                     Navember 23,   1987




Honorable Mike Driscoll                    Opinion No. JM-825
Harris County Attorney
1001 Preston, Suite 634                    Re: Authority of a clerk
Houston, Texas 77002                       to accept for filing an
                                           assumed name certificate
                                           written  in a    foreign
                                           language (RQ-1069)
Dear Mr. Driscoll:

     You ask whether   a county clerk may file a document
whose acknowledgment is written in a foreign language and
which is authenticated with an "apostille."   Specifically,
you ask about an assumed business     or professional   name
certificate to be filed in accordance with section     36.10
of the Business and Commerce Code. Subsection        (b) ;z
section   36.10   requires   that such    certificates
acknowledged:

          A certificate filed under Subsection    (a)
       of this section shall be executed         and
       acknowledged by each individual whose name
       is required to be stated therein or by his
       representative or attorney   in fact, and in
       the case of any person not an individual the
       name of which    is required to be stated
       therein, the certificate   shall be executed
       and acknowledged   under oath on behalf of
       such person    by its    representative     or
       attorney in fact or by a joint venturer,
       general partner, trustee manager,    officer,
       or anyone having comparable    authority,   as
       the case may be, of such person.          Any
       certificate executed and acknowledged by an
       attorney in fact shall include a statement
       that such attorney in fact has been duly
       authorized in writing by his principal      to
       execute and acknowledge the same.

Tex. Bus. & Comm. Code    536.10(b).




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Honorable Mike Driscoll - Page 2 (m-825)




      Chapter 121 of the Civil Practices and Remedies    Code
governs acknowledgments.     Section 121.001 of the code
lists    the   persons   who    are    qualified    to   take
acknowledgments in Texas as well as the persons who are
qualified to take acknowledgments in other parts of the
United States and outside the United States.         See also
Tex. Civ. Prac. & Rem. Code 5121.004       (method of taking
acknowledgment):    5121.005     (proof   of    identity   of
acknowledging person).

     Section 121.007 provides    a form for acknowledgments
and states that the form of an ordinary certificate         of
acknowledgment must be substantially in the form of the
example provided.    Section 121.008 sets out five short
forms of acknowledgment      that may be used.       All the
examples set out in sections 121.007 and 121.008 are in
English. Although section 121.006 provides that the forms
set out in chapter 121 "may be altered as circumstances
reguire," we think that provision contemplates changes      in
the text of the form rather than changes in the language
of the form. See Belbaze V. Ratto,         7 S.W. 501   (Tex.
1888).    Furthermore, an assumed name certificate must be
filed with a county clerk, who is entitled to examine     the
certificate to make certain that the instrument is not
defective on its face. Attorney       General Opinion ME-263
(1980). The clerk may refuse to accept an assumed        name
certificate if it does not bear an acknowledgment.        &
L    A clerk could not make such a determination if an
acknowledgment could be written in any one of the world's
languages.   See u erallv Educ. Code §21.109 (English is
basic language ofe;nstruction in all schools) : Code Crim.
Proc. art. 19.01 (jurors must be able to read and write
English): Elec. Code 561.031 (officer may not use language
other than English unless voter cannot speak English,       in
which case voter and       officer may speak      in   common
language): Agric. Code 561.004     (seeds sold in Texas must
be labeled   in English).    Therefore, to comply with the
requirements of section     36.10(b) of the Business      and
Commerce   Code, an acknowledgment      must be written     in
English.

     You also ask whether an acknowledgment    may be in a
language other    than   English  if   the    document   is
authenticated with an llapostille.t' S.ee Hague Convention
on Abolishing the Requirement of Legalization for Foreign
Public Documents, oDened for sianature October 5, 1961,
entered into force for the United States, October       15,
1981, 527 U.S.T. 189, T.I.A.S. No. 10072. That treaty
provides in part:



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Honorable Mike Driscoll - Page 3     (JW825)




          The States   signatory    to   the   present
       Convention,

          Desiring to abolish the requirement  of
       diplomatic  or consular legalization   for
       foreign public documents,

          Have resolved to conclude a Convention to
       this effect and     have agreed upon     the
       following provisions:

                         Article 1

          The present  Convention  shall apply to
       public documents which have been executed in
       the territory of one contracting State and
       which have to be produced in the territory
       of another contracting State.

          For   the   purposes   of  the   present
       Convention, the following are deemed to be
       public documents:

             (a) documents emanating from an
          authority or an official connected with
          the courts or tribunals of the State,
          including those emanating from a public
          prosecutor, a clerk of a court or a
          process server ("huissier de justice"):

             (b) administrative documents;

             (c) notarial acts;

              (d) official certificates which are
          placed on documents signed by persons in
          their private capacity, such as official
          certificates recording the registration
          of a document or the fact that it was in
          existence on a certain date and official
          and notarial authentications of
          signatures.

          However, the present Convention shall not
       apply:
             (a) to documents executed by
          diplomatic or consular agents;




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Honorable Mike Driscoll - Page 4      W-825)




             (b) to administrative documents
          dealina directlv with commercial or
          customs operations.

