        PRICE   DANIEL
        ATTORNEY GENERAL




                BCJU.Charles D. Bates,        Jr.,     Opiaion   No. V-195
                Couuty Attorney
                LaSalle County                         Re:   Whether or not m bomdr-
                Cot Lila, Texas                              nwin on a Wotrry Public’s
                                                             offiafal  ‘bond my obtain
                                                             a summery   releese  rm
                                                             liability   thereon.


                            Your requ6st to this Departaeht ior au spinion
                 upon the above Isubjsat matter presemts the rollowily
                 quombioas:
                            *1,   Is it possible  for such bowa-
                       Ina t,o be relieved 0r further li8billfy  oa
                       Me bond?

                           CleaS seklng meat dtEBnnamea be reuavaa
                           rlws t&e Retary lbnd suiri6lont to Irlieve
                           such bondsam   of further    liability?
                                       After such written not&e has       I
                           been ;if;eh to the County Clerk, is say rtu-
                           tber aat aomsoar~ 0~ the .part or smh mare-
                           ties in order to relieve    then er rarther lia-
    ,                      brauty   on tfn bQarn(t?
                                 “6. Arttr  su,ah written aotlce has beeu
                           #lrul tc the Csunty Clerk by rtmh boadamn,
                           is say hrrther, aat necemary en the part, or
                           ouah CaYpty Chik to relieve    suoh bondsmen
                           rm- rwther liability     on suoh bead?
                             “8.  If such bondsmen are released fro,
                       their baud, and uutil a new bond is executed,
                       retold such Wotary Public be duly qualified   to
                       aot as such?
                             “6.  In the event the County Clark
                       should d.etenine  that the bend of the l@t&ry
                       Public Is no lolager a good bond, by rea~~im
.
Hon. Chsrles        D. Bates,   Jr.,   Page   2;   V-195


        of the sureties   having asked pewission    to
        withdrew their mmes from same, could a new
        bond be substituted   by the Natary Public in
        lieu of the old bond, or would it be uaces-
        sary to make a new applioation    and qualify
        aaew es a mtary Public?
              R7. Dee8 the Caunty Clerk have any
        disoretien  fa passing upon the qualiricatiens
        of a Mtaxy Pab,lic applicant,    other than te
        deteCs&ne fl) a +&eatt km applicant   is at lmat
        21 years er age, aad (2)) that he Is a resf-
        dent of the Couutg?
               “86 In the event a person, who is draw-
        ing lOC$ disability          pay from the Govemaent a8
        a mental ,eare,       mpplisil  fcvr a Ilatary Public? ap-
        pointiw~,        ir Bt manaetery~~ t&kt thv.Cawdy
        Clerk aeaapt such application            and oertif’y his
        elig,ibllit.y      to the Sesretayy of State?        (Such
        person huvi          newer beeu declax+d      &&Skne by
        aourt    a0iiian “3”o

              "91  Cam ,the appclntment of a Botary
        Public be pretest.ed te the SecretaTy of St*to,
        whereby that orricial. say reruae to isstm t410
        Coaaission as a Notary Public?
              “10,    Under the pmment l&i*, am there
        euy liritativss    or restriotions    against a per-
        @on b,eotin     a NetaxV Public other than the
        agesnd res f’,deaee raqulxemente?      Ii so, with
        w&t   officer   doe8 the authority rest to apply
        suoh limitatioas    or reetrictiohs,     the County
        Clerk  or the Secretary    oi State?*

               Article    5949 ef the Revised        Civil  Statutes 6c
Texss    as   the   same has been amended constitutes           then whole
Or the statutory         law geverning    Rotaries     Publlo in this
State.
                S,luce yaur questions are narerbus and aotapre-
heusive       in the&r sompe, we quote the Artiole.
               *l,  Tke Secretary of State of the State
        of Texas shall appoint a convenient number of
        Notaries   P,ublia for eaah eouuty of the State,
        Such appaintnents ay be nade at any time, and
        the terms of all appeiataents    ntdlde shall end On
                           Hon.'Cbarles   D. Bates,   Jr.,   Page 3, V-195


