CHAPTER 406. NOTARY PUBLIC; COMMISSIONER OF DEEDS
GOVERNMENT CODE
TITLE 4. EXECUTIVE BRANCH
SUBTITLE A. EXECUTIVE OFFICERS
CHAPTER 406. NOTARY PUBLIC; COMMISSIONER OF DEEDS
SUBCHAPTER A. NOTARY PUBLIC
Sec. 406.001. APPOINTMENTS. The secretary of state may appoint
a notary public at any time.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.002. TERM. The term of a notary public expires four
years after the date the notary public qualifies.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.003. JURISDICTION. A notary public has statewide
jurisdiction.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.004. ELIGIBILITY. Each person appointed and
commissioned as a notary public shall be at least 18 years of age
and a resident of the State of Texas and must not have been
convicted of a felony or crime involving moral turpitude.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1995, 74th Leg., ch. 719, Sec. 1, eff. Jan. 1,
1996.
Sec. 406.005. APPOINTMENT PROCEDURE--STATEMENT. (a) Each
person to be appointed a notary public shall submit an
application to the secretary of state on a form prescribed by the
secretary of state. The application must satisfy the secretary of
state that the applicant is qualified. The application must
state:
(1) the applicant's name to be used in acting as a notary
public;
(2) the applicant's post office address;
(3) the applicant's county of residence;
(4) the applicant's date of birth;
(5) the applicant's driver's license number or the number of
other official state-issued identification; and
(6) the applicant's social security number.
(b) The applicant shall also execute the statement of officers
as required by Section 1, Article XVI, Texas Constitution.
(c) Repealed by Acts 2003, 78th Leg., ch. 1211, Sec. 1.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1995, 74th Leg., ch. 719, Sec. 2, eff. Jan. 1,
1996; Acts 2003, 78th Leg., ch. 1211, Sec. 1, eff. Sept. 1, 2003.
Sec. 406.006. QUALIFICATION. An individual qualifies by:
(1) properly completing the application form;
(2) executing the statement;
(3) providing the bond, if required;
(4) paying the required filing fees; and
(5) meeting the eligibility requirements.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 406, Sec. 1, eff. Sept. 1,
1989; Acts 1995, 74th Leg., ch. 719, Sec. 3, eff. Jan. 1, 1996;
Acts 2003, 78th Leg., ch. 285, Sec. 14, eff. Sept. 1, 2003.
Sec. 406.007. FEES PAID TO SECRETARY OF STATE. (a) The
applicant must submit to the secretary of state:
(1) a fee of $10 for approving and filing the bond of the notary
public, if required; and
(2) a fee of $1 to be appropriated to and used by the secretary
of state only for hiring an investigator and for preparing and
distributing the materials required to be distributed under
Section 406.008.
(b) The secretary of state shall charge for use of the state a
fee of $10 for a notary public commission. The applicant must pay
the fee in advance to the secretary of state.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 4, Sec. 2.14(a), eff. Sept.
1, 1989; Acts 2003, 78th Leg., ch. 285, Sec. 15, eff. Sept. 1,
2003.
Sec. 406.008. COMMISSION; NOTARY MATERIALS. (a) Immediately
after the qualification of a notary public, the secretary of
state shall send notice of appointment along with a commission to
the notary public. The commission is effective as of the date of
qualification.
(b) When the commission is issued, the secretary of state shall
supply the notary public with:
(1) materials outlining the powers and duties of the office;
(2) a list of prohibited acts; and
(3) sample forms for an acknowledgment, jurat, and verification
and for the administering of an oath, protest, and deposition.
(c) Repealed by Acts 1995, 74th Leg., ch. 719, Sec. 10, eff.
Jan. 1, 1996.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1995, 74th Leg., ch. 719, Sec. 4, 10, eff. Jan.
1, 1996.
Sec. 406.009. REJECTION OF APPOINTMENT; SUSPENSION OR REVOCATION
OF COMMISSION. (a) The secretary of state may, for good cause,
reject an application or suspend or revoke the commission of a
notary public.
(b) An action by the secretary of state under this section is
subject to the rights of notice, hearing, adjudication, and
appeal.
(c) An appeal under this section is to the district court of
Travis County. The secretary of state has the burden of proof,
and the trial is conducted de novo.
(d) In this section, "good cause" includes:
(1) a final conviction for a crime involving moral turpitude;
(2) a false statement knowingly made in an application;
(3) the failure to comply with Section 406.017;
(4) a final conviction for a violation of a law concerning the
regulation of the conduct of notaries public in this or another
state;
(5) the imposition on the notary public of an administrative,
criminal, or civil penalty for a violation of a law or rule
prescribing the duties of a notary public; or
(6) performing any notarization when the person for whom the
notarization is performed did not personally appear before the
notary at the time the notarization is executed.
