Presentation on theme: "Notary Public Educational Information"— Presentation transcript:
1 Notary Public Educational Information This slide show may be advanced by clicking on the right arrow, reversed by clicking on the left arrow, and paused or stopped byclicking on the disk (rectangle) in the lower left hand corner.
2 A notary public is a public servant and an officer of the state. Each notary public takes an oath of office to faithfully perform the duties of the office.To insure such performance, each notary public is required to secure a bond in the amount of $10,000.
3 What are the potential penalties or liability for failing to faithfully execute the duties of the office or violating the Notary Public Act?Revocation of the commission of the notary public or other disciplinary action;Claim against the notary bond;Personal liability in a civil action for the full extent of any damages caused by a breach of official duty; andCriminal prosecution if the conduct is a violation of the Penal Code.
4 You should not have a personal interest in the transaction. The primary duty of a notary public is to serve as a disinterested party in authenticating the acts of a signing party.You should not have a personal interest in the transaction.You should avoid notarization when related to a party and that relationship may cause you to have a personal or financial interest in the transaction.You should not receive a monetary or financial benefit from the transaction.You should not notarize your own signature.
5 Under section of the Texas Government Code, a notary public is required to maintain a record book which includes the following information:Date of each instrument notarized;Date of the notarization;Name of the signer, grantor or maker;Residence of the signer, grantor or maker;Whether the signing party was personally known, identified by a governmental identification card, or was introduced and the name of the introducing party;Name and residence of the grantee; andBrief description of the instrument.
6 Additional Information Required in Record Book If the instrument is proved by a witness, the record book must contain the following information:Residence of the witness;Whether the witness was personally known to the notary public or was introduced; andIf introduced, the name and residence of the individual introducing the witness.
7 Additional Information Required in Record Book If land is conveyed or charged by the instrument, the notary record book must include:Name of the original grantee; andCounty where the land is located.
8 The notary record book is public information. If a request is made to view the book, you must produce the book and allow the requesting party to view any information included in the book.If a request is made for copies of any pages of the book, copies must be produced.The record book must be maintained and produced whether or not a notary charges for services. You must record a notarization even if the notarization is for a friend, employer or co-worker.Since the information in the book is public information, you should not record any personal identifying information, such as SSN, Texas Driver’s license number or passport number.
9 Notarization of a Criminal Complaint A notary who administers an oath for a criminal complaint issued under article of the Texas Code of Criminal Procedure does not need to record the notary’s action in the notary record book.
10 May a notary charge a fee for viewing the notary record book? No. There is no statutory provision which authorizes a fee for inspection of public records.May a notary charge a fee for copies of pages of the notary record book?Yes. A notary may charge a fee of $0.50 per page and $6.00 for the certificate for certified copies.
11 Notary SealEach notary public must have a seal and use it to authenticate the notary public’s official acts.The seal of a notary is personal to the notary and must not be shared with others.Your seal should be stored in a secure place so that it cannot be misused.
12 The Appearance of the Notary Seal Section of the Government Code requires a notary seal to clearly show:The words “Notary Public, State of Texas” around a star of five points;The notary public’s name; andThe date of expiration of the notary public’s commission.
13 Shape of the Notary Seal A notary seal may be a circular form not more than two inches in diameter.ORA notary seal may be in a rectangular form not more than one inch in width and 2 1/2 inches in diameter.All seals must have a serrated or milled edge border.
14 How should the seal be affixed to the document? The seal must be affixed by a seal press or stamp.When embossed or printed, the required elements of the seal must be capable of being legibly reproduced under photographic methods.An indelible inkpad must be used when using a stamp to affix the seal. No disappearing ink!
15 Use of a Seal on Electronic Notarizations A seal on an electronically transmitted authenticated document is not required to be affixed by a seal press or stamp; however, it must legibly reproduce the required elements of the seal.
16 Jurisdiction of a Notary A Texas notary public has statewide jurisdiction and you may perform notarial acts in any county in the state of Texas.
17 A notary public has the same authority as a county clerk to: Authority of a NotaryA notary public has the same authority as a county clerk to:take acknowledgments or proofs of written instruments;protest instruments permitted by law to be protested;administer oaths;take depositions; andcertify copies of documents not recordable in the public records.
18 Official Acts that a Notary May Perform These definitions are included to enhance understanding of the transactions that you may be requested to perform.Acknowledgment: A formal declaration before an authorized official, including a notary public, by someone who signs a document and confirms that the signature is authentic.
19 Sample Acknowledgment Forms Form for Ordinary Certificate of AcknowledgmentState of TexasCounty of _______________Before me, (insert the name and character of the officer), on this day personally appeared ___________________, known to me or proved to me on the oath of _______________ or through (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he (she) executed the same for the purposes and consideration therein expressed.Given under my hand and seal of office this ____ day of _________, (year)._____________________(Personalized Seal) Notary Public’s Signature
20 For a natural person acting in his/her own right: State of TexasCounty of _______________This instrument was acknowledged before me on (date) by(name or names of person or persons acknowledging)._____________________(Personalized Seal) Notary Public’s Signature
21 For a natural person as principal acting by attorney-in-fact: State of TexasCounty of _______________This instrument was acknowledged before me on (date) by (name of attorney-in-fact) as attorney-in-fact on behalf of (name of principal)._____________________(Personalized Seal) Notary Public’s Signature
22 For a partnership acting by one or more partners: State of TexasCounty of _______________This instrument was acknowledged before me on (date) by (name of acknowledging partner or partners), partner(s) on behalf of (name of partnership), a partnership._____________________(Personalized Seal) Notary Public’s Signature
23 For a corporation: State of Texas County of _______________ This instrument was acknowledged before me on (date) by (name of officer), (title of officer) of (name of corporation acknowledging), a (state of incorporation) corporation, on behalf of said corporation._____________________(Personalized Seal) Notary Public’s Signature
24 Affidavit: A statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under the officer’s seal of office.
25 Jurat: Certification from a notary public or other official administering an oath or affirmation added to an affidavit or a document stating when, where and before whom the affidavit was made.
26 Sample Jurat State of Texas County of ______________ Sworn to and subscribed before me on the __________ day of _______________, (year), by (name of signer)._____________________(Personalized Seal) Notary Public’s Signature
27 Oath: A solemn declaration, accompanied by a swearing to God or a revered person or thing, that one’s statement is true or that one will be bound to the promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken.“Oath” includes an affirmation.
28 Affirmation: The act of affirming the truth of a document, not an oath Affirmation: The act of affirming the truth of a document, not an oath. “ I solemnly affirm and declare the following to be a true statement…” Note that an affidavit may appear in two forms: a sworn affidavit with an oath, or an affirmed affidavit with affirmation. Each has the same legal import.
29 Sample Oath or Affirmation of Office State of TexasCounty of _______________I, (affiant), do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ___________________ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God._____________________Signature of AffiantSworn to and subscribed before me by (affiant) on this __________ day of _______________, (year).(Personalized Seal) Notary Public’s Signature
30 Protest: A notary public’s written statement that, upon presentment for payment or acceptance, a negotiable instrument was neither paid nor accepted.
31 Verification: A formal declaration by which one swears to or affirms the truth of the statements in a document. Also, the statement of a notary public that the person appearing before the notary has been properly identified as being the person appearing.
32 Sample Verification State of Texas County of _______________ Before me, a notary public, on this day personally appeared _______________, known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements therein contained are true and correct._____________________(Personalized Seal) Notary Public’s Signature
33 Subscribing WitnessSection of the Texas Civil Practice & Remedies Code provides for proof of an acknowledgment by a subscribing witness under the following circumstances:(1) when the subscribing witness either saw the grantor or person who executed the instrument sign it or such person acknowledged in the presence of the witness that the person executed the instrument for the purposes and consideration expressed in it; and(2) that the subscribing witness signed the instrument at the request of the grantor or person who executed the instrument.
