Untitled Texas Attorney General Opinion, KP-0165

Grayson County Criminal District Attorney asked whether county clerks may record affidavits claiming ownership of real property by adverse possession that include a proper jurat.
County clerks disagreed: some refuse to file such affidavits after publicity about squatters using filings to assert title; others accept them.
Property Code § 12.001(a) permits recording an "instrument concerning real or personal property" if acknowledged, sworn with a proper jurat, or otherwise proved.
Affidavits of adverse possession, if they contain a proper jurat and purport facts that could establish adverse possession, are instruments that disclose matters affecting title and thus "concern" real property for recording purposes.
Filing such an affidavit does not itself create title or satisfy statutory adverse-possession elements; it functions as public notice when properly recorded.
If a clerk reasonably believes a filing is fraudulent, statutory procedures require notice to known owners; knowingly filing a fraudulent instrument is criminal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether county clerks may refuse to record affidavits claiming adverse possession	Clerks may refuse; such affidavits have been misused to obtain title and therefore should not be filed	County clerks must record instruments that meet statutory recording requirements	County clerks must accept for filing affidavits of adverse possession that concern property and contain a proper jurat or proof under § 12.001(a)
Whether an affidavit of adverse possession "concerns" real property for § 12.001(a)	Such affidavits should not be treated as concerning title because they can be misleading	Instruments that disclose matters affecting title "concern" real property and are recordable	Affidavits that disclose facts affecting title do concern real property and are recordable as public notice
Whether recording an affidavit creates adverse-possession title	Filing can confer constructive advantages and has been abused	Recording alone does not satisfy statutory elements for adverse possession	Recording an affidavit does not create legal title; adverse possession requires statutory elements and time periods under the Civil Practice & Remedies Code
Remedies and limits when filings are fraudulent	Clerks can refuse to protect owners	Clerks are constrained by recording statutes but have duties when fraud suspected	If clerk reasonably believes a filing is fraudulent, statute requires notice to named owners; criminal penalties may apply for fraudulent filings

Turrentine v. Lasane, 389 S.W.2d 336 (Tex. Civ. App.-Waco 1965) (instruments that affect title concern land for recording purposes)
Pearson v. Wicker, 746 S.W.2d 322 (Tex. App.-Austin 1988) (agreement stating ownership of lots was an instrument concerning real property)
Ramos v. State, 303 S.W.3d 302 (Tex. Crim. App. 2009) (definition of "instrument" as formal legal document)
Wells v. Johnson, 443 S.W.3d 479 (Tex. App.-Amarillo 2014) (elements required to establish adverse possession)
Leonard v. Benford Lumber Co., 216 S.W. 382 (Tex. 1919) (public records should disclose matters affecting land titles)