Untitled Texas Attorney General Opinion ( 1987 )

Navember 23, 1987
Honorable Mike Driscoll Opinion No. JM-825
Harris County Attorney
1001 Preston, Suite 634 Re: Authority of a clerk
Houston, Texas 77002 to accept for filing an
assumed name certificate
written in a foreign
language (RQ-1069)
Dear Mr. Driscoll:
You ask whether a county clerk may file a document
whose acknowledgment is written in a foreign language and
which is authenticated with an "apostille." Specifically,
you ask about an assumed business or professional name
certificate to be filed in accordance with section 36.10
of the Business and Commerce Code. Subsection (b) ;z
section 36.10 requires that such certificates
acknowledged:
A certificate filed under Subsection (a)
of this section shall be executed and
acknowledged by each individual whose name
is required to be stated therein or by his
representative or attorney in fact, and in
the case of any person not an individual the
name of which is required to be stated
therein, the certificate shall be executed
and acknowledged under oath on behalf of
such person by its representative or
attorney in fact or by a joint venturer,
general partner, trustee manager, officer,
or anyone having comparable authority, as
the case may be, of such person. Any
certificate executed and acknowledged by an
attorney in fact shall include a statement
that such attorney in fact has been duly
authorized in writing by his principal to
execute and acknowledge the same.
Tex. Bus. & Comm. Code 536.10(b).
p. 3932
Honorable Mike Driscoll - Page 2 (m-825)
Chapter 121 of the Civil Practices and Remedies Code
governs acknowledgments. Section 121.001 of the code
lists the persons who are qualified to take
acknowledgments in Texas as well as the persons who are
qualified to take acknowledgments in other parts of the
United States and outside the United States. See also
Tex. Civ. Prac. & Rem. Code 5121.004 (method of taking
acknowledgment): 5121.005 (proof of identity of
acknowledging person).
Section 121.007 provides a form for acknowledgments
and states that the form of an ordinary certificate of
acknowledgment must be substantially in the form of the
example provided. Section 121.008 sets out five short
forms of acknowledgment that may be used. All the
examples set out in sections 121.007 and 121.008 are in
English. Although section 121.006 provides that the forms
set out in chapter 121 "may be altered as circumstances
reguire," we think that provision contemplates changes in
the text of the form rather than changes in the language
of the form. See Belbaze V. Ratto, 7 S.W. 501 (Tex.
1888). Furthermore, an assumed name certificate must be
filed with a county clerk, who is entitled to examine the
certificate to make certain that the instrument is not
defective on its face. Attorney General Opinion ME-263
(1980). The clerk may refuse to accept an assumed name
certificate if it does not bear an acknowledgment. &
L A clerk could not make such a determination if an
acknowledgment could be written in any one of the world's
languages. See u erallv Educ. Code §21.109 (English is
basic language ofe;nstruction in all schools) : Code Crim.
Proc. art. 19.01 (jurors must be able to read and write
English): Elec. Code 561.031 (officer may not use language
other than English unless voter cannot speak English, in
which case voter and officer may speak in common
language): Agric. Code 561.004 (seeds sold in Texas must
be labeled in English). Therefore, to comply with the
requirements of section 36.10(b) of the Business and
Commerce Code, an acknowledgment must be written in
English.
You also ask whether an acknowledgment may be in a
language other than English if the document is
authenticated with an llapostille.t' S.ee Hague Convention
on Abolishing the Requirement of Legalization for Foreign
Public Documents, oDened for sianature October 5, 1961,
entered into force for the United States, October 15,
1981, 527 U.S.T. 189, T.I.A.S. No. 10072. That treaty
provides in part:
p. 3933
Honorable Mike Driscoll - Page 3 (JW825)
The States signatory to the present
Convention,
Desiring to abolish the requirement of
diplomatic or consular legalization for
foreign public documents,
Have resolved to conclude a Convention to
this effect and have agreed upon the
following provisions:
Article 1
The present Convention shall apply to
public documents which have been executed in
the territory of one contracting State and
which have to be produced in the territory
of another contracting State.
For the purposes of the present
Convention, the following are deemed to be
public documents:
(a) documents emanating from an
authority or an official connected with
the courts or tribunals of the State,
including those emanating from a public
prosecutor, a clerk of a court or a
process server ("huissier de justice"):
(b) administrative documents;
(c) notarial acts;
(d) official certificates which are
placed on documents signed by persons in
their private capacity, such as official
certificates recording the registration
of a document or the fact that it was in
existence on a certain date and official
and notarial authentications of
signatures.
However, the present Convention shall not
apply:
(a) to documents executed by
diplomatic or consular agents;
p. 3934
Honorable Mike Driscoll - Page 4 W-825)
(b) to administrative documents
dealina directlv with commercial or
customs operations.
