Untitled Texas Attorney General Opinion ( 2009 )

GREG ABBOTT
July 23,2009
The Honorable Hope Andrade Opinion No. GA-0733
Texas Secretary of State
Post Office Box 12697 Re: Effect of a final conviction for a felony or
Austin, Texas 787 11-2697 misdemeanor crime involving moral turpitude on
a notary public's application or commission
(RQ-0785-GA)
Dear Secretary Andrade:
Your office writes seeking our opinion on questions that arise under Government Code,
chapter 406, the Notary Public Act (the "~ct").' Your office indicates that the questions stem in
particular from sections 406.004 and 406.009 of the Act.2 See Request Letter at 1.
Section 406.004 provides that "[elach person appointed and commissioned as anotary public
. . . must not have been convicted of a felony or crime involving moral t~rpitude."~TEX.GOV'T
CODEANN.tj 406.004 (Vernon 2005). Subsection 406.009(a) provides that the "secretary of state
may, for good cause, reject an application or suspend or revoke the commission of a notary public."
Id. tj 406.009(a). The term "good cause" is defined to include a list of items, one of which is "a final
conviction for a crime involving moral turpitude," but it does not expressly include a conviction for
a felony. Id. tj 406.009(d)(l).
The letter from your office discusses the impact of a 1995 amendment on chapter 406.
Request Letter at 1-2; see Act of May 24,1995,74th Leg., R.S., ch. 719,1995 Tex. Gen. Laws 3807.
'See Request Letter (available at http://www.texasattorneygeneral.gov).
'Because you ask about only sections 406.004 and 406.009, we limit our opinion to these two sections and do
not address other statutory provisions that may impose consequences for convictions.
3The statutes do not define the term "crime involving moral turpitude." An administrative rule provides that
a "crime involving moral turpitude means the commission of a crime mala in se (an offense that is evil or wrong fi-om
its own nature or by natural law irrespective of statute)," which may include, but is not limited to, Class A and B
misdemeanors and felonies. 1 TEX.ADMIN.CODE§ 87.43(b) (2009); cJ In re Lock, 54 S.W.3d 305, 308 (Tex. 2001)
(observing that, in the context of attorney discipline "crimes of moral turpitude must involve dishonesty, fi-aud, deceit,
misrepresentation, or deliberate violence, or must reflect adversely on an attorney's honesty, trustworthiness, or fitness
as an attorney").
The Honorable Hope Andrade - Page 2 (GA-0733)
Prior to the amendment, section 406.004, pertaining to eligibility, required only that a person be of
the specified age and a Texas resident. See Act of May 2 1,1987,70th Leg., R.S ., ch. 147, $1,1987
Tex. Gen. Laws 316, 366. At that time, section 406.005 required an applicant to swear in the
application that the person had not been convicted of a crime of moral turpitude, but chapter 406 did
not require a similar statement as to convictions for felonies. See id. $ 1 at 366-67. The 1995
enactment repealed the section 406.005 requirement of a sworn statement about a conviction of a
crime involving moral turpitude. See Act of May 24,1995,74th Leg., R.S., ch. 719, $ 2, 1995 Tex.
Gen. Laws 3807, 3807. It also amended section 406.004 to provide that to be eligible for an
appointment and commission as a notary public, a person "must not have been convicted of a felony
or crime involving moral turpitude." Id. 5 1 at 3807. The 1995 amendment, however, did not amend
the definition of "good cause" in section 406.009 to include any express reference to conviction of
a felony. See id. $ 5 at 3808.
Your office tells us that since the Act's inception, the Secretary of State's office has
considered the requirement of a sworn statement regarding crimes of moral turpitude as a procedural
one and exercised the discretion in subsection 406.009(a) so that "[als a result, some applicants with
convictions for crimes involving moral turpitude have been commissioned as notaries public.''
Request Letter at 1. Your office also tells us that, though the 1995 legislation repealed the
requirement of a sworn statement regarding convictions of crimes of moral turpitude and changed
the eligibility section to require that a person not have been convicted of a crime involving moral
turpitude, the Secretary of State continued to exercise discretion under subsection 406.009(a) to
commission some applicants who had been convicted of crimes involving moral turpitude. Id.
