.



### Tn.- ‘E 

## NEW GENERAL IFTEXAS

Honorable Bob Bullock Opinion No. M-1179 Office of the Secretary of State State Capitol Building Re: IS the office automatically Austin, Texas 78711 vacated if the notary public, appointed in the county of Attention: Donald W. Ray his residence, subsequently

Legal Counsel removes his residence to another county while continuing tomaintain his principal place of employment or business in the county forwhich he received Dear Sir: his appointment?

Inyour recent request you asked for an opinion from this office on the following question:

If aperson is appointed as notary public in the county of his residence and latermoves his residence to another county but continues tomaiatain his principal place of business or employment in the county forwhich hewas appointed notary public, ishis office automatically vacated? Several articles govern the office of notary public. TWO articles pertinent toyour question areArticles 5949 and 5958, Vernon's Civil Statutes.

Article 5949, Section 2,as last amended in 1969, reads inpart:
"Tobe eligible for appointment asNotary Public for any county, aperson shall be a resident citizen of this state and at least twenty-one (21)years of age, and either a resident of the county forwhich he isappointed, or shallmaintain his principal place ofbusiness or of employment in such county; provided that any person may be appointed, ashereinabove set out, inonly one county in this state at the same time;

. . ." (Emphasisadded.)

-5759-Hon. Bob Bullock, page 2 (M-1179)

Article 5949, Section 6,also last amended in 1969, reads inpart:

"Anyqualified Notary Public whose term is expirinq may be reappointed by the Secretary of State without thenecessity of the county clerk resubmitting his name to the Secretary of State, provided such appointment ismade in sufficient time for such Notary Public tobe qualified on the expiration date of the term forwhich he is then serving; and provided that ifany suchNotary Public - has removed~-iiisresidence,orhis principal place ofbusiness or employment, toa county or counties other than the one forwhich hehas been appointed, his office in such county or counties shall be automatically vacated and ifhe desires toact as a Notary Public in such other county or counties, his

ion in such county or counties shall be sii?= iredto the Secretary of State and his nar submitted by the clerk of such county or cc commiss rende neshall be ~~~ Iunties ashereinabove provided." (Emphasisadded.)
Inaddition Article 5958,which was enacted several years prior to 1969, states:

"Whenever any notary public shall remove permanently from the county forwhich hewas appointed, or an ex officio notary public from his precinct, his office shall thereupon be deemed vacant." (Emphasisadded.)
One rule of statutory construction or interpretation is that statutes dealing with the same subject are considered to be inpari materia even though theywere enacted indifferent sessions of the Legislature and donot refer to each other. Buford v. State, 322 S.W.2d 366 (Tex.Civ.App. 1959, error ref. n.r.e.);d Independent School Dist. v. Richardson, 2 S.W.2d 513(Tex.Civ.App. 1928); Lingner v. Haly, 277 S.W.2d 302 (Tex.Civ.App. 1954, error dism. w.0.j.); State v. Dyer, 145 Tex. 586, 200 S.W.2d 813 (1947).

To determine legislative intent and toproperly construe the statutes involved, all of the acts inparimateria should be read together toharmonize any conflict between their provisions so that the acts, ifpossible, can stand together. Hunter v. Whiteaker and Washington, 230 S.W. 1096 (Tex.Civ.App. 1921);

-5760.Hon. Bob Bullock, page 3 (M-1179)

Hurt v. Oak Downs, Inc., 85 S.W.2d 294 (Tex.Civ.App. 1935); Roby v. Hawthorne, 84 S.W.2d 1108 (Tex.Civ.App. 1935); Goldman v. State, 277 S.W.2d 217 (Tex.Civ.App. 1954, error ref. n.r.e.); Townsend v. Terrell, 118 Tex. 463, 16 S.W.2d 1063 (1929).

When an existing statute is amended, it is tobe construed, ifpossible, inharmony with existins law on the same subject. Shipley v. Flovdada rndenendent School Dist.. 250 S.W. 159 (Tex.Comm--,, ~~~~ .,, S.W. 1036 (1914);scting vLy ners, 158 Tex. 279, 310 ,Aoo.1923): Cole v. State, 106 Tex.'472; 170

Texas State Bd. of Medical ExamiS.W.2d 557 (1958). Applying the rules of construction to the statutes involved, Sections 2and 6ofArticle 5949 can be harmonized with Article 5958. As a result it is our opinion that onewho is appointed anotary public in the county of his residence, or ofhis place of business or of his employment, and continues tomeet any one of these statutory bases after his original appointment in that county, regardless ofwhich one ormore of these was the basis of that appointment, has not "permanently removed" himself so as to create an automatic vacancy in the office of notary public under Article 5958.

Although Section 10ofArticle 5949 empowers the Secretary of State tomake necessary rules and regulations to carry out the act, a checkwith that office indicates no administrative policy or rules or regulations have ever been established. It is assumed by that office, unless otherwise indicated, that thebasis of an application for anotary's commission is the applicant's residence. However, it isnot always possible to tell from the current application form just what basis the applicant isusing. There is a simple statement at the bottom of the application, to which the applicant agrees by signing his application, that hewill notify the Secretary of State and the county clerk of "anychange of address." There are no statutory provisions to this effect nor are there any provisions for investigation or apenalty of any kind. Article 5949, Section 5,does provide that the Secretary of Statemay, "forgood cause, reject any application or revoke the commission of anyNotary Public", but he cannot do sowithout theproper safeguards of due process which are also included in Article 5949, Section 5.

To summarize, one who is anotary and continues tomeet any one of the three statutory requirements has not "permanently removed" himself.

-5761-Hon. Bob Bullock, page 4 (M-1179)

SUMMARY
One who is appointed anotary public in the county of his residence, or of his place of business, or of his employment, and continues tomeet any one of these statutory bases after his original appointment, regardless of thebasis of that appointment, has not "permanently removed" himself soas to create an automatic vacancy inhis office. truly yours,

Prepared by Linda Neeley Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman Jack Goodman Jim Swearingen James Hackney Scott Garrison
SAMUEL D.MCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE First Assistant

-5762-