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A notary public is a public servant and an officer of the state.
Each notary public takes an oath of office to faithfully perform the duties of the office.
To insure such performance, each notary public is required to secure a bond in the amount of $10,000.
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Duties of a Notary Public
The primary duty of a notary public is to serve as a disinterested party in authenticating the acts of a signing party. Therefore, a notary should not:
Have a personal interest in the transaction.
Notarize a document in which the notary has a financial or beneficial interest.
Notarize his or her own signature.
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Notary Seal
Each notary public must have a seal that meets the requirements of Section 406.013 of the Government Code.
Must include the words “Notary Public, State of Texas” around a five-point star, the notary public’s name, and the expiration date of the notary public’s commission.
All seals must have a serrated or milled edge border.
A notary public has a duty to safeguard the notary seal by keeping it in a secure place and preventing its use by others.
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Notary Seal
A notary must authenticate all official acts with the seal of office.
The seal must be affixed by a seal press or stamp.
When embossed or printed, the required elements of the seal must be capable of being legibly reproduced under photographic methods.
Permanent ink must be used when using a stamp to affix the seal.
Electronic seals are permitted as long as they reproduce the required elements.
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Jurisdiction of a Notary
A Texas notary public has statewide jurisdiction and may perform notarial acts in any county in the state of Texas.
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Authority of a Notary
A notary public has the same authority as a county clerk to:
take acknowledgments or proofs of written instruments;
protest instruments permitted by law to be protested;
administer oaths;
certify copies of documents not recordable in the public records.
Official Acts that a Notary May Perform
The following definitions are provided to enhance understanding of the transactions a notary public may be requested to perform.
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.
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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.
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Name and Address Requirements
Address: A notary is required to notify the Secretary of State within 10 days of the date on which the change is made.
A notary must always sign a notarial certificate under the name in which the notary was commissioned.
Information on changing a name and/or address is available on the Secretary of State’s website.
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Checklist for Performing a Notarization
A - the signer must personally APPEAR before the notary at the time of the notarization
V - the notary must VERIFY the signer’s identity
E - the notary must EXECUTE a true and correct notarial certificate and affix the notarial seal to the certificate.
R - the notary must RECORD the notarization in a notary record book (or electronically)
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A - the signer must personally APPEAR before the notary at the time of the notarization
These are NOT personal appearance:
Faxes
Telephone
Employer’s assertion
Acceptable methods of verifying identity:
Personal knowledge
Credible Witness
Government ID with photo and signature
For residential real estate transactions only, a current passport issued by a foreign country.
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State of Texas
County of _______________
This instrument was acknowledged before me on January 23, 2012 by John Seller and Jane Buyer.
Ned Notary
State of Texas
County of _______________
Sworn to and subscribed before me on the 11th day of May, 2012, by Joe Smith.
Nancy Notary
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R - For every notarial act, the notary must RECORD the following:
the date of each instrument notarized;
the date of the notarization;
the name of the signer, grantor, or maker;
the signer's, grantor's, or maker's residence or alleged residence;
the method of identifying the signer, grantor, or maker (personally known by the notary public, identified by an identification card, or introduced to the notary public and, if introduced, the name and residence or alleged residence of the individual introducing the signer, grantor, or maker);
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;
the name and residence of the grantee;
if land is conveyed or charged by the instrument, the name of the original grantee and the county where the land is located; and
a brief description of the instrument.
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Notary Records
Chapter 87, Subchapter E of administrative rules; Section 406.014, Tex. Gov’t Code.
A notary is required to maintain a notary record book and to record all notarizations, regardless of whether performed as part of the notary’s work duties or whether a fee is charged.
A notary is also required to keep maintain, as a notary record, the commission issued by the Secretary of State, including executed oath of office.
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Notaries must refrain from recording personal information.
Upon payment of all fees, a certified copy of the notary’s record book must be provided to anyone requesting it.
Best practice is for notaries to make their books accessible for viewing, upon request.
Failure to respond to a request for public information may subject a notary to disciplinary action by the Secretary of State.
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The following information may, but is not required to be, recorded:
signer’s signature
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Thumbprints
Fingerprints
Blood
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Drivers license number
Social security number
Identification card number
If any prohibited information is already included in a notary’s record book, the notary should redact the information before providing copies of the book or permitting another person to view the book.
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Form and Retention of Notary Records
Notary record books can be maintained either in a physical journal or electronically.
Retention: Pursuant to Rule 87.44, “[a] notary shall maintain, in a safe and secure manner, copies of the records of notarization performed for the longer of the term of the commission in which the notarization occurred or three years following the date of notarization.”
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Signing a Document for an Individual with a Disability
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 the disabled individual; and
in the presence of a witness who has no legal or equitable interest in the transaction.
In this situation, a notary must include the following beneath the signature for the individual:
“Signature affixed by notary in the presence of (name of witness), a disinterested witness, under section 406.0165, Government Code.”
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Fees
The maximum fees that may be charged for a notarization are set forth in Section 406.024 of the Texas Government Code.
A notary must keep posted at all times in a conspicuous place in the notary’s office a complete list of the fees that may be charged by law for notarial services.
Best Practice –
If fees are collected, a notary should keep a fee book in which all fees charged are entered. This fee book can be the same book as the notary record book.
Upon request, a notary should produce a signed bill that itemizes the fees charged for performing notarial services.
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Prohibited Acts
A notary that engages in any of the following activities is subject to disciplinary action by the Secretary of State, in addition to possible criminal prosecution and civil liability.
A notary public may not:
perform acts which constitute the practice of law, including preparing, drafting, selecting, or giving 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;
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issue identification cards;
sign a notarial certificate under any other name than the one under which the notary was commissioned;
certify copies of documents recordable in the public records; or
record personal information in the notary’s record book.
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Consequences for breach of duty
Notaries public are personally liable for negligence or fraud in the performance of the duties of the office. Consequences for the breach of official duty include:
Claim against bond
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Includes, but is not limited to, the following:
Informal reprimand
Educational Review
Jurisdiction of Secretary of State on Notary Complaints
Complaints are accepted from persons who are harmed. Additionally, the Secretary of State, may, in its discretion initiate its own complaint against a notary. The Office is limited to taking disciplinary action against the current commission of a notary public.
Office cannot impose restitution or fines
Office cannot rule on documents’ validity
Office cannot prosecute for crimes
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Resources
The Secretary of State website (www.sos.state.tx.us) has many great resources for notaries, including an educational interactive video, FAQs, and an electronic copy of educational materials that are provided with a notary’s commission.
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Comments regarding this presentation or requests to reproduce should be submitted to:
Notary Public Unit
P.O. Box 13375
Austin, TX 78711-3375
© 2013 Office of the Secretary of State of Texas
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