Case Information
*1 OFFICE OFTHE ATTORNEYGENERAL OFTEXAS
AUSTIN
Hon. Leon Kotosky
&%?.istsIlt County Attornfty
El Pas?, Texas 6
Dear Sir:
This.wlll a or Jcur ltte of April 15, 0ptnl0n 0t .a6 depar~nt 88 tc ling,~and..miag a photostatic mxc of El. Paso count CoiJnt~ al.6dK~ paseogr-rdiPg d to lie reoerded allllastmJ= by the count A e author.it fes do86 has heretororcr~ been pass-
not rpwdl t or the aoPftlloi thio elt
ad ClTil stati ar T8x86, of &oh cotity~the rccord- *thcy~(lh&ll provide : beak6 lli~~=hi43h they is. authoris;ed or erded
1s 6665, Betioed Glvil.Stat$:es of Taxaa, s Id detail *he duty of the bmnty s&rk tith respect to.reeordfmg instrriaants authorized Br lair to be reoorded. This artlale reads as tollors:
*&oh reoardsr~tihall, *d&out delay+.
reomd ever$ instrtiment of nitb& author-.
ized to be recorded by hlm,%@$oh is ds- posited with him for raoord, w%ththe
&n. Leon Kotcsky, QxiI lP,, 1939, Page 2
tickno*lodgiixnts, proofs, affiGavits and certificates tkreto attached, in the crder &posited for record'by antering then word fcr word and letter for letter, and nCCitig at ihe foGt of the record the hour and the day of the month and year when the %cstrment SC raoorded was de- posited in fiis office for'racord." It was held by the Supreme Court of Vermont in the aase of Town of BeanIngton TS. Edward A. Booth; 57’8. L. B. 156, that mandamus would not lie against the town olerk to aompel him tb diaoontinue l&is ~80~ or the photostatlo method of reoording instruments of whioh by lan'he was made the recorder. This deofdon was an Interpretation or Artiole 3951, ~OeneralLaw8 o? Vsrrnont, whIoh reads pa&, that the alerk shall:
FReaord at langth,~in books to be. furnished by the town' The aourt, in speaking of the photogaphia method em- ployed by the alerk said:
*It is plain that the clerk harr~re- oorded at length and that the material he provided, used and the town paid for, were furnished by the tarin., If, ritaia the lPsaning OS the statute, the photostat10 reaords are booka, they lack nothIng re- quired by General &ass, Artiole 3951-.., The objeot of the statute.......,.was to provide for the making o? reoorda; not for the use of some partloular kind of books,"
The petitIoners,.in the ease OS ?eople ex r01 Anukmeoht vs. Flaas, 311 111. 164, 146 WE 549, 8oagBt a mandamus to aompel a recorder of deeds to aopy a deed in writing in a well-bound book instead of using the photostatlo method!.-of reoording. The mandamus was denied. The statute invol$ed In this oaae,was wry similar to Artiole 6595, supra, and is as follows:
"Every reoorder shall, as soon as *3 Hon. Leon Kotosky, &pril 18, 1939, Page 3
praotiaable after the filing of any instru- ment writing in his office, entitled to be recorded, record the same 6% length in the order of time of Its reoeptlon, in well- bound books to be provided for that purpose."
The oourt in its learned opinion, said: To rsaord mans to transoribe; to write an aathentio aaaount of$ to prsssrva.ths msm- ory of, br written !or other ohsraotersi to enter.ln a book for ths parposo of pressuring satheatla and oorreot evidence ot the thing reoordsd. Whatdver the method wed for raoord- ing, it.18 a reoord of the 'thfngs rsoordsd as long.as it 18 a trus ssd oorrsat ,aopy.
objeot oi'rso~ a dead 18 to give 5t-m: petuit;l: aad;;;8oblio tyj-&i&he& IT t&i-two paln rsquirsastits--ot e publib ~%%&Ys.thst: l&j shall bs soourate and durable......Zrer~ 6uah orrioer not 06ly hss ths rtWio~it~,but 16x36-: quirad .tq law, to l xeroi~ an lnfelll~ent'dis-.
aretion in tha p0rrow0e of his orrf0hl datfern. * la+ r?qalns hla to rsoomX'osrts3.n iastrumants in a wsll-bound book, but'lt:does.
not require him to rssord.thsm 11% any parti-.
oulsr rethod.~ As laag as ths wthod~adoptad by him 1s uourate and durable, he ha6 per- formed his duty..+..lo argument is needed ~tb ~dsmewtrate thst 1s a auoh W- pailrto~phy aoaurats proosds iaf 3saki~ a 00py Of' an' IE- stranent than anp othsr knownmtho4.*
Looking again te oar Texas Statates, wa Ob8em8 that it is the duty of the oounty alsrk to:
1. Provide and keep in their offias8 wall-bound books in rhioh they shall re- oord instruments, ward far word, and letter for lcwer. .
2. Shoy in suah recording all aaknor- le&pnents, praafs, affidavita and asrtlflartes thereto attaahed.
Hon. Leon Kotosky, April 18, 1939, Page 4
3. Cote et the foot of the record, the hour and the day of the month and year when the instrument so recorded was deposited In his office for record.
The statutes are entirely silent as to the method by whiah suah Instruments shall be recorded.
To determine whether or not the photostatlo method of reaording instruments is legal, it must be t.ested for determination solely upon the basis of whether or not the duties of the oounty olerk hereinabove set out oan be fully. exeouted by the use oi thla new method ai reoordlng.
The phraae "wall-bound book@’ as used in Artlole 6591, aupra, mad not naoeesarlly mean a book In whloh the leaves ‘or pagas are not removable. Tha heglslatura naturally had in mind in tha pasnaga of this aot, that the lmttrument would bezeoordqd in handurltlng In a book in tiloh the pegw were -immovable. Mth oommdrolal neoesaity, the hendurltlng method gave way to the.apeedler snd more legible typewrIter method.
It la a matter of ooumon knowledge that the book8 ln use generally by oouuty olarks today are so oonstruotad as to psrmlt the lndlrldual pagee to be removed, typed and than peplased the books.
'fhe proprlety~of raoordlng in a 1~00s~ leaf book as 1s In oommon uaa In~Tesura and elaewhera through- out the oountry, was raised in the ease of Rlohardson vs. looland, 133 YLlss. 41.7, 97 SO. 308, and the oourt held that ths faot that the statute required instruments to be reaorded in a %ell-hound *oak" did not require that tha pages be not removable.
ft .ia thereion,, the opinion of this Dapartmmt, and you are 80 advised, that your oounty clerk oan install and use the photostatic method of reoording written ln- struments whloh he is required to reaord
such photostats are i diately lnsorporated bound books".gnd the other requirements of *5 Hon. Leon Kotosky, April 18, 1939, Pa@ 5
the stetutss herein enumerated are rully complied with.
Very truly yours LA:AW
APPROVE&
.