The Office of the Secretary of State (the "agency") adopts the complete repeal and replacement of Chapter 87, concerning notaries public. Specifically, the agency adopts the repeal of §§87.1, 87.4, 87.22, 87.23, 87.25, 87.41 - 87.50, 87.52, 87.54, and 87.60 and new §§87.1 - 87.6, 87.10, 87.11, 87.20 - 87.25, 87.30, 87.40 - 87.44, 87.50, 87.60 - 87.62, and 87.70. New §§87.1, 87.20, 87.44, and 87.50 are adopted with changes to the proposed text as published in the October 16, 2009, issue of the Texas Register (34 TexReg 7159) and will be republished. The remaining new sections and the repeals are adopted without changes and will not be republished.

The revisions to Chapter 87 include the following general changes: reorganization of the rules, updates to the language based on statutory revisions, reference to the secretary of state's website, removal of redundant and unnecessary repetition of provisions contained in statute or forms, and clarification of certain procedures.

In addition to the general changes above, the following specific changes are made:

1. Section 87.2 sets forth the eligibility requirements for a Texas notary public. In response to Texas Attorney General Opinion GA-0733, the rejection of an application or revocation of a commission for a final conviction for a crime involving moral turpitude has been changed from discretionary to mandatory.

2. Section 87.6 sets forth the procedure for renewing a commission and clarifies that renewals are subject to the same eligibility criteria as initial applicants.

3. Section 87.11 amends good cause to include ineligibility due to a final felony conviction in an effort to be consistent in the treatment of felonies and crimes involving moral turpitude; to clarify that a final conviction for a crime involving moral turpitude makes an individual ineligible to hold office as a notary public in accordance with Tex. Atty Gen. Op. GA-0733; and to include a failure to respond to a request for public information in accordance with new §87.42 and §87.43.

4. Section 87.30 sets forth the instances when a notary may refuse a request to perform notarial services. This rule is proposed in an effort to provide guidance to notaries on an issue that is not addressed in Chapter 406 of the Texas Government Code.

5. Section 87.41 is added to provide guidance to notaries who want to maintain the notary record book electronically in accordance with §406.014(e) of the Texas Government Code. Note: The preamble published in the October 16, 2009, issue of the Texas Register made an inadvertent reference to §406.016 instead of §406.014(e).

6. Section 87.42 is added to provide guidance on requirements of §406.014(b)(c) of the Texas Government Code to provide copies of the notary record book and §87.40 relating to personal information in the notary book. Section 87.43 sets forth the possible disciplinary repercussions for failure to comply with the public information requirements.

7. Section 87.44 is added to provide guidance with respect to records retention requirements for notaries public. The proposed retention schedule is based on the retention requirements for business records in §72.002 of the Texas Business and Commerce Code.

8. New §87.50 clarifies the process for changing the address of record with the secretary of state pursuant to §406.019 of the Texas Government Code, sets forth the possible disciplinary repercussions for failure to comply with the change of address requirement, and clarifies the process when a commissioned notary moves out of state.

9. New Subchapter G, §§87.60 - 87.62, is added to provide guidance on the new electronic submission of notary applications and bond process that was implemented by the secretary of state in 2009.

10. Section 87.70 is added to provide guidance on the appointment of qualified escrow officers living in adjacent states as Texas notaries public, pursuant to H.B. 652, 81st Leg., eff. Sept. 1, 2009.

11. Sections 87.50 - 87.54 of the previous rules, relating to the issuance of a subpoena, were repealed and were not replaced. The authority of a notary to issue a subpoena is not found in the Texas Government Code and therefore it was determined that Chapter 87 was not the appropriate place for rules regarding this particular authority.

The agency received a written comment on behalf of Notary Public Underwriters Agency of Texas supporting the rulemaking and a written comment on behalf of the American Society of Notaries supporting the rulemaking, with one minor change to §87.44, which has been taken into account in the revised wording of that section.

Sections 87.1(c) and 87.20(1) are revised to correct a typographical error in the agency's web site address. The correct address is "www.sos.state.tx.us/statdoc/statforms.shtml".

Section 87.44 is revised as follows:

§87.44. Records Retention.

A notary shall retain, in a safe and secure manner, copies of the records of notarization performed for the longer of the term of the commission in which the notarization occurred or three years following the date of notarization.

Section 87.50(a) is revised as follows, to correct a typographical error in the web site address and form number:

(a) A notary must notify the secretary of state in writing of a change in address within 10 days of the change. To notify the secretary of state of a change of address, the notary should complete and submit form 2302 (Notary Public Change of Address Form). This form is available on the secretary of state web site at www.sos.state.tx.us/statdoc/statforms.shtml.

Statutory Authority

The new sections are adopted under the authority of Texas Government Code, §406.023(a), which requires the secretary of state to establish rules for the enforcement and administration of Chapter 406.

Cross Reference to Statutes

The new sections affect Texas Government Code, Chapter 406.