34 Certificate Used When the Execution of a Written Instrument is Proved by a Witness The State of TexasCounty of ____________Before me, ________ (here insert the name and character of the officer), on this day personally appeared ____________, known to me (or proved to me on the oath of ____________), to be the person whose name is subscribed as a witness to the foregoing instrument of writing, and after being duly sworn by me stated on oath that he (she) saw ____________, the grantor or person who executed the foregoing instrument, subscribe the same (or that the grantor or person who executed such instrument of writing acknowledged in his (her) presence that he (she) had executed the same for the purposes and consideration therein expressed), and that he (she) had signed the same as a witness at the request of the grantor (or person who executed the same.)Given under my hand and seal of office this ______ day of ____________, 20____._________________________________(Personalized Seal) Notary Public’s Signature
35 Certification of Copies by a Notary A notary has the same authority as a county clerk to certify copies of documents not recordable in the public record.A copy of a letter or contract may be certified by a notary.Birth certificates and marriage licenses cannot be certified by a notary. These documents are recorded in the public record of a governmental agency, such as the Texas Department of State Health Services, and certified copies of the document should be obtained from the agency.
36 Certification of Copies by a Notary Do not certify to copies of:Birth or death certificatesMarriage certificates or divorce decreesPassports, social security cards, or military identification cardsVisas, certificates of naturalization or other identification cards or documents issued by the US Department of Homeland SecurityWills, deeds and other documents filed for public record with the countyArticles of incorporation, certificates of formation or other business documents recorded with the SOS or other state officialCollege or high school transcripts or diplomas
38 Do not perform a notarization on an unsigned document. Step 1A notary must always insist that the person for whom the notarization is performed personally appear before the notary at the time the notarization is executed.Do not perform a notarization on an unsigned document.Do not perform a notarization when the signing party has already signed the document and is not present at the time the notarization is performed.Do not perform a notarization when presented with a previously signed document that the presenter assures you was signed by the named party.
39 Telephone Acknowledgement? A notary cannot take an acknowledgment over the telephone. The person whose signature is notarized must personally appear before you at the time the notarization is performed.
40 Electronic Acknowledgement? A notary may add a signature and seal to an electronic document so long as the person for whom the notarization is performed personally appears before the notary to sign the document or acknowledge his or her signature on the document.
41 Step 2A notary must identify the person for whom the notarization will be performed.You may notarize a document if the signing party is personally known to you, has been introduced to you or the signing party has provided proper identification.Proper identification includes an identification card issued by a governmental agency or a passport issued by the US.
42 Acceptable Identification A state driver’s licenseAn identification card issued by the DPS or equivalent agency in another stateA passport issued by the US governmentUnacceptable IdentificationA credit cardA US social security cardA private company’s security badgeA letter of introduction
43 Step 3The notary must have the signing party acknowledge to or swear to the statements in the notarial certificate.You cannot modify or draft a document or notarial certificate and should not determine whether a document should be acknowledged, verified or signed under oath.You may add the notarial certificate of the maker’s choosing if the document fails to include the certificate.You may correct the notarial certificate if the information in the certificate is not complete or accurate.
44 Step 4After the person has signed the document, you must:Fill in any blanks in the notarial certificate (date of notarization, name of person appearing, name of notary);Sign the notarial certificate in the same name under which you were commissioned; andAffix your notary seal.Do not sign and affix seal to a document without a notarial certificate.Do not sign and affix seal to a notarial certificate that is not true and accurate.
45 Signing a Document for an Individual with a Disability A notary may sign the name of an individual who is physically unable to sign or make a mark on a document presented for notarization:if directed to do so by the disabled individual; andin the presence of a witness who has no legal or equitable interest in the transaction.You must include the following beneath the signature for the individual:“Signature affixed by notary in the presence of (name of witness), a disinterested witness, under section , Government Code.”
