The Notario Publico and Unauthorized Practice of Law in Texas

The Texas Notary Public

Notario Publico and Notary Public are two terms that seem synonymous but definitely are not the same in the state of Texas. Equating one title with the other has caused problems for many people, sometimes leading them to unqualified, even unscrupulous, notaries.

Similar in Name Only

While the names sound similar, each title originates from a different source. The title of notario publico is based in Roman law and tradition and requires a person to have an extensive education with great responsibility. Very few people qualify as a Notario Publico because of the stringent job requirements. By contrast, the Texas Notary Public is an outgrowth of English customary law and requires a person to have little education with far more limited responsibility. Nearly anyone in Texas can become a Notary Public.

Education and Qualifications

To qualify as a Notario Publico in the Federal District of Mexico, a person must be Mexican by birth, be older than 25 but younger than 60, be in good health, have a good reputation, not be a leader of a church, not have a criminal record, have apprenticed with a notario for at least 6 months, taken a written exam, and, importantly, be a lawyer. In addition to meeting these requirements, a notario publico can be appointed to the job only when there is a vacancy available.

Qualifications to be Texas Notary Public are far less demanding. A candidate need only fill out an application, be at least 18 years old, be a legal resident of Texas, be a legal resident of the United States or a permanent resident alien, pay any application fees and post a $2,500 bond. A Texas Notary Public is not required to be a lawyer.

Their duties also differ substantially. Notario Publico is an arbitrator, a mediator, issues judicial opinions, intervenes in judicial proceedings, ensures that legal documents are accurate and consistent, ensures payment of taxes and protocolizes public deeds. As a lawyer, the Notario Publico is responsible for ensuring and verifying the legality of a record. Because of their high level of expertise and the complexities of their job, their fees may be quite high.

Duties of a Texas Notary Public are much simpler. They may take acknowledgements, protest instruments, administer oaths, take depositions, certify copies of documents not recordable in the public records, act as a disinterested third party noting the validity of a document, verify that the signer is who she or he claims to be and that the reasons for signing a document are accurate. This person does not verify the legality of a document but simply confirms the identity of the person signing a document. Because their responsibilities are straightforward and fairly simple, a Texas Notary Public can charge no more than a nominal fee.

Notary Act Violations

Some unscrupulous people have taken advantage of the confusion between these two titles. As a result, Texas has implemented the following statute (Tex. Gov’t Code § 406.017) to prevent and address notario fraud specifically for “representation as attorney.” This section states,

(a) A person commits an offense if the person is a notary public and the person:

(1) states or implies that the person is an attorney licensed to practice law in this state;

(2) solicits or accepts compensation to prepare documents for or otherwise represent the interest of another in a judicial or administrative proceeding, including a proceeding relating to immigration or admission to the United States, United States citizenship, or related matters;

(3) solicits or accepts compensation to obtain relief of any kind on behalf of another from any officer, agency, or employee of this state or the United States;

(4) uses the phrase “notario” or “notario publico” to advertise the services of a notary public, whether by signs, pamphlets, stationery, or other written communication or by radio or television; or

(5) advertises the services of a notary public in a language other than English, whether by signs, pamphlets, stationery, or other written communication or by radio or television, if the person does not post or otherwise include with the advertisement a notice that complies with Subsection (b).

(a-1) A person does not violate this section by offering or providing language translation or typing services and accepting compensation.

(b) The notice required by Subsection (a)(5) must state that the notary public is not an attorney and must be in English and in the language of the advertisement and in letters of a conspicuous size. If the advertisement is by radio or television, the statement may be modified, but must include substantially the same message. The notice must include the fees that a notary public may charge and the following statement: “I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW IN TEXAS AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.”

(c) It is an exception to prosecution under this section that, at the time of the conduct charged, the person is licensed to practice law in this state and in good standing with the State Bar of Texas.

(d) Except as provided by Subsection (e) of this section, an offense under this section is a Class A misdemeanor.

(e) An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the defendant has previously been convicted under this section.

(f) Failure to comply with this section is, in addition to a violation of any other applicable law of this state, a deceptive trade practice actionable under Chapter 17, Business & Commerce Code. Tex. Gov't Code § 406.017.

Not understanding that a Notary Public is different from a Notario Publico has paved the way for scams and fraudulent activities, particularly targeting the Hispanic community. The results can be devastating – invalid wills, deeds and liens for example, or valid wills and deeds littered with problems that are expensive to correct. Seeking advice from a verified, knowledgeable lawyer ensures that your legal documents are accurate and legal.

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