(e) The following may not be considered a conviction for the
purposes of determining eligibility and good cause:
(1) a dismissal of a proceeding against the defendant and
discharge of the defendant before an adjudication of guilt; and
(2) a finding of guilt that has been set aside.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 4, Sec. 2.15(a), eff. Sept.
1, 1989; Acts 1995, 74th Leg., ch. 719, Sec. 5, 6, eff. Jan. 1,
1996.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
569, Sec. 1, eff. September 1, 2009.
Sec. 406.010. BOND; OATH. (a) Each person to be appointed a
notary public shall, before entering the official duties of
office, execute a bond in the amount of $10,000 with a solvent
surety company authorized to do business in this state as a
surety. The bond must be approved by the secretary of state,
payable to the governor, and conditioned on the faithful
performance of the duties of office. The secretary of state has
the authority to accept an electronic filing of the notary public
bond if an agreement has been made with the surety company.
(b) The notary bond shall be deposited in the office of the
secretary of state, is not void on first recovery, and may be
sued on in the name of the injured party from time to time until
the whole amount of the bond is recovered.
(c) A notary public, before entering on the duties of office,
shall take the official oath required by Section 1, Article XVI,
Texas Constitution.
(d) The oath shall be signed and sworn to or affirmed by the
notary public in the presence of a notary public or other person
authorized to administer oaths in this state. A notary public
cannot execute his or her own oath of office.
(e) The secretary of state shall provide an oath of office form
along with the commission and educational materials.
(f) Subsections (a) and (b) do not apply to a person whose
services as a notary public are performed primarily as a state
officer or employee.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1995, 74th Leg., ch. 719, Sec. 7, eff. Jan. 1,
1996; Acts 2003, 78th Leg., ch. 285, Sec. 16, eff. Sept. 1, 2003.
Sec. 406.011. REAPPOINTMENT. (a) Not earlier than 90 days
prior to the expiration date of the notary's term, a notary
public may apply for reappointment on submission of a new
application to the secretary of state.
(b) A notary public who is not reappointed on or before the
expiration date of the term the notary public is serving will be
appointed for a new term expiring four years from the date of
qualification.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1995, 74th Leg., ch. 719, Sec. 8, eff. Jan. 1,
1996.
Sec. 406.012. INSPECTION OF RECORDS. All records concerning the
appointment and qualification of the notary public shall be kept
in the office of the secretary of state. The records are public
information.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 4, Sec. 2.16(a), eff. Sept.
1, 1989.
Sec. 406.013. SEAL. (a) A notary public shall provide a seal
of office that clearly shows, when embossed, stamped, or printed
on a document, the words "Notary Public, State of Texas" around a
star of five points, the notary public's name, and the date the
notary public's commission expires. The notary public shall
authenticate all official acts with the seal of office.
(b) The seal may be a circular form not more than two inches in
diameter or a rectangular form not more than one inch in width
and 2-1/2 inches in length. The seal must have a serrated or
milled edge border.
(c) The seal must be affixed by a seal press or stamp that
embosses or prints a seal that legibly reproduces the required
elements of the seal under photographic methods. An indelible ink
pad must be used for affixing by a stamp the impression of a seal
on an instrument to authenticate the notary public's official
act.
(d) Subsection (c) does not apply to an electronically
transmitted authenticated document, except that an electronically
transmitted authenticated document must legibly reproduce the
required elements of the seal.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 4, Sec. 2.71(d), eff. Sept.
1, 1989; Acts 2001, 77th Leg., ch. 95, Sec. 2, eff. May 11, 2001.
Sec. 406.014. NOTARY RECORDS. (a) A notary public other than a
court clerk notarizing instruments for the court shall keep in a
book a record of:
(1) the date of each instrument notarized;
(2) the date of the notarization;
(3) the name of the signer, grantor, or maker;
(4) the signer's, grantor's, or maker's residence or alleged
residence;
(5) whether the signer, grantor, or maker is personally known by
the notary public, was identified by an identification card
issued by a governmental agency or a passport issued by the
United States, or was introduced to the notary public and, if
introduced, the name and residence or alleged residence of the
individual introducing the signer, grantor, or maker;
(6) if the instrument is proved by a witness, the residence of
the witness, whether the witness is personally known by the
notary public or was introduced to the notary public and, if
introduced, the name and residence of the individual introducing
the witness;
(7) the name and residence of the grantee;
(8) if land is conveyed or charged by the instrument, the name
of the original grantee and the county where the land is located;
and
(9) a brief description of the instrument.
(b) Entries in the notary's book are public information.
(c) A notary public shall, on payment of all fees, provide a
certified copy of any record in the notary public's office to any
person requesting the copy.
