Texas Commercial Law Firm
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Common requirements for appointment of a substitute trustee include the refusal to serve and resignation of the trustee by formal recorded document, execution of an appointment by president of the holder, and recording of the appointment in the real property records prior to providing notice of sale among other requirements. An agent of the holder of the indebtedness may not appoint the substitute trustee unless the deed of trust expressly authorizes such appointment by an agent. Michael v. Crawford, 108 Tex. 352, 193 S.W. 1070 (1917); Burnett v. Manufacturers Hanover Trust, 593 S.W.2d 755 (Tex. Civ. App.--Dallas 1979, writ ref'd n.r.e.). To meet this requirement, the FNMA/FHLMC deed of trust specifically authorizes the beneficiary through an agent to appoint a substitute trustee. Where the deed of trust requires appointment by the holder and the holder is a corporation, an authorized officer may make the appointment on behalf of the corporation. Broach v. John Hancock Mutual Life Insurance Co., 122 S.W.2d 363 (Tex. Civ. App.--Eastland 1938, writ ref'd).
2. Authority to conduct the sale. Under the typical deed of trust, the party entitled to conduct the sale is normally the named trustee but in practice, the trustee is rarely the one who conducts the sale. The mortgagee has the right to designate the party who may exercise the deed of trust power of sale. Hazelton v. Holt, 285 S.W. 1115 (Tex. Civ. App.--Amarillo 1926, writ dismissed). The designation and any variations as to authority are controlled by the express language of the deed of trust. A trustee is only authorized to delegate power or duties if such authorization is expressly stated in the deed of trust. Fuller v. O'Neil, 69 Tex. 349, 6 S.W. 181 (1888); Randolph v. Citizen's National Bank, 141 S.W.2d 1030 (Tex. Civ. App.--Amarillo 1940, writ dismissed judgment cor.); Slaughter v. Qualls, 149 S.W.2d 651 (Tex. Civ. App.--Amarillo 1941), aff'd 162 S.W.2d 671 (1942). The trustee may not delegate such duties as conducting the sale and execution of the substitute trustee's deed unless the deed of trust expressly authorizes him to do so. Todd v. Hunt, 127 S.W.2d 340 (Tex. Civ. App.--El Paso 1939, writ ref'd). He is allowed, however, to delegate ministerial duties not involving discretion, such as signing the notice of sale or posting the notice of sale to parties under his control. American Savings and Loan Association of Houston v. Music, 53 S.W.2d 581 (Tex. 1975); Eden v. Hart, 236 S.W. 761 (Tex. Civ. App.--Beaumont 1922, no writ).
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