Untitled Texas Attorney General Opinion ( 1942 )

OFFICEOFTHE AlTORNEY GENERALOFTRXAS
AUSTIN
uonorable C. ii.Cevnoss
steto aiullitor
Austin, Texas
near Lr. Cameset Op.lnlon810.0-4363
Be: Born!of state comdseion
issued and to be istmed
to Iioteriw Publio, under
exiPffng colwitntioBel
proYisions.
You ham subndtted to this Department request for
opiaion conoeadng t&e l'ormof'cemmlssion to be issued fe
notaries PubLie, under exist&q eonstltutionslprovisions.
Attached to your letter Is a blank tom which you #ate la
the one that is being used by the Secretary of state. Suah
form reads a6 follows:
--__-___
.-..--A--- TIIE STATE OF TEXAS ====PP
TO ALL TO VROkiTKRSE PRESRIJTSSSALL COMR - 6RJBl'IlM:
WmREas,
COUNTX, TIEUS
has been a pointed by the Stiretery of State of'Teuts a
Rotary PubI!
AC in and for the above sour&y.
You, Themfore, I, Sewetary of State, by
,xirtue of the authority vested in ne by Tb6 Censtltut~on
And Law OS This State, Do hereby ommlseion the @b&e
xxeuadpea-eona Notary Public4in and sor said aoimty, giv-
ing and granting the ea%d offXoer all authority, power,
rights, privilegee and smoluwnte appsrtaining to e&l
offloe for and during the t&ma endUx&.
Jmm 1, 19 Date iewe&
~TIUM DAXE
rrecreteryef-wane.-
yenoreble 0. H. Cevneea - page a
Ilaterwked or 11tbograpJmlinto the paper, on
*hioh t&s dommsnt is printed, is a faosimile of the grsat
seal .ofthe State of Psxaa. It is apparent frarathe nord-
,fngof the aosuufeeionthat the Govcwnor of Taxae doea not
sign these o~missions, but they are pwpometlly iss~sd in
the name of aad by the authority of the Secretary of State.
Xouaskanumber of questiOns cmewting this
. Xn the lntareet
oolnrilfesion of'brevity of this opinion,
NC arc taking the libsrty of rephrasing your questions,a
xumher of rhich oommrn the ssme issue. What you desire
to lizrolr,
it appears to us, 20 stpreeesd lza the iolloriqg
1nterr0get0riw:
1. &uat all osaaclmsions to State oftioere, In-
elud3,ngoeimissions te Sotaries Fublia, be signed by the
Governor anilatteetsd by the Sewetery ei State?
2. What is the ebaraeter of seal rhieh the Can-
stitrrtioaof Texaa reQuirss bhould be litixed tomall csm-
mlssiens IssuaI w the Governart
3. Whenshould the seal be a+fixedt
4. is a cemmlssionvalid, (a) rhich is not sign-
ed by the Gmernw; or, (b) which bears a seal sf%xed other
than the dsv%Ge prsuaribetl by the ConstitutUm to impress
upon the doowrtsntthe lnalgnia of the State or, (a) There
t+hesoal of state is afffxeU to the oomn~%ss
1on before it is
signed by the 6mernort
If the earmdssisnsissued to Rotaries
6. mblto
on fhe form attr@hOU
to your lettOP are invali3, does it
follau that the effioiel eota of au& NoteriMl PIIblio are
Invalid, and that fsss have besm illt?gallycolleoferlby
WepIT
ArtAcle 4, Seotion 20, of the Texas Coxastitution,
provides8
"AU aemmdwfsw shall be la the n&me saui
by th6 authority of tke Btate of Texas, waled
with the 2tete seal, eignosdby the Gwexnor,
and ett.ested by the Seorstary OS State.*
Prior to the amem3ment of 1810, Article 4, Section
20, of th6 Texas Gon&itution iwad as follorst
p0nar8bleC.u~ Cavneae - page 3
'The GwOrQSr, by and with the advise
and oensent of two4hirUs of the Send@,
ahall appoint a oomanient number of Hotsr-
lea Publie SOr sseh county, rho shall par-
iorm auah Uutiea as nsw are or msy be pm-
aeribed by lu.'
