If a NC notary public is being reappointed, can they take the oath of office before the effective date of the new commission, or do they have to wait until the new term starts?

Plain-English summary

NC's Notary Division had a procedural question: when a notary's commission is renewed, the renewal applicant sometimes gets the transmittal letter (the paperwork from the Secretary of State confirming the commission's effective date) before that effective date arrives. The applicant heads to the local Register of Deeds and takes the oath of office for the new term, on a date before the new commission technically starts. Was that legal?

The AG said yes. § 10A-8 of the Notary Public Act says a notary becomes "qualified" by taking the oath "within 90 days of commissioning." Nothing in the statute requires the oath to be after the commission's effective date. As long as the oath is taken within the 90-day window, the notary is properly qualified.

The confusion traced to a 1965 Institute of Government "Notary Public Guidebook" which said the appointee had to wait until the commission's effective date to take the oath. The AG noted that the Guidebook predated the 1991 enactment of Chapter 10A (the Notary Public Act). Under the post-1991 statutory framework, the 1965 Guidebook's restriction no longer applies. The 2000 Eighth Edition of the Guidebook had dropped the obsolete language.

The opinion confirms two related points:

• § 10A-8 cross-references the constitutional oath in § 11-7 (administered "before taking office or entering upon the execution of the office") and the general oath form in § 11-11. Those statutes describe what oath is taken, not when. The "when" question is governed by § 10A-8's 90-day window.
• § 10A-6 (recommissioning) doesn't impose a different timing rule for reappointees. A reappointed notary uses the same § 10A-8 window as a first-time appointee.

Signed by Senior Deputy AG Reginald Watkins and Assistant AG Jill Cramer.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion addresses the law in force in 2004 and does not analyze a later statute. Anyone applying it to current notary practice should verify the present oath deadline and procedure.

Common questions

Q: How long does a NC notary have to take the oath after being commissioned?
A: The opinion quotes a 90-day period under § 10A-8 as it stood in 2004. It does not state the deadline under current law.

Q: Where is the oath administered?
A: Before the register of deeds of the notary's county. § 10A-8.

Q: Can the oath be taken before the commission's effective date?
A: Yes under the 2004 statute, according to this opinion. The AG found no requirement for a notary seeking recommissioning to wait until the new commission's effective date, so long as the oath was taken within the statutory 90-day period.

Q: What's a "transmittal letter"?
A: A three-part form the Notary Division sends out: two parts go to the appropriate Register of Deeds, one part to the notary, notifying them of the commission. § 18 NCAC 07.0204.

Q: Why did the 1965 Guidebook say the oath had to be after the effective date?
A: The opinion says the 1965 Guidebook relied on a 1939 Institute of Government bulletin and was no longer current after the 1991 Notary Public Act. It notes that the 2000 edition omitted the quoted language.

Q: Does this apply to first-time notary appointments too?
A: The opinion says the 2004 oath statute applied to appointees and reappointees. The requester said the early-oath issue did not arise for initial appointees because they received the transmittal letter after the effective date.

Background and statutory framework

Notaries public in NC are commissioned by the Secretary of State for renewable terms. The process: the applicant files paperwork with the Department of the Secretary of State, the Department issues a commission, and the notary takes the oath of office before the register of deeds in the county where the notary will serve.

The opinion contrasts the 1965 Institute of Government Guidebook with the Notary Public Act enacted in 1991. The older guidebook said an appointee could not take the oath until the commission's effective date. The AG found no such requirement in § 10A-8 as it stood in 2004.

The AG's reading of § 10A-8 is straightforward textual: the statute says "within 90 days of commissioning." Nothing forbids the oath earlier in the 90-day window. The constitutional oath in § 11-7 uses the phrase "before taking office," which means before the notary actually begins notarizing, not before some particular effective date.

The opinion answers the requester's recommissioning scenario: a notary who receives the transmittal letter before the new commission takes effect may take the oath within the statutory window without waiting for the effective date.

Citations

• N.C.G.S. § 10A-3(2) (commission defined)
• N.C.G.S. § 10A-6 (recommissioning)
• N.C.G.S. § 10A-8 (oath of office, 90-day window)
• N.C.G.S. § 11-7 (constitutional oath)
• N.C.G.S. § 11-11 (general oath form)
• 18 NCAC 07.0204 (transmittal letter form)
• Institute of Government, Notary Public Guidebook (1965); 8th ed. (2000)

Source

• Landing page: https://ncdoj.gov/opinions/notary-public-commission-and-effective-date-of-the-oath/

Original opinion text

Subject: Advisory Opinion; Notary Public commission and effective date of the oath;

N.C. Gen. Stat. §§ 10A-3, 10A-8, 11-7, and 11-11

Dear Ms. Montgomery:

You inquired whether it was legal for a notary public to take the oath of office prior to the effective date of his or her commission. You stated that this is not a problem for initial appointees since they receive the transmittal letter after their commission's effective date. However, you note that the problem occurs with the reappointment of a notary public because the reappointed notary, upon receipt of the transmittal letter, may go to the appropriate Register of Deeds to take the oath of office prior to the effective date of the new commission. It is our opinion that, as the law is currently written, a notary may take the oath of office anytime "within 90 days of commissioning . . .." N.C. Gen. Stat. §10A-8. There is no requirement that a notary seeking recommissioning take the oath after the commission date. See N.C. Gen. Stat. §10A-6.

It appears that the confusion has arisen due to conflicts between the current statute, N.C. Gen. Stat. § 10A-8, Oath of office, and a 1965 "Notary Public Guidebook" published by the Institute of Government. Relying upon the 24 April 1939 Institute of Government Special Bulletin, Recent Attorney General's Rulings Affecting Powers and Duties of City and County Officials, that Guidebook states "[t]he appointee must qualify by taking the oath of office before that clerk and he may not so qualify until the effective date of the commission." However, the 1965 Guidebook is no longer current because in 1991 the North Carolina General Assembly enacted the Notary Public Act, Chapter 10A of the General Statutes. Under current law, there is no statutory mandate as to when the notary public appointee or re-appointee must take the required oath. North Carolina General Statutes § 10A-8 only requires the appointee to become qualified by taking the oath before the register of deeds "within 90 days of commissioning."

N.C. General Statutes § 10A-8, Oath of office, references two additional statutes, N.C. Gen. Stat. §11-7, Oath or affirmation to support Constitutions; all officers to take, and N.C. Gen. Stat. §11-11, Oaths of sundry persons; forms. N.C. General Statutes § 11-7 sets out the oath required of every member of the General Assembly and every person elected or appointed to an office in the State. That oath is administered to the person "before taking office or entering upon the execution of the office . . . ." N.C. General Statutes § 11-11 sets out the "General Oath" required of notaries public.

Currently, the General Assembly authorizes a notary public to take the oath of office anytime within ninety days of the date of the notary public commission.

Sincerely,

Reginald L. Watkins
Senior Deputy Attorney General

Jill F. Cramer
Assistant Attorney General

Footnote 1: "Commission" is defined at N.C. Gen. Stat. §10A-3(2) as the written authority to perform a notarial act.

Footnote 2: The "transmittal letter" is a three part form. The Notary Division sends two parts of the form to the applicable Register of Deeds and one part to the notary public notifying him or her of the disposition of commission. See also 18 NCAC 07.0204.

Footnote 3: Note that the most current Guidebook, Eighth Ed. (2000), does not include this quote.