Notaries may only accept valid, non-expired, government-issued (state or federal) identifications, which includes the signer’s photo and signature, to verify a signer’s identity. Notaries who have personal knowledge of the signer through an interaction and association with the signer may use that knowledge to verify the signer’s identity.
Alternatively, the signer’s identity may be verified by the oath of a credible witness.
The witness must:
It is considered the unauthorized practice of law (UPL) for anyone other than a licensed attorney to choose the correct notarial certificate. If a document does not have a notarial certificate and no attorney is available, the notary should suggest the signer return the document to source to request a notarial certificate be added.
Signers with Disabilities and Other Issues
The notary may ask the signer if she would like the notary to read the document aloud before signing. Notaries are prohibited from explaining anything about the document or its contents.
Hearing or Speech Impairment
If the signer can lip read, the notary may proceed with notarization. If not, the notary should refer signer to a notary who can communicate directly with the signer. The user of an interpreter is not appropriate, as the notary cannot verify the translation.
Illiterate or Physically Unable to Sign
If the signer is illiterate, the notary may ask if the signer would like to notary to read the document aloud before signing.
If a “mark” is the signer’s legal signature, the signer may sign with his mark in the presence of at least one, and preferably two, witnesses. One of the witnesses should print the signer’s name under the signer’s mark and also write “his/her mark.”
The notary may sign for a signer who is physically unable to sign or make his or her mark if the notary is directed to do so by the signer, and in the presence of at least one, and preferably two, witnesses. The notary should include the following beneath the signature for the signer:
Signature affixed by notary in the presence of (name of witness(es)), (a) disinterested witness(es), under Section 406.0165 of the Government Code.
The witnesses should not have any legal or equitable interest, and preferably no personal or beneficial interest, in the transaction. The notary should record the name and address of any witnesses involved in the signing, as well as the identification used to verify their identities, in the notarial certificate and in the notary’s record book. There are specific forms available for these situations.
Spoken or Written Language Barrier
Although Texas law does not prohibit notarizing a document that is in a language the notary does not understand, it is not advisable as the notary will not be able to understand the purpose of the document, whether the notarial certificate is appropriate, or whether the document is complete.
If there is a spoken language barrier the notary and the signer, the notary should refuse the notarization as the notary is required to communicate directly with the signer to confirm the signer understands the document and is willing to sign it.
If the signer and notary share a common language but the document is in a language neither understands, a certified translation may be utilized, with the translator signing the specific affidavit form for the translators. The translator should not be a party to the transaction or have a beneficial interest in it, should be fluent in the language of the document, as well as the common language of the notary and signer. The translator’s translation and affidavit should be attached in front of the document. The notarial certificate must be on the original document and in English. The identity of the translator should also be verified, and all information included in the notary’s record book.
Notaries may also refuse notarizations in the following situations:
Notaries may not refuse to perform a notarization because of a bias against the signer, or because the documents may be considered controversial.
In Mexico, as well as several other countries, a Notary Public is an attorney or trained legal professional. In order to avoid deception and invalid assumptions, it is illegal in Texas for a notary to do any of the following:
To protect themselves as well as signers, notaries should be sure to correct any use of the terms Notario or Notario Publico. If the notary believes the signer does not understand she is not a Notario or Notario Publico, she should decline the notarization and refer the signer to a notary who can explain the difference in the language in which the notary is most comfortable.
On January 1, 2016, Texas began requiring notary stamps to include the notary’s identification number. This law was not intended to effect current notaries, only notaries obtaining or renewing their commissions after January 1, 2016. However, the State Bar of Texas, specifically the Real Estate Section, has opined that the wording of the law is a bit unclear and they recommend current notaries order new stamps with their identification numbers to avoid potential issues. This is especially important for notaries who work in real estate and estate planning and probate.
Webcam eNotarizations are currently only permitted in Montana and Virginia. During webcam eNotarizations, the documents, whether in PDF or Word, are signed using e-signing software and the documents are then rendered “tamper-evident.” Notaries are required to keep an electronic register of the notarization, as well a video recording of the notarization.
In Virginia, notaries may use personal knowledge and credible identifying witnesses, as well as “knowledge-based authentication” (KBA). With KBA, the signer provides his social security number to an identity services provider. The provider compiles challenge-response questions from credit bureau databases and provides those questions to the notary. If the signer cannot correctly answer a specific number of questions within a short period of time, the notary will refuse to perform the notarization.
Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past president of the Division. She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by Thomson Reuters.
If you have any questions regarding any ethical issue, please contact the Professional Ethics Committee.
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Originally published in the Texas Paralegal Journal © Copyright Paralegal Division, State Bar of Texas.