Protected: Texas State Notary Handbook

Texas State Notary Handbook

Prepared and Distributed as a Public Service by the
Texas Young Lawyers Association and the State Bar of Texas
Revised 1994 by F. Henry Garcia
Reprinted by: Texas State Notary Bureau
Notaries Public in the State of Texas are appointed by the Secretary of State and are commissioned by the Governor to serve all citizens. Each Notary appointment and commission is for a term of four years. The jurisdiction of all Notaries Public is co-extensive with the boundaries of the State of Texas and is not limited to a particular county of residence or business. Amendments modifying the Texas Notary Public Act have been enacted by the Texas Legislature and emphasize new duties, restrictions, and expanded responsibilities. Each Notary Public is personally responsible for staying informed about law changes affecting this public office.
All Notaries Public should be aware that they are subjecting themselves to financial liability, censure, suspension and revocation of their commissions, and even possible criminal prosecution carrying a potential $10,000 fine and/or imprisonment for improperly carrying out their offices. Whenever a Notary Public has doubts about the legality or admissibility of particular conduct, he should consult an attorney or contact the Notary Public Section of the Office of the Secretary of State, P.O. Box 12079, Capitol Station, Austin, Texas 78711, or by calling 512/463-5705.
The Texas Young Lawyers Association sincerely hopes that this handbook will assist Notaries Public in performing their duties and responsibilities in accordance with the laws of the State of Texas.
Editorial reference texts consistently advocate using he as an inclusive pronoun reference, but the Texas Young Lawyers Association wishes to include the accomplishments and contributions of women to our society in its publications. In this handbook, the reader should read he and meaning he and/or she in all appropriate instances.

Appointment And Qualification

Any person desiring appointment as a Notary Public must make application with the Secretary of State on forms prescribed by the Secretary of State. To be eligible for appointment as a Notary Public, a person must be at least 18 years of age, a legal resident of the State of Texas and a citizen of the United States or permanent resident alien.

The Secretary of State will notify each applicant of his appointment and, within 30 days from the date of appointment, the applicant must qualify with the Secretary of State by (1) taking the oath of office, (2) furnishing a bond in the sum of $2,500 in a form acceptable to the Secretary of State, and (3) paying the fees required by law. A properly licensed insurance or bonding company must execute the bond as surety.

Powers And Duties

The primary duty of a Notary Public is to show that a disinterested party (the Notary Public) has admonished the signer of an instrument as to the importance of such document, and the signer of such document has declared that his identity, his signature and his reasons for signing such instrument are genuine. The signature and seal of a Notary Public does not prove these facts conclusively, but does provide prima facie (sufficient) proof of them, and allows persons in trade and commerce to rely upon the truth and veracity of the Notary Public as a third party who has no personal interest in the transaction. A Notary Public is, in the true sense of the word, a public servant’ and ‘an officer of the State of Texas’ conveniently located in the community so that he may be of service to the public. Each Notary Public takes an official oath of office to faithfully perform the duties of the office, and to insure such performance, he is required to post a $2,500 bond with the Secretary of State. Each Notary Public is personally liable for negligence or fraud in the performance of the duties of the office and is also subject to criminal prosecution. The bond is to insure that the person injured can recover at least $2,500, but this does not protect the Notary Public from personal liability for the full extent of damages caused by a breach of official duty. See ‘Questions Frequently Asked’’

§ 406.016, Texas Government Code – 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 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.
Basically, Notaries Public are allowed to (1) take acknowledgments, (2) protest instruments permitted by law to be protested (primarily negotiable. instruments, bills and notes), (3) administer oaths, (4) certify copies of non-recordable documents (business records, agreements, etc.), and (5) take depositions.
Notaries Public must sign all notarizations in the name under which they are commissioned. The printed name of the Notary is also required for recordation purposes and should be noted with the commission expiration date. An Official Notary Seal, either a rubber stamp or embosser, containing all the required elements, including the full name and expiration date, is required. No exceptions allowed. See Section 406.013.

