The Honorable Joe Resweber

County Attorney Harris County Courthouse Houston, Texas 77002 Opinion No. H- 481 Re: Whether person not a citizen ofthe United States may be appointed notary public in Texas. Dear Mr. Resweber:

You have submitted tous the following question:

Whether the application ofaperson not a citizen of the United States for appointment as anotary public can be processed by the county clerk. Both Article 4, Section 26 ofthe Texas Constitution and Article 5949 of the Revised Civil Statutes place upon the Secretary of State the responsibility of appointing notaries public. However, Section 3of Article 5949, calls for the application ofaperson desiring such an appointment to be filed with the county clerk who is directed to send the names of applicants tothe Secretary ofState “certifying that according to the information furnished him, such person is eligible for appointment as Notary Public for such county . . . .” Undoubtedly it is this provision that prompted the inquiry by your county clerk.

The Constitution sets out noqualifications for notaries public. Rather it calis ,forqualifications to be prescribed by law. Prior to 1945, thequal.ifications were found inArticle 5949 as: To be eligible for appointment as Notary Public for any county, a person shall be at least twenty-one (21)years of age, and a resident ofthe county for which he is appointed
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The Honorable Joe Resweber page 2 (H-481)

InAttorney General Opinion No. O-6504 (1945) it was concluded that a person Whowas neither a citizen ofthe United States nor ofthe State of Texas was qualified to be appointed notary public ifhe met the other statutory requirements.

This opinion prompted the immediate amendment ofArticle 5949 so that it read: To be eligible for appointment as Notary

Public for any county, a person shall be a citizen ofthis State and at least twenty-one (21)years ofage . . . . Section 2ofthe amending Act (Acts 1945, 49th Leg., ch. 373, p. 674) is in part: The fact that the present law does not require

aNotary Public tobe a citizen of Texas creates an emergency and imperative public necessity
. . . . The exact nature of Texas citizenship vis-a-tie United States citizenship seems unclear. That there is a state citizenship distinct from federal citizenship seems well-established. Slaughter-House Cx, 83 U.S. 402 (1873); United States v. Cruikshank, 92U.S.542, (1875). And see Constitution of Texas, Article 5, Sections 2and 7 requiring, respectively, that Supreme Court justices andjudges of district courts be citizens ofthe United States “and of this State.”

Perhaps the best definition of state citizenship is found inthe opening words ofSection 1ofthe Fourteenth Amendment tothe Constitution ofthe United States: All persons borncr naturalized in the United States, and subject to thejurisdiction thereof, are citizens ofthe United States and of the State where they reside
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The Honorable Joe Resweber page 3 (H-481)

We take, as a definition of “citizen of this State” as used inArticle 5949, then, that the person be a citizen ofthe United States and a resident of Texas. Under this interpretation an alien would not be eligible to be appointed a notary public, and we would answer your question in the negative. SUMMARY Under the provisions ofArticle 5949, V.T. C.S., an alien may not be appointed a notary public in the State of Texas. Very truly yours,

Attorney General of Texas APPROVED:

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH. Chairman Opinion Committee

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