Texas Notary Public Educational Information

(taken directly from the Texas SOS Website on September 6, 2004)

Provided by Brenda Stone, Notary Public – Brazos County, Texas

Texas-Signing-Agent.com & www.TexNotary.com

Foreword

The following educational materials are provided to you in accordance with Tex. Gov't Code Ann. §406.008(b). Updated information or changes to this information may be found on the Internet at www.sos.state.tx.us. All forms mentioned in this document may also be found at this Internet address.

This information should be kept for reference throughout your four-(4) year term. Please read through this information at least once before you begin to perform your notarial duties.

THE STATUTES REFERRED TO IN THESE MATERIALS ARE SUBJECT TO LEGISLATIVE CHANGE. The Secretary of State will provide a copy of these changes only upon request. Contact the Secretary of State, Notary Public Unit, P.O. Box 13375, Austin, Texas 78711-3375 or call (512) 463-5705 following each legislative session.

The Secretary of State's office would like to thank the Texas Young Lawyers Association for permitting us to use excerpts from their former publication, Texas Notary Public Handbook.

TABLE OF CONTENTS

Introduction

Statutes

Record Book and Public Records

Notary Seal

Change of Address

Unauthorized Practice of Law

Revocation or Suspension of Commission by the Secretary of State

Fees Posted

Fee Book

To Itemize Costs

Fees

Questions Frequently Asked

List of Prohibited Acts

Notarial Definitions

Sample Forms

Acknowledgments

Jurat

Verifications

Oath or Affirmation

Statement of Officer

Deposition

Protests

Certified Copy of a Non-Recordable Document

INTRODUCTION

A Notary Public is a public servant with statewide jurisdiction who is authorized to take acknowledgments, protest instruments permitted by law to be protested (primarily negotiable instruments and bills and notes), administer oaths, take depositions, and certify copies of documents not recordable in the public records.

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 the notary 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, a notary public is required to post a $10,000.00 bond with the Secretary of State.

The primary duty of a Notary Public is to show that a disinterested party (the Notary Public) has duly notified the signer of an instrument as to the importance of such document, and the signer of such document has declared that the signer's identity, signature, and reasons for signing such instrument are genuine. The signature and seal of a Notary Public do not prove these facts conclusively, but provide prima facie proof of them, and allow 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 personally liable for negligence or fraud in the performance of the duties of the office. The bond is to insure that the person injured can recover at least $10,000.00, but this does not protect the Notary Public from personal liability for the full extent of damages caused by a breach of official duty. In addition to civil liability, Notaries Public may be subject to criminal prosecution and the revocation or suspension of their notary public commission by the Secretary of State's office.

STATUTES

RECORD BOOK AND PUBLIC RECORDS

Tex. Gov't. Code Ann. § 406.014 requires that a Notary Public maintain a record book. This record book must be maintained whether or not any fees are charged for your notary public services.

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.

Entries in the notary's book are public information. 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. A notary public who administers an oath pursuant to Article 45.019 of the Code of Criminal Procedure is exempt from the requirement of recording that oath in the notary public's record book.

NOTARY SEAL

Tex. Gov't. Code Ann. § 406.013 requires a Notary Public to use a seal of office to authenticate the Notary Public's official acts. Section 406.013 states:

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 2½ 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.

d. (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.

CHANGE OF ADDRESS

Tex. Gov't. Code Ann. § 406.019 requires a Notary Public to notify the Secretary of State of any change of address within ten (10) days of the date on which the change is made. You may fill out a Notary Public Change of Address form or send a letter with your name, social security number, old address, and new address to: Secretary of State, Notary Public Unit, P. O. Box 13375, Austin, Texas 78711-3375.

