Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 14, 2011
The Honorable Hope Andrade Opinion No. GA-0886
Texas Secretary of State
Post Office Box 12697 Re: Whether chapter 603, Texas Government Code,
Austin, Texas 78711-2697 is applicable to notaries public (RQ-0968-GA)
Dear Secretary Andrade:
You explain that chapter 406 of the Texas Government Code imposes duties on notaries
public and that chapter 603 of the Government Code imposes some duties on "officers" that chapter
406 does not impose on notaries. 1 You reason that notaries would have the duties that chapter 603
imposes on officers if notaries were officers under chapter 603. Id.
You ask four questions about this. Id. at 2-3. Your first question is whether a notary is an
"officer" under chapter 603. Id. at 2. No statute defines the term "officer" in the particular sense
it is used in chapter 603. See generally TEX. GOv'T CODE ANN. §§ 603.001-.010 (West 2004). Cf
id. § 651.001 (providing that, "[i]n any state statute, 'officer' means an officer of this state unless
otherwise expressly provided"). Texas courts give undefined statutory terms their ordinary meaning
unless a more precise one is apparent from the context of other legal provisions. In re Hall, 286
S.W.3d 925,928-29 (Tex. 2009) (using a dictionary to define a term). The ordinary meaning ofthe
word "officer" is "[o]ne who holds a public, civil, or ecclesiastical office." X OXFORD ENGLISH
DICTIONARY 732 (2d ed. 1989). Texas courts have held that "'the determining factor which
distinguishes a public officer from an employee is whether any sovereign function of the government
is conferred upon the individual to be exercised by him for the benefit of the public largely
independent of the control of others. '" Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583
(Tex. 1955).
We have neither found, nor has any brief submitted to us in the matter purported to find, a
legal opinion that has held that notaries perform a sovereign function for the public largely
independently of the control of others. Indeed, the United State Supreme Court has called the duties
of Texas notaries public "essentially clerical and ministerial," stating that notaries do not have
"broad discretion in the execution of public policy that requires the routine exercise of authority over
ILetter from Honorable Hope Andrade, Texas Secretary of State, to Honorable Greg Abbott, Texas Attorney
General at 1-3 (May 3, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml (Request Letter).
The Honorable Hope Andrade - Page 2 (GA-0886)
individuals." Bernal v. Fainter, 467 U.S. 216, 225-26 (1984) (construing the predecessor statute
to chapter 406). See also TEX. GOy'TCODEANN. § 406.016(a) (West 2005) (providing that notaries
may, among other, similar tasks, "take acknowledgments or proofs of written instruments; protest
instruments permitted by law to be protested; administer oaths; take depositions; and certify copies
of documents not recordable in the public records").
However, other legal authorities indicate that a notary may in some sense be considered an
officer. Article XVI, section 40 of the Texas Constitution implies that a notary holds a "civil office
of emolument" and "an office or position of profit under this State." TEX. CONST. art. XVI, § 40(a),
(d). Similarly, subsection 406.005(b) of the Government Code requires notaries to take the oath of
office that all officers take. TEX. GOy'TCODEANN. § 406.005(b) (West 2005). And Texas courts
have stated in passing, without discussing the issue, that a notary is an officer. See, e.g., Stallings
v. State, 252 S.W.2d 939,939 (Tex. Crim. App. 1952); Lawyers Sur. Corp. v. Gulf Coast Inv. Corp.,
410 S.W.2d 654,657 (Tex. Civ. App.-Tyler), writ ref'd n.r.e. 416 S.W.2d 779 (Tex. 1967). This
office has also concluded that a notary is an officer for some purposes. See, e.g., Tex. Att'y Gen.
Op. Nos. GA-0723 (2009) at 1, 0-4940 (1942) at 2.
Chapter 603 offers little guidance on this issue. Section 603.006 provides that 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." TEX. GOy'TCODEANN. § 603.006 (West 2004). This requirement
might be read to apply to notaries, or it might, as you suggest, be read to distinguish notaries from
officers. Request Letter at 2. Similarly, when section 603.008 provides that a "county judge, clerk
of a district or county court, sheriff, justice of the peace, constable, or notary public shall" post a list
of fees, it might or might not indicate that a notary is an officer like the others listed. TEX. GOy'T
CODE ANN. § 603.008 (West 2004). And when section 603.010 refers to an "officer named in this
chapter," it might suggest that a notary-a person named in the chapter-is an officer, or it might
distinguish an officer named in the chapter from a non-officer named in the chapter. Id. § 603.010.
Thus, some authorities that discuss notaries and state officers indicate that notaries are not
officers, others indicate that notaries are officers, and others indicate very little, if anything, about
the issue. Furthermore, no Texas constitutional provision, statute, or appellate court decision has
directly addressed whether a notary public is an officer for purposes of chapter 603. Accordingly,
we cannot definitively determine whether or not notaries are officers under chapter 603 of the Texas
Government Code.
We do not answer your other questions because they are premised on a conclusion that
notaries are officers under chapter 603, and we do not reach such a conclusion here. See Request
Letter at 2-3.
The Honorable Hope Andrade - Page 3 (GA-0886)
SUMMARY
Some legal authorities suggest that a notary public is a state
officer, and others suggest that a notary public is not a state officer.
Accordingly, we cannot definitively determine whether a notary is a
state officer.
Ver trulYYOur~
il('
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Jason Boatright
Assistant Attorney General, Opinion Committee