PRICE DANIEL
ATTORNEY GENERAL
BCJU.Charles D. Bates, Jr., Opiaion No. V-195
Couuty Attorney
LaSalle County Re: Whether or not m bomdr-
Cot Lila, Texas nwin on a Wotrry Public’s
offiafal ‘bond my obtain
a summery releese rm
liability thereon.
Your requ6st to this Departaeht ior au spinion
upon the above Isubjsat matter presemts the rollowily
quombioas:
*1, Is it possible for such bowa-
Ina t,o be relieved 0r further li8billfy oa
Me bond?
CleaS seklng meat dtEBnnamea be reuavaa
rlws t&e Retary lbnd suiri6lont to Irlieve
such bondsam of further liability?
After such written not&e has I
been ;if;eh to the County Clerk, is say rtu-
tber aat aomsoar~ 0~ the .part or smh mare-
ties in order to relieve then er rarther lia-
, brauty on tfn bQarn(t?
“6. Arttr su,ah written aotlce has beeu
#lrul tc the Csunty Clerk by rtmh boadamn,
is say hrrther, aat necemary en the part, or
ouah CaYpty Chik to relieve suoh bondsmen
rm- rwther liability on suoh bead?
“8. If such bondsmen are released fro,
their baud, and uutil a new bond is executed,
retold such Wotary Public be duly qualified to
aot as such?
“6. In the event the County Clark
should d.etenine that the bend of the l@t&ry
Public Is no lolager a good bond, by rea~~im
.
Hon. Chsrles D. Bates, Jr., Page 2; V-195
of the sureties having asked pewission to
withdrew their mmes from same, could a new
bond be substituted by the Natary Public in
lieu of the old bond, or would it be uaces-
sary to make a new applioation and qualify
aaew es a mtary Public?
R7. Dee8 the Caunty Clerk have any
disoretien fa passing upon the qualiricatiens
of a Mtaxy Pab,lic applicant, other than te
deteCs&ne fl) a +&eatt km applicant is at lmat
21 years er age, aad (2)) that he Is a resf-
dent of the Couutg?
“86 In the event a person, who is draw-
ing lOC$ disability pay from the Govemaent a8
a mental ,eare, mpplisil fcvr a Ilatary Public? ap-
pointiw~, ir Bt manaetery~~ t&kt thv.Cawdy
Clerk aeaapt such application and oertif’y his
elig,ibllit.y to the Sesretayy of State? (Such
person huvi newer beeu declax+d &&Skne by
aourt a0iiian “3”o
"91 Cam ,the appclntment of a Botary
Public be pretest.ed te the SecretaTy of St*to,
whereby that orricial. say reruae to isstm t410
Coaaission as a Notary Public?
“10, Under the pmment l&i*, am there
euy liritativss or restriotions against a per-
@on b,eotin a NetaxV Public other than the
agesnd res f’,deaee raqulxemente? Ii so, with
w&t officer doe8 the authority rest to apply
suoh limitatioas or reetrictiohs, the County
Clerk or the Secretary oi State?*
Article 5949 ef the Revised Civil Statutes 6c
Texss as the same has been amended constitutes then whole
Or the statutory law geverning Rotaries Publlo in this
State.
S,luce yaur questions are narerbus and aotapre-
heusive in the&r sompe, we quote the Artiole.
*l, Tke Secretary of State of the State
of Texas shall appoint a convenient number of
Notaries P,ublia for eaah eouuty of the State,
Such appaintnents ay be nade at any time, and
the terms of all appeiataents ntdlde shall end On
Hon.'Cbarles D. Bates, Jr., Page 3, V-195
the first day or June of eaah odd aumbered yemr.
A&am;n;e% Acts 1945, 49th Lega S p* 39%, oh.
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Eon. Charles D. .Dates, Jr., Page 4, V-195
"4e At the time of such qualif%~cation
the County Clerk shall collect the fees allewed
him by law for administering the oath and %a-
proving and filing the bon% of suah INary Pub-
lic, together with the fee allowed by iaw to the
Secretary of State for issuing a commission to
such Notary Publfa,
ymasadiately after the qnaliihJ.eatioh
of anTsuch, Notary Publio the, County OleFk ‘shall
fOrthwith notify the Secretary of State that
such person has qualified and the date Oi s~ueb
qualification, end shall remit with such no,tice
the fee due the Ssoretary of State, whereupon,
the Secretary of State shall oause a. commlssi0n
to be issued to each such qualified Notary Pub-
110, which commission shall be effective as of
the date of quallirioation, All such aonuaissi~na
shall be forwarded to the Gounty Clerk for de-
livery to suuh persons entitled to receive them,
EDotbinS haMin shell prevent any qua~lifisd Notary
rubliic, from pkrfonaing the duties 4r his 4rri0e
fr0m an% afte~r his qualifictation and-be&W@ the
receipt of his aommisaion.