UNAUTHORIZED PRACTICE OF LAW

An attorney or similar trained legal professional often holds the position of a Notary Public in Mexico and many foreign countries. To avoid deception by such persons and to dispel erroneous assumptions, the Texas Legislature enacted § 406.017 of the Government Code. Section 406.017 states:

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, stationary or other written communication or by radio or television. (5) advertises the services of a notary public in a language other than English, whether by signs, pamphlets, stationary or other written communication or by radio or television; if the person does not post or otherwise include the notice with the advertisement a notice that complies with Subsection (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."

It is an exception to prosecution under this section that, at the time the conduct charged, the person is licensed to practice law in this state and is in good standing with the State bar of Texas.
Except as provided by Subsection
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.
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.

REVOCATION OR SUSPENSION OF COMMISSION BY THE SECRETARY OF STATE

Tex. Gov't. Code Ann. § 406.009 gives the Secretary of State the authority to reject an application, or suspend or revoke the commission of any Notary Public for "good cause".

The secretary of state may, for good cause, reject an application or suspend or revoke the commission of a notary public.
An action by the secretary of state under this section is subject to the rights of notice, hearing, adjudication, and appeal.
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.
In this section, "good cause" includes:

a final conviction for a crime involving moral turpitude;
a false statement knowingly made in an application;
the failure to comply with Section 406.017;
a final conviction for a violation of a law concerning the regulation of the conduct of notaries public in this or another state;
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
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.

FEES POSTED

Section 603.008 of the Government Code requires a Notary Public to keep posted the fees that a notary is authorized by law to charge.

A county judge, clerk of a district or county court, sheriff, justice of the peace, constable, or notary public shall keep posted at all times in a conspicuous place in the respective offices a complete list of fees the person may charge by law.

FEE BOOK

Section 603.006 of the Government Code requires a Notary Public who charges a fee for notary services to keep a fee book.

An officer who by law may charge a fee for a service shall keep a fee book and shall enter in the book all fees charged for services rendered.

TO ITEMIZE COSTS

Section 603.007 of the Government Code states that a Notary Public must itemize or be prepared to itemize the fees that the notary charges for performing notarial services.

A fee under this chapter is not payable to a person until a clerk or officer produces, or is ready to produce, a bill in writing containing the details of the fee to the person who owes the fee. The bill must be signed by the clerk or officer to whom the fee is due or who charges the fee or by the successor in office or legal representative of the clerk or officer.

FEES

Tex. Gov't. Code Ann. § 406.024 sets out the maximum fees a Notary Public, or their employer, may charge for notary public services. A Notary Public who charges more than the maximum set out below subjects the notary to possible criminal prosecution and suspension or revocation of the notary's notary public commission by the Secretary of State's office.

Notaries Public may charge the following fees:

Protesting a bill or note for non-acceptance or non-payment, register and seal	$ 4.00
Each notice of protest	1.00
Protesting in all other cases	4.00
Certificate and seal to a protest	4.00
Taking the acknowledgment or proof of any deed or other instrument in writing, for registration, including certificate and seal:
(1) for the first signature	6.00
(2) for each additional signature	1.00
Administering an oath or affirmation with certificate and seal	6.00
All certificates under seal not otherwise provided for	6.00
Copies of all records and papers in the Notary Public's office, for each page	.50
Taking the depositions of witnesses, for each 100 words	.50
Swearing a witness to a deposition, certificate, seal, and other business connected with taking the deposition	6.00
All notarial acts not provided for	6.00

QUESTIONS FREQUENTLY ASKED

The following section consists of questions Notaries Public often have about their office. If you have any questions about notarizing a document you should contact the maker of the document, the Notary Public Unit of the Secretary of State's office, or an attorney.

MAY I NOTARIZE MY SPOUSE'S SIGNATURE?
MAY I NOTARIZE FOR MY SPOUSE'S BUSINESS?
MAY I NOTARIZE FOR MY RELATIVES?

The basic rules are: 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, cannot act as a notary public. There is no specific prohibition against a notary public notarizing another spouse's signature or a notary public notarizing for a spouse's business. The facts in each situation will determine whether such action is proper.

MAY I ALTER OR CHANGE THE INSTRUMENT I NOTARIZE?

