Case Information

*1 OFFICEOFTHE AlTORNEY GENERALOFTRXAS AUSTIN

uonorable C. ii. Cevnoss

steto aiullitor Texas

Austin, Op.lnlon 810. 0-4363 near Lr. Cameset Be: Born! of state comdseion issued and to be istmed Iioteriw Publio, under exiPffng colwitntioBel proYisions .

You ham subndtted to this Department request for opiaion conoeadng t&e l'orm of' cemmlssion to be issued fe notaries PubLie, under exist&q eonstltutionsl provisions. to your letter Is a blank tom which you #ate la Attached the one that is being used by the Secretary of state. Suah form reads a6 follows: TIIE STATE OF TEXAS ====PP

--__-___ .-..--A--- TO ALL TO VROki TKRSE PRESRIJTS SSALL COMR - 6RJBl'IlM: WmREas,

COUNTX, TIEUS has been a pointed by the Stiretery of State of' Teuts a Rotary Pub AC in and for the above sour&y. I!

You, Themfore, I, Sewetary of State, by ,xirtue of the authority vested in ne by Tb6 Censtltut~on And Law OS This State, Do hereby ommlseion the @b&e xxeuad pea-eon a Notary Public4 in and sor said aoimty, giv- ing and granting the ea%d offXoer all authority, power, rights, privilegee and smoluwnte appsrtaining to e&l offloe for and during the t&ma endUx&. Date iewe&

Jmm 1, 19 DAXE ~TIUM

rrecretery ef- wane.- *2 yenoreble 0. H. Cevneea - page a

Ilaterwked or 11tbograpJml into the paper, on

*hioh t&s dommsnt is printed, is a faosimile of the grsat seal .of the State of Psxaa. It is apparent frara the nord- ,fng of the aosuufeeion that the Govcwnor of Taxae doea not sign these o~missions, but they are pwpometlly iss~sd in the name of aad by the authority of the Secretary of State.

Xouaskanumber of questiOns cmewting this . Xn the lntareet of' brevity of this opinion, oolnrilfesion NC arc taking the libsrty of rephrasing your questions, a xumher of rhich oommrn the ssme issue. What you desire to lizrolr, it appears to us, 20 stpreeesd lza the iolloriqg 1nterr0get0riw:

1. &uat all osaaclmsions to State oftioere, In-

elud3,ng oeimissions te Sotaries Fublia, be signed by the Governor anil atteetsd by the Sewetery ei State?

2. What is the ebaraeter of seal rhieh the Can- stitrrtioa of Texaa reQuirss bhould be litixed tom all csm- mlssiens IssuaI w the Governart

3. Whenshould the seal be a+fixedt 4. is a cemmlssion valid, (a) rhich is not sign- ed the Gmernw; or, (b) which bears a seal sf%xed other than the dsv%Ge prsuaribetl by the ConstitutUm to impress upon the doowrtsnt the lnalgnia of the State or, (a) There t+he soal of state is afffxeU to the oomn~%ss 1 on before it is signed by the 6mernort

6. If the earmdssisns issued to Rotaries mblto are invali3, does it on fhe form attr@hOU to your lettOP follau that the effioiel eota of au& NoteriMl PIIblio are Invalid, and that fsss have besm illt?gally colleoferl by WepIT

ArtAcle 4, Seotion 20, of the Texas Coxastitution, provides 8

"AU aemmdwfsw shall be la the n&me saui by th6 authority of tke Btate of Texas, waled with the 2tete seal, eignosd by the Gwexnor, and ett.ested by the Seorstary OS State.* Prior to amem3ment of 1810, Article 4, Section 20, of th6 Texas Gon&itution iwad as follorst *3 p0nar8bleC.u~ Cavneae - page 3

'The GwOrQSr, and with the advise and oensent of two4hirUs of the Send@, ahall appoint a oomanient number of Hotsr- lea Publie SOr sseh county, rho shall par- iorm auah Uutiea as nsw are or msy be pm- aeribed by lu.'

