have the effect of invalidating the certificate. Cheek, 17 S.W. at 764.
§ 3.12:8Certificate Must Recite Date of Acknowledgment
All statutory forms for certificates of acknowledgment provide for the certificate to be dated. The date must be the date on which the instrument was acknowledged. The date of the acknowledgment must not be earlier than the date of execution of the instrument; otherwise, the notary would appear to have taken the acknowledgment before the document was executed, giving rise to an ineffective acknowledgment. However, an instrument may be dated to become effective on some future date while the acknowledgment is taken and dated with a current date.
§ 3.12:9Certificate Must Bear Signature of Officer
The officer taking the acknowledgment must sign the certificate. Tex. Civ. Prac. & Rem. Code § 121.004(b)(2).
§ 3.12:10Certificate Must Bear Official Seal of Officer
The officer taking the acknowledgment of an instrument must affix the officer’s official seal of office. Tex. Civ. Prac. & Rem. Code § 121.004(b)(3). An acknowledgment without a seal or containing the wrong seal is generally, but not always, fatally defective. See McDonald v. Stanfield, 197 S.W. 892, 893–94 (Tex. App.—Beaumont 1917, writ ref’d). But see Tex. Civ. Prac. & Rem. Code § 121.001(d) (failure to attach seal does not invalidate acknowledgment taken by an officer of armed forces); Tex. Civ. Prac. & Rem. Code § 121.004(c); Tex. Prop. Code § 12.001(d) (failure to attach seal invalidates acknowledgment only if taken in a jurisdiction that requires seal).
The notary must use a seal of office that clearly shows, when embossed, stamped, or printed on a document, the words “Notary Public, State of Texas” around a star of five points, the notary’s name, and the date the notary’s commission expires. For notaries commissioned or reappointed on or after January 1, 2016, the seal of office must also show the notary’s identification number assigned by the secretary of state. The seal may be in a circular form not more than two inches in diameter or a rectangular form not more than one inch in width and two and one-half inches in length; must have a serrated or milled-edge border; and must be affixed by a seal press or stamp that embosses or prints a seal that legibly reproduces the required elements of a seal under photographic methods. An indelible ink pad must be used for the stamp. Tex. Gov’t Code § 406.013.
Documents notarized before September 1, 1989, are valid if the seal used contained the words “Notary Public, State of Texas” or “Notary Public” and the name of the county but did not have the notary’s name and commission expiration date. Continued use of previously authorized forms of seals is not authorized after August 31, 1989.
The notary’s seal should not cover or obscure signatures or text.
The ordinary, or long-form, certificate of acknowledgment includes the language above the signature of the officer that the certificate is “given under my hand and seal of office.” Tex. Civ. Prac. & Rem. Code § 121.007. However, the presence or absence of these words does not affect the validity of the certificate. The phrase has been eliminated from short-form certificates of acknowledgment. See Tex. Civ. Prac. & Rem. Code § 121.008.
§ 3.12:11Officer Required to Keep Record of Acknowledgments Taken
Unless specifically excused by statute, each officer authorized to take acknowledgments of instruments must enter in a “well-bound book” and officially sign a short statement of each acknowledgment taken. There are general requirements of the information to be recorded in the book, such as the date of the instrument, the date the acknowledgment or proof was taken, the name and mailing address of the acknowledger, information about how the acknowledger was identified, the name of the grantee of the land, the county in which the land is located, and a brief description of the instrument. See Tex. Civ. Prac. & Rem. Code § 121.012; Tex. Gov’t Code § 406.014(a). Books suitable for this purpose are available commercially.
No penalty is prescribed for the failure of an officer to maintain a well-bound book or to make entries of acknowledgments taken. The failure to make the entry does not affect the validity of the instrument or prove that the acknowledgment was not taken. See Martin v. Bane, 450 S.W.2d 142, 144 (Tex. App.—Dallas 1969, no writ).