Unauthorized Practice Of Law

A Notary Public Is not authorized to practice law or give legal advice. A Notary Public may not write a will for another person or draw a contract, deed, lease, or anything else that would constitute the practice of law. A commission granted by the Secretary of State does not give a Notary Public the authority to engage in these acts. The receipt of any fee other than a Notary fee is prohibited.

§ 406.017 a, b, c, d, Texas Government Code – Representation as Attorney

(a) A Notary Public who is not an attorney and who 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, shall post or otherwise include with the advertisement a notice that the Notary Public is not an attorney.
(b) The notice 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) Literal translation of the phrase ‘Notary Public’ into Spanish is prohibited. In this sub-section, ‘literal translation’ means the translation of a word or phrase without regard to the true meaning of the word or phrase in the language that is being translated.
(d) Failure to comply with this section is, in addition to a violation of any other applicable law of this state, a deceptive trade practice action-able under Chapter 17, Business & Commerce Code.

Comment

Advising individuals of legal rights and selecting forms, such as notarial certificates, constitutes a violation of this provision and is good cause for the suspension or revocation of a commission and the denial of a Notary Public appointment.
In Mexico and other countries, a Notary Public must be a lawyer or have specialized training and a permit which qualifies them to practice law. To avoid confusion, deception, and to dispel erroneous assumptions about the powers of a Texas Notary Public, the Texas legislature enacted this section and therein prescribed the format which must be used to advertise notary services in other than the English language.
In Mexico and other countries, a Notary Public must be a lawyer or have specialized training and a permit which qualifies them to practice law. To avoid confusion, deception, and to dispel erroneous assumptions about the powers of a Texas Notary Public, the Texas legislature enacted this section and therein prescribed the format which must be used to advertise notary services in other than the English language.

Notice Of Expiration And Vacation Of Office

The Secretary of State is required by law to notify all Notaries Public whose terms are expiring at least 90 days prior to expiration. However, it is the responsibility of the Notary Public to keep his commission in full force and effect. A Notary Public who wishes to be appointed for another term may make application for reappointment on an original application form or by returning a complete application of reappointment form mailed with the notice of expiration. Application or reappointment forms are supplied by the Secretary of State. Upon receiving a notice of appointment or an application for reappointment, the applicant must qualify no later than the ‘Qualification Date’ noted on the Official Notary Public Bond form. The expiration date of the new term is noted on the Commission Certificate issued by the Secretary of State and is normally mailed within three weeks of filing of the bond.
If a Notary Public removes his residence from this state, the office is automatically vacated.

Record Book And Public Records

§ 406.014, Texas Government Code – Notary Records.

(a) A Notary Public other than a court clerk notarizing 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 the land is conveyed or charged by the instrument, the name of the original grantee and the county where the land is located;
(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 45.01, Code of Criminal Procedure, is exempt from the requirement in Subsection (a) of recording that oath.

Effect Of Vacancy

§ 406.022 Texas Government Code – 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.

Notary Seal

§ 406.013 Texas Government Code – Seal

(a) A Notary Public shall provide a seal of the 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 2 inches in diameter or a rectangular form not more than 1 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 inkpad must be used for affixing by a stamp the impression of a seal on an instrument to authenticate the Notary Public’s official act.

Comment

Notaries Public must use a seal of office which bears their full commission name and expiration date, no exceptions allowed. Failure to comply with this legal requirement subjects the Notary to suspension or revocation of the commission.
The following represents an acceptable Notary Seal for commissions.
Notaries Public should not impress the seal of office over their signatures or other printed matter. It should, however, be impressed or stamped on the same page that the official Notary signature appears.

Notice Of Change Of Address

Each Notary Public shall notify the Secretary of State of any change of his address within 10 days after the change. § 406.019 Texas Government Code.

Comment

Notaries Public appointed after January 1, 1980, have statewide jurisdiction and may move their residences from county to county without vacating their offices. Removal from the state results in vacation of office and requires a new commission upon reestablishment of residency. § 406.020 Texas Government Code.