                                the first   day or June of eaah odd aumbered yemr.
                                A&am;n;e% Acts 1945, 49th Lega S p* 39%, oh.
                                    ,     *




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     Eon. Charles     D. .Dates,   Jr.,   Page 4, V-195


                "4e   At the time of such qualif%~cation
          the County Clerk shall collect   the fees allewed
          him by law for administering   the oath and %a-
          proving and filing   the bon% of suah INary Pub-
          lic,  together with the fee allowed by iaw to the
          Secretary of State for issuing a commission to
          such Notary Publfa,
                       ymasadiately after the qnaliihJ.eatioh
          of anTsuch, Notary Publio the, County OleFk ‘shall
          fOrthwith notify the Secretary of State that
          such person has qualified      and the date Oi s~ueb
          qualification,    end shall remit with such no,tice
          the fee due the Ssoretary of State, whereupon,
          the Secretary of State shall oause a. commlssi0n
          to be issued to each such qualified      Notary Pub-
          110, which commission shall be effective       as of
          the date of quallirioation,      All such aonuaissi~na
          shall be forwarded to the Gounty Clerk for de-
          livery to suuh persons entitled      to receive them,
          EDotbinS haMin shell prevent any qua~lifisd Notary
          rubliic, from pkrfonaing the duties 4r his 4rri0e
          fr0m an% afte~r his qualifictation    and-be&W@ the
          receipt of his aommisaion.
                “13. My qttallfied 19&ary Publio, wlmas@
          term is srpirif~& may be rb-appointed     by t&r Sew
          r&ary of State without the necessity       of the
          &&ty     Clerk reesubmittiina, his nmmato the Saorh-
          *a,ry of State, providaa suoh appoia&manQ ir made
          ia sufficient   time for srroh Notary Public to re-
          qm2ify on the a3pbati0n date of the term rbr
:’        rhidh he Is them serving;     an% previded fur-
          ther, that ir any such Notary has remove& hi8
          reai%ence to a aountg othtr WWI the aa@ f?er
          which he was appainted,     his office  shall be
          aatanatioally   va0ate%, and if ha desire8 to
          act as Retary Publio in suoh other aounty his
          ~txnmismiotl shall be surrendered to the &ore-
          tary of State and his n6ma shall be subm$t;teU.
          by the Clerk of such other county as heregn-
          abmve provide% o
                                                      Jo
                                                       _
                “9,  Any person app9inted a $Wary Pub- ’
          lid, bsfer& #5%&       upem his afFief*l aw48,
          shall exee,@te a bon?I in the sum of OEa+Fhouead
          ()l,OOO,OO] Dollara with two or mere sabtW
          indlvPduals,  0r one solvent surety eomp&&ya&h;
          orizcd to do busfness in this states as aarety,
                                    fFsn. Olmrrlar D, Batea,   Jr.,   Page 5, V-L95


                                         such   bond    ba? I pSW6& by the Omtnty Clerk of
                                                       to
                                         Me aouaty,   my& ee to the Owemar,        end con-‘~~
                                         dltfomd #      t# f8Lthful pcrfonkanae of the
                                         drttsr 0r bi*.-         1 *M ikIN1 also take and
                                         *ubeYi#~ui      b
                                                         w    Stil m&h ol offica     which
                                         shall be ODilW%Od06 aeld Wad with the aellti-
                                         tltwte ar t,hr 0ma 81      lministering   the mm.
                                         W&d @D&t?e&W       W 4Opfa8l$ed   In the offlae   of
                                         tha OCuSty Clad Mld shell not be void on the
                                         tlret Yecwery,     and luy be sued on in the nme
                                         a!’ fha party lajured ima time to time until the
                                         whale Bammt tbexeot has been ~raaorered.        Ailg
                                         aimit person shall be daemed to be qualified       r&an
                                         hr hes token the ofricm       oath of orflee,   rap-’
                                         lt&Wd thl bond and paia the fees herein pro-
                                         vidd   for, all within the ten (10) days allewad
                                         thw6tar.
                                               “8. XT any Qbuntp Clerk fails or refm
                                         W fr$msrd the maurn ol pewons requestfug ap-
                                         pairtaeabn, QOticss af qaalificotion, or to re-
                                         atit my Irob due to the Waretam of State, or
                     ,.   1.             to a o tir nlppll~rrt et h is
                                                  a y                appetatneot with -
                                         $13 tirty ($0 3 days rrter receipt ar mm by the
*:

