Texas courts have made a very clear distinction in documents containing an acknowledgment only, documents containing a jurat only and documents containing both. The form of affidavit set out under 2. Form of Affidavit above is the most accurate form of affidavit which, in the absence of any of the objections hereinafter discussed, would pass legal muster. An affidavit containing an acknowledgment only (and no jurat) does not appear to be a legally acceptable form of affidavit. An acknowledgment (that an instrument was executed for the purposes therein expressed) does not purport to be a certification that the person acknowledging it swears to the truth of the matter set out. It does not, at least within the spirit of Rule 166--A, constitute an ‘affidavit’ so as to constitute a ‘sworn or certified’ copy. Perkins v. Crittenden , 462 S.W.2d 565, 567 (Tex. 1970) Summary Judgment. The absence of a jurat is a substantive defect which cannot be waived by failing to bring its absence to the court by proper objection. Likewise, a document with a jurat only and no acknowledgment does not appear to qualify as an affidavit . An “affidavit” is defined as “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.” Tex. Gov’t Code Ann. § 312.011 (Vernon Supp.1987). Without the notarization, the unsworn statement is not an affidavit, Failing v. Equity Management Corp., 674 S.W.2d 906, 909 (Tex.App.--Houston [1st Dist.] 1984, no writ), and is not competent summary judgment proof. Perkins v. Crittenden, 462 S.W.2d at 568; Sturm Jewelry, Inc. v. First Nat. Bank, Franklin, 593 S.W.2d 813 (Tex.Civ.App.--Waco 1980, no writ). While it is true that purely formal deficiencies in an affidavit can be waived if not raised in the trial court, Tex.R.Civ.P. 166-A(e), the absence of a jurat is substantive, and not a “purely formal defect” and cannot be waived by failing to bring it to the attention of the trial court. 593 S.W.2d at 814.
Trimble v. Gulf Paint & Battery Inc., 7 28 S.W.2d 887, 889 (Tex.App. —Houston [1 Dist.] 1987) (emphasis added) Summary Judgment II. WHY IS THE AFFIDAVIT BEING TAKEN/ GIVEN? Affidavits are used for various purposes in connection with the rendering of title opinions and the satisfying of title requirements as found in those opinions. In addition to supplying valuable and important information to the rendering title attorney and landman, affidavits and the information contained within them are also routinely recorded in the official public records of the pertinent county to stand as notice to the world of their contents as well as potential evidence in various trial matters. The author, as well as many of the readers of this article, have probably at one time or another found themselves needing to use an affidavit for purposes other than for “in-house” curative matters. The problem is that far too often the affidavit, perfect for review and use in title curative matters, may not be usable for any other purpose. If, and only if, the purpose of the affidavit is to furnish to the title examiner/landman facts sufficient to deem a title requirement satisfied, then the form of the affidavit and its potential use for other purposes becomes secondary. In fact, if no further use of the affidavit is intended, other than forcing the affiant to pay attention to the facts enumerated, an affidavit is not necessary at all. Just because a set of facts are bundled into an affidavit does not make them anymore accurate. The correct preparation and understanding the pitfalls in affidavit use only becomes significant if the affidavit is to be used as evidence in trial matters or is to be recorded as notice to third parties. A. Response to title requirement In today’s title examination practice, qualified landmen run the pertinent county records and submit to the examining attorney copies of the documents and/or a run sheet from which the examining attorney may review all of the documents in the chain of title and thereafter prepare a title opinion for the lands
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G r o w t h T h r o u g h E d u c a t i o n - A p r i l / M a y / J u n e 2 0 2 1
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