Honorable Claude Isbell Opinion NO. 0-6468
Secretary of State Re: .Necessltyof and making
Austin, Texas of notarizationon notarial
bonds; proper date for
executingand taking such
bonds;:*date:whennotarial
appointmentbecomes effec-
tive; effect of notarial
appointees qualifying be-
fore a Notary who has not
Dear Sir: yet qualified himself.
We are in reoelpt of your recent opinion request
relative to the above topics. It contains four questions.
The pertinent statute and portion thereof is Article 5949,
Sections 3, 4, 5 and 7, Vernon's Revised Civil Statutes,
,whichread as follows:
:I
.; “3.
_I Any person desiring appointmentas
Notary Public shall furnish to the County Clerk
of the County of residence of the applicant his
name as it will be used in acting as such Notary
Public, his post office address, and shall satisfy
the Clerk that he is at least twenty-one (21) years
of age and a resident of the County for which such
appointment is sought. The names of all such per-
sons shall be sent forthwith in duplicate by the
County Clerk'to.theSecretary of State with the
certificateof the County Clerk certifying that
according to the informationfurnishedhim such
person is eligible for appointmentaas,NotaryPublic
for such county. The Secretary of State shall act
upon all such names submitted at the earliest prac-
ticable time and notify the County Clerk whether
such appointment or appointmentshave been made.
Upon receiving notice from the Secretary of State
of any such appointment the County Clerk shall
forthwith notify all persons so appointed to
appear before him within ten (10) days from the
date of such notice (but not before the first
day of June of odd numbered years In the case of
appointmentsfor the term beginning 'onsuch date
or re-appointmentshereinafterpprovidedfor) and
qualify as hereinafter provided. The appointment
of any person failing to qualify within such ten
(10) day period shall be void, and If any such
Hon. Claude Isbell, Page 2 (o-6468)
person desires thereafter to qualify, his name
shall be re-submittedin the same mariner,,,,
hereinabove provided.
"4. At the time of suoh quallfioatlonthe
County Clerk shall coollec%the Paes allowed him
by law for administeringthe oath and approving
and filing the bond of SW?? Notary Public, toget-
her with the fee allowed by law to ,theSeoretary
of State for issuing a commission to such Notary
Public.
“5. Immediatelyafter the qualificationof
any such Notsry Public the C$,untyClerk shall
forthwith notify the Secreta-ryof State that such
person has qualified and th?eda::eof such qualifl-
cation, and shall remit with suah notice tinefee
due the Secretary of State, whereupon, the Secre-
tary of State shall oause a comission to be.
issued to each sueb.quali.:'ied
Notary Public, which
commission shall be effeetl.veas of the date of
qualification. A11 such commissionsshall be for-
warded to the County Clerk for delivery to SWh
persons entitled to sese!.vethem. Nothing herein
shall prevent any qualffled Notary Public from
performing,theduties of his ofRim*,e from and after
his qualffioationand before the receipt of his
commission.
11'
7. Any person appolzo,t:ed
a Notary PublLe,
before enterfng upon his cf?ic!-aldut:iss,shaZ.9
execute a bond In the sum of One Thousand ($l,OOO.OO)
Dollars with two or more scl.ve& lndivlduais,or
one solvent surety company authorizea to do.busi-
ness in this state, as surety suoh bond to be
approved by the County Clerk of his eountyp aayable
to the Governor, and ccnd.fffoned for the fai&f?;l
performanceof the dut%es of his office; and shall
also take and subscrfbe the offioial oath of office
which shall be eqdorsed on said bond with the certi-
ficate of the official adminIsteringthe same.
Said bond shaU. be deposited in the office of the
County Clerk and shall not be void on the first
recoveryI and may be sire~d on inthe neme of Me
party'injuredfrom time to time until the whole
amount thereof has been recovered. Any,such per-
son,shall be deemed to be qualified when he has
Hon. Claude Isbell, Page 3 (0-6468)
taken the official oath of office, furnished the bond
and paid the fees herein provided for, all within the ten
(10) days allowed therefor."
Your question No. 1 is:
"1 , Is it necessary for the signatureson Notary Bonds
made on behalf of applicants for notary public.commissions
to be notarized and, if so, should such notarizationsbe
in the counties where the individualsreside? This question
applies to the signatures of the applicants as well as the
sureties on such bonds."
Section 7 of the Article quoted provides that the ap licant
must subscribe the oath (endorsedon the bond) and requ re
+klTfie
certificateof the officer administeringthe oath. We find noth-
i the statute or elsewhere requiring sureties on such bonds to
tike any oath relative thereto and nothing requiring the appli-
cant to swear to anything but the oath which is endorsed on the
bond. However, the County Clerk has the implied power to require
the personal sureties on a Notary's bond to make oath as to their
qualificationas sureties, for the statute requires them to be
solvent. The Clerk must determine the question of their solvency
before he accepts them as sureties and approves the bona. If the
Clerk requires such affidavit, it may be made either within or
without the county where the bond must be filed. The statute
does not require that the Notary be solvent, only that his indivi-
dual sureties be solvent, or if his surety is a surety company
that it be solvent.
