Is a Texas notary public a state 'officer' under Government Code chapter 603?

Plain-English summary

Texas Secretary of State Hope Andrade asked the Attorney General whether chapter 603 of the Government Code applies to notaries public. Chapter 406 imposes duties on notaries, while chapter 603 imposes some duties on "officers" (like keeping a fee book and posting a list of fees). If a notary counts as an "officer" under chapter 603, those extra duties would attach. So the threshold question was whether a notary is an "officer" within chapter 603.

The opinion found the authorities genuinely split. No statute defines "officer" in the sense chapter 603 uses, so courts would give the word its ordinary meaning, "one who holds a public, civil, or ecclesiastical office," and apply the test that distinguishes a public officer from an employee: whether the person exercises some sovereign function of government for the public, largely independent of others' control. On one hand, the U.S. Supreme Court has described the duties of Texas notaries as "essentially clerical and ministerial," without the broad discretion of a public officer, which suggests a notary is not an officer. On the other hand, Article XVI, section 40 of the Texas Constitution implies a notary holds a civil office, section 406.005(b) makes notaries take the same oath of office that officers take, Texas courts have called a notary an officer in passing, and this office has treated a notary as an officer for some purposes.

Chapter 603 itself did not settle it. Its fee-book and fee-posting provisions could be read either to treat a notary as an officer or to distinguish notaries from officers, and section 603.010's reference to an "officer named in this chapter" is equally ambiguous because a notary is named in the chapter. With no constitutional provision, statute, or appellate decision directly on point, the opinion concluded it could not definitively determine whether a notary is a state officer. It did not answer the Secretary's three other questions, which all assumed notaries are officers, a premise the opinion did not adopt.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Secretary of State (as the opinion held for them): The opinion told the Secretary that the central question could not be resolved: the authorities are divided on whether a notary is an "officer" under chapter 603, and no controlling source decides it. The opinion did not direct the Secretary to treat notaries one way or the other.

On the three follow-up questions (where the opinion declined): The opinion did not answer the Secretary's other questions because each assumed notaries are officers under chapter 603, and the opinion did not reach that conclusion. Readers should not infer an answer to those questions from this page.

Notaries public (as the opinion described the uncertainty): The opinion did not decide whether chapter 603's fee-book and fee-posting duties apply to notaries; it described that as an open question on which the law points in both directions.

Common questions

Is a Texas notary public a state officer?
According to the opinion, that could not be definitively determined. Some legal authorities treat a notary as an officer and others do not, and no controlling provision resolves it.

Why does it matter whether a notary is an "officer"?
The opinion explained that chapter 603 imposes certain duties (such as keeping a fee book and posting fees) on officers, so whether those duties reach notaries depends on whether a notary is an officer under that chapter.

What did the U.S. Supreme Court say about notaries?
The opinion noted that in Bernal v. Fainter the U.S. Supreme Court described the duties of Texas notaries as "essentially clerical and ministerial," lacking the broad discretion of a public officer.

Why didn't the opinion answer the other questions?
Because they were premised on notaries being officers under chapter 603, a conclusion the opinion did not reach, so it did not address them.

Background and statutory framework

Chapter 603 of the Government Code imposes duties on officers, including keeping a fee book, Tex. Gov't Code Ann. § 603.006 (West 2004), and posting a list of fees, id. § 603.008 (West 2004), and refers to an "officer named in this chapter," id. § 603.010. See generally id. §§ 603.001-.010 (West 2004). No statute defines "officer" in that chapter's sense; in state statutes "officer" generally means an officer of the state, id. § 651.001. Notary functions are set out in chapter 406, id. § 406.016(a) (West 2005), which requires notaries to take the officer's oath, id. § 406.005(b) (West 2005). The Texas Constitution implies a notary holds a civil office. Tex. Const. art. XVI, § 40(a), (d).

The opinion drew on the ordinary-meaning and officer-versus-employee cases and on authorities pointing both ways: In re Hall, 286 S.W.3d 925, 928-29 (Tex. 2009); Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955); Bernal v. Fainter, 467 U.S. 216, 225-26 (1984); Stallings v. State, 252 S.W.2d 939, 939 (Tex. Crim. App. 1952); and Lawyers Sur. Corp. v. Gulf Coast Inv. Corp., 410 S.W.2d 654, 657 (Tex. Civ. App.-Tyler), writ ref'd n.r.e. 416 S.W.2d 779 (Tex. 1967).

Citations

Cases:

• In re Hall, 286 S.W.3d 925, 928-29 (Tex. 2009)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• Bernal v. Fainter, 467 U.S. 216, 225-26 (1984)
• Stallings v. State, 252 S.W.2d 939, 939 (Tex. Crim. App. 1952)
• Lawyers Sur. Corp. v. Gulf Coast Inv. Corp., 410 S.W.2d 654, 657 (Tex. Civ. App.-Tyler), writ ref'd n.r.e. 416 S.W.2d 779 (Tex. 1967)

Statutes:

