Untitled Texas Attorney General Opinion

173 .’ OFFICEOFTHEATTORNEYGENERALOFTEXAS AUSTIN " :-- GROVER SELLERS ArroRNrr GENm?AL Eonorabls Veaver H. Baker, Chairman State Board of Control Capitol Station Bustin, Texas Bear Sir: Opinion 30. +6637 Re:. Payment of notaxmbond Drez&z!as notary -Your request for reaas as follows: are'm>g a/charge for Notary sexrice to individuals nbf$~t&e service. ni'tillyou kiIldly give Us pcur opinion 072 the fol- lowing in@ries: "(1) Is th?eBoard of Control legally authorized to pay out Of state funds ap?ropriated by language a- bove set out, or sitilar lsnguags, the bond Drs:;i*xxs 2ie on bonds reqdred to be .xadz b:;law for individuels Honorable ‘i;eaver H. Paker - page 2 in State employ, where such service is for the accomo- dation and convenience of State business only? "(2) If you answer the above inquiry in the affirmative, then would the sare rule apply where such enployee whose Notary bond preiaiumwas paid by the State, also performed the duties of a hotary Pub- lic in consection with private business and made a charge therefor to his om financial advantage?" A notary publio is a public officer charged with cer- tain duties ana given certain authority by statute. 20 Ruling case Law, 326; Articles 5949 et seq, V. A. C. S. 'The powers ana duties of the notary are personal to himself and zag not be delegated.. 31 Tex. Jur. 350. Official tisoonauot or negli- gence on the part of the notary !mayresult in oriminal or in- dividual civil liability as well as liability on his offioial bond. 31 Tex. 3u.r.351. We think it is olear that even if a State dejartxent paid the bonaing fee for a notary in its employ that it oould not require the exclusive services of the notary and litit his activities to State business only. Such a limitation wo~&a narrow the authority of a notary to soeething znuchless than t-hatgiven by statute. In the absence of a statute pertittin~g‘ State employees to perfom notarial acts of a limited character, we think a notary though employed by the State and having had his bonding fee paid by the.State could perform all acts author- ized by lau 3.nconon with all other notaries who have duly ~quali- fiea. Furthermore, we think he could charge the statutory fees allo;vedfor such services when perfoxxed outside of his State duties without being accountable to the State for suoh fees. Art. 3945, V. A. c. s. These outside fees would be wholly for the benefit of the individual holdiag the notary cotission. Also, in the case of a State employee aho has qu3.lifiedas a notary at the expense of the State, and aho leaves State en- ploynent while his notory oomission is still effeot-lve it would be obvious that he oould still exercise hSs notarial functions for his o-m private gain acoording to the provisions of law usaer which he .:ualified. ‘tieCOncluda,that if the phraseology in the ap_orocri-. ation bill, nBcads for members aad ezplogees" be construed to include bonds for notaries, that such action oa the pa,"%of the Lfaislature :souldcontra7ene our constitution. :,rt.3, sec. "1, 175 Honorable Weaver I-I. Baker - page 3 pmvides in part that, "The Legislature shall have n0 power to zake any grant or authorize the making of any grant of public moneys to any individual . . . .” Sinoe, in construing a legislative enactment we are bound to give it, if possible, a construction thst will preserve its constitutionality, :ve hold that the language of the appropriation means and refers only to those bonds of nezbers end eu?loyees of.the Board which Bra required by law or which the Board is authorized by law to require and that such language does not authorize the payment of bond premiums for notaries public even though their services are needed and reauirea by the Board. 39 Tex. Jury.206. Any other holaing would per&t the expenditure of public funas for private or individual purposes. Me recoguize the keen need of all Statesdepartments for the type of service involved here and certainly this situa- tion should claim the attention of the Legislature for appro- priate aotion. Yours very truly ATTORNZIYGENERAL @F 'EXAS Eugene Alvis _ Assistant