Texas Property Code - PROP § 5.0261. Removal of Discriminatory Provision from Recorded Conveyance Instrument

(a) In this section, “discriminatory provision” means a restriction or provision that is void under Section 5.026(a).

(b) A person who owns real property or an interest in real property the chain of title for which includes a recorded conveyance instrument containing a discriminatory provision, or another person with the permission of the owner, may request the removal of the discriminatory provision from the instrument by completing and filing, with the clerk of a district court in the county in whose real property records the instrument is recorded or of another court having jurisdiction over real property matters in the county, a motion, verified by affidavit by a completed form for ordinary certificate of acknowledgment of the same type described by Section 121.007, Civil Practice and Remedies Code, that contains, at a minimum, the information in the following suggested form:

Now Comes (name) and files this motion requesting a judicial determination of the status of a conveyance instrument that contains a discriminatory provision as defined by Section 5.0261(a), Texas Property Code, filed in the office of the Clerk of (county name) County, Texas, and in support of the motion would show the court as follows:

I.

(Name), movant herein, is the person who owns the real property or the interest in real property described in the conveyance instrument or has been given permission by that person to file this motion.

II.

III.

Movant alleges that the conveyance instrument attached hereto contains a discriminatory provision as defined by Section 5.0261(a), Texas Property Code, and that the discriminatory provision should be removed.

IV.

Movant attests that assertions herein are true and correct.

V.

PRAYER

Movant requests the court to review the attached conveyance instrument and enter an order removing the discriminatory provision as defined by Section 5.0261(a), Texas Property Code, together with such other orders as the court deems appropriate.

(c) The completed form for ordinary certificate of acknowledgment, of the same type described by Section 121.007, Civil Practice and Remedies Code, must be as follows:

AFFIDAVIT

BEFORE ME, the undersigned authority, personally appeared _______________________________, who, being by me duly sworn, deposed as follows:

“My name is _______________________________. I am over 21 years of age, of sound mind, with personal knowledge of the following facts, and fully competent to testify.

I further attest that the assertions contained in the accompanying motion are true and correct.”

(d) A motion under this section may be ruled on by a court having jurisdiction over real property matters in the county where the subject conveyance instrument was filed.  The court's finding may be made solely on a review of the conveyance instrument attached to the motion and without hearing any testimonial evidence.  The court's review may be made ex parte without delay or notice of any kind.  If the court does not rule on the motion on or before the 15th day after the date the motion is filed, the motion is deemed granted.  An appellate court shall expedite review of a court's finding under this section.

(e) A court clerk may not collect a filing fee for filing a motion under this section.

(f) After reviewing the conveyance instrument attached to a motion filed under this section, the court shall enter an appropriate finding of fact and conclusion of law.

(g) The court's finding of fact and conclusion of law must be:

(h) The county clerk may not collect a fee for filing a court's finding of fact and conclusion of law under this section.

(i) A suggested form of order appropriate to comply with Subsection (f) is as follows:

On the (number) day of (month), (year), in the above entitled and numbered cause, this court reviewed a motion, verified by affidavit, of (name) and the conveyance instrument attached thereto.  No testimony was taken from any party, nor was there any notice of the court's review, the court having made the determination that a decision could be made solely on review of the conveyance instrument under the authority vested in the court under Section 5.0261, Texas Property Code.

The court finds as follows (only an item checked and initialed is a valid court ruling):

_______________________________ The conveyance instrument recorded at _______________________________ in the real property records of _______________________________ County CONTAINS a discriminatory provision as defined by Section 5.0261(a), Texas Property Code.  The discriminatory provision as defined by Section 5.0261(a), Texas Property Code, is void and removed from the conveyance instrument identified herein.

_______________________________ The conveyance instrument recorded at _______________________________ in the real property records of _______________________________ County and attached to the motion herein DOES NOT CONTAIN a discriminatory provision as defined by Section 5.0261(a), Texas Property Code.

This court expressly limits its finding of fact and conclusion of law to the review of a ministerial act.  The county clerk shall file this finding of fact and conclusion of law in the same class of records in which the subject conveyance instrument is filed, and the court directs the county clerk to index it using the same names used to index the subject conveyance instrument.