In 1G40 this 6eotian of the Constitutionwas as~sad-
sd so that it now reads as followsr
V31s Seersty of State shell appoint
a ooWOni8at 3nlwlbOr
of ~OtariOa IUblio for
ssoh county who shsll psrfor~sushdutiss
es mm are ormaybe pres6ribeclby 1.~.
The qualifioationa of the lotaries Fublio
ahallbe peeoeibedbylaw.r
The aole effest of the amndmOnt was to ohsnge the
Or of NOtaFfea Publio fra?ithe Go~araer to the
2s: or state. Ho ehaage was mule or irpliad in the
provision of the GoPetitationrsqdring all ssmdssisns to
O&ate otfioera, iwrlrdllnglottarissPublie, to be sign& by
the 6overnor aud attested by the Secretary of St&e. 'Lhe
issuance of the aoamisafon la separate fmd distinut fram
the ast of appointmeut= The uatbority of the Gowraor te
oomdssion dsss not Bsppmd upon 8hethsr he appoints. The
6wernor,tor emexaple, c0mis11Iona otYieera elected w the
mple. The oem&saion la 7 evidence of the ofTiosr~s
appointment or election, and "p'o h5s right to sxroise the
fu~tiona of the Gffioe. W-r. @iisog, 8 L. ed. $1.
Vader the Gonatitution,oomdssions to State officer``, in-
uluding IEotarieaPublio, 01~0be 1aauoU only by the Gasrnor.
It follows that a aomission iasusrlto auah off%eere by saq
offloCal other than the GmmvmP is imali&.
The Gonstitutionof the Stste of Texia preaoribes
the cherauts of the ass1 rhioh la to be affixed to oomis-
SiOM.
Art&ale 4, Seation 19, of the Gonstitutionpro-
YiMar
*There aball be e a081 of the St&e which
shall be kspt by the i%oretarY, anC used by
him offioiellyumier the direction of t&e
Governor. We seal of the Stste ahall be a
8ter of iit8 peints eneirals&by oliwa end
&fyo oak bran&es, end the words, *The
State of Texas**.
The word *seala say have more than one maniug.
pop example, it uay mean e device bearing 8 %eaigu so
He, es by engrevi~, that it can impart 90 lmxprwdon
iu relief upon a soft teuaoioua aubetauce, as clay, pax
or PaPer* Untheother haud,it may aiguify theippreaaien
ae tie by the device. lebater*a Intemationel Diotiouarv,
1Ssoons,
gg. (1940).
It is ObViOUS from On sroadIIStiOn Of the laq?+&gO
of hrtiole 4, Section 19, that the vcrd laealc la uaed there-
fnin thefirst sense es meshing thed~ic8byMxich theim-
preseion la tranafdtted. In this connectionit la impcrtant
to net8 that the saOtion eonttmplateaa single mal, requires
that it be *kept* b7 the aewetery af St&O, and lu8eda kq
The words lkOpt' ml "wed8 make it clear tha$ the
X&a of the Gouatitutionhad in s&xi a me&ad.oal dsrioe
toberetrioedin the posaeerionof theSeeret8ry of Sate,
a& used b7 Mm to make aa inpresaion OB the dscxwentmoffi-
oully emmuted. b;r the Gcveruor of the State of Texas, to et-
teat the Governor*6 aigneture and the authenticityet the
dooument.
ainoe Artiole,4, &action 80, re+.res thst all oom-
mi~aiona ahall be *sealed with the State &al*, such eomn&m-
siona should bear a asallmPresaad thereonby the use of the
devise, rhl& io te be reteineil in ths paaseaaiou of the Sec-
retary of State, uxaierthe prmisions of drticle 4, Section
19. my other character of seal doea not ocqly with the ccn-
etitutioualrequiraPeut6.
It ie not contemplat&lby the comatitutioualpwvia-
ions that the seal of the state ahall be attixed prior to aie
nature of the documeut by the Gweruor. The f'unctionof the
seal is to attest or uitneaa or eatebllsb the autheuticityof
the iiovemor*s slguature. Yarbury t. Yadiaon, cited supre, at
p. 87. It is olwious that the Gwernor*s aiC;nature can not
be attested before be has affixed it to the instruaent.
De bcve already notad that a mmmieeion io not valid
if it is not signed by the iiwernor, under the protisious of
Artlole 4, Section 20, of the Gouatitution. Of course, a corn-
miaaion vhAch purports to have been issued by the Secretary of
Btate rather than by the Gweruor la iaaued by an officer apan
whom the Cosatitutiondoes not confer authority to iaeue com-
JlonorabloC. ii.Cavuess - page 6
~3ssion8, and is insftwtire for any purpose.