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. However, a Notary Public may correct the certificate of acknowledgment to reflect the proper facts. For example, if 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 ~~Marion~~ Webb

Before me, (Notary Public's name), a Notary Public, on this day personally ... etc.

MAY I PERFORM NOTARIAL ACTS IN OTHER COUNTIES?

Yes. A notary public has statewide jurisdiction and may perform notarial acts in any county in the state of Texas.
MAY I PERFORM FUNCTIONS OTHER THAN THOSE OUTLINED IN TEX. GOV'T. CODE §406.016 AND MAY I CHARGE FEES IN EXCESS OF THOSE AUTHORIZED IN TEX. GOV'T. CODE § 406.024?

No. A notary public's authority is limited to those acts authorized in §406.016. A Notary Public may not charge more than the prescribed fees for performance of notarial acts.
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 25th day of October, 2001," and the party whose name appears on such instrument appears before the Notary Public on October 27th, 2001, the Notary Public would fill in the acknowledgment with the true and correct date when the signer personally appeared before the Notary Public.
MAY I TAKE AN ACKNOWLEDGMENT OVER THE TELEPHONE?

No. The person whose signature is notarized must personally appear before the notary at the time the notarization is performed.
MAY I CHANGE MY NAME FROM THE NAME SHOWN ON MY NOTARY PUBLIC COMMISSION?

Yes. A Notary Public may change the name on their commission by sending the Secretary of State a name change application, your current certificate of commission, a rider or endorsement from the insurance agency or surety, and a $20.00 filing fee. The above four elements must be sent at the same time. For an instruction sheet, please contact the Notary Public Unit at (512) 463-5705.
MAY I MAKE A CERTIFIED COPY OF A BIRTH CERTIFICATE OR A MARRIAGE LICENSE:

No. Birth certificates and marriage licenses are recordable documents. A recordable document is one that is recorded with some type of entity whether it be the Secretary of State's Office, a court of law, a county clerk, or the Bureau of Vital Statistics. Certified copies may be obtained by contacting such entities.

A non-recordable document is one that has not been nor will ever be recorded with any type of entity. For instance, a letter is not recorded with anyone but there are times the sender of the letter would like to obtain a certified copy of that letter for his or her file.
MAY A NOTARY PUBLIC DETERMINE WHICH TYPE OF NOTARIAL CERTIFICATE SHOULD BE ATTACHED TO A DOCUMENT?

No. A Notary Public who is not an attorney should only complete a notarial certificate which is already on the document or type a certificate of the maker's choosing. If a notary public is brought a document without a certificate and decides which certificate to attach, that notary public would be "practicing law." However, a notary public is provided copies of sample notarial ertificates with his or her notary commission. A person for whom a notarization is performed may choose the notarial certificate, and the notary may add such certificate to the document.
SHOULD A NOTARY PUBLIC RELY ONLY ON A CREDIT CARD IN DETERMINING THE IDENTIFICATION OF A SIGNER?

No. If the signer is not personally known by the Notary Public or identified by a credible witness, the Notary Public must use an identification card issued by a governmental agency or a passport issued by the United States to identify the signer.
IS A NOTARY REQUIRED TO ADMINISTER AN OATH TO A DEPONENT SERVED DEPOSITION UPON WRITTEN QUESTIONS?

Yes. The deposition officer ("notary public") must: record the testimony of the witness under oath in response to the written questions and prepare, certify and deliver the deposition transcript in accordance with Rule 203 of the Texas Rules of Civil Procedure.

PROHIBITED ACTS

THE SECTION BELOW PROVIDES A NOTARY PUBLIC WITH A LIST OF PROHIBITED ACTS THAT A NOTARY PUBLIC MAY NOT DO IN CARRYING OUT THE DUTIES OF THE NOTARY'S OFFICE. IF A NOTARY PUBLIC PERFORMS ANY OF THE FOLLOWING ACTS, THE NOTARY MAY BE SUBJECT TO POSSIBLE CRIMINAL PROSECUTION, CIVIL LIABILITY, AND THE REVOCATION OR SUSPENSION OF THE NOTARY'S NOTARY PUBLIC COMMISSION.

