Untitled Texas Attorney General Opinion ( 1942 )

Ronorable William J. Lawson Secretary.ofState, Austin, Texaa Dear Mr. Lawson: CpinionRo. CL4940 Re: The authority of the Secretary of State to cancel a Rotary commission. We acknowledgereceipt of your letter as follows: "We havd``~eceivedin this office a request from Hon. ~RugeneF. Harrell to cancel Rotary Commission issuectto.A.L. Guest of Lamar County. The reason for the request for cancellationis an allegationbjrJudge Rarrell that the said A. L. Guest forged the name of affiants to two affidavits. The affidavits thus allegedly forged are in my possesalon now. "The ConstitutionalAmendment altering the manner of appointment of Rotaries Public failed to provide for a manner of cancellation. Under the original manner of appointment,the Rotary being commissionedby the Governor and confirmed by the Senate, it was necessary that he be im- peached as any other public officer. "I am, therefore,requesting your opinion as to the manner and form that a Rotary Commission may be rendered void, the question being, Does the Secretary of State have authority to cancel such Commission? If such authority is present, is a trial or hearing necessary?" Section 26, ~ofArticle IV, of the Constitution,as amended November 5, 1940, is as follows: "(a) The Secretary of State shall appoint a convenientnumber of Rotaries Public for each county who shall perform such duties as now Honorable Willlam J. Lawson - page 2, (O-4940) are or may be prescribed by law. The qualifi- cations of Notaries Public shall be prescribed by law. "(b) Nothing herein shall affect the terms of office of Notaries Public who have qualified for the present term prior to the taking effect of this amendment. "(c) Should the Legislatureenact an enabling law hereto in anticipationof the adoption of this amendment, such law shall not be invalid by reason of its anticipatory character. Sec. 26, Art. IV, adopted election Nov. 5, 1940." Article 5949, of the Revised Civil Statutes, as amended by the 47th Legislature,Is as follows: "The Secretary of State of the State of Texas shall appoint a convenientnumber of notaries public for each county. Notaries public may be appointed at any time, but the terms of all notariea public shall end on June first of each odd numbered year. To be elfglble for appointmentaa notary public, a person shall be at least twenty-one (21) years of age and a resident of the county for which he is appointed;provided, however, that where such person resides within the limits of any incorporatedcity, town, or village located in two counties, said person may be appointed notary public for either such couutg." It will thus be seen that a Rotary Public is a constitutionalofficer, under the State, with a definite, fixed tenure, and as such he may not be removed from of- fice except in some manuer provided by law. Article 5988, of the Revised Civil Statutes,pro- vides that: "Any Notary Public indicted for and con- victed of any willful neglect of duty or of- ficial misconduct shall be removed from of- fice. The order for his removal shall In each instance be embodied in the judgment of the court." Honorable William J. Lawson - page 3, (O-4940) Title 111, of the Revised Civil Statutes, cover- ing QUO WARRARTO, provides for the removal of any officer whose acts by law work a forfeiture of his office. Other than these provisions, there appears to be no method of removal of a Rotary Public. Definitely, there appears to be no provision of law that the Secretary of State may cancel a Rotary commis- sion upon the request of anyone. Moreover, we find no authority in any event exists in the Secretary of Stats to remove a Rotary Public from of- fice, or to cancel the commissionpreviously issued to him. Very truly yours ATTORNEY GERERAL OF TFXA3 By /a/ Ocie 3peer Ocie Spoor Assistant OS-WI-EAC APPROVED OCT 29, 1942 /s/ Gerald C. Mann ATTORRFY GERERAL OF TEXA3 APPROVED OPINIOR COMMITTEE By B.W.B. cYzlmar