Criminal Liability

In addition to unlimited civil liability, Notaries Public may be subject to criminal prosecution as set forth below in the cited sections from the Texas Penal Code. (Penalties range from a potential $10,000 fine and/or jail sentence, or both.

§ 39-01. Official Misconduc

(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm another, he intentionally or knowingly;
(1) violates law relating to his office or employment; or
(2) misapplies any thing of value belonging to the government that has come into his custody or possession by virtue of his off ice or employment.
(b) An offense under Subsection (a)(1) of this section is a Class A misdemeanor.
(c) An offense under Subsection (a)(2) of this section is:
(1) a Class C misdemeanor if the value of the use of the thing misapplied is less than $20;
(2)a Class B misdemeanor if the value of the use of the thing misapplied is $20 or more but less than $200;
(3) a Class A misdemeanor if the value of the use of the thing misapplied is $200 of more but less than $750;
(4) a felony of the third degree if the value of the use of the thing misapplied is $750 of more but less than $20,000; and
(5) a felony of the second degree if the value of the use of the thing misapplied is $20,000 or more.
*Amendments to the Penal Code are effective September 1, 1994.

§ 37.09 Tampering With or Fabricating Physical Evidence

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity. legibility, or availability as evidence in the investigation or official proceeding; or
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.
(b) This section shall not apply if the record, documents, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.
(c) An offense under this section is a felony of the third degree.

§ 37.10 Tampering with Governmental Records

(a) A person commits and offense he:
(1) knowingly makes a false entry in, or false alteration of, a governmental record;
(2) makes, presents, or uses any record document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record, or
(3)intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.
(4) possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully; or
Text of subd. (4) as added by Acts 1991, 72nd Leg., ch. I 1 3, § 4
(4) makes, presents, or uses a governmental record with knowledge of its falsity.
(5) possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.
(b) It is an exception to the application of Subsection (a)(3) of this section that the governmental record is destroyed pursuant to legal authorization. With regard to the destruction of a local government record, legal authorization includes compliance with the provisions of Subtitle C, Title 6, Local Government Code.
(c) Except as provided in Subsection (d) of this section, an offense under this section is a Class A misdemeanor unless the actor’s intent is to defraud or harm another, in which event the offense is a felony of the third degree.
(d) An offense under this section is a felony of the third degree if it is shown on the trail of the offense that the governmental record was a license, certificate, permit, seal, title, or similar document issued by government, unless the actor’s intent is to defraud or harm another, in which event the offense is a felony of the second degree.
(e) It is an affirmative defense to prosecution for possession under Subsection (a)(5) of this section that the possession occurred in the actual discharge of official duties as a public servant.
(f) A person is presumed to intend to defraud or harm another if the person acts with respect to two or more of the same type of govern-mental records of blank governmental record forms and if each governmental record or blank governmental record form is a license, certificate, permit, seal, title, or similar document issued by government.

§ 37.02. Perjury

(a) A person commits and offense H. with intent to deceive and with knowledge of the statement’s meaning:
(1) he makes a false statement under oath or swears to the truth of a false statement previously made; and
(2) the statement is required or authorized by law to be made under oath.
(b) An offense under this section is a Class A misdemeanor.

§ 37.03. Aggravated Perjury

(a) A person commits an offense if he commits perjury as defined in Section 37.02 of this code, and the false statement:
(1) is made during or in connection with an official proceeding; and
(2)is material.
(b) An offense under this section is a felony of the third degree.

§ 1.07. Definitions

(a) In this code:
(30) ‘Public servant’ means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even it he had not yet qualified for office or assumed his duties:
(A) an officer, employee, or agent of government;
(B) an attorney at law or notary public when participating in the performance of a governmental function; or
(C) a person who is performing a governmental function under a claim of right although he is not legally qualified to do so.