A Notary Public may not:

perform acts, which constitute the practice of law;
prepare, draft, select, or give advice concerning legal documents;
use the phrase "notario" or "notario publico" to advertise notary services;
overcharge for notary public services;
notarize a document without the signer being in the notary's presence;
notarize the notary's own signature;
issue identification cards;
sign a notarial certificate under any other name than the one under which the notary was commissioned; or
certify copies of documents recordable in the public records.

NOTARIAL DEFINITIONS

ACKNOWLEDGMENT: A formal declaration before an authorized official, such as a notary public, by someone who signs a document and confirms that the signature is authentic. Also, the certificate of the officer on such instrument indicating that the document has been so acknowledged.

AFFIDAVIT: A voluntary declaration of facts, written down and sworn to or affirmed by the declarant ("affiant") before a Notary Public or other officer having the authority to administer an oath.

AFFIRMATION: The act of affirming the truth of a document, not an oath. "I solemnly affirm and declare the foregoing to be a true statement..." Note that an affidavit may appear in two forms: a sworn affidavit with oath, or an affirmed affidavit with affirmation. Each has the same legal import.

JURAT: A certification added to an affidavit or document stating when, where and before whom such affidavit was made.

OATH: A solemn declaration, accompanied by a swearing to God or a revered person or thing, that one's statement is true or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken.

PROTEST: A Notary Public's written statement that, upon presentment for payment or acceptance, a negotiable instrument was neither paid nor accepted.

VERIFICATION: A formal declaration by which one swears to or affirms the truth of the statements in a document. Also, the statement of a Notary Public that the person appearing before the notary has been properly identified as being the person purported to be appearing.

SAMPLE FORMS

In the following examples a personalized seal means: 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.

ACKNOWLEDGMENTS

I. Form for Ordinary Certificate of Acknowledgment
State of Texas County of _______________ Before me, (insert the name and character of the officer), on this day personally appeared ____________________, known to me (or proved to me on the oath of ______________ or through (description of identity card or other document)) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this __________ day of __________, (year).
	______________________
	Notary Public's Signature
(Personalized Seal)

II. Short Forms
A. For a natural person acting in his/her own right:
State of Texas County of _______________ This instrument was acknowledged before me on (date) by (name or names of person or persons acknowledging).
	______________________ Notary Public's Signature
(Personalized Seal)

B. For a natural person as principal acting by attorney-in-fact:
State of Texas County of _______________ This instrument was acknowledged before me on (date) by (name of attorney-in-fact) as attorney-in-fact on behalf of (name of principal).
	______________________ Notary Public's Signature
(Personalized Seal)

C. For a partnership acting by one or more partners:
State of Texas County of _______________ This instrument was acknowledged before me on (date) by (name of acknowledging partner or partners), partner(s) on behalf of (name of partnership), a partnership.
	______________________ Notary Public's Signature
(Personalized Seal)

D. For a corporation:
State of Texas County of _______________ This instrument was acknowledged before me on (date) by (name of officer), (title of officer) of (name of corporation acknowledging), a (state of incorporation) corporation, on behalf of said corporation.
	______________________ Notary Public's Signature
(Personalized Seal)

E. For a public officer, trustee, executor, administrator, guardian, or other representative:
State of Texas County of _______________ This instrument was acknowledged before me on (date) by (name of representative) as (title of representative) of (name of entity or person represented)
	______________________ Notary Public's Signature
(Personalized Seal)

F. Form of Certificate for Proof by Witness
State of Texas County of _______________ Before me, (insert the name and character of the officer), 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 purposes 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 __________, (year).
	______________________ Notary Public's Signature
(Personalized Seal)

JURAT
State of Texas County of _______________ Sworn to and subscribed before me on the __________ day of _______________, (year), by (name of signer).
	______________________ Notary Public's Signature
(Personalized Seal)

VERIFICATIONS
Form 1: State of Texas County of _______________ _______________, personally appeared before me, and being first duly sworn declared that he/she signed this application in the capacity designated, if any, and further states that he/she has read the above application and the statements therein contained are true.
	______________________ Notary Public's Signature
(Personalized Seal)

Form 2:

State of Texas
County of _______________

Before me, a notary public, on this day personally appeared _______________, known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements therein contained are true and correct.