Further, your office informs us that the Secretary of State's treatment of applications from a person
with a felony conviction is much different. See id. Because the 1995 amendment did not add felony
convictions to the definition of "good cause" in subsection 406.009(d)(l), the Secretaryof State "has
interpreted the Act to absolutely bar felons from commission as notaries and to require the Secretary
of State to institute revocation proceedings upon discovery that a commissioned notary has been
convicted of a felony." Id. Your office notes further that the "language of [slection 406.004 does
not support this disparate treatment, but [subslection 406.009(d)(l) and longstanding . . . practice
do." Id. at 2.
Within this context, your office asks several questions about these provisions. See id.
Specifically, you ask whether "an applicant's conviction for a felony [or a misdemeanor involving
moral turpitude] preclude[s] the secretary of state from commissioning the applicant as a notary
public" and whether "an applicant's conviction for a felony [or a misdemeanor involving moral
turpitude] require[s] the secretary of state to institute commission revocation proceedings[.]" Id.
These questions require us to construe section 406.004 and subsection 406.009(a). As we parse
subsection 406.009(a), we consider it first as it pertains to the rejection of an application, and second
as it pertains to the suspension or revocation of a commission.
The cardinal rule of statutory construction is to ascertain the Legislature's intent. Leland v.
Brandal, 257 S.W.3d 204,206 (Tex. 2008). The best indicator of that intent is the language of the
statute as determined by the plain and common meaning of the words of the statute. Id. (quoting
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999)); see also
The Honorable Hope Andrade - Page 3 (GA-0733)
Albertson 's, Inc. v. Sinclair, 984 S.W.2d 958,960 (Tex. 1999). When two statutes are in apparent
conflict, courts seek to harmonize them so that all provisions are fully effective. State v. Jackson,
370 S.W.2d 797,800 (Tex. Civ. App.-Houston 1963), aff'd, 376 S.W.2d 34 1 (Tex. 1964). In the
event of a direct and irreconcilable conflict, however, the later expression of legislative intent
controls, and the later statute will be held to have repealed the earlier statute. See id. ("The law is
well settled that it is only when two statutes are directly and irreconcilably in conflict that the latter
repeals the former."). With these rules to guide us, we consider provisions in sections 406.004 and
406.009. Section 406.004 expressly provides that aperson "appointed and commissioned as a notary
public. . . must not have been convicted of a felony or a crime involving moral turpitude." TEX.
GOV'TCODEANN. Cj 406.004 (Vernon 2005) (emphasis added). The term "must" is generally
"recognized as mandatory, creating a duty or obligation." Helena Chem. Co. v. Wilkins, 47 S.W.3d
486,493 (Tex. 2001). Absent any indication that "must" in section 406.004 is intended to have a
construction here that is different from its typical mandatory construction, section 406.004 expressly
requires that the person not have been convicted of a felony or crime involving moral turpitude
before a person may be appointed and commissioned as a notary public. Thus, with respect to your
question concerning the Secretary of State's authority to commission as a notary an applicant with
a felony conviction, we conclude that section 406.004 by its terms precludes the Secretary of State
from commissioning such an applicant.
Your question concerning the Secretary of State's authority to commission an applicant with
a conviction of a crime involving moral turpitude requires us to consider and construe section
406.009. Subsection 406.009(a) gives the Secretary of State discretion to "reject an application" for
good cause, which includes a "final conviction for a crime involving moral turpitude." TEX.GOV'T
CODE ANN. Cj 406.009(a), (d)(l) (Vernon 2005); see also id. 5 31 1.016(1) ("'May' creates
discretionary authority or grants permission or apower."). It follows then that subsection 406.009(a)
does not by its plain language require the Secretary of State to reject an applicant with a conviction
of a crime involving moral turpitude. Under section 406.004, however, a person convicted of a
crime involving moral turpitude would not be eligible to be commissioned as notary. The discretion
provided in subsection 406.009(a) cannot be harmonized with the absolute prohibition in section
406.004. To the contrary, any discretion the Secretary of State may have under subsection 406.009(a)
to not "reject an application" of an applicant who has been convicted of a crime involving moral
turpitude directly and irreconcilably conflicts with the requirement that a person with such a
conviction is not eligible to be appointed and commissioned as a notary public.