In 1G40 this 6eotian of the Constitution was as~sad- sd so that it now reads as followsr

V31s Seersty of State shell appoint a ooWOni8at 3nlwlbOr of ~OtariOa IUblio for ssoh county who shsll psrfor~sushdutiss 1.~. es mm are ormaybe pres6ribeclby The qualifioationa of the lotaries Fublio ahallbe peeoeibedbylaw.r

The aole effest of the amndmOnt was to ohsnge the Or of NOtaFfea Publio fra?i the Go~araer the or state. Ho ehaage was mule or irpliad in the 2s: provision of the GoPetitation rsqdring all ssmdssisns to O&ate otfioera, iwrlrdllng lottariss Publie, to be sign& by 6overnor aud attested by the Secretary of St&e. 'Lhe issuance of the aoamisafon la separate fmd distinut fram the ast of appointmeut= The uatbority of the Gowraor te oomdssion dsss not Bsppmd upon 8hethsr he appoints. The 6wernor,tor emexaple, c0mis11Iona otYieera elected w the la 7 evidence of the ofTiosr~s The oem&saion mple. appointment or election, and o h5s right to sxroise the "p' of the Gffioe. W-r. @iisog, 8 L. ed. $1. fu~tiona Vader the Gonatitution, oomdssions to State officer~~, in- uluding IEotariea Publio, 01~0 be 1aauoU only by the Gasrnor. It follows that a aomission iasusrl to auah off%eere by saq offloCal other than the GmmvmP is imali&.

The Gonstitution of the Stste of Texia preaoribes the cherauts of the ass1 rhioh la to be affixed to oomis- SiOM.

Art&ale 4, Seation 19, of the Gonstitution pro- YiMar

*There aball be e a081 of the St&e which shall be kspt by the i%oretarY, anC used by him offioielly umier the direction of t&e We seal of the Stste ahall be a Governor. 8ter of iit8 peints eneirals& by oliwa end *4 &fyo oak bran&es, end the words, *The State of Texas**.

The word *seala say have more than one maniug. pop example, it uay mean e device bearing 8 %eaigu so He, iu relief upon a soft teuaoioua aubetauce, as clay, pax es by engrevi~, that it can impart ^[90] lmxprwdon or PaPer* Untheother haud,it may aiguify theippreaaien ae tie by the device. lebater*a Intemationel Diotiouarv, 1Ssoons, gg. (1940).

It is ObViOUS from On sroadIIStiOn Of the laq?+&gO of hrtiole 4, Section 19, that the vcrd l aealc la uaed there- fnin thefirst sense es meshing thed~ic8byMxich theim- preseion la tranafdtted. In this connection it la impcrtant to net8 that the saOtion eonttmplatea a single mal, requires that it be *kept* b7 the aewetery af St&O, and l u8eda kq

The words l kOpt' ml "wed8 make it clear tha$ the X&a of the Gouatitution had in s&xi a me&ad.oal dsrioe toberetrioedin the posaeerionof theSeeret8ry of Sate, a& used b7 Mm make aa inpresaion OB the dscxwentm offi- b;r the Gcveruor of the State of Texas, to et- oully emmuted. teat the Governor*6 aigneture and the authenticity et the dooument.

ainoe Artiole,4, &action 80, re+.res thst all oom- mi~aiona ahall be *sealed with the State &al*, such eomn&m- siona should bear a asallmPresaad thereonby the use of the devise, rhl& io te be reteineil in ths paaseaaiou of the Sec- retary of State, uxaier the prmisions of drticle 4, Section 19. my other character of seal doea not ocqly with the ccn- etitutioual requiraPeut6.

It ie not contemplat&l by the comatitutioual pwvia- ions that the seal of the state ahall be attixed prior to aie nature of the documeut by the Gweruor. The f'unction of the seal is to attest or uitneaa or eatebllsb the autheuticity of the iiovemor*s slguature. Yarbury t. Yadiaon, cited supre, at p. 87. It is olwious that the Gwernor*s aiC;nature can not be attested before be has affixed it to the instruaent.

De bcve already notad that a mmmieeion io not valid if it is not signed by the iiwernor, under the protisious of Artlole 4, Section 20, of the Gouatitution. Of course, a corn- miaaion vhAch purports to have been issued by the Secretary of Btate rather than by the Gweruor la iaaued by an officer apan whom the Cosatitution does not confer authority to iaeue com-

Jlonorablo C. ii. Cavuess - page 6 and is insftwtire for any purpose.

