Untitled Texas Attorney General Opinion

OFFICEOFTHE AlTORNEY GENERALOFTRXAS AUSTIN uonorable C. ii.Cevnoss steto aiullitor Austin, Texas near Lr. Cameset Op.lnlon810.0-4363 Be: Born!of state comdseion issued and to be istmed to Iioteriw Publio, under exiPffng colwitntioBel proYisions. You ham subndtted to this Department request for opiaion conoeadng t&e l'ormof'cemmlssion to be issued fe notaries PubLie, under exist&q eonstltutionslprovisions. Attached to your letter Is a blank tom which you #ate la the one that is being used by the Secretary of state. Suah form reads a6 follows: --__-___ .-..--A--- TIIE STATE OF TEXAS ====PP TO ALL TO VROkiTKRSE PRESRIJTSSSALL COMR - 6RJBl'IlM: WmREas, COUNTX, TIEUS has been a pointed by the Stiretery of State of'Teuts a Rotary PubI! AC in and for the above sour&y. You, Themfore, I, Sewetary of State, by ,xirtue of the authority vested in ne by Tb6 Censtltut~on And Law OS This State, Do hereby ommlseion the @b&e xxeuadpea-eona Notary Public4in and sor said aoimty, giv- ing and granting the ea%d offXoer all authority, power, rights, privilegee and smoluwnte appsrtaining to e&l offloe for and during the t&ma endUx&. Jmm 1, 19 Date iewe& ~TIUM DAXE rrecreteryef-wane.- yenoreble 0. H. Cevneea - page a Ilaterwked or 11tbograpJmlinto the paper, on *hioh t&s dommsnt is printed, is a faosimile of the grsat seal .ofthe State of Psxaa. It is apparent frarathe nord- ,fngof the aosuufeeionthat the Govcwnor of Taxae doea not sign these o~missions, but they are pwpometlly iss~sd in the name of aad by the authority of the Secretary of State. Xouaskanumber of questiOns cmewting this . Xn the lntareet oolnrilfesion of'brevity of this opinion, NC arc taking the libsrty of rephrasing your questions,a xumher of rhich oommrn the ssme issue. What you desire to lizrolr, it appears to us, 20 stpreeesd lza the iolloriqg 1nterr0get0riw: 1. &uat all osaaclmsions to State oftioere, In- elud3,ngoeimissions te Sotaries Fublia, be signed by the Governor anilatteetsd by the Sewetery ei State? 2. What is the ebaraeter of seal rhieh the Can- stitrrtioaof Texaa reQuirss bhould be litixed tomall csm- mlssiens IssuaI w the Governart 3. Whenshould the seal be a+fixedt 4. is a cemmlssionvalid, (a) rhich is not sign- ed by the Gmernw; or, (b) which bears a seal sf%xed other than the dsv%Ge prsuaribetl by the ConstitutUm to impress upon the doowrtsntthe lnalgnia of the State or, (a) There t+hesoal of state is afffxeU to the oomn~%ss 1on before it is signed by the 6mernort If the earmdssisnsissued to Rotaries 6. mblto on fhe form attr@hOU to your lettOP are invali3, does it follau that the effioiel eota of au& NoteriMl PIIblio are Invalid, and that fsss have besm illt?gallycolleoferlby WepIT ArtAcle 4, Seotion 20, of the Texas Coxastitution, provides8 "AU aemmdwfsw shall be la the n&me saui by th6 authority of tke Btate of Texas, waled with the 2tete seal, eignosdby the Gwexnor, and ett.ested by the Seorstary OS State.* Prior to the amem3ment of 1810, Article 4, Section 20, of th6 Texas Gon&itution iwad as follorst p0nar8bleC.u~ Cavneae - page 3 'The GwOrQSr, by and with the advise and oensent of two4hirUs of the Send@, ahall appoint a oomanient number of Hotsr- lea Publie SOr sseh county, rho shall par- iorm auah Uutiea as nsw are or msy be pm- aeribed by lu.' In 1G40 this 6eotian of the Constitutionwas as~sad- sd so that it now reads as followsr V31s Seersty of State shell appoint a ooWOni8at 3nlwlbOr of ~OtariOa IUblio for ssoh county who shsll psrfor~sushdutiss es mm are ormaybe pres6ribeclby 1.