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TX Administrative Rules (2016)

Rule/Regulation

State: Texas

Effective: February 10, 2016

Summary

New and revised administrative rules adopted by the Texas Secretary of State clarifies application, seal, requests for public information and Notary complaint requirements, and also requirements for submitters of electronic applications to the Secretary of State.

Affects

Amends Sections 87.1, 87.2, 87.10, 87.11, 87.22, 87.30, 87.42, 87.43, 87.60 and 87.61 of and repeals and creates new Sections 87.4, 87.5, 87.6, 87.23, 87.24, 87.25, and 87.26 in the Texas Administrative Code.

Changes

Notary Commission

  1. Requires the following information to be included in the application for a Notary commission: (a) the applicant's name to be used in acting as a Notary; (b) the applicant's mailing address; (c) the applicant's county of residence; (d) the applicant's date of birth; (e) the applicant's driver's license number or the number of other official state-issued identification; and (f) the applicant's social security number.
  2. Clarifies that an applicant for a Notary commission must secure a bond, if required by Government Code Section 406.010.
  3. Clarifies that an applicant for a Notary commission must execute the statement of officer as required under Section 1, Article XVI of the Texas Constitution in the name under which the applicant applies for a commission.

Status Changes

  1. Clarifies that upon qualifying under a new name as a result of a name change a Notary must obtain a new seal that contains the name, as specified on the amended commission, under which the Notary will perform all future notarial acts.

Notary Seal

  1. Clarifies that the name on the Notary seal must match the name, as stated on the application, under which the Notary public is commissioned and performs all notarial acts.
  2. Clarifies that for all applicants commissioned or recommissioned on or after January 1, 2016, the Notary seal must contain the identifying number issued by the Secretary of State.
  3. Clarifies that Notaries who were commissioned or recommissioned prior to January 1, 2016 are not required to obtain a seal with their Notary ID numbers until they are recommissioned.
  4. Clarifies that Notaries who were commissioned or recommissioned prior to January 1, 2016 may obtain a seal with their Notary ID numbers until they are recommissioned.

Administrative Actions and Complaints

  1. Removes from the definition of “good cause” for the purposes for which the Secretary of State may reject any application, revoke the commission of a Notary, or take other disciplinary action against a Notary commission (a) ineligibility due to a final felony conviction; and (b) ineligibility due to a final conviction for a crime involving moral turpitude.
  2. Adds to the definition of “good cause” for the purposes for which the Secretary of State may reject any application, revoke the commission of a Notary, or take other disciplinary action against a Notary commission, (a) a failure to properly identify the individual whose signature is being notarized; and (b) a failure to keep a Notary record as described in Government Code Section 406.014 and the Texas administrative rules for Notaries.
  3. Clarifies that a failure to promptly respond to a request for public information in accordance with Texas Administrative Code Section 87.42 is “good cause” for which the Secretary of State may reject any application, revoke the commission of a Notary.
  4. Clarifies that the jurisdiction of the Secretary of State for investigating a complaint against the commission of a Notary is limited to individuals that are commissioned or have applied for commission or renewal of a commission as a Texas Notary public, and the Secretary’s jurisdiction ceases upon the expiration, revocation or surrender of a Notary public commission, except as provided in Texas Administrative Code Section 87.26.
  5. Provides the requirements for filing a complaint with the Secretary of State against the commission of a Notary and clarifies that if the complaint meets these requirements, the Secretary will send the complaint to the Notary who is the subject of the complaint and request the Notary to respond.
  6. Provides that the Secretary of State may require any pending complaints against a Notary that remain at the expiration of the Notary's prior commission to be resolved prior to accepting a renewal or new application for appointment and that failure to reach a resolution on an unresolved complaint may result in the rejection of an application for appointment or renewal.

Other Provisions

  1. Clarifies that a Notary may refuse to notarize if the Notary has reasonable grounds to believe the signer does not have the capacity to understand the contents of the document.
  2. Clarifies that a private employer may limit or prohibit a Notary-employee from notarizing during work hours.
  3. Requires a Notary who is asked for a certified copy of a journal record to provide the certified copy no later than 10 business days from the date of receipt of the fees. If the Notary cannot produce the certified copy within 10 business days from the date of receipt of the fees, the Notary must certify that fact in writing to the person requesting the copy on or before the 10th business day from the date of receipt of the fees, and set a date and hour within a reasonable time when the certified copy will be provided, and shall provide the information by that date and hour.

Electronic Notary Application Submitters

  1. Clarifies that a submitter of electronic Notary applications must retain the original signed application, surety bond and statement of officer until the commission is issued by the Secretary of State.
  2. No longer urges a submitter of electronic Notary applications to confirm with the Secretary of State that the image file of the application transmitted is stored and available in the Secretary’s computer system prior to destroying the original documents.
Analysis

New and revised administrative rules adopted by the Texas Secretary of State and effective February 10, 2016 clarify that Notaries with existing commissions on or after January 1, 2016 are not required to obtain a new Notary seal containing their Notary ID number. This rule was adopted in the aftermath of House Bill 1683 last year. The language in the bill modifying Texas’ seal statute was not clear whether all Notaries – or just Notaries commissioned on or after the effective date – were required to have their Notary ID numbers in the seal. Notaries with existing commissions may obtain a new seal with their ID number if they want.

The Secretary of State also used the opportunity to clean up existing rules and add others. For example, there are new rules around the Notary complaint process. There is a new rule related to the requirement of a Notary to provide a certified copy of a journal record to the public. Because the Notary’s journal is public information, the new rule now requires a Notary who is asked for a certified copy of a journal record to provide the certified copy no later than 10 business days from the date of receipt of the fees. If the Notary cannot produce the certified copy within this period of time, the Notary must certify that fact in writing to the person requesting the certified copy on or before the 10th business day from the date of receipt of the fees. The Notary must set a date and hour within a reasonable time when the certified copy will be provided, and provide the information by that date and hour.

“Good cause” for which the Secretary of State may reject any application, revoke the commission of a Notary is also expanded. Included now is a Notary’s failure to properly identify the individual whose signature is being notarized; and a failure to keep a Notary journal.

A new rule also clarifies that a private employer may limit or prohibit a Notary-employee from notarizing during work hours. This is in keeping with a Texas Attorney General opinion issued in 2009 clarifying that employers of Notaries may restrict the services of their Notary-employees.

Read the notice of adopted rules (beginning on page 957).

Read the notice of proposed rulemaking containing the adopted administrative rules (beginning on page 9023).

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