Article 2
Each contracting State shall exempt from
legalisation documents to which the present
Convention applies and which have to be
produced in its territory. For the purposes
of the present. Convention,
- _a_ . leaalisation
_._ .
mans onlv tne formalltv bv wnicn tne
dinlomatic or consular aaents of the countrv
An which the document has to be nroduced
c rtifv th authenticitv of the sianature.
t:e canaci& in which the oerson sianins the
document has acted and. where aunronriate,
the identitv of the seal or stamu which it
bears.
Article 3
The only formality that may be required
in order to certify the authenticity of the
signature, the capacity in which the person
signing the document has acted and, where
appropriate, the identity of the seal or
stamp which it bears, is the addition of the
certificate described in Article 4, issued
by the competent authority of the State from
which the document emanates.
However, the formality mentioned in the
preceding paragraph cannot be required when
either the laws, regulations, or practice in
force in the State where the document is
produced or an agreement between two or more
contracting States have abolished
simplified it, or exempt the document itseyi
from legalization.
Article 4
The certificate referred to in the first
paragraph of Article 3 shall be placed on
the document itself or on an 'allonge'; it
shall be in the form of the model annexed to
the present Convention.
p. 3935
Honorable Mike Driscoll - Page 5 (m-825)
It may, however, be drawn up in the
official language of the authority which
issues it. The standard terms appearing
therein may be in a second language also.
The title 'Apostille (Convention de La Haye
du 5 octobre 1961)' shall be in the French
language.
Article 5
The certificate shall be issued at the
request of the person who has signed the
document or of any bearer.
When properly filled in, it will certify
the authenticity of the signature, the
capacity in which the person signing the
document has acted and, where appropriate,
the identity of the seal or stamp which the
document bears.
The signature, seal and stamp on the
C
certificate are exempt from all
certification. (Emphasis added.)
XSI. arts. 1-5.
That treaty applies to 8*legalisationV0 of public
documents. The treaty defines **legalisation18 to mean
"only the formality by which the diplomatic or consular
agents of the country in which the document has to be
produced certify the authenticity of the signature, the
capacity in which the person signing the document has
acted and, where appropriate, the identity of the seal or
stamp which it bears." An example of such a requirement
in federal law is Rule 44(a)(2) of the Federal Rules of
Civil Procedure, which deals with authentication of
foreign documents:
A foreign official record, or an entry
therein, when admissible for any purpose,
may be evidenced by an official publication
thereof; or a copy thereof, attested by a
person authorized to make the attestation,
P and accompanied by a final certification as
to the genuineness of the signature and
official position (i) of the attesting
person, or (ii) of any foreign official
- whose certificate of genuineness of
p. 3936
Honorable Mike Driscoll - Page 6 (JM-825)
-,
signature and official position relates to
the attestation or is in a chain of
certificates of genuineness of signature and
official position relating to the
attestation. A final certification mav be
made bv a secretarv of embassv or leoation,
consul aeneral. consul. vice consul. or
consular auent of the United . States.
. or a
aomatlc or consul ar offiaal of the
foreiun countrv assianed or accredited to
the United States. If reasonable
opportunity has been given to all parties to
investigate the authenticity and accuracy of
the documents, the court may, for good cause
shown, (i) admit an attested copy without
final certification or (ii) permit the
foreign official record to be evidenced by
an attested summary with or without a final
certification. (Emphasis added.)
Neither chapter 121 of the Civil Practice and Remedies
Code nor section 36.10(b) of the Business and Commerce
Code makes an acknowledgment a formality that & be
performed by a consular agent of the United States in
order for a document to be produced in Texas. Rather, it
is a formality that is necessary on certain documents and
map be performed outside the United States by a consular
officer as well as by a number of other authorized
persons. Civ. Prac. and Rem. Code 5121.001(c).
Consequently, we conclude that the Hague Convention on
Abolishing the Requirement of Legalization for Foreign
Public Documents is inapplicable to an acknowledgment
required by section 36.10 of the Texas Business & Commerce
Code. &g Estate of McDaott, 447 N.Y.S.2d 107 (N.Y.
Sur. Ct. 1982) (Hague Convention supersedes New York law
governing authentication of birth, death, and marriage
certificates from United Kingdom for production in probate
matter). See also Acts 1987, 70th Deg., ch. 891, 52, at
5999 (adopting apostille by reference to Hague Convention
for use in recording certain documents dealing with real
or personal property).
p. 3937
Honorable Mike Driscoll - Page 7 (m-825)
SUMMARX
An acknowledgment on an assumed name
certificate filed pursuant to section 36.10
of the Business & Commerce Code must be
written in English.
JIM MATTOX
Attorney General of Texas
WARYKELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLBY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 3938