Ronorable William J. Lawson
Secretary.ofState,
Austin, Texaa
Dear Mr. Lawson: CpinionRo. CL4940
Re: The authority of the Secretary
of State to cancel a Rotary
commission.
We acknowledgereceipt of your letter as follows:
"We havd~~~eceivedin this office a request
from Hon. ~RugeneF. Harrell to cancel Rotary
Commission issuectto.A.L. Guest of Lamar County.
The reason for the request for cancellationis
an allegationbjrJudge Rarrell that the said
A. L. Guest forged the name of affiants to two
affidavits. The affidavits thus allegedly forged
are in my possesalon now.
"The ConstitutionalAmendment altering the
manner of appointment of Rotaries Public failed
to provide for a manner of cancellation. Under
the original manner of appointment,the Rotary
being commissionedby the Governor and confirmed
by the Senate, it was necessary that he be im-
peached as any other public officer.
"I am, therefore,requesting your opinion as
to the manner and form that a Rotary Commission
may be rendered void, the question being, Does
the Secretary of State have authority to cancel
such Commission? If such authority is present,
is a trial or hearing necessary?"
Section 26, ~ofArticle IV, of the Constitution,as
amended November 5, 1940, is as follows:
"(a) The Secretary of State shall appoint
a convenientnumber of Rotaries Public for each
county who shall perform such duties as now
Honorable Willlam J. Lawson - page 2, (O-4940)
are or may be prescribed by law. The qualifi-
cations of Notaries Public shall be prescribed
by law.
"(b) Nothing herein shall affect the
terms of office of Notaries Public who have
qualified for the present term prior to the
taking effect of this amendment.
"(c) Should the Legislatureenact an
enabling law hereto in anticipationof the
adoption of this amendment, such law shall
not be invalid by reason of its anticipatory
character. Sec. 26, Art. IV, adopted election
Nov. 5, 1940."
Article 5949, of the Revised Civil Statutes, as
amended by the 47th Legislature,Is as follows:
"The Secretary of State of the State of
Texas shall appoint a convenientnumber of
notaries public for each county. Notaries
public may be appointed at any time, but the
terms of all notariea public shall end on
June first of each odd numbered year. To be
elfglble for appointmentaa notary public, a
person shall be at least twenty-one (21)
years of age and a resident of the county
for which he is appointed;provided, however,
that where such person resides within the
limits of any incorporatedcity, town, or
village located in two counties, said person
may be appointed notary public for either such
couutg."
It will thus be seen that a Rotary Public is a
constitutionalofficer, under the State, with a definite,
fixed tenure, and as such he may not be removed from of-
fice except in some manuer provided by law.
Article 5988, of the Revised Civil Statutes,pro-
vides that:
"Any Notary Public indicted for and con-
victed of any willful neglect of duty or of-
ficial misconduct shall be removed from of-
fice. The order for his removal shall In
each instance be embodied in the judgment of
the court."
Honorable William J. Lawson - page 3, (O-4940)
Title 111, of the Revised Civil Statutes, cover-
ing QUO WARRARTO, provides for the removal of any officer
whose acts by law work a forfeiture of his office. Other
than these provisions, there appears to be no method of
removal of a Rotary Public.
Definitely, there appears to be no provision of
law that the Secretary of State may cancel a Rotary commis-
sion upon the request of anyone.
Moreover, we find no authority in any event exists
in the Secretary of Stats to remove a Rotary Public from of-
fice, or to cancel the commissionpreviously issued to him.
Very truly yours
ATTORNEY GERERAL OF TFXA3
By /a/ Ocie 3peer
Ocie Spoor
Assistant
OS-WI-EAC
APPROVED OCT 29, 1942
/s/ Gerald C. Mann
ATTORRFY GERERAL OF TEXA3
APPROVED
OPINIOR
COMMITTEE
By B.W.B.
cYzlmar