Having found that section 406.009(a), as it pertains to the rejection of an application based
on the conviction of a crime involving moral turpitude, directly and irreconcilably conflicts with
subsection 406.004, we look to the dates of enactment. See id. Cj 3 11.025(a). Subsection 406.009(a),
giving the Secretary of State discretion to reject an application that indicates a conviction of a crime
involving moral turpitude, was codified in 1987. See Act of May 21,1987,70th Leg., R.S., ch. 147,
Cj 1, 1987 Tex. Gen. Laws 316, 367-68. The amendment to section 406.004 that made it an
eligibility requirement not to have been convicted of a crime involving moral turpitude was enacted
in 1995. See Act of May 24, 1995,74th Leg., R.S., ch. 7 19, Cj 1, 1995 Tex. Gen. Laws 3807,3807.
Because section 406.004 is the later-enacted statute, it prevails over subsection 406.009(a) with
respect to the Secretary of State's authority to reject applications for those convicted of crimes
The 'Honorable Hope Andrade - Page 4 (GA-0733)
involving moral turpitude. Accordingly, we conclude that section 406.004 precludes the Secretary
of State from appointing and commissioning as a notary public an applicant with a conviction of a
crime involving moral turpitude.
We next consider your query about whether a conviction for a felony or a crime involving
moral turpitude requires the Secretary of State to institute commission revocation proceedingsq4As
we noted before, subsection 406.009(a) by use of the permissive term "may" thereby gives the
Secretary of State discretion regarding the suspension and revocation of the commission of a notary
public. See TEX.GOV'TCODEANN.8 406.009(a) (Vernon 2005). We see no indication in chapter
406 that "may" here is intended to be mandatory and thus construe it as a grant of discretion.
Further, "good cause" is defined in subsection 406.009(d) to include a specified list of reasons. Id.
5 406.009(d)(l)-(6). The term "include" is a "term of enlargement" that does not limit a series of
terms to only the terms listed, and "does not create apresumption that components not expressed are
excluded." Id. 5 3 11.005(13). By the plain language of subsection 406.009(d)(l), a conviction for
a crime involving moral turpitude constitutes good cause. Because the list is not exclusive, a
conviction of a felony could also constitute good cause. CJ: Jackson Law OfJice v. Chappell, 37
S.W.3d 15, 25-26 (Tex. App.-Tyler 2000, pet. denied) (stating that a statutory list following the
term includes or including is "for purposes of illustration"). On its face then, subsection 406.009(a),
as it pertains to the suspension and revocation of commissions, authorizes, but does not require, the
Secretary of State to initiate commission revocation proceedings against a commissioned notary
public for good cause, which includes convictions for a crime involving moral turpitude and could
include convictions for felonies. Accordingly, we conclude that the Secretary of State may, but is
not required to, initiate commission revocation proceedings against a notary public on the basis of
a conviction of a felony or a crime involving moral turpitude.
4Your office phrases this question in terms of "commission revocation" proceedings due to an "applicant's"
conviction. See Request Letter at 2. We presume for the purposes of this opinion that the proceeding about which you
ask is one to revoke the commission of a person who is already a notary public. As such, our discussion considers the
question with respect to a notary public that currently holds a commission.
The Honorable Hope Andrade - Page 5 (GA-0733)
S U M M A R Y
The Secretary of State is precluded fiom appointing or
commissioning as a notary public an applicant with a conviction of
a felony or a crime involving moral turpitude. The Secretary of State
may, but is not required to, initiate commission revocation
proceedings against a notary public on the basis of a conviction of a
felony or a crime involving moral turpitude.
~tto&eneral of Texas
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee