Untitled Texas Attorney General Opinion ( 1945 )

Honorable Claude Isbell Opinion NO. 0-6468 Secretary of State Re: .Necessltyof and making Austin, Texas of notarizationon notarial bonds; proper date for executingand taking such bonds;:*date:whennotarial appointmentbecomes effec- tive; effect of notarial appointees qualifying be- fore a Notary who has not Dear Sir: yet qualified himself. We are in reoelpt of your recent opinion request relative to the above topics. It contains four questions. The pertinent statute and portion thereof is Article 5949, Sections 3, 4, 5 and 7, Vernon's Revised Civil Statutes, ,whichread as follows: :I .; “3. _I Any person desiring appointmentas Notary Public shall furnish to the County Clerk of the County of residence of the applicant his name as it will be used in acting as such Notary Public, his post office address, and shall satisfy the Clerk that he is at least twenty-one (21) years of age and a resident of the County for which such appointment is sought. The names of all such per- sons shall be sent forthwith in duplicate by the County Clerk'to.theSecretary of State with the certificateof the County Clerk certifying that according to the informationfurnishedhim such person is eligible for appointmentaas,NotaryPublic for such county. The Secretary of State shall act upon all such names submitted at the earliest prac- ticable time and notify the County Clerk whether such appointment or appointmentshave been made. Upon receiving notice from the Secretary of State of any such appointment the County Clerk shall forthwith notify all persons so appointed to appear before him within ten (10) days from the date of such notice (but not before the first day of June of odd numbered years In the case of appointmentsfor the term beginning 'onsuch date or re-appointmentshereinafterpprovidedfor) and qualify as hereinafter provided. The appointment of any person failing to qualify within such ten (10) day period shall be void, and If any such Hon. Claude Isbell, Page 2 (o-6468) person desires thereafter to qualify, his name shall be re-submittedin the same mariner,,,, hereinabove provided. "4. At the time of suoh quallfioatlonthe County Clerk shall coollec%the Paes allowed him by law for administeringthe oath and approving and filing the bond of SW?? Notary Public, toget- her with the fee allowed by law to ,theSeoretary of State for issuing a commission to such Notary Public. “5. Immediatelyafter the qualificationof any such Notsry Public the C$,untyClerk shall forthwith notify the Secreta-ryof State that such person has qualified and th?eda::eof such qualifl- cation, and shall remit with suah notice tinefee due the Secretary of State, whereupon, the Secre- tary of State shall oause a comission to be. issued to each sueb.quali.:'ied Notary Public, which commission shall be effeetl.veas of the date of qualification. A11 such commissionsshall be for- warded to the County Clerk for delivery to SWh persons entitled to sese!.vethem. Nothing herein shall prevent any qualffled Notary Public from performing,theduties of his ofRim*,e from and after his qualffioationand before the receipt of his commission. 11' 7. Any person appolzo,t:ed a Notary PublLe, before enterfng upon his cf?ic!-aldut:iss,shaZ.9 execute a bond In the sum of One Thousand ($l,OOO.OO) Dollars with two or more scl.ve& lndivlduais,or one solvent surety company authorizea to do.busi- ness in this state, as surety suoh bond to be approved by the County Clerk of his eountyp aayable to the Governor, and ccnd.fffoned for the fai&f?;l performanceof the dut%es of his office; and shall also take and subscrfbe the offioial oath of office which shall be eqdorsed on said bond with the certi- ficate of the official adminIsteringthe same. Said bond shaU. be deposited in the office of the County Clerk and shall not be void on the first recoveryI and may be sire~d on inthe neme of Me party'injuredfrom time to time until the whole amount thereof has been recovered. Any,such per- son,shall be deemed to be qualified when he has Hon. Claude Isbell, Page 3 (0-6468) taken the official oath of office, furnished the bond and paid the fees herein provided for, all within the ten (10) days allowed therefor." Your question No. 1 is: "1 , Is it necessary for the signatureson Notary Bonds made on behalf of applicants for notary public.commissions to be notarized and, if so, should such notarizationsbe in the counties where the individualsreside? This question applies to the signatures of the applicants as well as the sureties on such bonds." Section 7 of the Article quoted provides that the ap licant must subscribe the oath (endorsedon the bond) and requ re +klTfie certificateof the officer administeringthe oath. We find noth- i the statute or elsewhere requiring sureties on such bonds to tike any oath relative thereto and nothing requiring the appli- cant to swear to anything but the oath which is endorsed on the bond. However, the County Clerk has the implied power to require the personal sureties on a Notary's bond to make oath as to their qualificationas sureties, for the statute requires them to be solvent. The Clerk must determine the question of their solvency before he accepts them as sureties and approves the bona. If the Clerk requires such affidavit, it may be made either within or without the county where the bond must be filed. The statute does not require that the Notary be solvent, only that his indivi- dual sureties be solvent, or if his surety is a surety company that it be solvent. Your question No. 2 is: "2. a. In cases of applicants for appointmentsas notaries public for the term beginning June lst, would It be legal for such bonds to be executed prior to June lst? Could such bonds be executed prior to June 1st but postdated to June lst? II b. If such bonds must be acknowledgedbefore a notary public, may,,thatbe done before June lst? Section7 of the Article above quoted provides that the notary becomes qualified when he (1) takes the oath, (2) furnishes the bond, and (3) pays the required fees, "all within the ten (10) days allowed therefor." As we construe the statute, the "ten (10) days allqwed therefor" are the 'tendays mentioned inSection 3 of the Article. According to Section 3, such ten-day periods,in cases of appointmentsto begin June 1, 1945, would rbeginf'notbeforethe first day of June." Honorable Claude Isbell, page 4 (0-6468) The statute Is silent as to when the bond shall be executed, Section 7 ,provldesthat it shall be furnished to the County Clerk within said ten-day period. It is our opinion that there would be nothing illegal in executing the bond prior to June 1 so long as it is furnished to the,County Clerk during said ten-day period and so long as the applicant had already been appointed at the date of its execution. Section 7 provides, "Any person appointed to a Notary Public, befor: entering upon his official duties, shall execute a bond . ,. This indicates that the'bond may be executed only after the principal has been appointed: Since the bond can be executed prior to June 1 in the case of an appointmentwhich begins June 1, there is no necessity for Its being post-dated to June 1. We make It clear that,the oath which is endorsed on the bond cannot be executed prior to June 1. Section 7 of such Act provides, "Any person shall be deemed to be qualifiedwhen he has taken the official oath of office. . .a11 within the ten (10) days allowed therefor." In'responseto Section b of question 2, you are advised that such bonds themselvesneed not be acknowledged. It Is our opinion that the official oath endorsed thereon cannot be acknowledged before June 1 in the situation about which you inquire for the reason given in the preceding paragraph hereof. Your third question is: "If a Notary is appointed on June 1 and qualifies on some later date, but within the required ten-day period, would his authority to serve as Notary date back to the day of his appointmentor from and after the date he qualified?" We find no statutory authority for a Notary Public or any other public officer to act until he $ualif'ied.For that reason we answer your third question "No. Part (a) of your fourth question reads: "Can a person who has been appointed a notary public make or take, either or both, the,affidavitto his bond and oath of office before some other notary public or must he appear before the County Clerk of his county to make such affidavit or take such oath?" We have in answer to your first question said that a person appointed Notary Public is not required to make oath as to his solvency. Honorable Claude Isbell, page 5, 0-6468 Article 26, Revised Civil Statutes, provides that all oaths, affidavits,or affirmationsmay be administeredand a certificate of the fact given, if within thfs State, by a Notary Public, Judge or Clerk of any Court of Record or Justice of the Peace. It is provided in Section 7, quoted abo,ve, 'amongotherthings, that I'Any person appointed a Notary Public . ~ . shall also take and subscribe the official oath of office which shall be endorsed on said bond with the certificateof the official administerin the same." ,(Emphasisours) From the'emphasizedlanguage of thegstatute theconclusion is inescapablethat the oath of office may be administeredto a person duly appointed Notary Public by a Notary Public who has previously qualified at any time during the ten-day period within which he may qualify. Of course, such an appointee may take the oath before the County,Clerk and while that officer alone may approve the official bond and collect the prescribed fees, his authority to administer the oath is not exclusive. Section b of your fourth question reads; "If a person who had been appointed a notary public qualified before another notary and such other notary had not himself completed his qualificationas a notary, would such qualifica- tion be legal, and what effect, if any, would it have on the legality of issuance of Commission to such appointee and on his official status as a,notary?,.Presume in this case that both of the above notaries had filed proper application and that the notary who took the acknowledgmenthad himself already been appointed by t,heSecretary of State and had not yet qualified." Section 7 of such Article provides that,the appointee,before entering upon his duties of office shall "take and,subscribethe official oath of office". This statute inztes that the oath must be taken before some officer authorizedby law to administer oaths. As we have heretofore stated, it is our opinion that an ,appointeeas a Notary Public is not authorized to administer oaths until he has himself qualified.,That being true, it is our opinion that the official oath made by a notarial appdintee before another notarial,appointeewho had,not qualified'wouldnot be made in compliancewith the statute and would, therefore,.be void. Yours very truly, WTC/JCP/CGE ATTORNEY GENERAL OF TEXAS APPROVED APRIL 3, 1945 s/ W. T. Curry s/ Grover Sellers ATTORNEY GENERAL OF TEXAS ,BY W. T. Curry APPROVED OPINION COPIMITTEE Assistant By BWB, Chairman