§ 37.0l.Definitions

In this chapter:
(1) ‘Governmental record’ means:
(A) anything belonging to, received by, or kept by government for information;
(B) anything required. by law to be kept by others for information of government;
(C) a license, certificate, permit, seal, title, or similar document issued by the government.
(2) ‘Official proceeding’ means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant authorized by law to take statements under oath.
(3) ‘Statement’ means any representation of fact.

§ 36.03.Coorcion of Public Servant or Voter

(a) A person commits an offense if by means of coercion he:
(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty;
(2) influence or attempts to influence a voter not to vote or to vote in a particular manner.
(b) An offense under this section is a Class A misdemeanor unless the coercion is a threat to commit a felony, in which event it is a felony of the third degree.
(c) See Penal Code for text.

Suspension Of Revocation Of Commission By The Secretary Of State

The Secretary of State may suspend or revoke the commission of any Notary Public for good cause subject to Section 406.009, Texas Government Code and the Notary Public Rules. A high standard of conduct should always be maintained by a Notary Public.

Sub-Section a,b,c,d. 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 had the burden of proof, and the trial is conducted de novo [over again].
(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.

Comment

A Notary Public is a state officer and public servant who is appointed to serve the public at large for a period of four years. Once appointed, a Notary Public owes allegiance to the State of Texas, not to his employer who may have paid the bonding and appointment fees.
Notaries Public cannot refuse to perform notarial services on the basis of customer or non-customer status, engage in the practice of law, draft legal documents, give legal advice or accept fees for legal advice, issue identification cards, advertise as immigration specialist or consultants, use the notary seal for commercial endorsements, notarize documents which are known to contain false statements or which are not signed and completed in the presence of the Notary, notarized their own signatures or for transactions in which one has a monetary interest, fail to keep a record book of notarizations, fail to post a notary fee chart, fail to issue an itemized receipt upon request, or charge notarial fees in excess of those allowed by law.
Financial penalties are also prescribed by law for violations.

Fees Posted

§ 603.008 of the Texas Government Code requires Notaries Public to keep posted at all times in a conspicuous place a complete list of fees that may be charged by law.

Sample Transaction For An Acknowledgement

An example of how an ordinary transaction takes place is as follows:
John Doe appears before a Notary Public with an unsigned instrument and in the presence of the Notary Public signs the instrument. The Notary Public must ask John Doe to acknowledge: (1) that he is the person named in the instrument; (2) that he signed the instrument voluntarily and without duress; and (3) that he signed the instrument for the purpose and consideration expressed in the instrument. (This is the job of the Notary Public and it should not be embarrassing to do the job right.) After ascertaining this information, the Notary Public certifies that the instrument was acknowledged in his presence by signing the instrument as a Notary Public, applying the seal to the instrument and writing or stamping the expiration date of the Notary’s commission on the instrument if the official seal does not contain this information.
If John Doe does not answer ‘yes’ to each of the questions stated above, the Notary should not sign the instrument. The certification is the Notary Public’s statement, in an official capacity, that the instrument was signed in the Notary’s presence, that the signature was voluntarily placed on the instrument without duress, and that the person so signing was the person he claimed to be. With regard to this last certification, when a Notary Public does not know the person whose acknowledgment is being certified, the Notary should request that some identification be shown or some introduction be made.

Sample Forms

These forms are provided with the terminology in parenthesis for the acknowledgment to be made upon the introduction of the signer by a person known to the Notary Public.

Individual Acknowledgment

The State of Texas

County of _________________________ Before me, a Notary Public, on this day personally appeared_____________________________, known to me (or proved to me on the oath of__________________________) to be the person whose name is subscribed to the forgoing instrument and acknowledged to me that he executed the same for the purpose and consideration therein expressed. Given under my hand and seal of office this _______day of ____________________ A.D. 19_________ _________________________________
Notary Public, State of Texas
(PERSONALIZED SEAL) ____________________________ (Print name of Notary Public here) My commission expires the______ day of____________1 9______ Back to top Corporate Acknowledgment The State of Texas County of__________________________ Before me, the undersigned, a Notary Public on this day personally appeared known to me (or proved to me on the oath of_____________________________), to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said (here insert name of corporation) a corporation, and that he had executed the same as the act of such corporation for the purpose and consideration therein expressed, and in the capacity therein stated. Given under my hand and seal of office, this_______day of ___________________ , A.D. 19_______ ______________________________ Notary Public, State of Texas (PERSONALIZED SEAL) ______________________________ (Print name of Notary Public here) My commission expires the__________ day of_____________________19______

Corporate Acknowledgment

Corporate Acknowledgment The State of Texas County of__________________________ Before me, the undersigned, a Notary Public on this day personally appeared known to me (or proved to me on the oath of_____________________________), to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said (here insert name of corporation) a corporation, and that he had executed the same as the act of such corporation for the purpose and consideration therein expressed, and in the capacity therein stated. Given under my hand and seal of office, this_______day of ___________________ , A.D. 19_______ ______________________________ Notary Public, State of Texas (PERSONALIZED SEAL) ______________________________ (Print name of Notary Public here) My commission expires the__________ day of_____________________19______

Acknowledgement of a Mark

A Notary Public may be called upon to take the acknowledgement of a person who cannot write his name and must, therefore, make a mark. H the Notary is asked to assist in the execution of the instrument, the following steps should be taken.
(1) The person should place his mark on the instrument at the place designated for his signature.
(2) The words ‘His Mark’ or ‘Her Mark’ and the person’s name should be printed near the mark as shown in the example.
(3) The making of the mark should be witnessed by two disinterested persons, other than the Notary, with the signatures of the witness appearing near the mark.
EXAMPLE: His John X Doe Mark ___________________________________________________ John Doe WITNESS: ___________________________________________________     ___________________________________________________ Signature                                                                             Address ___________________________________________________     ___________________________________________________ Signature                                                                             Address The acknowledgment of the person making his mark should be taken substantially as follows: The State of Texas County of__________________ Before me, a Notary Public, on this day personally. Appeared known to me (or proved to me on the oath of_________________________). to be the person whose mark is made on the foregoing instrument and acknowledged to me that he executed the same for the purpose and consideration therein expressed. Given under my hand and seal of office this_______day of _________________, A.D. 19________ ____________________________ Notary Public, State of Texas (PERSONALIZED SEAL) ____________________________ (Print name of Notary Public here) My commission expires the______ day of________________19________

Acknowledgment to Prove Written Instrument

A Notary Public may also be called upon to take the proof of a written instrument. The certificate where the execution of an instrument is proved by a subscribing witness must be taken substantially in the following form:
The State of Texas
County of______________________ Before me, a Notary Public, on this day personally appeared ____________________ known to me (or proved to me on the oath of_________________________________), to be the person whose name is subscribed as a witness to the foregoing instrument of writing, and after being duly sworn by me stated on oath that he saw, the grantor or person who executed the foregoing instrument, subscribe the same (or that the grantor or person who executed such instrument of writing acknowledged in his presence that he had executed the same for the purpose and consideration therein expressed), and that he had signed the same as a witness at the request of the grantor (or person who executed the same). Given under my hand and seal of office this_______day of _________________, A.D. 19________ ____________________________ Notary Public, State of Texas (PERSONALIZED SEAL) ____________________________ (Print name of Notary Public here) My commission expires the______ day of________________19________

Short Form Acknowledgment

A Notary Public may use an abbreviated form for acknowledgments as provided by § 121.008 Texas Civil Practice and Remedies Code.
State of Texas
County of_______________________ This Instrument was acknowledged before me on_________________________________________________ (date) by __________________________________________ (name or names of person or persons acknowledging). ___________________________________ (Signature of Officer) (PERSONALIZED SEAL) ____________________________ (Title of Officer) My commission expires the______ day of________________19________

Frequently Asked Questions

1. Can I notarize my spouse’s signature?
2. Can I notarize for my spouse’s business?
3. Can I notarize for my relatives?
The basic rule is ‘the act of taking and certifying acknowledgments cannot be performed by [a Notary Public] financially or beneficially interested in the transaction’ and ‘one who is a party to an instrument, no matter how small or nominal is his interest therein, cannot act as Notary Public, with reference thereto.’ Better practice requires the use of disinterested Notary Public, so the best answer to each of the questions above is NO. This is particularly true with a spouse, where it appears that either the husband or wife would always have some interest because of Texas community property laws.
4. May I alter or change the Instrument I notarized?
To answer this question, a distinction must be made between the instrument and the acknowledgment. A Notary Public is not authorized to change, alter or draft any instrument. A Notary Public, however, can correct the certificate of acknowledgment to reflect the proper facts.
For example, it an acknowledgment is taken in Webb County, and the certificate shows Marion County, the certificate may be corrected as follows:
The State of Texas
County of      Webb Before me, a Notary Public, on this day personally … etc. _____________________________
Notary Public, State of Texas
5. Can I perform notarial acts in other counties?
Yes. Jurisdiction to perform notarial acts is coextensive with the boundaries of the State of Texas. Documents can be notarized in any of the 254 counties.
6. May I use an old county seal or a generic notary public seal for notarizations?
No. A Notary Public must use a personalized notary seal which contains the elements: ‘Notary Public, State of Texas’ around a five-point star, the full commission name and expiration date of the Notary. See seal provisions, § 406.013.
7. May I perform functions other then those outlined In § 406.016 and may I charge fees In excess of those authorized In § 406.024?
No. Notary Public functions are statutorily stated and should be provided in accordance with the law prescribed. A Notary Public cannot deviate from the prescribed fees for performance of Notarial acts.11
8. What if there is a difference between the date the instrument is signed and the date the acknowledgment is actually taken?
To answer this question, an example is given. If an instrument ends with the wording: ‘Signed and executed at Tyler, Smith County, Texas this 21st day of January, 1980′ and the party whose name appears on such instrument appears before the Notary Public on January 23, 1980, the Notary Public would fill in the acknowledgment with the true and correct date of appearance before the Notary Public.
9. May I take an acknowledgment on the telephone?
No. A Notary Public cannot perform by telephone those notarial acts which require a personal appearance.
10. Can I change my name from the name shown on the commission?
Yes. A Notary Public may only change the name on their commission by sending the following items to the Secretary of State: a completed notary application card, the old certificate of com-mission, a bond rider or endorsement from the bonding insurance agency and surety company, and a $20 filing fee. The four items must be sent in at the same time. An instruction sheet on this procedure is available from the Secretary of State’s office. The commission name and signature should not incorporate titles, such as ‘Dr.,’ ‘Mr.,’ ‘Mrs.,’ or ‘Ms.’
11. What is my potential liability as a Notary Public If I fall to satisfactorily perform the duties and responsibilities of the off ice?
Notaries are subject to criminal, civil and administrative sanctions and proceedings. Fines of $10,000 or less along with one year or more jail terms can be imposed for criminal violations. In addition, Notaries can be forced to pay for all monetary damages that result from failure to properly perform acknowledgments or other notarial acts. Administrative suspension or revocation of one’s commission may also result for failure to comply with notarial procedures and laws.
12. Does my $2,500 Notary Bond protect me from claims?
No. The Notary Bond protects the public and is for the benefit of the State of Texas. It is a guarantee by a license surety company to cover payment of the prescribed amount in the event the Notary fails to comply with the provisions of law. Reimbursement to the Surety Company is expected after payment has been made and will be recovered by the filing of a lawsuit, if necessary. A Notary Bond is not to be considered as insurance and does not cover expenses associated with the defense of the Notary against a claim.
13. How do I protect myself from claims of notarial abuse or misconduct?
Notaries may purchase optional Errors and Omissions Insurance to protect themselves from claims. This form of insurance will pay amounts which the Notary is obligated to pay by reason of liability for breach of duty while acting as a duly commissioned Notary Public, that involve any negligent act, error or omission alleged or committed by the insured Notary, arising out of the performance of notarial services for others. Any dishonest, fraudulent, criminal, libelous, slanderous or malicious act or omission is excluded.