“13. My qttallfied 19&ary Publio, wlmas@
term is srpirif~& may be rb-appointed by t&r Sew
r&ary of State without the necessity of the
&&ty Clerk reesubmittiina, his nmmato the Saorh-
*a,ry of State, providaa suoh appoia&manQ ir made
ia sufficient time for srroh Notary Public to re-
qm2ify on the a3pbati0n date of the term rbr
:’ rhidh he Is them serving; an% previded fur-
ther, that ir any such Notary has remove& hi8
reai%ence to a aountg othtr WWI the aa@ f?er
which he was appainted, his office shall be
aatanatioally va0ate%, and if ha desire8 to
act as Retary Publio in suoh other aounty his
~txnmismiotl shall be surrendered to the &ore-
tary of State and his n6ma shall be subm$t;teU.
by the Clerk of such other county as heregn-
abmve provide% o
Jo
_
“9, Any person app9inted a $Wary Pub- ’
lid, bsfer& #5%& upem his afFief*l aw48,
shall exee,@te a bon?I in the sum of OEa+Fhouead
()l,OOO,OO] Dollara with two or mere sabtW
indlvPduals, 0r one solvent surety eomp&&ya&h;
orizcd to do busfness in this states as aarety,
fFsn. Olmrrlar D, Batea, Jr., Page 5, V-L95
such bond ba? I pSW6& by the Omtnty Clerk of
to
Me aouaty, my& ee to the Owemar, end con-‘~~
dltfomd # t# f8Lthful pcrfonkanae of the
drttsr 0r bi*.- 1 *M ikIN1 also take and
*ubeYi#~ui b
w Stil m&h ol offica which
shall be ODilW%Od06 aeld Wad with the aellti-
tltwte ar t,hr 0ma 81 lministering the mm.
W&d @D&t?e&W W 4Opfa8l$ed In the offlae of
tha OCuSty Clad Mld shell not be void on the
tlret Yecwery, and luy be sued on in the nme
a!’ fha party lajured ima time to time until the
whale Bammt tbexeot has been ~raaorered. Ailg
aimit person shall be daemed to be qualified r&an
hr hes token the ofricm oath of orflee, rap-’
lt&Wd thl bond and paia the fees herein pro-
vidd for, all within the ten (10) days allewad
thw6tar.
“8. XT any Qbuntp Clerk fails or refm
W fr$msrd the maurn ol pewons requestfug ap-
pairtaeabn, QOticss af qaalificotion, or to re-
atit my Irob due to the Waretam of State, or
,. 1. to a o tir nlppll~rrt et h is
a y appetatneot with -
$13 tirty ($0 3 days rrter receipt ar mm by the
*:
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C6tbty C!lcr* t&m 5)ooratam nf State shall wr-
. I~
tb imeh f&am or nTuar1 to the 37m4e Comp-
T lsr, U, W&y
t26 Auditor ud daarlssisnaru
oo+IL ai su6k 4enmty, after w&&oh na ol*ir
rf SrwP dteik shell be
.
Or nW66H iI6 rWW
6-4 w p&l pa051 the &4crete ar
BWte elm11 sertlty k ctueh aiticia 2 8 that
all raquflUsrrta h-or hare bum COI-
gIllad with.
“9. AAl &ttnZ6 pmrtaintagCa the ap-
iatmat udl eae&Pt&gatha Of Notarias Wb-
Fto 6n611.ba )*blita u6OQml la the officss
of tL, C6wrt.y CItea ata in tit6 affioe of the
Sacrstary 0r Stnta *rter any such No,tary mb-
110 ima qualiPW& ati sM11 be apen to in-
rpeatian ef am$ lDt4lwstsd person at suoh
reasonable times *aa In such mannkr a9 till
nst lnterrere wi$h the lfiairs or orfiaa or
tha custodian of such reoerds; but asfther a
County Clerk nor the Secretary af State shall
be required to furnish Lists ai the hams ai
persena appoirtsd berare their qu8liri0atfaa
gor lists of unreasraable nusnbera at quali-
ried I?@taifes ?w;lic o As amended Acts 1959,
mm0 amrm b. Batee, fs., Page 6, f-195
.l. The statute nowhere pnscribse a&y method
by whloh a surety execwtiag B Elotary P6%blic)‘a bond may be
swamrll~r FelUMed of FostheP Liabilitys If %+a#bond were
:, .n o#IpIo* len oh&&atI.mi of mzvt~8hfp effecting only fn-
dSx4dWis, the maCte#? @f s,mh a Ml;ease ooald to doubt
ba efbatrd through t&e mutual agreement et all parties
ae~e~@~z~dthere&n. If& suoh is not the casai here, seeing
that the bond is a sta*u%e bwd papsble to tha Oorer-
mu, 9wdsion~a ror We Wr ,thf& performance of the du-
tiib# Of the Botarf’s offfee, The GOvernOF, ia his capac-
1%~ 6@ payee, is of course the fiduciary ~of the State,
,.a&3 Here ie no provision of law authorlzihg .hin in such
mpmefty iw ~J1.emee suah surety, Moreover, silo0 t&e ob-
l$gW&lan of the surety i6 10 essence one to the Btate,
tw ]t@i$8h%k~ itmif WOtid a~ppeM e.0 hr?S RO t~t&Titr
‘to sW&aau &Y tie awfd~e S method of releasing aus* ebl4~
gaawks 4-a. Lt. XX& 6,ee. 56). BS tllir aa It may,
ita m&k84 ie yw,aPB;baff by’ lm for such a releulle.
