The Office of the Secretary of State (hereinafter referred to as "Office") adopts proposed revisions to Chapter 87, concerning notaries public. Specifically, the Office adopts 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 without changes to the proposed text as published in the December 18, 2015, issue of the Texas Register (40 TexReg 9023). The amendments, repeals, and new rules are adopted to conform to statutory revisions to Chapter 406 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 adopted revisions also generally include some reorganization of the chapter and clarifications of certain procedures.

Specifically, the following changes are adopted:

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 moves 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 Section 87.4 is repealed, and new §87.4 of the adopted rules clarifies that the name on the notary seal must match the name under which the notary is commissioned.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 Section 87.5 is repealed, and new §87.5 of the adopted rules contains information previously contained in repealed §87.4, relating to the qualification by an officer or employee of a state agency who does not furnish a bond.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 Section 87.6 is repealed, and new §87.6 of the adopted rules is added to provide information relating to a change in employment status of an employee of a state agency who has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 of the adopted rules is amended to specify the disciplinary actions which are subject to notice of hearing.

8. Section 87.11 is amended to clarify that requests for 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.

One comment was received regarding the adoption of revisions to Chapter 87. The comment was received by Christopher L. Williston, CAE, on behalf of the Independent Bankers Association of Texas, requesting an amendment to proposed rule §87.4, stating that a notary public's failure to include the identification number prior to January 1, 2016 does not invalidate any activity by a notary public. After careful review, the Office has determined that its rulemaking authority does not extend to making determinations as to the validity of a document on which a notary stamp appears (as opposed to what is required or not required on the notary stamp itself, which it understands is within its rulemaking authority, as the contents of the stamp is covered in §406.013 of the Texas Government Code). The validity of a particular document or activity by a notary public is a fact-based inquiry which calls for a judicial determination. As a result, the Office adopts §87.4 without any additional amendments.

STATUTORY AUTHORITY

The amendments are adopted 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 adoption.