Untitled Texas Attorney General Opinion
GA-1095
| Tex. Att'y Gen. | Jul 2, 2014Background
- The Texas Secretary of State asked whether a notary may withhold or redact information from copies of entries in the notary's record book after a complaint that a notary provided heavily redacted copies.
- Texas law (Gov't Code ch. 406 and Civ. Prac. & Rem. Code §121.012) requires notaries to record descriptions of notarizations in a record book; those entries are public and must be provided as certified copies on request and payment of fees.
- The notary claimed federal protections (First Amendment association and the National Labor Relations Act) as grounds for redaction.
- The Attorney General reviewed whether federal law or other state privileges can override the statutory duty of disclosure and whether the Secretary of State may discipline a notary for withholding records.
- The opinion emphasizes the presumption against federal preemption of state law and places the burden on the party asserting a federal-law confidentiality privilege to demonstrate preemption.
- The Secretary of State has administrative authority (rulemaking, investigation, and disciplinary proceedings) to determine in specific cases whether a notary complied with disclosure duties, subject to hearing and appeal rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a notary may withhold or redact notary-record entries based on federal law | Notary: federal law (First Amendment/ NLRA) makes entries confidential | State: Gov't Code §406.014 makes entries public; federal preemption not shown | State law requires disclosure; party asserting federal preemption bears burden and has not shown it here |
| Whether state privileges or other state law can excuse disclosure | Notary: other state privileges may apply (e.g., evidentiary privileges) | State: ch. 406 contains no exceptions; courts would give effect to disclosure statutes absent clear conflict | Uncertain in the abstract; absent specific statute/case or facts, cannot predict a court would excuse disclosure |
| Whether Secretary of State may discipline a notary for withholding/redacting records | Secretary: may investigate and enforce notary duties; alleged withholding may constitute good cause | Notary: may assert law-based defenses in proceedings | Secretary may pursue administrative action (reprimand, suspension, revocation) and adjudicate whether withholding was lawful |
| Burden of proof on preemption/confidentiality claims | Notary: burden satisfied by invoking federal rights | State: burden rests on party seeking to avoid state law via federal law | Burden rests on party asserting federal-law confidentiality; not met on these facts |
Key Cases Cited
- Graber v. Fuqua, 279 S.W.3d 608 (Tex. 2009) (presumption that state law is not preempted by federal law)
- Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737 (Tex. 2001) (burden on party seeking to avoid state law to establish preemption)
- Willy v. Admin. Review Bd., 423 F.3d 483 (5th Cir. 2005) (federal privilege can govern over state law in particular circumstances)
- Lawyers Sur. Corp. v. Gulf Coast Inv. Corp., 410 S.W.2d 654 (Tex. Civ. App. 1966) (description of notary public duties to attest and certify documents)
- La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558 (Tex. 1984) (courts give full effect to statutes unless impossible to do so)