WharethecomsdssiOnbears8 eealairirsdthsre-
to 0th~ WUI by the dwi09 prO8Oribsd by the Constitution
to iaqumae upon the dosumsut the lnsignlo of the Stats,
the signature of the dovsrnor Is not authentitatedas re-
quired by the COnstitutiou,and suob a commission,there-
fore, would not furnish proof ot the ofiioer*s appointsmut
CrBdauttlority .
Whore the seal of tbeState111 affLxtrdt0 the
ooxulssion, the pPeaumpti0nie that the Seerotary of State
has properly dAsahargsd the dutiss of his affise; in othc
words, the pesumption is that the seal uas affixal by l&s
at the diraotlon Of the uwemlor, mxl8ttor the Grnezn0c
has sigma the iBstrumsBt. lawor, won it the taot be
that the ser;lwas affixed by the Seerotary o? Stats prlor
to the (ioternor~ssignature,this, while an *oqm.rity,
would uot invalidate the aoiaulssion.m far the safsr and
better ~actiob, houarsr, is for the Sseretar2 o? State to
me the seal only in aooordenaowith the oonstitutiomfii re-
2uimmmt, that is, at the direstion of the Owernor, and
titer the fiwwnor has affixed MS signature.
Lastly, you are CaaoO``od,qqmmntly, with the
question whet&w, if the QOBSILBS~OBS i8sued to the Hotar-
ies Fubllcron the form attauhed to your letter are lmolid,
does it follow that the dfioial aat.8of mwh Rotrriea pob-
110 are invalid, and that fees have beeu illegally eolleat-
sd by them It appears that the llofulissPublio hate aotnal-
lp been appointed by the Bocretary of State, the lawful ap-
pointing psusr. AS pointed Out abOv0, t&O 00mdssi0n is
marely sridense of that appointmsnt~tho'authorityto sat
I$ derived from the appointment-- not from the comsdssisn.
karbury '1.Lad&eon, 2 II.ed. 61, at p SO snd 68. We are
of the opiti~arofore, that the OF'
Tieial aate of such
hotaries Publla are valid, thou@ thsy have not been duly
eommlssionod.
Artio10 3882* wwisod Ciril Btatutes, 1@2b, pro-
vides as followst
sko official who fails OF rsfusos to take
out a cosnzlssioushall be ontitlsd to collaat
or reseivo either fro& the Stats or from U&iv&d-
~a38 any money at3foes of offiae or aompensation
for official esmioes. Roithor the Camptrollar,
;, .-i .,
/ .
fionorableCt tl.Cavness - p;zgO6
comr2dssionersaourt, county auditor nor q
other person shall approve or pay any c1af.a
or aocount in favor of any such officer rho
has so failed or refused. The Secretary of
Stats shall from tin0 to time, PS such com-
tissions WC Issued hy him, furnish a lfst
thereof to each conwLssionim3court, em%
county audltor and to the Comptroller,with
the rum0 of the county in uhich such offloors
rebide. Each state, district, oounty and pre-
cinct officer is requlrcd to apply for and re-
colre his owmdssion.*
This Article does not prohlbit the duly appointed
or eloated cfficial from acting as such, but prohibits him
f'romcollecting or reeeiring from the State or individuals
money a8 fees of office or oompensationfor his servioes,
if ho has failed or refused to take out a aoxud.sslon.We
do BOt think this staWt0 applieablC t0 th0 8OtPries PobriO
iB t&b COSO. St is deei@mi,ln our oplxk%on,topuulsh the
official rho is not coomdssionsbthrough his own default or
neglwt. The language of the statute is that no official
vhofails or refuesetotahe out a a;ormdasiomshaxlbe da-
title fees of office. Each of those words inplies the
oxistonco of fault upon the part of the official. Under the
cireumstaneOsof the instant situation, the ~failurcof the
2IotariorPublie to reoeivo their wmsdssiono in proper form
is not'duo to their fault or nOgll.gence,but to an erPoneou8
intorpr8tationof the lav by the Secretary of State.
We are, therefore,of the opinion that the foes
of office received by these Notaries Public have not been
illegally collected.
very truly yours