                          Article 2

          Each contracting State shall exempt    from
       legalisation documents to which the present
       Convention applies and which have to be
       produced in its territory.    For the purposes
       of the present.    Convention,
                          -    _a_    . leaalisation
                                           _._     .
       mans   onlv tne formalltv bv wnicn         tne
       dinlomatic or consular aaents of the countrv
       An which the document has to be nroduced
       c rtifv th authenticitv     of the sianature.
       t:e canaci&  in which the oerson sianins the
       document has acted and. where aunronriate,
       the identitv of the seal or stamu which      it
       bears.

                          Article 3

          The only formality that may be required
       in order to certify the authenticity of the
       signature, the capacity in which the person
       signing the document has acted and, where
       appropriate, the identity of the seal or
       stamp which it bears, is the addition of the
       certificate described in Article 4, issued
       by the competent authority of the State from
       which the document emanates.

          However, the formality mentioned in the
       preceding paragraph cannot be required when
       either the laws, regulations, or practice in
       force in the State where the document     is
       produced or an agreement between two or more
       contracting   States   have   abolished
       simplified it, or exempt the document itseyi
       from legalization.

                          Article 4

          The certificate referred to in the first
       paragraph of Article  3 shall be placed   on
       the document itself or on an 'allonge';   it
       shall be in the form of the model annexed to
       the present Convention.




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    Honorable Mike Driscoll - Page 5     (m-825)




              It may, however, be drawn up in the
           official language of the authority which
           issues it.   The standard terms appearing
           therein may be in a second language also.
           The title 'Apostille (Convention de La Haye
           du 5 octobre 1961)' shall be in the French
           language.

                             Article 5

              The certificate  shall be issued at   the
           request of the person who has signed     the
           document or of any bearer.

              When properly filled in, it will certify
           the authenticity   of the signature,    the
           capacity in which the person signing the
           document has acted and, where appropriate,
           the identity of the seal or stamp which the
           document bears.

              The signature, seal and stamp on      the
C
           certificate    are     exempt    from    all
           certification.   (Emphasis added.)

    XSI. arts. 1-5.
         That treaty applies    to 8*legalisationV0 of public
    documents.  The treaty defines    **legalisation18 to mean
    "only the formality by which the diplomatic or consular
    agents of the country   in which the document has to be
    produced certify the authenticity of the signature,    the
    capacity in which the person signing the document has
    acted and, where appropriate, the identity of the seal or
    stamp which it bears." An example of such a requirement
    in federal law is Rule 44(a)(2) of the Federal Rules of
    Civil Procedure, which deals with authentication        of
    foreign documents:

              A foreign official record, or an entry
           therein, when admissible for any purpose,
           may be evidenced by an official publication
           thereof; or a copy thereof,   attested by a
           person authorized to make the attestation,
P          and accompanied by a final certification  as
           to the genuineness   of the signature    and
           official position   (i) of the     attesting
           person, or (ii) of any foreign official
-          whose   certificate   of   genuineness    of



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Honorable Mike Driscoll - Page 6      (JM-825)

                                                                -,



       signature and official position relates to
       the attestation    or is     in a chain     of
       certificates of genuineness of signature and
       official   position      relating    to    the
       attestation.   A final certification mav be
       made bv a secretarv of embassv or leoation,
       consul aeneral.    consul. vice consul. or
       consular auent of the United . States.
                                         .      or a
       aomatlc      or consul ar offiaal     of   the
       foreiun countrv assianed or accredited      to
       the   United     States.      If    reasonable
       opportunity has been given to all parties to
       investigate the authenticity and accuracy of
       the documents, the court may, for good cause
       shown, (i) admit an attested copy without
       final certification    or   (ii) permit    the
       foreign official record to be evidenced     by
       an attested summary with or without a final
       certification.   (Emphasis added.)

Neither chapter   121 of the Civil Practice and Remedies
Code nor section 36.10(b) of the Business and Commerce
Code makes an acknowledgment     a formality that &        be
performed by a consular agent of the United       States   in
order for a document to be produced in Texas. Rather,      it
is a formality that is necessary on certain documents     and
map be performed outside the United States by a consular
officer as well as by a number of other authorized
persons.    Civ.   Prac.   and    Rem.    Code  5121.001(c).
Consequently, we conclude that the Hague Convention        on
Abolishing the Requirement     of Legalization for Foreign
Public Documents   is inapplicable     to an acknowledgment
required by section 36.10 of the Texas Business & Commerce
Code. &g     Estate of McDaott,     447 N.Y.S.2d 107    (N.Y.
Sur. Ct. 1982) (Hague Convention supersedes New York law
governing authentication   of birth, death, and marriage
certificates from United Kingdom for production in probate
matter).  See also Acts 1987, 70th Deg., ch. 891, 52, at
5999 (adopting apostille by reference to Hague Convention
for use in recording   certain documents dealing with real
or personal property).




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Honorable Mike Driscoll - Page 7        (m-825)




                       SUMMARX

          An acknowledgment   on an assumed name
       certificate filed pursuant to section 36.10
       of the Business   & Commerce  Code must be
       written in English.




                                       JIM     MATTOX
                                       Attorney General of Texas
WARYKELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAXLBY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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