The Office of the Secretary of State (hereinafter referred to as "Office") proposes to amend Chapter 87, concerning notaries public. The Office proposes amendments to §§87.1, 87.2, 87.10, 87.11, 87.22, 87.30, 87.42, 87.43, 87.60, and 87.61; the repeal of §§87.4 - 87.6 and 87.23 - 87.25; and new §§87.4 - 87.7 and 87.23 - 87.26. The amendments, repeals, and new rules are proposed to conform to statutory revisions to Chapter 402 of the Government Code enacted by the 84th Legislature, Regular Session, in House Bill 1683, effective January 1, 2016 (hereinafter referred to as "HB 1683"). The proposed revisions also generally include some reorganization of the chapter and clarifications of certain procedures.

Specifically, the following changes are proposed:

1. Section 87.1 is amended to provide specific information regarding what information is required to be included in the application to be commissioned as a notary public.

2. Section 87.2 is amended to clarify that the definition of moral turpitude is not exclusive and includes moral depravity, in accordance with state case law, and to move the definition of moral turpitude from amended §87.11, in accordance with the fact that the reference to "moral turpitude" is only contained in §87.2, and not in amended §87.11.

3. Section 87.4 is repealed, and new §87.4 clarifies that the name on the notary seal must match the name under which the notary is commissioned. Additionally, the new section clarifies the applicability of HB 1683 to notaries commissioned or recommissioned before, on or after the effective date of the bill.

4. Section 87.5 is repealed, and new §87.5 contains information previously contained in repealed §87.4, relating to the qualification by an officer or employee of a state agency who does not furnish a bond. No substantive change to this rule is made.

5. Section 87.6 is repealed, and new §87.6 is added to provide information relating to a change in employment status of an employee of a state agency who has qualified without a surety bond (previously located at §87.5), and to clarify the wording in the language previously located at §87.5 relating to the option of a notary public terminating state employment to voluntarily surrender a commission and apply for a new term of office, provide a notary public bond, and pay the applicable fees.

6. Section 87.7 is added to provide information relating to renewal of a commission (previously located at §87.6), and to clarify the wording in the language previously located at §87.6 to make it clear that an application shall be filed if a notary wishes to renew a commission.

7. Section 87.10 is amended to specify the disciplinary actions which are subject to notice of hearing.

8. Section 87.11 is amended to clarify that requests to public information must be responded to promptly, and adds failure to properly identify an individual and failure to keep proper notary records as good cause.

9. Section 87.22 is amended to specify that upon qualifying under a new name, a notary is required to obtain a new seal.

10. Section 87.23 is repealed, and new §87.23 includes information on the procedures for submitting a complaint.

11. Section 87.24 is repealed, and new §87.24 provides information relating to complaint procedures (previously located at §87.23), and specifically refers to new §87.23 and §87.25.

12. Section 87.25 is repealed, and new §87.25 contains information previously contained in repealed §87.24, relating to disciplinary action taken by the secretary of state. No substantive change to this rule is made.

13. Section 87.26 is added to provide information relating to when the secretary of state can take disciplinary action against a notary (previously located at §87.25). Additionally, the rule is amended to clarify that any unresolved complaints may be required to be resolved prior to accepting a new or renewed commission.

14. Section 87.30 is amended to clarify that a private employer may restrict the notarial acts of its employees during work hours, and to clarify that a notary must have reasonable grounds to believe that a signing party does not have the capacity to understand the contents of the document.

15. Section 87.42 is amended to clarify that promptly, with respect to responding to requests for public information, means within 10 business days of receipt of payment of fees, unless the notary certifies in writing on or before the 10th business day of receipt of payment of fees, that the notary cannot produce the certified copy within 10 business days from the date of receipt of the fees, and sets a date and hour within a reasonable time when the information will be provided, and provides the information by that date and hour.

16. Section 87.43 is amended to clarify that failure to promptly respond to a request for public information may be good cause for disciplinary action.

17. Section 87.60 is amended to modernize the procedures relating to electronic submission of notary applications.

18. Section 87.61 is amended to modernize the procedures relating to retention of records following electronic submission of a notary application.

Fiscal Note

Briana Godbey, legal manager for the Business and Public Filings Division, has determined that for each year of the first five years that the proposed sections will be in effect there will be no fiscal implications for state government as a result of enforcing or administering the sections as proposed. The Office does not anticipate that the proposed changes will result in any additional costs to the agency. There will be no effect on local government.

Public Benefit and Small Business Cost Note

Ms. Godbey has also determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing or administering the sections as proposed will be to clarify the procedures of the Office relating to notaries and to conform to the statutory revisions made by HB 1683. There will be no effect on small or micro businesses. There is no anticipated additional economic cost to persons who are required to comply with the proposed rules, with the exception of any nominal charges for an anticipated small number of notaries who may need to conform their seals with the name requirements in proposed §87.4(a) (approximately $20-25/seal).

Comments

Comments on the proposed revisions to Chapter 87 may be submitted in writing to: Briana Godbey, Office of the Secretary of State, Corporations Section, P.O. Box 13697, Austin, Texas 78711-3697 or bgodbey@sos.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of the proposed rules in the Texas Register. Comments should be organized in a manner consistent with the organization of the proposed revisions. Questions concerning the proposed revisions may be directed to Briana Godbey, Office of the Secretary of State, Corporations Section, P.O. Box 13697, Austin, Texas 78711-3697 or bgodbey@sos.texas.gov.

STATUTORY AUTHORITY

The amendments are proposed under the authority of §406.023, Texas Government Code, which requires the secretary of state to establish rules for the enforcement and administration of Chapter 406.

Chapter 406 of the Texas Government Code is affected by the proposal.