Your question No. 2 is:
"2. a. In cases of applicants for appointmentsas notaries
public for the term beginning June lst, would It be legal for
such bonds to be executed prior to June lst? Could such
bonds be executed prior to June 1st but postdated to June lst?
II b. If such bonds must be acknowledgedbefore a notary
public, may,,thatbe done before June lst?
Section7 of the Article above quoted provides that the notary
becomes qualified when he (1) takes the oath, (2) furnishes the
bond, and (3) pays the required fees, "all within the ten (10)
days allowed therefor."
As we construe the statute, the "ten (10) days allqwed therefor"
are the 'tendays mentioned inSection 3 of the Article. According
to Section 3, such ten-day periods,in cases of appointmentsto
begin June 1, 1945, would rbeginf'notbeforethe first day of June."
Honorable Claude Isbell, page 4 (0-6468)
The statute Is silent as to when the bond shall be executed,
Section 7 ,provldesthat it shall be furnished to the County Clerk
within said ten-day period. It is our opinion that there would be
nothing illegal in executing the bond prior to June 1 so long as
it is furnished to the,County Clerk during said ten-day period and
so long as the applicant had already been appointed at the date of
its execution. Section 7 provides, "Any person appointed to a
Notary Public, befor: entering upon his official duties, shall
execute a bond . ,. This indicates that the'bond may be executed
only after the principal has been appointed:
Since the bond can be executed prior to June 1 in the case of an
appointmentwhich begins June 1, there is no necessity for Its
being post-dated to June 1.
We make It clear that,the oath which is endorsed on the bond cannot
be executed prior to June 1. Section 7 of such Act provides,
"Any person shall be deemed to be qualifiedwhen he has taken the
official oath of office. . .a11 within the ten (10) days allowed
therefor."
In'responseto Section b of question 2, you are advised that
such bonds themselvesneed not be acknowledged. It Is our opinion
that the official oath endorsed thereon cannot be acknowledged
before June 1 in the situation about which you inquire for the
reason given in the preceding paragraph hereof.
Your third question is:
"If a Notary is appointed on June 1 and qualifies on some later
date, but within the required ten-day period, would his authority
to serve as Notary date back to the day of his appointmentor
from and after the date he qualified?"
We find no statutory authority for a Notary Public or any other
public officer to act until he $ualif'ied.For that reason we
answer your third question "No.
Part (a) of your fourth question reads:
"Can a person who has been appointed a notary public make or
take, either or both, the,affidavitto his bond and oath of
office before some other notary public or must he appear before
the County Clerk of his county to make such affidavit or take
such oath?"
We have in answer to your first question said that a person
appointed Notary Public is not required to make oath as to his
solvency.
Honorable Claude Isbell, page 5, 0-6468
Article 26, Revised Civil Statutes, provides that all oaths,
affidavits,or affirmationsmay be administeredand a certificate
of the fact given, if within thfs State, by a Notary Public, Judge
or Clerk of any Court of Record or Justice of the Peace. It is
provided in Section 7, quoted abo,ve,
'amongotherthings, that I'Any
person appointed a Notary Public . ~ . shall also take and
subscribe the official oath of office which shall be endorsed on
said bond with the certificateof the official administerin the
same." ,(Emphasisours) From the'emphasizedlanguage of thegstatute
theconclusion is inescapablethat the oath of office may be
administeredto a person duly appointed Notary Public by a Notary
Public who has previously qualified at any time during the ten-day
period within which he may qualify. Of course, such an appointee
may take the oath before the County,Clerk and while that officer
alone may approve the official bond and collect the prescribed
fees, his authority to administer the oath is not exclusive.
Section b of your fourth question reads;
"If a person who had been appointed a notary public qualified
before another notary and such other notary had not himself
completed his qualificationas a notary, would such qualifica-
tion be legal, and what effect, if any, would it have on the
legality of issuance of Commission to such appointee and on
his official status as a,notary?,.Presume in this case that both
of the above notaries had filed proper application and that the
notary who took the acknowledgmenthad himself already been
appointed by t,heSecretary of State and had not yet qualified."
Section 7 of such Article provides that,the appointee,before
entering upon his duties of office shall "take and,subscribethe
official oath of office". This statute inztes that the oath
must be taken before some officer authorizedby law to administer
oaths. As we have heretofore stated, it is our opinion that an
,appointeeas a Notary Public is not authorized to administer oaths
until he has himself qualified.,That being true, it is our
opinion that the official oath made by a notarial appdintee before
another notarial,appointeewho had,not qualified'wouldnot be made
in compliancewith the statute and would, therefore,.be void.
Yours very truly,
WTC/JCP/CGE ATTORNEY GENERAL OF TEXAS
APPROVED APRIL 3, 1945 s/ W. T. Curry
s/ Grover Sellers
ATTORNEY GENERAL OF TEXAS ,BY
W. T. Curry
APPROVED OPINION COPIMITTEE Assistant
By BWB, Chairman