A Texas notary is a public officer appointed by the Texas Secretary of State to serve the public as an impartial witness to signing of documents. Having a document notarized by a Texas notary protects the integrity of the transaction. For example, properly notarized documents can bind individuals to an agreement indefinitely, make reliable a last testament for an estate worth millions of dollars, settle ownership disputes of real property, or protect individuals from fraudulent transactions.
A Texas notary public should perform notarial acts only within the authorized duties allowed by Texas notary statutes and administrative rules. To become a Texas notary, it is vital to familiarize yourself with these authorized duties in order to avoid civil and criminal lawsuits and administrative actions by the Secretary of State that result in revocation or suspension of your notary commission.
Under Texas Administrative Code 406.106, there are five authorized duties a Texas notary public can perform within the geographic boundaries of the state of Texas, namely:
Taking acknowledgments or proofs of written instruments
Administering oaths and affirmations
Taking depositions
Certifying copies of documents not recordable in the public records
Protesting instruments
A Texas notary public can perform these authorized duties both in traditional notarizations and remote online notarizations.
Each of the notary's authorized duties is discussed below:
Taking an acknowledgment is one of the common notarial acts. In an acknowledgment, the signer, whose identity has been verified, declares to a notary public that he or she has willingly signed the document for the purpose stated therein. The notary is not required to see the signer sign the document in front of him or her. However, the notary is required to ask the signer to acknowledge signing the document freely and willingly and for the purpose stated therein. In taking an acknowledgment, the Texas notary and signer must follow these steps:
The signer must physically appear before the notary, or in the case of online notarization, must appear by interactive two-way audio and video communication.
The notary must positively identify the signer.
The signer may either sign the document prior to or in the notary’s presence.
The signer must acknowledge signing the document for its intended purpose.
As stated, it is acceptable for the document to be signed one day ago, two weeks ago, or ten years ago. When performing an acknowledgment notarial act, the notary is required to complete a notarial certificate called an acknowledgment notarial certificate similar to the one below:
An oath is a sacred declaration or statement attesting to the truth of the contents of a document that is signed before the notary.
Some people have religious convictions against taking an oath. The notary may instead allow the signer to make an affirmation, meaning a promise made on one’s own conscience without addressing a supreme being. Oaths and affirmations are equivalent in the eyes of the law. Making a false statement under either is a criminal offense called perjury. Oaths are required on written affidavits, transcribed depositions, and other sworn documents.
When administering an oath or affirmation, the signer must sign the document in front of the notary. Unlike as with an acknowledgment, it is not sufficient for the signer merely to acknowledge that he or she signed the document freely and willingly and for the purposes stated therein. If the document is signed, the notary must witness the signer sign the document again in his or her presence.
When presented with a document requiring an oath or affirmation, the signer must be in the physical presence of the notary, and the notary must verbally administer an oath to the signer. Failure to do so may cause the document to be dismissed in court.
“Do you solemnly swear or affirm under penalty of perjury that the statements in this document are true and correct to the best of your knowledge?”
“I do” or “yes.”
When administering an oath or affirmation, you must complete a notarial certificate called a jurat. A jurat has the wording “Subscribed and sworn before me…” while an acknowledgment notarial certificate has the wording “Acknowledged before me….”
Tex. Gov’t. Code Ann. §406.016 authorizes Texas notaries to take written depositions in Texas. A deposition is a sworn testimony given by a witness in a civil lawsuit. A deposition is usually taken outside of a court in advance of a trial or hearing.
Even though it is rare that a Texas notary is called upon to take a deposition, you need to have a basic knowledge of how to take a deposition and administer an oath to a deponent in case the need arises. Usually, this type of notarization is handled by a certified court stenographer (who is also a notary) and is familiar with administering oaths and recording testimonies.
Usually, lawyers will be present in a deposition and will instruct you how to proceed. You will be asked to administer an oath to the deponent similar to the one below:
“Do you swear or affirm that the statements you are about to make will be the whole truth and nothing but the truth?”
After administering an oath, the lawyers may ask you to leave.
Another duty of a Texas notary is certifying copies of originals. Usually when a notary certifies a copy of a document, he or she is not certifying that the primary document is genuine, but only that the copy is a true copy of the primary document. As a rule, the Texas notary public can only certify copies of documents that are not recordable in public records. For example, a Texas notary cannot certify a copy a divorce degree or a will since these documents can be recorded with the county clerk’s office. Furthermore, a Texas notary cannot certify a copy of a birth or death certificate since certified copies can be issued by the vital records.
A notary should decline to certify a copy if the original is altered. When certifying a copy, the notary should:
Make a copy of the original.
Identify the signer.
Record the notarial act in his or her record book.
Attach a notarial certificate similar to the one below.
A Texas notary public may protest instruments permitted by law to be protested. Primarily, these are protests involving negotiable instruments and bills and notes that have been dishonored.
When protesting an instrument, the “protestor” makes a formal declaration expressing his or her personal objection or disapproval of an act. A Texas notary makes a written statement at the request of the protestor who is the holder of the negotiable instrument. The protestor will describe why the instrument was dishonored, and the document will state the reasons for the refusal.
The protestor must appear personally before the Texas notary public or, in case of online notarization, must appear by interactive two-way audio and video communication. Then the Texas notary needs personal knowledge or other satisfactory evidence of the protestor’s identity to proceed.
Since the Uniform Commercial Code has been in place, the act of performing a protest as a Texas notary is virtually obsolete. The AAN recommends that you avoid performing protests. However, should the need arise, here is a sample certificate:
As you can see, the duties of a notary are bound by Texas law. It is not sufficient for a Texas notary to merely stamp and seal a document with his or her notary stamp when performing a notarization. A Texas notary must positively identify the signer, ensure the competency of the signer, identify the notarial act that is to be performed, complete a notarial certificate, and record the notarial act in a record book. The last step is to sign and seal the document.