§ 3.13Alternative Methods of Proving Instruments
Notwithstanding that an instrument may not contain a valid acknowledgment, it may nevertheless be recorded if proved by alternative methods. The alternative methods of proving a document for recordation include proof by jurat, proof by subscribing witness, acknowledgment by handwriting, proof by suit, and proof by an unsworn declaration.
See sections 3.13:1 through 3.13:5 below for more detailed information.
Jurats are ordinarily used only for affidavits. However, since September 1, 1989, instruments that are only sworn to and not acknowledged or otherwise proved are eligible for recordation. See Tex. Prop. Code § 12.001. Affidavits recorded before September 1, 1989, must have been accompanied by an acknowledgment. Any affidavit recorded without an acknowledgment before that date may not constitute constructive notice.
As with acknowledgments, an officer cannot take a valid affidavit by simply sitting in mute observation of the affiant signing the instrument. The officer taking the affidavit should place the affiant under oath or receive the affiant’s declaration that the statements contained in the affidavit are true and correct. Failure to attend to these formalities may render the affidavit ineffective. See Tex. Gov’t Code § 312.011(1). A sample oath for the officer to administer to the affiant is: “Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?” The affiant must answer “yes” before signing the sworn document.
Affidavits in this manual contain a statement similar to the following: “Affiant on oath swears that the following statements are true and are within the personal knowledge of Affiant.” Although the statement is not required by statute, the Supreme Court of Texas has held that an affidavit is insufficient unless the allegations contained in it are direct and unequivocal and perjury can be assigned to them. This requires that the affidavit positively and unqualifiedly represent that the facts disclosed in the affidavit are true and within the personal knowledge of the affiant. Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984).
The persons before whom oaths, affidavits, and affirmations may be made include—
1.a notary public;
2.a judge, retired judge, or clerk of a municipal court, in a matter pertaining to a duty of the court;
3.a judge, retired judge, senior judge, clerk, or commissioner of a court of record;
4.a justice of the peace or a clerk of a justice court;
5.a member of a board or commission created by a law of this state, in a matter pertaining to a duty of the board or commission;
6.a person employed by the Texas Ethics Commission who has a duty related to a report required by title 15 of the Texas Election Code in a matter pertaining to that duty;
7.a county tax assessor-collector or an employee of the county tax assessor-collector if the oath relates to a document that is required or authorized to be filed in the office of the county tax assessor-collector;
8.the secretary of state or a former secretary of state;
9.an employee of a personal bond office, or an employee of a county, who is employed to obtain information required to be obtained under oath if the oath is required or authorized by article 17.04 or article 26.04(n) or (o) of the Texas Code of Criminal Procedure;
10.the lieutenant governor or a former lieutenant governor;
11.the speaker of the house of representatives or a former speaker of the house of representatives;
12.the governor or a former governor;
13.a legislator or retired legislator;
14.the secretary of the senate or the chief clerk of the house of representatives;
15.the attorney general or a former attorney general;
16.the secretary or clerk of a municipality in a matter pertaining to the official business of the municipality;
17.a peace officer described by article 2.12 of the Texas Code of Criminal Procedure if the oath is administered when the officer is engaged in the performance of the officer’s duties and the administration of the oath relates to the officer’s duties;
18.an associate judge, magistrate, master, referee, or criminal law hearing officer; or
19.a county treasurer.
§ 3.13:2Proof by Subscribing Witness
In some cases, an instrument cannot be proved by acknowledgment or jurat because a signatory is dead, unavailable, incompetent, or uncooperative. Proof by subscribing witness may be used if there is a credible witness who saw the signatory sign the instrument or in whose presence the signatory acknowledged the signature. The requirements of proof of an instrument by a subscribing witness are set out in Tex. Civ. Prac. & Rem. Code §§ 121.009, 121.010. Proofs of an instrument by a subscribing witness are included in forms 3-34 and 3-35 in this chapter.
