OFFICEOFTHE AlTORNEY GENERALOFTRXAS 

AUSTIN 

uonorable C. ii. Cevnoss 

steto aiullitor 

Austin, Texas 

near Lr. Cameset Op.lnlon 810. 0-4363 

Be: Born! of state comdseion 

issued and to be istmed 

to Iioteriw Publio, under 

exiPffng colwitntioBel 

proYisions . 

You ham subndtted to this Department request for 

opiaion conoeadng t&e l'orm of' cemmlssion to be issued fe 

notaries PubLie, under exist&q eonstltutionsl provisions. 

Attached to your letter Is a blank tom which you #ate la 

the one that is being used by the Secretary of state. Suah 

form reads a6 follows: 

--__-___ 

.-..--A--- TIIE STATE OF TEXAS ====PP 

TO ALL TO VROki TKRSE PRESRIJTS SSALL COMR - 6RJBl'IlM: 

has been a 

WmREas, 

COUNTX, TIEUS 

Rotary Pub I! AC in and for the above sour&y. 

pointed by the Stiretery of State of' Teuts a 

You, Themfore, I, Sewetary of State, by 

,xirtue of the authority vested in ne by Tb6 Censtltut~on 

And Law OS This State, Do hereby ommlseion the @b&e 

xxeuad pea-eon a Notary Public4 in and sor said aoimty, giving and granting the ea%d offXoer all authority, power, 

rights, privilegee and smoluwnte appsrtaining to e&l 

offloe for and during the t&ma endUx&. 

Jmm 1, 19 Date iewe& 

~TIUM DAXE 

rrecretery ef- wane.- 
yenoreble 0. H. Cevneea - page a 

Ilaterwked or 11tbograpJml into the paper, on 

*hioh t&s dommsnt is printed, is a faosimile of the grsat 

seal .of the State of Psxaa. It is apparent frara the nord- 

,fng of the aosuufeeion that the Govcwnor of Taxae doea not 

sign these o~missions, but they are pwpometlly iss~sd in 

the name of aad by the authority of the Secretary of State. 

Xouaskanumber of questiOns cmewting this 

oolnrilfesion . Xn the lntareet of' brevity of this opinion, 

NC arc taking the libsrty of rephrasing your questions, a 

xumher of rhich oommrn the ssme issue. What you desire 

to lizrolr, it appears to us, 20 stpreeesd lza the iolloriqg 

1nterr0get0riw: 

1. &uat all osaaclmsions to State oftioere, Inelud3,ng oeimissions te Sotaries Fublia, be signed by the 

Governor anil atteetsd by the Sewetery ei State? 

2. What is the ebaraeter of seal rhieh the Canstitrrtioa of Texaa reQuirss bhould be litixed tom all csmmlssiens IssuaI w the Governart 

3. Whenshould the seal be a+fixedt 

4. is a cemmlssion valid, (a) rhich is not signed by the Gmernw; or, (b) which bears a seal sf%xed other 

than the dsv%Ge prsuaribetl by the ConstitutUm to impress 

upon the doowrtsnt the lnalgnia of the State 

t+he soal of state is afffxeU to the oomn~%ss 1 

or, (a) There 

on before it is 

signed by the 6mernort 

6. If the earmdssisns issued to Rotaries mblto 

on fhe form attr@hOU to your lettOP are invali3, does it 

follau that the effioiel eota of au& NoteriMl PIIblio are 

Invalid, and that fsss have besm illt?gally colleoferl by 

WepIT 

ArtAcle 4, Seotion 20, of the Texas Coxastitution, 

provides 8 

"AU aemmdwfsw shall be la the n&me saui 

by th6 authority of tke Btate of Texas, waled 

with the 2tete seal, eignosd by the Gwexnor, 

and ett.ested by the Seorstary OS State.* 

Prior to the amem3ment of 1810, Article 4, Section 

20, of th6 Texas Gon&itution iwad as follorst 
p0nar8bleC.u~ Cavneae - page 3 

'The GwOrQSr, by and with the advise 

and oensent of two4hirUs of the Send@, 

ahall appoint a oomanient number of Hotsrlea Publie SOr sseh county, rho shall pariorm auah Uutiea as nsw are or msy be pmaeribed by lu.' 

In 1G40 this 6eotian of the Constitution was as~sadsd so that it now reads as followsr 

V31s Seersty of State shell appoint 

a ooWOni8at 3nlwlbOr of ~OtariOa IUblio for 

ssoh county who shsll psrfor~sushdutiss 

es mm are ormaybe pres6ribeclby 1.~. 

The qualifioationa of the lotaries Fublio 

ahallbe peeoeibedbylaw.r 

The aole effest of the amndmOnt was to ohsnge the 

2s: or 

Or of NOtaFfea Publio fra?i the Go~araer to the 

state. Ho ehaage was mule or irpliad in the 

provision of the GoPetitation rsqdring all ssmdssisns to 

O&ate otfioera, iwrlrdllng lottariss Publie, to be sign& by 

the 6overnor aud attested by the Secretary of St&e. 'Lhe 

issuance of the aoamisafon la separate fmd distinut fram 

the ast of appointmeut= The uatbority of the Gowraor te 

oomdssion dsss not Bsppmd upon 8hethsr he appoints. The 

6wernor,tor emexaple, c0mis11Iona otYieera elected w the 

mple. The oem&saion la 

"p' 

7 evidence of the ofTiosr~s 

appointment or election, and o h5s right to sxroise the 

fu~tiona of the Gffioe. W-r. @iisog, 8 L. ed. $1. 

Vader the Gonatitution, oomdssions to State officer~~, inuluding IEotariea Publio, 01~0 be 1aauoU only by the Gasrnor. 

It follows that a aomission iasusrl to auah off%eere by saq 

offloCal other than the GmmvmP is imali&. 

The Gonstitution of the Stste of Texia preaoribes 

the cherauts of the ass1 rhioh la to be affixed to oomisSiOM. 

Art&ale 4, Seation 19, of the Gonstitution proYiMar 

*There aball be e a081 of the St&e which 

shall be kspt by the i%oretarY, anC used by 

him offioielly umier the direction of t&e 

Governor. We seal of the Stste ahall be a 

8ter of iit8 peints eneirals& by oliwa end 
&fyo oak bran&es, end the words, *The 

State of Texas**. 

The word *seala say have more than one maniug. 

pop example, it uay mean e device bearing 8 %eaigu so 

He, es by engrevi~, that it can impart 90 lmxprwdon 

iu relief upon a soft teuaoioua aubetauce, as clay, pax 

or PaPer* Untheother haud,it may aiguify theippreaaien 

ae tie by the device. lebater*a Intemationel Diotiouarv, 

1Ssoons, gg. (1940). 

It is ObViOUS from On sroadIIStiOn Of the laq?+&gO 

of hrtiole 4, Section 19, that the vcrd l aealc la uaed therefnin thefirst sense es meshing thed~ic8byMxich theimpreseion la tranafdtted. In this connection it la impcrtant 

to net8 that the saOtion eonttmplatea a single mal, requires 

that it be *kept* b7 the aewetery af St&O, and l u8eda kq 

The words l kOpt' ml "wed8 make it clear tha$ the 

X&a of the Gouatitution had in s&xi a me&ad.oal dsrioe 

toberetrioedin the posaeerionof theSeeret8ry of Sate, 

a& used b7 Mm to make aa inpresaion OB the dscxwentm offioully emmuted. b;r the Gcveruor of the State of Texas, to etteat the Governor*6 aigneture and the authenticity et the 

dooument. 

ainoe Artiole,4, &action 80, re+.res thst all oommi~aiona ahall be *sealed with the State &al*, such eomn&msiona should bear a asallmPresaad thereonby the use of the 

devise, rhl& io te be reteineil in ths paaseaaiou of the Secretary of State, uxaier the prmisions of drticle 4, Section 

19. my other character of seal doea not ocqly with the ccnetitutioual requiraPeut6. 

It ie not contemplat&l by the comatitutioual pwviaions that the seal of the state ahall be attixed prior to aie 

nature of the documeut by the Gweruor. The f'unction of the 

seal is to attest or uitneaa or eatebllsb the autheuticity of 

the iiovemor*s slguature. Yarbury t. Yadiaon, cited supre, at 

p. 87. It is olwious that the Gwernor*s aiC;nature can not 

be attested before be has affixed it to the instruaent. 

De bcve already notad that a mmmieeion io not valid 

if it is not signed by the iiwernor, under the protisious of 

Artlole 4, Section 20, of the Gouatitution. Of course, a cornmiaaion vhAch purports to have been issued by the Secretary of 

Btate rather than by the Gweruor la iaaued by an officer apan 

whom the Cosatitution does not confer authority to iaeue com- 
Jlonorablo C. ii. Cavuess - page 6 

~3ssion8, and is insftwtire for any purpose. 

WharethecomsdssiOnbears8 eealairirsdthsreto 0th~ WUI by the dwi09 prO8Oribsd by the Constitution 

to iaqumae upon the dosumsut the lnsignlo of the Stats, 

the signature of the dovsrnor Is not authentitated as required by the COnstitutiou, and suob a commission, therefore, would not furnish proof ot the ofiioer*s appointsmut 

CrBd auttlority . 

Whore the seal of tbeState111 affLxtrdt0 the 

ooxulssion, the pPeaumpti0n ie that the Seerotary of State 

has properly dAsahargsd the dutiss of his affise; in othc 

words, the pesumption is that the seal uas affixal by l&s 

at the diraotlon Of the uwemlor, mxl8ttor the Grnezn0c 

has sigma the iBstrumsBt. lawor, won it the taot be 

that the ser;l was affixed by the Seerotary o? Stats prlor 

to the (ioternor~s signature, this, while an *oqm.rity, 

would uot invalidate the aoiaulssion. m far the safsr and 

better ~actiob, houarsr, is for the Sseretar2 o? State to 

me the seal only in aooordenao with the oonstitutiomfii re2uimmmt, that is, at the direstion of the Owernor, and 

titer the fiwwnor has affixed MS signature. 

Lastly, you are CaaoO~~od, qqmmntly, with the 

question whet&w, if the QOBSILBS~OBS i8sued to the Hotaries Fubllcr on the form attauhed to your letter are lmolid, 

does it follow that the dfioial aat.8 of mwh Rotrriea pob110 are invalid, and that fees have beeu illegally eolleatsd by them It appears that the llofuliss Publio hate aotnallp been appointed by the Bocretary of State, the lawful appointing psusr. AS pointed Out abOv0, t&O 00mdssi0n is 

marely sridense of that appointmsnt~ tho'authority to sat 

I$ derived from the appointment -- not from the comsdssisn. 

karbury '1. Lad&eon, 2 II. ed. 61, at p SO snd 68. We are 

of the opiti~arofore, that the OF' Tieial aate of such 

hotaries Publla are valid, thou@ thsy have not been duly 

eommlssionod. 

Artio10 3882* wwisod Ciril Btatutes, 1@2b, provides as followst 

sko official who fails OF rsfusos to take 

out a cosnzlssiou shall be ontitlsd to collaat 

or reseivo either fro& the Stats or from U&iv&d- 

~a38 any money at3 foes of offiae or aompensation 

for official esmioes. Roithor the Camptrollar, 
;, .-i ., / . 

fionorable Ct tl. Cavness - p;zgO 6 

comr2dssioners aourt, county auditor nor q 

other person shall approve or pay any c1af.a 

or aocount in favor of any such officer rho 

has so failed or refused. The Secretary of 

Stats shall from tin0 to time, PS such comtissions WC Issued hy him, furnish a lfst 

thereof to each conwLssionim3 court, em% 

county audltor and to the Comptroller, with 

the rum0 of the county in uhich such offloors 

rebide. Each state, district, oounty and precinct officer is requlrcd to apply for and recolre his owmdssion.* 

This Article does not prohlbit the duly appointed 

or eloated cfficial from acting as such, but prohibits him 

f'rom collecting or reeeiring from the State or individuals 

money a8 fees of office or oompensation for his servioes, 

if ho has failed or refused to take out a aoxud.sslon. We 

do BOt think this staWt0 applieablC t0 th0 8OtPries PobriO 

iB t&b COSO. St is deei@mi,ln our oplxk%on,to puulsh the 

official rho is not coomdssionsb through his own default or 

negl wt. The language of the statute is that no official 

vhofails or refuesetotahe out a a;ormdasiom shaxlbe datitle fees of office. Each of those words inplies the 

oxistonco of fault upon the part of the official. Under the 

cireumstaneOs of the instant situation, the ~failurc of the 

2Iotarior Publie to reoeivo their wmsdssiono in proper form 

is not'duo to their fault or nOgll.gence, but to an erPoneou8 

intorpr8tation of the lav by the Secretary of State. 

We are, therefore, of the opinion that the foes 

of office received by these Notaries Public have not been 

illegally collected. 

very truly yours