~. The qualifioationa of the lotaries Fublio ahallbe peeoeibedbylaw.r The aole effest of the amndmOnt was to ohsnge the Or of NOtaFfea Publio fra?ithe Go~araer to the 2s: or state. Ho ehaage was mule or irpliad in the provision of the GoPetitationrsqdring all ssmdssisns to O&ate otfioera, iwrlrdllnglottarissPublie, to be sign& by the 6overnor aud attested by the Secretary of St&e. 'Lhe issuance of the aoamisafon la separate fmd distinut fram the ast of appointmeut= The uatbority of the Gowraor te oomdssion dsss not Bsppmd upon 8hethsr he appoints. The 6wernor,tor emexaple, c0mis11Iona otYieera elected w the mple. The oem&saion la 7 evidence of the ofTiosr~s appointment or election, and "p'o h5s right to sxroise the fu~tiona of the Gffioe. W-r. @iisog, 8 L. ed. $1. Vader the Gonatitution,oomdssions to State officer~~, in- uluding IEotarieaPublio, 01~0be 1aauoU only by the Gasrnor. It follows that a aomission iasusrlto auah off%eere by saq offloCal other than the GmmvmP is imali&. The Gonstitutionof the Stste of Texia preaoribes the cherauts of the ass1 rhioh la to be affixed to oomis- SiOM. Art&ale 4, Seation 19, of the Gonstitutionpro- YiMar *There aball be e a081 of the St&e which shall be kspt by the i%oretarY, anC used by him offioiellyumier the direction of t&e Governor. We seal of the Stste ahall be a 8ter of iit8 peints eneirals&by oliwa end &fyo oak bran&es, end the words, *The State of Texas**. The word *seala say have more than one maniug. pop example, it uay mean e device bearing 8 %eaigu so He, es by engrevi~, that it can impart 90 lmxprwdon iu relief upon a soft teuaoioua aubetauce, as clay, pax or PaPer* Untheother haud,it may aiguify theippreaaien ae tie by the device. lebater*a Intemationel Diotiouarv, 1Ssoons, gg. (1940). It is ObViOUS from On sroadIIStiOn Of the laq?+&gO of hrtiole 4, Section 19, that the vcrd laealc la uaed there- fnin thefirst sense es meshing thed~ic8byMxich theim- preseion la tranafdtted. In this connectionit la impcrtant to net8 that the saOtion eonttmplateaa single mal, requires that it be *kept* b7 the aewetery af St&O, and lu8eda kq The words lkOpt' ml "wed8 make it clear tha$ the X&a of the Gouatitutionhad in s&xi a me&ad.oal dsrioe toberetrioedin the posaeerionof theSeeret8ry of Sate, a& used b7 Mm to make aa inpresaion OB the dscxwentmoffi- oully emmuted. b;r the Gcveruor of the State of Texas, to et- teat the Governor*6 aigneture and the authenticityet the dooument. ainoe Artiole,4, &action 80, re+.res thst all oom- mi~aiona ahall be *sealed with the State &al*, such eomn&m- siona should bear a asallmPresaad thereonby the use of the devise, rhl& io te be reteineil in ths paaseaaiou of the Sec- retary of State, uxaierthe prmisions of drticle 4, Section 19. my other character of seal doea not ocqly with the ccn- etitutioualrequiraPeut6. It ie not contemplat&lby the comatitutioualpwvia- ions that the seal of the state ahall be attixed prior to aie nature of the documeut by the Gweruor. The f'unctionof the seal is to attest or uitneaa or eatebllsb the autheuticityof the iiovemor*s slguature. Yarbury t. Yadiaon, cited supre, at p. 87. It is olwious that the Gwernor*s aiC;nature can not be attested before be has affixed it to the instruaent. De bcve already notad that a mmmieeion io not valid if it is not signed by the iiwernor, under the protisious of Artlole 4, Section 20, of the Gouatitution. Of course, a corn- miaaion vhAch purports to have been issued by the Secretary of Btate rather than by the Gweruor la iaaued by an officer apan whom the Cosatitutiondoes not confer authority to iaeue com- JlonorabloC. ii.Cavuess - page 6 ~3ssion8, and is insftwtire for any purpose. WharethecomsdssiOnbears8 eealairirsdthsre- to 0th~ WUI by the