~3ssion8,

WharethecomsdssiOnbears8 eealairirsdthsre- 0th~ WUI by the dwi09 prO8Oribsd by the Constitution to iaqumae upon the dosumsut the lnsignlo of the Stats, the signature of the dovsrnor Is not authentitated as re- quired by the COnstitutiou, and suob a commission, there- fore, would not furnish proof ot the ofiioer*s appointsmut CrBd auttlority .

Whore the seal of tbeState111 affLxtrdt0 the

ooxulssion, the pPeaumpti0n ie that the Seerotary of State has properly dAsahargsd the dutiss of his affise; in othc words, the pesumption is that the seal uas affixal by l&s at the diraotlon Of the uwemlor, mxl8ttor the Grnezn0c has sigma the iBstrumsBt. lawor, won it the taot be that the ser;l was affixed Seerotary o? Stats prlor to the (ioternor~s signature, this, while an *oqm.rity, would uot invalidate the aoiaulssion. m far the safsr and houarsr, is for the Sseretar2 o? State to better ~actiob, me the seal only in aooordenao with the oonstitutiomfii re- 2uimmmt, that is, at the direstion of the Owernor, and titer the fiwwnor has affixed MS signature.

Lastly, you are CaaoO~~od, qqmmntly, with the question whet&w, if the QOBSILBS~OBS i8sued to the Hotar- ies Fubllcr on the form attauhed to your letter are lmolid, does it follow that the dfioial aat.8 of mwh Rotrriea pob- 110 are invalid, and that fees have beeu illegally eolleat- sd by them It appears that the llofuliss Publio hate aotnal- lp been appointed by the Bocretary of State, the lawful ap- pointing psusr. AS pointed Out abOv0, t&O 00mdssi0n is marely sridense of that appointmsnt~ tho'authority to sat I$ derived from the appointment -- not from the comsdssisn. karbury '1. Lad&eon, 2 II. ed. 61, at p SO snd 68. We are that the OF' Tieial aate of such of the opiti~arofore, hotaries Publla are valid, thou@ thsy have not been duly eommlssionod.

Artio10 3882* wwisod Ciril Btatutes, 1@2b, pro- vides as followst

sko official who fails OF rsfusos to take out a cosnzlssiou shall be ontitlsd to collaat or reseivo either fro& the Stats or from U&iv&d- ~a38 any money at3 foes of offiae or aompensation for official esmioes. Roithor the Camptrollar, *6 ;, .-i ., / .

fionorable Ct tl. Cavness - p;zgO 6

comr2dssioners aourt, county auditor nor q other person shall approve or pay any c1af.a or aocount in favor of any such officer rho has so failed or refused. The Secretary of Stats shall from tin0 to time, PS such com- tissions WC Issued hy him, furnish a lfst thereof to each conwLssionim3 court, em% county audltor and to the Comptroller, with the rum0 of the county in uhich such offloors rebide. Each state, district, oounty and pre- cinct officer is requlrcd to apply for and re- colre his owmdssion.*

This Article does not prohlbit the duly appointed or eloated cfficial from acting as such, but prohibits him f'rom collecting or reeeiring from the State or individuals money a8 fees of office or oompensation for his servioes, if ho has failed or refused to take out a aoxud.sslon. We do BOt think this staWt0 applieablC t0 th0 8OtPries PobriO iB t&b COSO. St is deei@mi,ln our oplxk%on,to puulsh the official rho is not coomdssionsb through his own default or negl wt. The language of the statute is that no official vhofails or refuesetotahe out a a;ormdasiom shaxlbe da- title fees of office. Each of those words inplies the of fault upon the part of the official. Under the oxistonco cireumstaneOs of the instant situation, the ~failurc of the 2Iotarior Publie to reoeivo their wmsdssiono in proper form is not'duo to their fault or nOgll.gence, but to an erPoneou8 intorpr8tation of the lav by the Secretary of State.

We are, therefore, of the opinion that the foes of office received by these Notaries Public have not been illegally collected.

very truly yours