Prohibited Acts

(1) Perform acts which constitute the practice of law.
(2) Prepare, draft, select, or give advice concerning documents.
(3) Translate the term ‘Notary Public’ into Spanish (Notario Publico).
(4) Overcharge for their notarial services.
(5) Notarize a document without the signer being in their presence.
(6) Notarize their own signature.
(7) Issue identification cards.
(8) Sign documents under a name that is not reflected on their commission.
(9) Fail to affix a legally required notary seal on notarized documents.
(10) Certify copies of recorded public records.

Notary Public Fees

Notaries Public should only receive the fees permitted by law. Any deviation may subject the Notary Public to criminal prosecution. Refer to Section 39.01, Texas Penal Code, concerning official misconduct on pages 8 and 9 of this handbook.
The following schedule of fees is prescribed by § 406.024 Texas Government Code;
(a) A Notary Public may charge the following fees:
(1) for protesting a bill or note for non-acceptance or nonpayment, register, and seal, a fee of $3;
(2) for each notice of protest, a fee of 50 cents;
(3) for protesting in all other cases, a fee of 50 cents for each 1 00 words.
(4) for certificate and seal to a protest, a fee of $3;
(5) for taking the acknowledgment or proof of a deed or other instrument in writing, for registration, including certificate and seal, a fee of $5 for the first signature and $1 for each additional signature;
(6) for administering an oath or affirmation with certificate and seal, a fee of $5;
(7) for a certificate under seal not otherwise provided for, a fee of $5;
(8) for a copy of record or paper in the Notary Public’s office, a fee of 50 cents for each page; for taking the deposition of a witness, 50 cents for each 100 words;
(9) for swearing a witness to a deposition, certificate, seal, and other business connected with taking the deposition, a fee of $5; and
(10) for a notarial act not provided for, a fee of $5.
(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).

Footnotes

1. § 121.007, Civil Practice and Remedies Code.
2. Insert name of county in which instrument is acknowledged.
3. Official Signature of Notary; also alternate language of ‘Notary Public in and for the State of Texas’ is acceptable.
4. Section 406.013 and 406.016 Texas Government Code, requires signature per commission and notary seals to contain the full commission name and expiration date for all appointments, no exceptions allowed. Printed name and date should also be reflected on the seal.
5. § 121.011 Civil Practice and Remedies Code.
6. § 121.01 0 Civil Practice and Remedies Code.
7. Creosoted Wood Block Paving Co. v. McKay, 221 S.W. 822, 824 (Tex. Civ. App. – Dallas 1919, no writ).
8. Morris v. Dunn, 164 S.W.2d 562, 563 (Tex. Civ. App. – Fort Worth 1942, no writ).
9. Charlton v. Richard Gill Co., 285 S.W.2d 801, 803 (Tex. Civ. App. – San Antonio 1955, no writ).
10. § 81.101 Texas Government Code and § 38.123 Texas Penal Code – effective September 1, 1994.
11. § 406.024 and 603.010, Texas Government Code.

Addendum

Effective January 1, 1996
The Texas Legislature adopted major changes to the Texas Notary Public Act for 1995-1996.
Pg. 1: The Application/Appointment/Bond process has been combined per a new form. See the enclosed State approved form. The Bond penalty was raised to $10,000.
Pg. 2: Bond penalty was raised to $10,000.
Pg. 4: Renewal notices are no longer issued by the State. See enclosed State approval form.
Pg. 5: Renewals cannot be filed earlier than 90 days prior to the expiration of a notary’s term. See instructions of the State approved form.
Pg. 14: Good Cause: includes performing any notarization when the person did not personally appear before the notary at the time of notarization.
Pg. 24: Bond penalty was raised to $10,000.
Pg. 26: Notary fees have been raised and may be collected by the Notary or its employer. See list of the new fees that must be posted by law.
1996
Texas Young Lawyers Association
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