The Role of the Texas Notary Public
A Texas Notary Public is a public servant with statewide jurisdiction who is authorized to take acknowledgments, protest instruments (as permitted by law to be protested), administer oaths, take depositions, and certify copies of documents not recordable in the public records.
The primary duty of a Notary Public is to show that an independent, disinterested party (the Notary Public) has declared that the signer’s identity and signature are genuine, and that the signer is willing and able to execute the document.
The signature and seal of a Notary Public do not prove these facts conclusively, but provide prima facie proof of them, and allow persons in trade and commerce to rely upon the truth and veracity of the Notary Public as a third party who has no personal interest in the transaction.
These are the 5 basic steps to performing a notarization and why a good Notary Public will carefully execute each step.
1. Require the signer(s) personal appearance.
First and foremost, this is required by Texas law. This is crucial because it helps protect the signer, any person relying on the notarization, and the Notary Public, against potential fraud and liability.
Personal appearance allows the Notary Public to complete other steps in a proper notarization.
2. Review the document.
The notary should review the document for several reasons, including:
a.)Ensure the name on the document matches the name on the identification being presented by the signer(s).
b.) Ensure there are no blanks in the document. Blanks in the document opens it up for later modification which could be done to commit fraud. If there are, point them out to the signer and have him/her complete the document. Remember, the Notary Public is NOT an attorney and cannot advise the signer on the contents of the document.
c.)Review the certificate wording to ensure it conforms to the requirements of Texas law and so that the notary knows what type of notarization needs to be performed.
d.)Complete the certificate by filling in the state, county, date, and Notary Public’s name, or any other blanks if not already completed.
3. Carefully identify the signer.
Properly verifying the signer(s) identity is the essential duty of every Notary Public. As with every state, Texas has guidelines as to proper identification.
There are three general methods:
a.) Personal knowledge, which means that the notary personally knows the signer.
b.) Identity documents, such as a state issued driver’s license or identification card, passport, or other government issued identification. (This is the most common method.)
c.) Credible identifying witness who personally knows the signer and can vouch for his/her identity. (This is the least common method.)
It is during this phase of the process that a good Notary Public will be communicating with the signer(s) to make sure that they understand what they are signing and they are willing and able to sign the document.
If the Notary Public has reason to believe that the signer does not understand the document, is being coerced, or the document will be used for a fraudulent transaction, then (s)he should refuse to perform the notarial act.
4. Record the transaction in the journal.
Texas law requires that the notarial act be recorded in a journal. It is recommended that the journal entry be completed before the notarization to ensure that all required information is obtained, including the signer’s signature.
5. Complete the Notarial Certificate.
The majority of documents that are presented to a Notary Public are typically drafted by an attorney and already have the notarial certificate in place. However, there are times where it is not. When that happens the notary should produce some sample loose certificates and allow the signer to choose one. The notary cannot choose the certificate as that would constitute the unlicensed practice of law, however, the notary can describe the different types of certificate.
A Notary Public is personally liable for negligence or fraud in the performance of the duties of the office. In order to be commissioned as a Notary Public, they must have at least a $10,000 bond on file with the Secretary of State. The bond is to insure that the person injured can recover at least $10,000.00, but this does not protect the Notary Public from personal liability for the full extent of damages caused by a breach of official duty. In addition to civil liability, Notaries Public may be subject to criminal prosecution and the revocation or suspension of their notary public commission by the Secretary of State’s office. Most notaries will also carry Errors and Omissions (E&O) insurance.
Tex. Gov’t. Code Ann. § 406.024 sets out the maximum fees a Notary Public may charge for notary public services. A Notary Public who charges more than the maximum set by law, subjects the notary to possible criminal prosecution and suspension or revocation of the notary’s notary public commission by the Secretary of State’s office.
What A Notary Is Not!
Unlike Notaries in foreign countries, a Texas Notary Public is not an attorney, judge or high-ranking official. A Notary Public is not the same as a Notario Publico and these differences can be confusing for immigrants when they approach a Notary Public in this country. Notaries in the Texas should be very clear about what they can or cannot do to serve immigrants the right way and steer clear of notario issues.
I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW IN TEXAS AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.