Could a Texas court clerk stamp a judge's facsimile signature on a criminal judgment or order?

Texas AG Opinion JM-373: Clerk Stamping a Judge's Signature

Plain-English summary

The Harris County District Clerk asked whether a clerk or deputy could use a facsimile stamp to put a judge's signature on criminal judgments and orders, including documents prepared without the judge's prior review. The Attorney General concluded that a stamped signature was possible only under tightly limited conditions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0373.pdf

A judge's signature on a criminal judgment or order shows the judge's knowledge and approval of the contents. The judge was responsible for reading every judgment and order, and the signature signified that this review had occurred. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0373.pdf

The judge could use a facsimile stamp personally. Another person could apply it only in the judge's presence and under the judge's immediate authority and direction. In that setting the other person acted merely as the judge's instrument or amanuensis, not as an independent agent exercising judgment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0373.pdf

Currency note

This opinion was issued in 1985. 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.

Common questions

Could a judge use a rubber stamp instead of handwriting a signature?

A judicial signature could be affixed by a stencil, rubber stamp, typewriter, or handwriting when the judge personally applied it or immediately directed its application in the judge's presence. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0373.pdf

Could the clerk stamp a stack of judgments outside the judge's presence?

No. The opinion required the other person to act in the judge's presence and under immediate authority and direction. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0373.pdf

Could the clerk prepare and stamp a judgment before the judge reviewed it?

No. The judge's signature represented knowledge and approval of the document, and the judge had responsibility to read it. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0373.pdf

Why was the clerk not treated as the judge's agent?

Under the permitted procedure, the clerk made no independent decision and acted only as the judge's physical instrument for placing the approved mark on the document. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0373.pdf

Background and statutory framework

Code of Criminal Procedure article 42.01 defined a judgment as the court's written declaration signed by the trial judge and entered of record. The opinion focused on what that signature meant rather than on a general power of clerks. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0373.pdf

Stork v. State supplied the controlling rule. The Court of Criminal Appeals said the form of the signature did not matter, but when another person placed the mark, the facts had to show that the officer immediately authorized and directed it in the officer's presence. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0373.pdf

Citations and references

• Code Crim. Proc. art. 42.01
• Bustillos v. State, 213 S.W.2d 837, 841 (Tex. Crim. App. 1948)
• Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978)
• Stork v. State, 23 S.W.2d 733, 735 (Tex. Crim. App. 1929)
• Paulus v. State, 633 S.W.2d 827, 849 (Tex. Crim. App. 1981)
• Brooks v. State, 599 S.W.2d 312, 322-23 (Tex. Crim. App. 1979)
• Mondragon v. Mondragon, 257 S.W. 215, 216 (Tex. 1923)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0373.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0373
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0373.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

November 4, 1985

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-373

Re: Authority of a county and/or district clerk to affix a judge's signature to a judgment in a criminal case

Dear Mr. Driscoll:

At the request of the District Clerk of Harris County, you have asked the following questions:

1. Whether the clerk of the county and district courts or his deputies may affix by facsimile signature stamp the judge's signature to judgments or orders in criminal cases?

2. Whether the clerk of the court may prepare a judgment in criminal cases and affix the judge's facsimile signature to the same without prior review by the judge?

You phrase your questions in terms of the powers of county and district clerks, but the key to your questions lies in determining the purpose and significance of a judge's signature on judgments and orders in criminal cases.

A judge signs a variety of orders in criminal cases. See Code Crim. Proc. art. 42.01 (defining a "judgment" as a "written declaration of the court signed by the trial judge and entered of record"). The purpose of a judge's signature on such instruments is to show his knowledge and approval of the contents. See Bustillos v. State, 213 S.W.2d 837, 841 (Tex. Crim. App. 1948), quoting In re Walker's Estate, 110 Cal. 387, 42 P. 815, 816 (1895). It is the responsibility of the judge to read every judgment and order. See Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978). The signature signifies that he has done so.

In a 1929 case, the court of criminal appeals held that a justice of the peace could "sign" a search warrant with a facsimile stamp or stencil. Stork v. State, 23 S.W.2d 733 (Tex. Crim. App. 1929). The court wrote:

[I]t would be a matter of no moment whether [the justice of the peace] so affixed said name by one stroke as by the use of a stencil or rubber stamp, or whether he set down at a typewriter and wrote his name with same upon such document, or that he wrote it out in what we commonly call longhand, provided that in each such case the facts must show the name to have been affixed by the officer himself, or under his immediate authority and direction and in his presence. In either event he has signed his name to the document. There is nothing in our statute making requirement as to the manner or form of such signature, and we know of no rule of reason which would justify us in going beyond what the law requires.

Id. at 735.

The holding of Stork provides the answers to your questions. A judge can use a facsimile stamp to "sign" a document. Id. See also Paulus v. State, 633 S.W.2d 827, 849 (Tex. Crim. App. 1981) (jury foreman may use facsimile stamp on indictment); Brooks v. State, 599 S.W.2d 312, 322-323 (Tex. Crim. App. 1979) (clerk may use facsimile stamp on certain certificates). Also, someone who is under the immediate authority of and in the presence of the judge may, at his discretion, affix the judge's signature by facsimile stamp. Stork, at 733. The placement of the judge's signature on a document by another person under such circumstances is not an act of agency because the other person acts as a mere instrument or amanuensis. See Mondragon v. Mondragon, 257 S.W. 215, 216 (Tex. 1923). Thus, only under those limited circumstances can a judge "sign" a document by directing another person to actually place a mark on the document.

SUMMARY

A judge may "sign" a document by allowing another person to place a mark on a document that constitutes the judge's approval of the document only if the other person does so in the presence of and under the direction of the judge.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk