Licensed image from Thinkstock/Wavebreakmedia, Ltd
Licensed image from Thinkstock/Wavebreakmedia, Ltd

After struggling to cobble together your mechanic’s lien affidavit, you’ve driven 150 miles to reach the county clerk’s office before close of business. Today is the filing deadline.  No worries, you made it!! But now you stand toe-to-toe and face-to-face with a clerk that refuses to record your claim.  WHAT NOW???

More often than you might imagine, this same scene plays out across Texas.  I’ve had to send my fair share of post-filing fight flowers to mend fences with clerks that do not understand the limits of their own discretion.  The fights are not limited to affidavits claiming mechanic’s liens.  I’ve witnessed clerks refuse to accept indemnity bonds, statutory payment bonds and other time critical records.

I will guarantee that posted in the office of every clerk is a sign advising,

THE EMPLOYEES OF THE COUNTY CLERK’S OFFICE MAY NOT GIVE ANY LEGAL ADVICE. PLEASE do not ask legal advice of any of the employees in the County Clerk’s office.

Despite this prohibition, county clerks and their deputies routinely practice law and provide (incorrect) unsolicited legal advice.  In the past five years clerks have refused to accept filings from our firm for bogus reasons including:

  1. The legal description was not “metes and bounds” or “lot and block”.
  2. The font size on the attached invoices was less than 12 point type.
  3. It was 3:00 p.m. and they did not have enough time to process an indemnity bond before the close of business at 5:00 p.m.

In Ready Cable, Inc. v. RJP Southern Comfort Homes, 295 S.W.3d 763 (2009), the Austin Court of Appeals reversed a summary judgment awarded in favor of property owner that removed Ready Cable’s mechanic’s lien claim.  Ready Cable timely presented to the Williamson County Clerk (on the statutory deadline), its affidavit claiming a lien against RJP’s property. Six days later Ready Cable received a letter from the clerk advising that its filing had been rejected because the clerk could not accept an unofficial document as an attachment.  Specifically, Ready Cable had attached a legal description exhibit to its lien affidavit upon which the phrase “Unofficial Document” appeared.

In reversing the trial court, the Austin Court of Appeals noted that Texas Property Code section 53.052(c) – concerning mechanic’s liens – mandated that the clerk file the affidavit, (“The county clerk shall record the affidavit…”) and that no authority existed to authorize the county clerk’s refusal to file or record an affidavit due to the “unofficial document” notation.  Additionally, the court noted that Texas Local Government Code section 191.007(a) prescribes the requirements for filing or recording in every Texas county.  This same statute mandates that county clerks not impose additional recording requirements.

Avoiding a Crisis & Preparing for the Unexpected

  1. Don’t Procrastinate – if you know that a document will need to be filed in the public records, don’t wait until the deadline to act. If problems do arise, you will have time to react and avoid an expensive fight.
  2. Request that the clerk accept the record and mark the same as “accepted under protest”.
  3. Take copies or excerpts from the Texas Property Code, the Texas Local Government Code and cases to support an argument that your filing must be accepted if it meets basic requirements.
  4. Document the rejection in anticipation of filing a lawsuit against the clerk. Record the date and time the record was presented, the item presented, the reasons given for the rejection and the persons refusing the filing.
  5. Advise the clerk that if the filing is rejected a mandamus lawsuit will be filed against him or her.
  6. Resubmit your filing as soon as possible. Do not wait to resubmit. Present “corrected” filings without delay as soon as possible even if your filing deadline has passed.
  7. Hire an attorney without delay if your claim is significant to you.
  8. Comply with the basic requirements.