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Executive Order

TX Governor Executive Order (Real Estate Documents)

Notary Law Update: TX Governor Executive Order (Real Estate Documents)

State: Texas

Summary:

Texas Governor Abbott temporarily suspended the physical presence requirement related to the notarization of real property documents.

Signed:  April 27, 2020

Effective:  April 27, 2020

Chapter: N/A

Affects:

All Texas Notaries Public.

Changes:
  1. Suspends section 121.006(c)(1) of the Texas Civil Practice & Remedies Code to the extent necessary to allow for appearance before a Notary, for the purpose of acknowledging real estate instruments, via videoconference.
  2. Clarifies that nothing in this suspension prevents a traditional notarization or an online notarization under chapter 406 of the Texas Government Code. 
  3. Requires a Notary to use two-way audio-video communication technology that allows for direct and contemporaneous interaction between a person signing a document and the Notary by sight and sound.
  4. Requires a Notary to verify the identity of a signatory at the time the signature is taken by using two-way audio-video communication technology. 
  5. Provides that a Notary may verify the identity of the signatory by: (a) personal knowledge of the signatory; (b) analysis based on the signatory’s remote presentation of a government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the signatory, and is of sufficient quality to allow for identification; or (c) an introduction of the signatory by oath of a credible witness who personally knows the signatory, and who is personally known to the Notary. 
  6. Requires that during the two-way audio-video communication the Notary and signatory must attest to being physically located in Texas.
  7. Requires that during the two-way audio-video communication the signatory must affirmatively state what documents are being signed.
  8. Requires that during the two-way audio-video communication the signatory’s act of signing must be close enough to the camera for the Notary to observe it clearly. 
  9. Requires a recording of the two-way audio-video communication of the notarial act to be kept by the Notary for two years from the date of the notarial act.
  10. Requires the signatory to send the original signed documents by courier, U.S. Mail, or overnight carrier directly to the Notary for the Notary to sign and to affix the official stamp or seal.
  11. Clarifies that the official date and time of the notarization is the date and time when the Notary witnessed the signatory signing the documents during the two-way audio-video communication.
  12. Requires the documents to include, whether in a notarial certificate, a jurat, or an acknowledgment,  language substantially similar to the following: “This notarization involved the use of two-way audio video communication pursuant to the suspension granted by the Office of the Governor on April 27, 2020, under section 418.016 of the Texas Government Code.”
  13. Provides that any document acknowledged while this suspension is in effect, and in accordance with its terms, shall be considered duly acknowledged and fully compliant with Texas law after the termination of this suspension.
  14. Requires all county clerks in Texas to accept for recording in the public records all documents signed and notarized by means of the two-way audio-video communication described in the suspension.
Analysis:

In an earlier executive order, Texas Governor Greg Abbott temporarily set aside the physical presence requirement for a notarial act involving certain specified statues during the COVID-19 state of emergency. In his latest order, the Governor applies essentially the same policy to documents that must be acknowledged before a Notary Public in a real estate transaction as reported on the Secretary of State's website. Unlike the previous order, in this order, the Office of the Attorney General issued guidance on how a Notary is to apply the suspension of the physical presence requirement. This guidance is reflected in the Changes section above and may be downloaded in PDF form by clicking the link below. This order is in effect through the earlier of May 30, 2020, or the termination of the March 13, 2020, disaster declaration.

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