                .i

,::.   ., . ,                  .’
                                         C6tbty C!lcr*    t&m 5)ooratam nf State shall wr-
.      I~
                                         tb     imeh f&am     or nTuar1 to the 37m4e Comp-
                                           T lsr, U, W&y
                                         t26                 Auditor     ud daarlssisnaru
                                         oo+IL ai su6k 4enmty, after     w&&oh na ol*ir
                                                                 rf SrwP dteik shell be
            .

                                         Or nW66H     iI6 rWW
                                         6-4        w p&l pa051 the &4crete         ar
                                         BWte elm11 sertlty      k ctueh aiticia 2 8 that
                                         all raquflUsrrta    h-or       hare bum COI-
                                         gIllad with.
                                               “9. AAl &ttnZ6 pmrtaintagCa the ap-
                                            iatmat udl eae&Pt&gatha Of Notarias Wb-
                                         Fto 6n611.ba )*blita u6OQml la the officss
                                         of tL, C6wrt.y CItea ata in tit6 affioe of the
                                         Sacrstary 0r Stnta *rter any such No,tary mb-
                                         110 ima qualiPW&     ati sM11 be apen to in-
                                         rpeatian ef am$ lDt4lwstsd person at suoh
                                         reasonable times *aa In such mannkr a9 till
                                         nst lnterrere  wi$h the lfiairs  or orfiaa or
                                         tha custodian of such reoerds; but asfther a
                                         County Clerk nor the Secretary af State shall
                                         be required to furnish Lists ai the hams ai
                                         persena appoirtsd berare their qu8liri0atfaa
                                         gor lists of unreasraable   nusnbera at quali-
                                         ried I?@taifes ?w;lic o As amended Acts 1959,
      mm0 amrm             b.   Batee,   fs.,   Page   6, f-195




                   .l. The statute nowhere pnscribse           a&y method
       by whloh a surety execwtiag B Elotary P6%blic)‘a bond may be
       swamrll~r   FelUMed of FostheP Liabilitys If %+a#bond were
:,    .n o#IpIo* len oh&&atI.mi of mzvt~8hfp effecting            only fn-
       dSx4dWis,     the maCte#? @f s,mh a Ml;ease ooald to doubt
       ba efbatrd      through t&e mutual agreement et all parties
       ae~e~@~z~dthere&n.       If& suoh is not the casai here, seeing
       that the bond is a sta*u%e            bwd papsble to tha Oorer-
       mu, 9wdsion~a ror We Wr ,thf& performance of the du-
       tiib# Of the Botarf’s      offfee,     The GOvernOF, ia his capac-
       1%~ 6@ payee, is of course the fiduciary           ~of the State,
     ,.a&3 Here ie no provision           of law authorlzihg .hin in such
       mpmefty iw ~J1.emee suah surety,           Moreover, silo0 t&e ob-
       l$gW&lan of the surety i6 10 essence one to the Btate,
       tw ]t@i$8h%k~ itmif           WOtid   a~ppeM e.0 hr?S RO t~t&Titr
       ‘to sW&aau &Y tie awfd~e S method of releasing            aus* ebl4~
       gaawks     4-a.      Lt.    XX& 6,ee. 56).    BS tllir  aa It may,
       ita m&k84   ie yw,aPB;baff     by’ lm   for such a releulle.
                wS%a'*he cam@yatask la mae c,B6iemmeIII8~
      ry,              the age%t 8udeT the #talllutes for the
               end therelam
      purpose of expedktingappai-*mqa*sor &taries     Publio by
     the si3mretaFy or state,     nevertheless ,hs ia gfren no au-
     th@rity, whatever in Tsspeot to the mntter of releasiq
     me bcwsman whose suzxmfyahip has been duly consummated ia
     ae~o~ordance al th tile law,   It is a familiar  principle  or
     &au br oM t& no&d ef o,itation of authorities,         that pub-
     lia 6a3 farars have oaLr tlaose powers confer&ed upea them
     by 1-0
                la IWTIF~# cpl bfbieial Bonds (an older           text9
      1666) p. 535, sea. 776, it is said:
                       *In the abremm Of a statutery    pro-
            ‘~ vision     to that ePi%Wis a surety cannot pn-
               ‘w     ,fhis release by @rfag  notioe to the
               “@b&k@%l rP the bond9 of his desire     and ia-
                tention to terminate his liability,*
                         In that modern compendfur Amcrioaa Jurisprud-
      01104,     .Vol,    5Qs pO &Fib, SaOO 37, it is said:
    ln ths aMmBoeor centmqt or
    +#hoorflarqyi 8 surety l&Q 3.4




