Untitled Texas Attorney General Opinion ( 1974 )

The Honorable Joe Resweber Opinion No. H- 481
County Attorney
Harris County Courthouse Re: Whether person not a
Houston, Texas 77002 citizen of the United States
may be appointed notary
public in Texas.
Dear Mr. Resweber:
You have submitted to us the following question:
Whether the application of a person not a
citizen of the United States for appointment as
a notary public can be processed by the county
clerk.
Both Article 4, Section 26 of the Texas Constitution and Article
5949 of the Revised Civil Statutes place upon the Secretary of State the
responsibility of appointing notaries public. However, Section 3 of
Article 5949, calls for the application of a person desiring such an
appointment to be filed with the county clerk who is directed to send
the names of applicants to the Secretary of State “certifying that
according to the information furnished him, such person is eligible
for appointment as Notary Public for such county . . . . ” Undoubtedly
it is this provision that prompted the inquiry by your county clerk.
The Constitution sets out no qualifications for notaries public.
Rather it calis ,for qualifications to be prescribed by law. Prior to
1945, the qual.ifications were found in Article 5949 as:
To be eligible for appointment as Notary
Public for any county, a person shall be at
least twenty-one (21) years of age, and a
resident of the county for which he is appointed . . . .
ps 2181
. .-
The Honorable Joe Resweber page 2 (H-481)
In Attorney General Opinion No. O-6504 (1945) it was concluded
that a person Who was neither a citizen of the United States nor of the
State of Texas was qualified to be appointed notary public if he met the
other statutory requirements.
This opinion prompted the immediate amendment of Article 5949
so that it read:
To be eligible for appointment as Notary
Public for any county, a person shall be a
citizen of this State and at least twenty-one
(21) years of age . . . .
Section 2 of the amending Act (Acts 1945, 49th Leg., ch. 373,
p. 674) is in part:
The fact that the present law does not require
a Notary Public to be a citizen of Texas creates
an emergency and imperative public necessity . . . .
The exact nature of Texas citizenship vis-a-tie United States
citizenship seems unclear. That there is a state citizenship distinct
from federal citizenship seems well-established. Slaughter-House
Cx, 83 U.S. 402 (1873); United States v. Cruikshank, 92 U. S. 542,
(1875). And see Constitution of Texas, Article 5, Sections 2 and 7
requiring, respectively, that Supreme Court justices and judges of
district courts be citizens of the United States “and of this State.”
Perhaps the best definition of state citizenship is found in the
opening words of Section 1 of the Fourteenth Amendment to the Constitu-
tion of the United States:
All persons borncr naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
where they reside . . . .
p. 2182
. . -
The Honorable Joe Resweber page 3 (H-481)
We take, as a definition of “citizen of this State” as used in Article
5949, then, that the person be a citizen of the United States and a resident
of Texas. Under this interpretation an alien would not be eligible to be
appointed a notary public, and we would answer your question in the
negative.
SUMMARY
Under the provisions of Article 5949, V. T. C. S.,
an alien may not be appointed a notary public in the
State of Texas.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH. Chairman
Opinion Committee
p. 2183