dwi09 prO8Oribsd by the Constitution to iaqumae upon the dosumsut the lnsignlo of the Stats, the signature of the dovsrnor Is not authentitatedas re- quired by the COnstitutiou,and suob a commission,there- fore, would not furnish proof ot the ofiioer*s appointsmut CrBdauttlority . Whore the seal of tbeState111 affLxtrdt0 the ooxulssion, the pPeaumpti0nie that the Seerotary of State has properly dAsahargsd the dutiss of his affise; in othc words, the pesumption is that the seal uas affixal by l&s at the diraotlon Of the uwemlor, mxl8ttor the Grnezn0c has sigma the iBstrumsBt. lawor, won it the taot be that the ser;lwas affixed by the Seerotary o? Stats prlor to the (ioternor~ssignature,this, while an *oqm.rity, would uot invalidate the aoiaulssion.m far the safsr and better ~actiob, houarsr, is for the Sseretar2 o? State to me the seal only in aooordenaowith the oonstitutiomfii re- 2uimmmt, that is, at the direstion of the Owernor, and titer the fiwwnor has affixed MS signature. Lastly, you are CaaoO~~od,qqmmntly, with the question whet&w, if the QOBSILBS~OBS i8sued to the Hotar- ies Fubllcron the form attauhed to your letter are lmolid, does it follow that the dfioial aat.8of mwh Rotrriea pob- 110 are invalid, and that fees have beeu illegally eolleat- sd by them It appears that the llofulissPublio hate aotnal- lp been appointed by the Bocretary of State, the lawful ap- pointing psusr. AS pointed Out abOv0, t&O 00mdssi0n is marely sridense of that appointmsnt~tho'authorityto sat I$ derived from the appointment-- not from the comsdssisn. karbury '1.Lad&eon, 2 II.ed. 61, at p SO snd 68. We are of the opiti~arofore, that the OF' Tieial aate of such hotaries Publla are valid, thou@ thsy have not been duly eommlssionod. Artio10 3882* wwisod Ciril Btatutes, 1@2b, pro- vides as followst sko official who fails OF rsfusos to take out a cosnzlssioushall be ontitlsd to collaat or reseivo either fro& the Stats or from U&iv&d- ~a38 any money at3foes of offiae or aompensation for official esmioes. Roithor the Camptrollar, ;, .-i ., / . fionorableCt tl.Cavness - p;zgO6 comr2dssionersaourt, county auditor nor q other person shall approve or pay any c1af.a or aocount in favor of any such officer rho has so failed or refused. The Secretary of Stats shall from tin0 to time, PS such com- tissions WC Issued hy him, furnish a lfst thereof to each conwLssionim3court, em% county audltor and to the Comptroller,with the rum0 of the county in uhich such offloors rebide. Each state, district, oounty and pre- cinct officer is requlrcd to apply for and re- colre his owmdssion.* This Article does not prohlbit the duly appointed or eloated cfficial from acting as such, but prohibits him f'romcollecting or reeeiring from the State or individuals money a8 fees of office or oompensationfor his servioes, if ho has failed or refused to take out a aoxud.sslon.We do BOt think this staWt0 applieablC t0 th0 8OtPries PobriO iB t&b COSO. St is deei@mi,ln our oplxk%on,topuulsh the official rho is not coomdssionsbthrough his own default or neglwt. The language of the statute is that no official vhofails or refuesetotahe out a a;ormdasiomshaxlbe da- title fees of office. Each of those words inplies the oxistonco of fault upon the part of the official. Under the cireumstaneOsof the instant situation, the ~failurcof the 2IotariorPublie to reoeivo their wmsdssiono in proper form is not'duo to their fault or nOgll.gence,but to an erPoneou8 intorpr8tationof the lav by the Secretary of State. We are, therefore,of the opinion that the foes of office received by these Notaries Public have not been illegally collected. very truly yours