Hon. P. W. Minter

CountyAttorney Jim Hogg County Hebronville, Texas Dear Sir: Opinion No. O-5285 Re: Necessity of seal to be attached to acknowledgmentsmade by commissioned officersunder H. B. 4, 48th Legislature of Texas.

Your request for opinion has been received and carefully consideredby this department. We quote from your request as follows:

"I notice that H. B. No. 4, authorizing Commissioned Officers of the United States, to take acknowledgements of instruments of writing for record,was approved and became effectiveMarch jrd., 1943. However the same did not provide for any seal of the Officer taking the acknowledgment as contemplatedby Art. 6606, R.C.S. "Pleasegive me your opinion as to whether an ackknowledgment taken by such a CommissionedOfficer, but without an Official Seal attached thereto,would be valid." H.B. 4 of the 48th Legislature of Texas,provides: "Section 1. Article 6602, Title 115, Chapter 2 of the Revised Civil Statutes of Texas of 1925 is hereby amended so as to hereafter read as follows:' "'Article 6602. "'The acknowledgment or proof of an instrumentof writing for recordmay be made within this State before: ='l. A clerk of the district court. W'2. A judge or clerk of the county court. 11 3. A notary public. "'Without the State, but within the United States or their territoriesbefore: rr'l. A clerk of some court of record having a seal. 11'2. A commissionerof deeds duly appointedunder the laws of the State. n3. A notary public... -

Hon. P. W. Minter, page 2 (O-5285)

"'Withoutthe United States before: "'1. A minister, a commissioneror charge d'affaires of the United States, residentand accredited in the country where the proof or acknowledgment is made. W'2, A consul-generals, consul,vicevconsul, commercial agent, vice-commercialagent, deputy consul or consular agent of the United States!resident in the country where proof or acknowledgment is made,. 1, I 3. A notary public. "'The acknowledgmentor proof of an instrumentof writing for recordmay be made by a member of the Armed Forces of the United States or the Auxiliariesthereof without the territorialconfines of the United States before the following: "'1. Any commissionedofficer in the Armed Forces of the United States of America, in the Auxiliariesthereto, or any commissionedofficer in the Armed Forces Reserve of the United States of America or any Auxiliary thereto.' "Set 2. The fact that many members of our Armed Forces whi are without the United Stateshave no way to acknowledge legal documents and instrumentsfor record creates an emergencyand an imperativepublic necess:ity that the ConstitutionalRule requiringbills to be read on three severaldays in each House be suspended,and such Rule is hereby suspended,and this Act shall take effect and be in force from and after its passage, and it is so enacted," The act became effectiveMarch 3> 1943. 10 U.S.C.A., 5 1586, as amended December 14, 1942, provides: "Any officer of any component of the Army of the United S+,ates

on active duty in Federal service commissioned in or assigned or detailed to duty with the Judge Advocate General's Department, any staff j~udge advocate or acting staff judge advocate, the President of a gen-, era1 or special court-martial,any summarycourt-martial, the trial judge advocate or any assis tant trial judge advocate of a general or special court-martial,the president or the recorder of a court of inquiry or of a military board, any officer designated to take a deposition, any officer detailed to conductan investigation,Hon. P. W. Minter, page 3 (O-5285)

and the adjutant, assistant adjutant or personneladjutant of any command shallhave power to administer oaths for the purposes of the administrationof military justice and for other purposes of military admfnistration; and shall also have the generalpowers of a notary public in the administering of oaths, the executionand acknowledgment of legal instruments, the attestation of documents and all other forms of notarial acts to be executed by persons subject to military law8 povided, That **no** fee of any character shall be paid to any officermentioned in this section for the performance of an c notarial act herein authorized. 19 2, c. 730s 56 &at. 1050,” As amen,ded Dec. 14,

Articles 6603, 6606 and 6607?Vernon's Annotated

“The acknowledgmentof an instrument ofwriting for the purpose of being recorded shall be by the grantor or person who executed the sameappearing before some officer authorized to take suchacknowledgment,and stating that he had executed the same for the consideration and purposes therein stated; and the officer taking such acknowledgment shallmake a certificate thereof, si n and seal the samewith his seal of office, (Acts1 46, 8 po 236; P.D. 5007; G.L. vol. 2, pe 1542.1’”
“Art.. 6606, 680 (c:CePtfffcateof461 "An officer taking the acknowledgmentof a deed, OP other instrument of writing,must place thereonhfs offfcial certificate, signedby him and givenunder his,seal of office, substantiallyEn form as hereinafter prescribed.'s "Art. 6607. (68041(4620)(4X2- "The form of an ordinary certificateof aeknowledgment must be substantiallyas follows: "'The State of 9 "'County of -9 "'Beforeme (hereinsert the name and character of the officer) on this day personallyappeared

Jknown to me (orproved to me on the oath of to be the person whose name is subscribed to the foregofng Instrumentand acknowledged ,to me that he executed the same for the purposes and consideration therein expressed. "(Seal) "'Givenunder my hand and seal of office this day of ,A. D., B?".. _

Hon. P. W. Minter, Page 4 (O-5285)

Section 74, Acknowledgments, Seals, 1 Texas Jurisprudence,page 482, reads in part as follows:

“S74 0 Necessity for.--Althougha contraryrule prevailed prior to 1846, since thatyear it has been the law, by virtue of express enactment of acknowledgmentmust be under sea i that a certificate

. The present statute in this respect provides that 'theofficer taking such acknowledgment shallmake a certificate thereof, sign and seal the samewith his seal of office.' "Omission of a seal renders a certificateof acknowledgment fatally defective;an instrument so certified is not entitled to be recorded,and if improperly recorded the recordwill not impart constructivenotice. While a conveyanceof property by one other than a marfled woman is, notwithstanding the omission of a seal from the certificateof acknowledament.valid as between the parties, such an omission in %he deed of a married woman renders the conveyancevoid. '1.

. * e" We have been statuteauthorizing or unable to find any Federal or Texas ~ I o ~ . ^^~ requiring a commissloneeor~ricer to use any type of seal in taking acknowledgmentsas outlined in H.B. 4, supra. In construing the amendment to H.B. 4, supra,wherein the commissioned officersmentioned therein are authorized to take acknowledgmentsor proof of an instrument of writing for record of members of the armed forces outside the territorial confines of the United States,we must assume that the Legislature of Texas knew that such commissionedofficershad no seal. The emergency clause of H.B. 4, quoted above clearly shows that the Legislatureof Texaswas desirous of pr8viding a method for the taking of acknowledgmentsof the members of our armed forces outside the confines of the United States.

The question is not without difficultyyet we are constrained to believe that the courtswould hold such instruments valid in the absence of a seal inasmuch as no seal is provided for. To hold otherwisewould render ,the act of the Legislature futile and condemn through strictartificial teehnicality a very worthwhileand necessary piece of emergency legislation. Thiswe are unwilling to do.

It is our opinion that pro acknowledgments taken by commissionedofficersunder H.B. supra, of members ofHon. P. W. Minter, page 5 (O-5285)

our armed forces, taken outside the confines of the United States,without a seal being attached thereto, are valid. Very trulyyours ATTORNEY GENERAL OF TEXAS /s/ By Wm. J. Fanning Wm. J. Fanning,Assistant
**0** APPROVED MAY 20, 1943 /s/ Gerald C. Mann ATTORNEY GENERAL OF TEXAS APPROVED: OPINION COMMITTEE BY: BWB;CHAIRMAN WJF:mptwb