(d) A notary public who administers an oath pursuant to Article
45.019, Code of Criminal Procedure, is exempt from the
requirement in Subsection (a) of recording that oath.
(e) A notary public may maintain the records required by
Subsection (a) electronically in a computer or other storage
device.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 4, Sec. 2.17(a), eff. Sept.
1, 1989; Acts 1989, 71st Leg., ch. 406, Sec. 2, eff. Sept. 1,
1989; Acts 1989, 71st Leg., ch. 451, Sec. 1, eff. June 14, 1989;
Acts 1999, 76th Leg., ch. 1545, Sec. 71, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch.
103, Sec. 1, eff. September 1, 2005.
Sec. 406.015. COPIES CERTIFIED BY COUNTY CLERK. (a) A copy of
a record, declaration, protest, or other official act of a notary
public may be certified by the county clerk with whom the
instrument is deposited.
(b) A copy of an instrument certified by the county clerk under
Subsection (a) has the same authority as if certified by the
notary public by whom the record, declaration, protest, or other
official act was originally made.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.016. AUTHORITY. (a) A notary public has the same
authority as the county clerk to:
(1) take acknowledgments or proofs of written instruments;
(2) protest instruments permitted by law to be protested;
(3) administer oaths;
(4) take depositions; and
(5) certify copies of documents not recordable in the public
records.
(b) A notary public shall sign an instrument in Subsection (a)
in the name under which the notary public is commissioned.
(c) A notary public may not issue an identification card.
(d) A notary public not licensed to practice law in this state
may not give legal advice or accept fees for legal advice.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.0165. SIGNING DOCUMENT FOR INDIVIDUAL WITH DISABILITY.
(a) A notary may sign the name of an individual who is
physically unable to sign or make a mark on a document presented
for notarization if directed to do so by that individual, in the
presence of a witness who has no legal or equitable interest in
any real or personal property that is the subject of, or is
affected by, the document being signed. The notary shall require
identification of the witness in the same manner as from an
acknowledging person under Section 121.005, Civil Practice and
Remedies Code.
(b) A notary who signs a document under this section shall
write, beneath the signature, the following or a substantially
similar sentence:
"Signature affixed by notary in the presence of (name of
witness), a disinterested witness, under Section 406.0165,
Government Code."
(c) A signature made under this section is effective as the
signature of the individual on whose behalf the signature was
made for any purpose. A subsequent bona fide purchaser for value
may rely on the signature of the notary as evidence of the
individual's consent to execution of the document.
(d) In this section, "disability" means a physical impairment
that impedes the ability to sign or make a mark on a document.
Added by Acts 1997, 75th Leg., ch. 1218, Sec. 1, eff. Sept. 1,
1997.
Sec. 406.017. REPRESENTATION AS ATTORNEY. (a) A person commits
an offense if the person is a notary public and the person:
(1) states or implies that the person is an attorney licensed to
practice law in this state;
(2) solicits or accepts compensation to prepare documents for or
otherwise represent the interest of another in a judicial or
administrative proceeding, including a proceeding relating to
immigration to the United States, United States citizenship, or
related matters;
(3) solicits or accepts compensation to obtain relief of any
kind on behalf of another from any officer, agency, or employee
of this state or the United States;
(4) uses the phrase "notario" or "notario publico" to advertise
the services of a notary public, whether by signs, pamphlets,
stationery, or other written communication or by radio or
television; or
(5) advertises the services of a notary public in a language
other than English, whether by signs, pamphlets, stationery, or
other written communication or by radio or television, if the
person does not post or otherwise include with the advertisement
a notice that complies with Subsection (b).
(b) The notice required by Subsection (a)(5) must state that the
notary public is not an attorney and must be in English and in
the language of the advertisement and in letters of a conspicuous
size. If the advertisement is by radio or television, the
statement may be modified, but must include substantially the
same message. The notice must include the fees that a notary
public may charge and the following statement:
"I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW IN TEXAS AND MAY
NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE."
(c) It is an exception to prosecution under this section that,
at the time of the conduct charged, the person is licensed to
practice law in this state and in good standing with the State
Bar of Texas.
(d) Except as provided by Subsection (e) of this section, an
offense under this section is a Class A misdemeanor.
(e) An offense under this section is a felony of the third
degree if it is shown on the trial of the offense that the
defendant has previously been convicted under this section.
(f) Failure to comply with this section is, in addition to a
violation of any other applicable law of this state, a deceptive
trade practice actionable under Chapter 17, Business &
Commerce Code.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 2001, 77th Leg., ch. 566, Sec. 1, eff. Sept. 1,
2001.
Sec. 406.018. REMOVAL FROM OFFICE. (a) A notary public guilty
of wilful neglect of duty or malfeasance in office may be removed
from office in the manner provided by law.