.




.
.
Hoh. Charles   D. Bates,   Jr.,   Page 8, V-195


           9q ‘Betaries Public are pubIic offioers   of
the 8tete,  aad aa s,uoh, the matter of fitnsaa, for suoh
offioe  is e&m ef publia eonoarn from ahlah it follows
t&t say &~ezlaa;ll
                 itierbated my I%k,e ~H?~OQJ~ to the Sca-
reta*   of State age&nit the appointment.
             100 Your question is very broad indeed, and
our amwer is necessarily          general.    There 1s~ an Implied
limitation    embodied in the first        sentence of Article
5949 which authorizes       the Secretary of State to appoint
ti caWsnSe,nt~ number” of Notaries Publio for each aounty
im the $tet;s*    lieurarily,        it is implicit  in’ this  lan-
guage that the @Wbdl$tWy af State may det,ermina what is
a *&RMBanient numbaP of Notaries Public for any partic-
ular county.     If wouLd not be his, duty to appoint more
tban such determined conveniant           number. In the next place,
if the applicant should be known to the Secretary of State
to be ment,ally inaapable of perfonaing the duties of the
office,    or if he s,hould~ be known to the Secretary        of
State as one having bsa:n convicted ef a e&a&e which under
the Law would han.e mad.0 it the duty of the trial oourt
to rems.ve him f&m any public offioa, held by him at the
time, we think it certahnLy Uo~ulBbe the moral, if not
the legal duty of the Seeret,ary of State to refuse to
make the appointman%,. We think it is a wholesome impli-
catien oh la,w that the pswer fn one to appoint a person
to pub&$c offiae     implies that he shoold not appoint any
person who ia legally       inelilri$ble or, what is perhaps the
smut3 t&h& r6Ictua1ag             p&la or inaofapetant to die-
,oharga the duties of the offlee.



           rfhe~se i,s no tiuthority for a bandsman of
     a Netary Public to obtain a s&m&erg release
     irom furthex liabilkty       en au& bend. A oelypty
     ale& haa mmdiaoretien         in raeelwinS and for-
     warding applica,tion     fb’r notam appointment $b
     the S:ec,retary ef S&t&,,: b;ut he may and should
     advise the Seoret8ry ef any disquallfioatib
     of the appl,ioant which would render aenfse         as
     a public efficer     unlawful or impossible.    The
     Seerebary of Sta*s could refuse appointment an-
     der ceFtiain conditions o ArtU5949,aa amended,V.C,S.
                                        Yours very tru1y,
                                   ATTOm      OEIWtAL ‘F 9’lRAS



                                   *’   %pe&                I
(BS:WB:jrb                              Assistant