46 Step 5After completion of the notarial certificate, you should record the required information in the notary record book.Required information is set forth in section of the Texas Government Code. Please review the slide outlining those statutory requirements.Do not record personally identifiable information in the record book (e.g. Social Security Number) or financial information related to the transaction that should not be made public (e.g. credit card number for fee payments).
47 Step 6Collect your Fees.Section of the Government Code authorizes a notary or the notary’s employer to charge for notary public services, but sets a maximum fee for those services.Section of the Government Code requires a notary public to post the fees that a notary is authorized by law to charge.Section requires a notary who charges a fee for notary services to keep a fee book.Section requires that a notary must itemize or be prepared to itemize fees that the notary charges.
48 Maximum Fees that a Notary May Charge Acknowledgments or proof of any deed or other instrument in writing, for registration, including certificate and seal$6.00 for the first signature$1.00 for each additional signature
49 Maximum Fees that a Notary May Charge Administering an oath or affirmation with certificate and seal$6.00All certificates under seal not otherwise provided for
50 Maximum Fees that a Notary May Charge Copies of all records and papers in the notary public’s office$0.50 for each page
51 Maximum Fees that a Notary May Charge Taking the deposition of witness$0.50 for each 100 wordsSwearing a witness to a deposition, certificate, seal and other business connected with taking the deposition$6.00
52 Maximum Fees that a Notary May Charge Protesting a bill or note for non-acceptance or non-payment, register and seal$4.00Each notice of protest$1.00Protesting in all other casesCertificate and seal to protest
53 Maximum Fees that a Notary May Charge All notarial acts not provided for$6.00What if a notary charges in excess of the maximum fees?Overcharging is grounds for the secretary of state to take disciplinary action against the notary, including the possibility of suspension or revocation of the notary commission.
54 Prohibited ActsSection of the Texas Government Code sets forth prohibited acts for a notary as discussed on the upcoming slides. Engaging in these acts can result in revocation of the notary commission, a claim against the notary bond, personal and criminal liability.
55 Don’t Do This!Notaries should not engage in the unauthorized practice of law.Do not perform acts, which constitute the practice of law.Do not prepare, draft, select, or give advice concerning legal documents.
56 Unauthorized Practice of Law by a Notary Under section of the Government Code, a notary public commits a criminal offense if the notary:states or implies that the person is an attorney licensed to practice law in Texas;solicits or accepts compensation to prepare documents for or otherwise represent the interest of another in a judicial or administrative proceeding, including a proceeding relating to immigration;solicits or accepts compensation to obtain relief of any kind on behalf of another from any officer, agency or employee of Texas or the United States.
57 Notario PublicoYou should not use “notario” or “notario publico” to advertise your notarial services.You should not advertise services in a language other than English if you do not post or otherwise include the required notice with the advertisement that you are not an attorney.
58 Penalties for the Unauthorized Practice of Law or the Use of Notario PublicoUnless the notary is also an attorney in good standing, criminal penalties provided in section of the Government Code:Class A misdemeanorFelony of the third degree if previously convictedViolations may be deceptive trade practices and actionable under chapter 17 of the Texas Business & Commerce Code.
59 Remember the Maximum Fees You should not charge fees in excess of the maximum fees set forth in section of the Government Code.Overcharging is good cause for revocation of the notary commission or other disciplinary action.
60 Personal AppearanceYou should never perform a notarization without the signer being in the notary’s presence.
61 Identification CardsAs a notary you have no authority to issue identification cards. Section Texas Government Code specifically prohibits this practice.
62 Signature of the Notary You must always sign a notarial certificate under the name you were commissioned.The secretary of state has provided for a notary public to change the name on the commission by following the procedure set forth in the Texas Administrative Code:Complete and file a form for change of name with the SOS along with the $20 fee for issuance of a commission and filing a bond;File a rider or endorsement to the notary bond;Surrender the original commission or sign a statement that all future notarial actions will be taken under new name; andObtain a new seal with the new name.
63 Address of the NotaryYou are required to notify the secretary of state of any change of address within 10 days of the date on which the change is made. Complete and file the SOS Notary Public Change of Address form or send a letter with your name, social security number, old address and new address to the SOS.
64 RenewalsThe term of a notary commission is four years from the date of qualification. You may apply for reappointment not earlier than 90 days prior to the expiration date of the commission by submitting a new application to the secretary of state. A notary who is not reappointed prior to expiration will be appointed for a new term expiring four years from qualification.
65 Complaints Against a Notary The Secretary of State has authority to suspend or revoke a notary public’s commission or take other disciplinary action against the notary for good cause.
66 Good Cause Good Cause includes: Final conviction for a crime involving moral turpitude;False statement on an application for appointment or reappointment;Final conviction for the violation of any law concerning the regulation of the conduct of notaries public in this state or any other state;Failure to comply with the restrictions imposed on the advertising of notary services in a foreign language and the use of “notario” or “notario publico.”
67 Good CauseFailure to fully and faithfully discharge any of the duties or responsibilities required of a notary public;Unauthorized practice of law;Failure to utilize a correct notary seal;Failure to administer an oath or affirmation as required by law;Collection of a fee in excess of those authorized by law;Execution of any certificate as a notary public containing a statement that the notary knows is false;Failure to complete the acknowledgment at the time the notary signs and seals the document;
68 Good CauseAdvertising that the notary public is an immigration specialist, immigration consultant or other title or description that reflects an expertise in immigration matters;False or misleading advertising, either oral or written, that represents that the notary has duties, rights, powers or privileges that are not authorized by law;Performing any notarization when the person for whom the notarization is performed did not personally appear before the notary at the time the notarization is executed; andFailure to comply with or violation of a previous disciplinary action.
69 Complaint ProceduresA person harmed by the actions of a notary public may file a complaint against the notary. The secretary of state may also initiate a complaint under certain circumstances (e.g. knowledge of an undisclosed or new criminal conviction).
70 Right to RespondIf the secretary of state determines that a complaint facially states good cause for disciplinary action against a notary, the notary will be notified of the complaint and given an opportunity to respond.Failure to respond can result in a default action against the notary.
71 Notary ResponseThe notary response to a complaint should be:Timely (within 20 days)In writingIdentify any disputed allegationsIdentify any witnesses to the alleged misconductOffer evidence to support the notary’s position, including copies of relevant pages from the notary record book
72 Notary’s Right to a Hearing After reviewing the notary’s response, the secretary of state will determine whether disciplinary action is warranted and shall notify the notary and complainant of that determination.If revocation or suspension of the notary commission is proposed by the secretary of state, the notary will be informed of the notary’s right to a hearing to contest the revocation or suspension. Hearings are adjudicated before the State Office of Administrative Hearings. The notary has a right to be represented by legal counsel.
73 consent decree to cease from engaging in any further misconduct; Disciplinary ActionsThe secretary of state may seek disciplinary action other than revocation or suspension:official reprimand;consent decree to cease from engaging in any further misconduct;agreement to voluntarily surrender the notary commission;agreement to complete a course of study related to notary responsibilities;agreement not to seek reappointment for a period of time; oragreement to take other corrective action.
74 Notaries have existed since ancient times and continue to serve an important and necessary function in nearly all developed countries. As a public official, a notary public is held to high standards consistent with the degree of trust that is attached to the notary’s action. The secretary of state hopes that this educational material equips you to fully and faithfully execute your duties with confidence. Thank you for your commitment to public service.
75 Comments regarding this presentation or requests to reproduce should be submitted to: Legal Support UnitOffice of the Secretary of StateP. O. Box 12887Austin, Texas
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