§ 3.13:3Acknowledgment by Handwriting
In certain limited instances in which neither a standard acknowledgment nor an acknowledgment by a witness is available, an instrument may be proved by an acknowledgment by handwriting. The execution of an instrument may be established for recording by proof of the handwriting of persons who signed the instrument only if—
1.the grantor of the instrument and all the witnesses are dead;
2.the grantor and all the witnesses are not residents of Texas;
3.the residences of the grantor and the witnesses are unknown to the person seeking to prove the instrument and cannot be ascertained;
4.the witnesses have become legally incompetent to testify; or
5.the grantor of the instrument refuses to acknowledge the execution of the instrument and all the witnesses are dead, not residents of Texas, or legally incompetent or their places of residence are unknown.
Tex. Civ. Prac. & Rem. Code § 121.011.
Any person having an interest in an instrument may bring an action in state district court for a judgment proving the instrument. Tex. Prop. Code § 11.005(a). Once a judgment in the action is obtained, a certified copy of it may be attached to the instrument; the instrument may then be recorded as if it contained a proper certificate of acknowledgment. Tex. Prop. Code § 11.005(c). This statute provides an alternative for making an instrument recordable; it does not cure those instruments missing an acknowledgment that require an acknowledgment for their validity. See McCracken v. Sullivan, 221 S.W. 336 (Tex. App.—San Antonio 1920, no writ).
§ 3.13:5Proof by Unsworn Declaration
Chapter 132 of the Texas Civil Practices and Remedies Code provides that an unsworn declaration made under penalty of perjury may be used in lieu of some declarations, verifications, certifications, oaths, or affidavits required by law to be taken before a notary public. Tex. Civ. Prac. & Rem. Code § 132.001. Under this statute, it may be possible for an instrument to be proved by an unsworn declaration of either the signatories to the instrument, the subscribing witnesses, or persons authorized to give evidence of handwriting. To be effective, unsworn declarations must substantially comply with the statutory forms. Tex. Civ. Prac. & Rem. Code § 132.001(d)–(f). This statute does not apply to a lien required to be filed with a county clerk, an instrument concerning real or personal property required to be filed with a county clerk, or an oath of office or an oath required to be taken before a specified official other than a notary public. Tex. Civ. Prac. & Rem. Code § 132.001(b).
The recording of the deed is not necessary to pass title. Noell v. Crow-Billingsley Air Park Ltd. P’ship, 233 S.W.3d 408, 416 (Tex. App.—Dallas 2007, pet. denied). The recording, however, establishes a prima facie case of delivery and the accompanying presumption that the grantor intended to convey the land according to the terms of the deed. Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257, 261–62 (citing Thornton v. Rains, 299 S.W.2d 287 (Tex. 1957)).
Texas is a race-notice state, and all real property conveyance instruments should be filed in the real property records (also referred to as the official public records, deed records, or deed-of-trust records, depending on the county) of the county in which the property is located as soon as possible after the transaction is complete. Powers of attorney and other authority documents requiring recordation used in connection with a sale or loan secured by real estate should be recorded before the conveyance or loan documents so that the proper authority is in place for the conveyance. Powers of attorney used for real property transactions must be recorded no later than thirty days after the recordation of the instrument signed by the agent. Tex. Est. Code § 751.151.
Some county clerks have filing requirements and fees unique to their county. Contacting the clerk for the specific guidelines before sending documents to be filed of record may prevent the return of unrecorded documents.
County clerks are required to record a paper or tangible copy of an electronic record that is otherwise eligible under state law to be recorded in the real property records if the paper or tangible copy of the electronic record—
1.contains an image of an electronic signature or signatures that are acknowledged, sworn to with a jurat, or proved according to law and
2.has been declared by a notary public or other officer who may take an acknowledgment or proof under section 121.001, Civil Practice and Remedies Code, to be a true and correct copy of the electronic record by (a) executing and attaching an official seal to a tangible paper declaration under penalty of perjury and (b) affixing or attaching the declaration to the printed paper or tangible copy of an electronic record.