wS%a'*he cam@yatask la mae c,B6iemmeIII8~
ry, the age%t 8udeT the #talllutes for the
end therelam
purpose of expedktingappai-*mqa*sor &taries Publio by
the si3mretaFy or state, nevertheless ,hs ia gfren no au-
th@rity, whatever in Tsspeot to the mntter of releasiq
me bcwsman whose suzxmfyahip has been duly consummated ia
ae~o~ordance al th tile law, It is a familiar principle or
&au br oM t& no&d ef o,itation of authorities, that pub-
lia 6a3 farars have oaLr tlaose powers confer&ed upea them
by 1-0
la IWTIF~# cpl bfbieial Bonds (an older text9
1666) p. 535, sea. 776, it is said:
*In the abremm Of a statutery pro-
‘~ vision to that ePi%Wis a surety cannot pn-
‘w ,fhis release by @rfag notioe to the
“@b&k@%l rP the bond9 of his desire and ia-
tention to terminate his liability,*
In that modern compendfur Amcrioaa Jurisprud-
01104, .Vol, 5Qs pO &Fib, SaOO 37, it is said:
ln ths aMmBoeor centmqt or
+#hoorflarqyi 8 surety l&Q 3.4
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Hoh. Charles D. Bates, Jr., Page 8, V-195
9q ‘Betaries Public are pubIic offioers of
the 8tete, aad aa s,uoh, the matter of fitnsaa, for suoh
offioe is e&m ef publia eonoarn from ahlah it follows
t&t say &~ezlaa;ll
itierbated my I%k,e ~H?~OQJ~ to the Sca-
reta* of State age&nit the appointment.
100 Your question is very broad indeed, and
our amwer is necessarily general. There 1s~ an Implied
limitation embodied in the first sentence of Article
5949 which authorizes the Secretary of State to appoint
ti caWsnSe,nt~ number” of Notaries Publio for each aounty
im the $tet;s* lieurarily, it is implicit in’ this lan-
guage that the @Wbdl$tWy af State may det,ermina what is
a *&RMBanient numbaP of Notaries Public for any partic-
ular county. If wouLd not be his, duty to appoint more
tban such determined conveniant number. In the next place,
if the applicant should be known to the Secretary of State
to be ment,ally inaapable of perfonaing the duties of the
office, or if he s,hould~ be known to the Secretary of
State as one having bsa:n convicted ef a e&a&e which under
the Law would han.e mad.0 it the duty of the trial oourt
to rems.ve him f&m any public offioa, held by him at the
time, we think it certahnLy Uo~ulBbe the moral, if not
the legal duty of the Seeret,ary of State to refuse to
make the appointman%,. We think it is a wholesome impli-
catien oh la,w that the pswer fn one to appoint a person
to pub&$c offiae implies that he shoold not appoint any
person who ia legally inelilri$ble or, what is perhaps the
smut3 t&h& r6Ictua1ag p&la or inaofapetant to die-
,oharga the duties of the offlee.
rfhe~se i,s no tiuthority for a bandsman of
a Netary Public to obtain a s&m&erg release
irom furthex liabilkty en au& bend. A oelypty
ale& haa mmdiaoretien in raeelwinS and for-
warding applica,tion fb’r notam appointment $b
the S:ec,retary ef S&t&,,: b;ut he may and should
advise the Seoret8ry ef any disquallfioatib
of the appl,ioant which would render aenfse as
a public efficer unlawful or impossible. The
Seerebary of Sta*s could refuse appointment an-
der ceFtiain conditions o ArtU5949,aa amended,V.C,S.
Yours very tru1y,
ATTOm OEIWtAL ‘F 9’lRAS
*’ %pe& I
(BS:WB:jrb Assistant