• Tex. Gov't Code Ann. §§ 603.001-.010 (West 2004)
• Tex. Gov't Code Ann. § 651.001
• Tex. Gov't Code Ann. § 406.016(a) (West 2005)
• Tex. Gov't Code Ann. § 406.005(b) (West 2005)
• Tex. Gov't Code Ann. § 603.006 (West 2004)
• Tex. Gov't Code Ann. § 603.008 (West 2004)
• Tex. Gov't Code Ann. § 603.010
• Tex. Const. art. XVI, § 40(a), (d)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0886
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0886.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

September 14, 2011

The Honorable Hope Andrade Opinion No. GA-0886
Texas Secretary of State
Post Office Box 12697 Re: Whether chapter 603, Texas Government Code,
Austin, Texas 78711-2697 is applicable to notaries public (RQ-0968-GA)

Dear Secretary Andrade:

You explain that chapter 406 of the Texas Government Code imposes duties on notaries public and that chapter 603 of the Government Code imposes some duties on "officers" that chapter 406 does not impose on notaries. You reason that notaries would have the duties that chapter 603 imposes on officers if notaries were officers under chapter 603.[1] Id.

You ask four questions about this. Id. at 2-3. Your first question is whether a notary is an "officer" under chapter 603. Id. at 2. No statute defines the term "officer" in the particular sense it is used in chapter 603. See generally TEX. GOV'T CODE ANN. §§ 603.001-.010 (West 2004). Cf. id. § 651.001 (providing that, "[i]n any state statute, 'officer' means an officer of this state unless otherwise expressly provided"). Texas courts give undefined statutory terms their ordinary meaning unless a more precise one is apparent from the context of other legal provisions. In re Hall, 286 S.W.3d 925, 928-29 (Tex. 2009) (using a dictionary to define a term). The ordinary meaning of the word "officer" is "[o]ne who holds a public, civil, or ecclesiastical office." X OXFORD ENGLISH DICTIONARY 732 (2d ed. 1989). Texas courts have held that "'the determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.'" Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955).

We have neither found, nor has any brief submitted to us in the matter purported to find, a legal opinion that has held that notaries perform a sovereign function for the public largely independently of the control of others. Indeed, the United States Supreme Court has called the duties of Texas notaries public "essentially clerical and ministerial," stating that notaries do not have "broad discretion in the execution of public policy that requires the routine exercise of authority over individuals." Bernal v. Fainter, 467 U.S. 216, 225-26 (1984) (construing the predecessor statute to chapter 406). See also TEX. GOV'T CODE ANN. § 406.016(a) (West 2005) (providing that notaries may, among other, similar tasks, "take acknowledgments or proofs of written instruments; protest instruments permitted by law to be protested; administer oaths; take depositions; and certify copies of documents not recordable in the public records").

However, other legal authorities indicate that a notary may in some sense be considered an officer. Article XVI, section 40 of the Texas Constitution implies that a notary holds a "civil office of emolument" and "an office or position of profit under this State." TEX. CONST. art. XVI, § 40(a), (d). Similarly, subsection 406.005(b) of the Government Code requires notaries to take the oath of office that all officers take. TEX. GOV'T CODE ANN. § 406.005(b) (West 2005). And Texas courts have stated in passing, without discussing the issue, that a notary is an officer. See, e.g., Stallings v. State, 252 S.W.2d 939, 939 (Tex. Crim. App. 1952); Lawyers Sur. Corp. v. Gulf Coast Inv. Corp., 410 S.W.2d 654, 657 (Tex. Civ. App.-Tyler), writ ref'd n.r.e. 416 S.W.2d 779 (Tex. 1967). This office has also concluded that a notary is an officer for some purposes. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0723 (2009) at 1, O-4940 (1942) at 2.

Chapter 603 offers little guidance on this issue. Section 603.006 provides that an "officer who by law may charge a fee for a service shall keep a fee book and shall enter in the book all fees charged for services rendered." TEX. GOV'T CODE ANN. § 603.006 (West 2004). This requirement might be read to apply to notaries, or it might, as you suggest, be read to distinguish notaries from officers. Request Letter at 2. Similarly, when section 603.008 provides that a "county judge, clerk of a district or county court, sheriff, justice of the peace, constable, or notary public shall" post a list of fees, it might or might not indicate that a notary is an officer like the others listed. TEX. GOV'T CODE ANN. § 603.008 (West 2004). And when section 603.010 refers to an "officer named in this chapter," it might suggest that a notary, a person named in the chapter, is an officer, or it might distinguish an officer named in the chapter from a non-officer named in the chapter. Id. § 603.010.

Thus, some authorities that discuss notaries and state officers indicate that notaries are not officers, others indicate that notaries are officers, and others indicate very little, if anything, about the issue. Furthermore, no Texas constitutional provision, statute, or appellate court decision has directly addressed whether a notary public is an officer for purposes of chapter 603. Accordingly, we cannot definitively determine whether or not notaries are officers under chapter 603 of the Texas Government Code.

We do not answer your other questions because they are premised on a conclusion that notaries are officers under chapter 603, and we do not reach such a conclusion here. See Request Letter at 2-3.

SUMMARY

Some legal authorities suggest that a notary public is a state officer, and others suggest that a notary public is not a state officer. Accordingly, we cannot definitively determine whether a notary is a state officer.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Hope Andrade, Texas Secretary of State, to Honorable Greg Abbott, Texas Attorney General at 1-3 (May 3, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml (Request Letter).