The form of declaration by a notary public or other officer who may take an acknowledgment or proof under section 121.001, Civil Practice and Remedies Code, must be substantially as follows:
DECLARATION OF AUTHENTICITY
State of ________________
County of _______________
The attached document, ________________(insert title), dated ____________ and containing __ pages, is a true and correct copy of an electronic record printed by me or under my supervision. At the time of printing, no security features present on the electronic record indicated any changes or errors in an electronic signature or other information in the electronic record after the electronic record’s creation or execution. This declaration is made under penalty of perjury.
Signed this ____ day of ________, ____.
________________(signature of notary public or other officer)
(seal of office)
________________(printed name of notary public or other officer)
My commission expires: ______________
See Tex. Prop. Code § 12.0013.
Attorneys, licensed lenders, title companies, federal agencies and lenders, and state agencies may file documents electronically with county clerks. Tex. Loc. Gov’t Code § 195.003. Rules for electronic filing have been adopted by the Texas State Library and Archives Commission and are found at 13 Tex. Admin. Code §§ 7.141–.145. See Tex. Loc. Gov’t Code § 191.009. See generally Tex. Loc. Gov’t Code ch. 195.
Filing fees of county clerks are usually computed per page. See Tex. Loc. Gov’t Code § 118.011. The per-page filing fee is twice the usual amount if the first page of the document has no identifying heading, the page is not legible, any signature on a page appears without having the name legibly typed or printed beneath it, or a page is oversized. A page must be printed in no smaller than eight-point type. However, failure to meet the type-size requirement does not result in a fee increase or invalidate the recordation of the document. See Tex. Loc. Gov’t Code §§ 118.0525, 191.007.
If a manuscript cover with legible marks (for example, the name of the attorney preparing the document) is affixed to a document delivered for recording, the clerk is authorized to charge the usual recording fee for the page. See Tex. Loc. Gov’t Code § 118.011(a)(2).
Filing fees for a low- or moderate-income person buying or improving the person’s residence with federal or state assistance may be waived on the county clerk’s receipt of a commissioners court directive to waive such fees. A county clerk may have a list of approved grant or aid programs issued by that county’s commissioners court, which provides the authorization for waiver of these fees. Tex. Loc. Gov’t Code § 118.0135.
No additional fee may be charged for electronic filing. Tex. Loc. Gov’t Code § 195.006. A county clerk may not impose requirements or fees for filing or recording a legal paper in addition to those prescribed by statute. Tex. Loc. Gov’t Code § 191.007(a). Attorneys should consult, in advance, with the county clerk’s office or website to determine applicable fee policies for the instrument(s) at issue.
Section 11.008 of the Texas Property Code provides that an individual’s Social Security number is not required and should not be included in a document presented for recording in the county clerk’s office and that the county clerk does not obtain or maintain the Social Security numbers of individuals. See Tex. Prop. Code § 11.008(b). An instrument transferring an interest in real property to or from an individual, regardless of whether the document contains an individual’s Social Security number or driver’s license number, must include a notice that appears on the top of the first page of the instrument in twelve-point bold-faced type or twelve-point uppercase letters and reads substantially as follows:
Notice of confidentiality rights: If you are a natural person, you may remove or strike any or all of the following information from any instrument that transfers an interest in real property before it is filed for record in the public records: your Social Security number or your driver’s license number.
An “instrument” is “a deed, deed of trust, or any other record recorded by a county clerk related to real property, including a mineral lease, a mechanic’s lien, and the release of a mechanic’s lien.” Tex. Prop. Code § 11.008(a).
“The validity of an instrument as between the parties to the instrument and the notice provided by the instrument are not affected by a party’s failure to include the notice required under Subsection (c).” Tex. Prop. Code § 11.008(d).
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