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TX Administrative Rules (2010)

Rule/Regulation

State: Texas
Signed: December 25, 2009

Effective: January 01, 2010
Chapter: N/A

Summary

The Texas Secretary of State adopts a number of general and specific changes to its administrative rules for Notaries.

Affects

Repeals Sections 87.1, 87.4, 87.22, 87.23, 87.25, 87.41 - 87.50, 87.52, 87.54, and 87.60 of, and adds Sections 87.1 through 87.6, 87.10, 87.11, 87.20 through 87.25, 87.30, 87.40 through 87.44, 87.50, 87.60 through 87.62, and 87.70 to, the Texas Administrative Code.

Changes

Notary Commission

  1. Provides that in response to Texas Attorney General Opinion GA-0733, the rejection of an application for a commission or revocation of a commission for a final conviction for a crime involving moral turpitude has been changed from discretionary to mandatory.
  2. Provides that the procedure for renewing a commission and clarifies that renewals are subject to the same eligibility criteria as initial applicants.
  3. Provides guidance on the new electronic submission of Notary applications and bond process that was implemented by the secretary of state in 2009.
  4. Provides that an applicant who is qualified as an escrow officer within the meaning assigned by §2652.051, Insurance Code, is not required to be a resident of Texas if the applicant is a resident of New Mexico, Oklahoma, Arkansas or Louisiana.
  5. Provides that the Secretary of State shall commission an applicant if, notwithstanding the residency requirements, the applicant is qualified as an escrow officer and is a resident of New Mexico, Oklahoma, Arkansas or Louisiana, and satisfies §87.3 of this title (relating to Issuance of the Notary Public Commission by the Secretary of State).
  6. Provides that a Notary who ceases to meets or maintains the qualifications of a non-resident escrow agent under the rules, must voluntarily surrender the Notary commission.

Status Changes

  1. Provides that a Notary must notify the Secretary of State in writing of a change in address within 10 days of the change and clarifies that the Notary should complete and submit form 2302 (Notary Public Change of Address Form) that is available on the Secretary of State web site.
  2. Provides that the Secretary of State will send all official notices, including notices of complaints, to the Notary at the address on file with the Secretary's office and further provides that requests to obtain copies of or inspect the records in the Notary journal will also directed to the Notary at the address on file.
  3. Provides that a failure of a Notary to change the address may, consequently, result in a revocation of the Notary commission if the Notary fails to timely respond to a complaint or to a request for public information.
  4. Clarifies that a Notary who removes his or her residence from Texas vacates the office of Notary Public and must surrender the Notary commission to the Secretary of State.

Standards for Notarial Acts

  1. Authorizes a Notary too refuse to perform a notarial act if the Notary: (a) has reasonable grounds to believe that the signer is acting under coercion or undue influence; (b) has reasonable grounds to believe that the document in connection with which the notarial act is requested may be used for an unlawful or improper purpose; (c) has concerns about the capacity of the signing party to understand the contents of the document; and (d) is not familiar with the type of notarization requested.
  2. Provides that a Notary who is employed by a governmental body shall not perform notarial services that interfere with the Notary's discharge of the Notary's duties as a public employee.
  3. Provides that a Notary may not refuse a request for notarial services on the basis of the sex, age, religion, race, ethnicity or national origin of the requesting party.
  4. Provides that a Notary should refuse request for notarial services only after careful deliberation.

Journal of Notarial Acts

  1. Provides that a Notary may maintain the notary record book electronically in a computer or other storage device so long as the records from that book are adequately backed-up and are capable of being printed in a tangible medium when requested.
  2. Provides that on payment of all fees, the Notary shall promptly provide a certified copy of any record in the Notary’s journal to any person requesting the copy, and further provides that if the Notary has inadvertently included personal identifiable information in the record book contrary to §87.40, the Notary must redact that personal information prior to release of the information.
  3. Provides that a Notary shall retain, in a safe and secure manner, copies of the records of notarization performed for the longer of the term of the commission in which the notarization occurred or three years following the date of notarization.

"Good Cause"

  1. Amends the definition of “good cause” is amended as follows: (a) includes ineligibility due to a final felony conviction in an effort to be consistent in the treatment of felonies and crimes involving moral turpitude; (b) clarifies that a final conviction for a crime involving moral turpitude makes an individual ineligible to hold office as a Notary in accordance with Tex. Atty Gen. Op. GA-0733; and (c) includes a failure to respond to a request for public information in accordance with proposed rules §87.42 and §87.43.
  2. Provides that failure to respond to a request for public information may be good cause for suspension or revocation of a Notary commission or other disciplinary action against the Notary.

Other Changes

  1. Reorganizes the rules, updates to the language of rules based on statutory revisions, makes reference to the Secretary of State's website for information and forms, removes redundant and unnecessary repetition of provisions contained in statute or forms, and clarifies certain procedures.
  2. Repeals rules related to the authority of a Notary to issue a subpoenas.
Analysis

In 2010 rulemaking by the Secretary of State, the Secretary clarifies commissioning procedures, rules regarding revocation and discipline of Notaries, provisions related to making copies of journal records available to the public, guidelines for submission of electronic applications to the Secretary, and more. The new rules also authorize Notaries to refuse to perform notarial acts under certain circumstances and repeal rules related to the power of Notaries to issue subpoenas.

Read the adopted administrative rules (see pages 9395-9399).

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