concurring in part and dissenting in part:
I concur with much of the majority opinion, but I must respectfully dissent from its holding that Tex.Rev.Civ.Stat.Ann. art. 5949(2) is constitutional. I agree that the issues appear to have become moot with respect to Vargas and that they remain alive with respect to Bernal. Further, I agree that Bernal was not required to exhaust administrative remedies. I disagree, however, with the majority’s conclusion that the district court erred in applying the strict scrutiny standard to determine the constitutionality of the statute. Therefore, with deference, I must respectfully dissent in part.
The responsibilities and duties of a notary public in Texas are more akin to the authority granted Connecticut lawyers, see In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), than the plenary powers given peace officers, see Cabell v. Chavez-Salido, 454 U.S. 432, 102 S.Ct. 735, 70 L.Ed.2d 677 (1982), state troopers, see Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), or school teachers. See Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979). As the Supreme Court noted, “a [Connecticut] lawyer has authority to ‘sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgments of deeds.’ ” In re Griffiths, 413 U.S. at 723, 93 S.Ct. at 2855 (quoting Conn.Gen.Stat.Rev. § 51-85). Thus, the authority accorded Connecticut lawyers encompasses every function performed by Texas notaries public. See supra at 5972. The Supreme Court, however, has stated that “[i]t in no way denigrates a lawyer’s high responsibilities to observe that [these duties] hardly involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens.” Id. at 724, 93 S.Ct. at 2856. Because the Supreme Court has held that states cannot require citizenship of lawyers, a profession whose responsibilities and duties comprehend more than those of the Texas notary public, I would apply the analysis of In re Griffiths to hold art. 5949(2) unconstitutional.
Despite the clear language in Griffiths declaring that the functions of notaries public are not of the character that justifies excluding noncitizens, the majority at*196tempts to distinguish the present case as representing a political function and therefore subject to a less demanding standard of review. This lower standard is permissible when the classification applies to a political office only because of “the recognition of the fact that a democratic society is ruled by its people ... [and the requirements that a political officer be a citizen] represents the choice, and right, of the people to be governed by their citizen peers.” Foley, 435 U.S. at 296, 98 S.Ct. at 1071. The issue then becomes whether notaries public are governing officers. The Supreme Court clarified this inquiry in Cabell by stating that the classification could be applied only “ ‘to persons holding state elective or important nonelective executive, legislative, and judicial positions,’ those officers who ‘participate directly in the formulation, operation, or review of broad public policy’ and hence ‘perform functions that go to the heart of representative government.’ ” Cabell, 454 U.S. at 440, 102 S.Ct. at 740 (quoting from Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973)). The Supreme Court goes on to state that “[w]e must therefore inquire whether the ‘position in question ... involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community.’ ” Id. 454 U.S. at 441, 102 S.Ct. at 740 (quoting Foley, 435 U.S. at 296, 98 S.Ct. at 1070).
The majority, however, restates this inquiry as “Does a notary public in Texas exercise discretion in making decisions which substantially affect members of the political community?” Supra at 194. This reformulation focuses on whether notaries exercise any discretion in making the decisions associated with their duties rather than whether their duties involve discretionary decisionmaking or execution of policy, which would reveal a governing role. Accordingly, the majority emphasizes the importance of notaries in the proper and orderly handling of legal documents and their role in the smooth functioning of the state government. Nevertheless, this shifted focus illustrates the clerical nature of the duties of notaries public.
Moreover, when we examine the duties of Texas notaries to determine whether they involve discretionary decisionmaking or execution of policy, we find that notaries perform purely ministerial functions. Unlike the peace officers in Cabell or the state • troopers in Foley, notaries public do not “partake of the sovereign’s power to exercise coercive force over the individual.” Cabell, 454 U.S. at 445, 102 S.Ct. at 743. Neither do notaries exercise the wide discretion enjoyed by teachers in presenting course materials that “inculcatfe] [the] fundamental values necessary to the maintenance of a democratic political system.” Ambach, 441 U.S. at 77, 99 S.Ct. at 1594. Instead, the responsibility of the notary public is “to insure that those persons executing documents are accurately identified, to refuse to certify any identification that is false or uncertain, and to insist that oaths are properly and accurately administered.” Supra at 194. While the accurate and conscientious performance of these duties are important for the smooth functioning of the state government, they do not “involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens.” Griffiths, 413 U.S. at 724, 93 S.Ct. at 2856.
Accordingly, I would affirm the district court decision holding Tex.Rev.Civ.Stat. art. 5949(2) unconstitutional.