______________________
Notary Public's Signature

(Personalized Seal)

OATH OR AFFIRMATION
State of Texas County of _______________ I, (affiant), do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ___________________ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.
	_____________________ Signature of Affiant
Sworn to and subscribed before me by (affiant) on this __________ day of _______________, (year).
	______________________ Notary Public's Signature
(Personalized Seal)

STATEMENT OF OFFICER

I, (affiant), do solemnly swear (or affirm) that I have not directly or indirectly paid, offered, promised to pay, contributed, or promised to contribute any money or thing of value, or promised any public office or employment for the giving or withholding of a vote at the election at which I was elected or as a reward to secure my appointment or confirmation, whichever the case may be, so help me God.

UNDER PENALTIES OF PERJURY, I DECLARE THAT I HAVE READ THE FOREGOING STATEMENT AND THAT THE FACTS STATED THEREIN ARE TRUE.

_____________________
Date

_____________________
Affiant's Signature

DEPOSITION

Certificate to Deposition Upon Written Questions

State of Texas
County of _______________

(Plaintiff)
v.
(Defendant)

)
)
)

In the __________ Court
of __________ County, Texas
Cause No. __________

I hereby certify that the foregoing answers of __________, the witness forenamed, were signed and sworn to before me on (date), by said witness.

______________________
Notary Public's Signature

(Personalized Seal)

PROTESTS
(Insert bill or note or copy thereof) United States of America State of Texas County of _______________ Be it known that on the __________ day of __________, (year), at the request of (name), of __________, I, (Notary Public's name), a Notary Public duly commissioned and sworn, residing in __________ County, Texas, did present the original (instrument), hereto attached, for $__________, with accrued interest thereon of $__________, dated __________, and demanded payment (or acceptance) thereof, which was refused. Whereupon I, at the request of the aforesaid __________, did protest, and by these presents do protest, as well against the drawer, maker, endorsers, and acceptors of said instruments as against all others whom it may concern, for exchange, costs, charges, damages, and interest already incurred and hereinafter to be incurred by reason of non-payment thereof. I further certify that on (date), notice in writing of the foregoing presentment, demand, refusal and protest was given by (persons and status) by depositing notices thereof in the post office at __________, Texas, postage paid, directed as follows: ____________________. I further certify that notices were left as follows: Notice left for _______________ at _______________ Notice left for _______________ at _______________ Each of the named places the reputed place of residence of the person for whom the notice was left. In testimony whereof I have hereunto set my hand and affixed my seal of office at __________, Texas, on __________ day of __________, (year).
	______________________ Notary Public's Signature
(Personalized Seal)
(List fees and expenses to include postage)

CERTIFIED COPY OF A NON-RECORDABLE DOCUMENT
State of Texas County of _______________ On this __________ day of __________, (year), I certify that the preceding or attached document, and the duplicate retained by me as a notarial record, are true, exact, complete, and unaltered photocopies made by me of (description of document), presented to me by the document's custodian, _______________, (*held in my custody as a notarial record) and that, to the best of my knowledge, the photocopied document is neither a public record nor a publicly recordable document, certified copies of which are available from an official source other than a notary.
	______________________ Notary Public's Signature
(Personalized Seal)
*This phrase would be inserted and the proceeding phrase, "presented to me by the document's custodian", would be deleted in the event a person was requesting a certified copy of the Notary Public's journal.