(b) A notary public indicted for and convicted of a wilful
neglect of duty or official misconduct shall be removed from
office. The court shall include the order for removal as part of
its judgment.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.019. CHANGE OF ADDRESS. A notary public shall notify
the secretary of state of a change of the notary public's address
not later than the 10th day after the date on which the change is
made.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.020. REMOVAL FROM STATE. A notary public who removes
his residence from this state vacates the office.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.021. REMOVAL FROM PRECINCT. An ex officio notary
public who moves permanently from the notary public's precinct
vacates the office.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.022. EFFECT OF VACANCY. If the office of a notary
public becomes vacant due to resignation, removal, or death, the
county clerk of the county in which the notary public resides
shall obtain the record books and public papers belonging to the
office of the notary public and deposit them in the county
clerk's office.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 406, Sec. 3, eff. Sept. 1,
1989.
Sec. 406.023. ADMINISTRATION AND ENFORCEMENT. (a) The
secretary of state shall adopt rules necessary for the
administration and enforcement of this subchapter. The rules must
be consistent with the provisions of this subchapter.
(b) The secretary of state may employ an investigator to aid in
the enforcement of this subchapter.
(c) The secretary of state may provide for the appointment of
county clerks as deputy custodians for the limited authentication
of notary public records deposited in the clerks' offices.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.024. FEES CHARGED BY NOTARY PUBLIC. (a) A notary
public or its employer may charge the following fees:
(1) for protesting a bill or note for nonacceptance or
nonpayment, register and seal, a fee of $4;
(2) for each notice of protest, a fee of $1;
(3) for protesting in all other cases, a fee of $4;
(4) for certificate and seal to a protest, a fee of $4;
(5) for taking the acknowledgment or proof of a deed or other
instrument in writing, for registration, including certificate
and seal, a fee of $6 for the first signature and $1 for each
additional signature;
(6) for administering an oath or affirmation with certificate
and seal, a fee of $6;
(7) for a certificate under seal not otherwise provided for, a
fee of $6;
(8) for a copy of a record or paper in the notary public's
office, a fee of 50 cents for each page;
(9) for taking the deposition of a witness, 50 cents for each
100 words;
(10) for swearing a witness to a deposition, certificate, seal,
and other business connected with taking the deposition, a fee of
$6; and
(11) for a notarial act not provided for, a fee of $6.
(b) A notary public may charge a fee only for an acknowledgment
or official act under Subsection (a). The fee charged may not
exceed the fee authorized by Subsection (a).
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 4, Sec. 2.18(a), eff. Sept.
1, 1989; Acts 1995, 74th Leg., ch. 259, Sec. 1, eff. Sept. 1,
1995.
Sec. 406.025. SIGNATURE ON COMMISSIONS AFTER CHANGE IN OFFICE.
If the governor or secretary of state ceases to hold or perform
the duties of office, existing stocks of commissions bearing the
person's printed name, signature, or facsimile signature may be
used until they are exhausted, and the person succeeding to the
office or the duties of the office shall have the commissions
issued with:
(1) the obsolete printed name, signature, or facsimile signature
struck through;
(2) the successor's printed name submitted for the obsolete
printed name, signature, or facsimile signature; and
(3) the inscription "Printed name authorized by law" near the
successor's printed name.
Added by Acts 1995, 74th Leg., ch. 719, Sec. 9, eff. Jan. 1,
1996.
SUBCHAPTER B. COMMISSIONER OF DEEDS
Sec. 406.051. APPOINTMENT. (a) The governor may biennially
appoint and commission one or more individuals in other states,
territories, or foreign countries or in the District of Columbia
to serve as commissioner of deeds.
(b) An appointment may be made only on the recommendation of the
executive authority of the state, territory, or foreign country
or of the District of Columbia.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.052. TERM. The term of office of a commissioner of
deeds is two years.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.053. OATH. Before performing the duties of office, a
commissioner of deeds shall take and subscribe an oath to well
and faithfully perform the duties of office under the laws of
this state. The oath shall be:
(1) taken before the clerk of a court of record in the city,
county, or country in which the commissioner resides;
(2) certified to by the clerk under the clerk's hand and seal of
office; and
(3) filed in the office of the secretary of state of this state.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.054. SEAL. A commissioner of deeds shall provide a
seal with a star of five points in the center and the words
"Commissioner of the State of Texas" engraved on the seal. The
seal shall be used to certify all official acts of the
commissioner of deeds. An instrument that does not have the
impression of the seal, or an act of the commissioner of deeds
that is not certified by the impression of the seal, is not valid
in this state.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 406.055. AUTHORITY. A commissioner of deeds has the same
authority as a notary public to take acknowledgments and proofs
of written instruments, to administer oaths, and to take
depositions to be used or recorded in this state.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.