Can my employer stop me from notarizing documents at work, or keep my notary stamp and record book if I quit?

TX AG Opinion GA-0723: Can an employer control an employee's notary work and keep the stamp?

Plain-English summary

The Texas Secretary of State asked two questions about a private employer's authority over an employee who is also a notary public, noting a possible tension between an employer's right to control its employees during work hours and a notary's duty as a public official to serve the public. A Texas notary is appointed by the Secretary of State for a four-year term, has statewide jurisdiction, and takes the constitutional oath required of appointed officers, so a notary is a "public officer" for certain purposes. Even so, no statute or court decision stops a notary from doing work for a private employer.

On the first question, whether an employer may limit the notarial acts its employees perform during work hours, the opinion said yes. The Government Code recognizes that someone may provide notary services as another's employee. Under the common law, an employer controls the details and methods of the work an employee does, so an employer may limit the activities an employee undertakes during working hours. Chapter 406 does not alter that part of the employer-employee relationship or dictate when or to whom notaries must offer their services. Reconciling the two, the opinion concluded an employer may limit the notarial acts an employee performs during working hours.

On the second question, whether an employer may keep the notary's materials (seal and record book) after the employment ends, the opinion said no. Chapter 406 commissions individual applicants, not their employers. The applicant supplies personal information, the seal must be personalized with the individual's name and commission expiration, and the commission runs to the individual without reference to an employer. The chapter says the record books and public papers belong to the office of the notary public, entries in the book are public information, and on a vacancy the books and papers go to the county clerk. So even if the employer paid the bond and application fees, it does not own the seal and records, and a court would likely conclude the employer may not retain them when the employee leaves. The opinion added that the Secretary of State may adopt rules specifying the details of how a notary's book and seal are handled.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Chapter 406 of the Government Code and the Secretary of State's notary rules may have been amended since 2009. Confirm current law before relying on anything below.

Who this opinion affected (as of 2009)

Employers of notaries: The opinion explained that an employer could limit or prohibit an employee from performing notarial acts during working hours, but could not keep the employee's notary seal and record book after the employment ended.

Employees who are notaries: The opinion described the notary as commissioned individually, so the seal and records stayed with the notary even if the employer paid the fees, while recognizing the employer's authority over notarial work during the workday.

The Secretary of State: The opinion noted the office's authority to adopt rules consistent with the subchapter, including rules on the disposition of a notary's book and seal.

Common questions

Can my boss tell me not to notarize documents at work?
According to the opinion, yes. An employer may limit or prohibit an employee notary from performing notarial acts during working hours, because the employer controls the employee's on-the-job activities and chapter 406 does not override that.

If my employer paid for my notary commission, do they own my stamp?
No. The opinion explained that the commission is issued to the individual and the seal is personalized, so the employer is not the owner even if it paid the bond and application fees.

Can my employer keep my record book when I leave?
The opinion concluded a court would likely say no. The record books and papers belong to the office of the notary public, entries are public information, and on a vacancy they go to the county clerk, not the employer.

Is a notary really a public officer?
For certain purposes, yes. The opinion noted a notary is an appointed officer who takes the constitutional oath, but it stressed this does not prevent a notary from working for a private employer.

Background and statutory framework

A Texas notary is appointed by the Secretary of State for a four-year term, has statewide jurisdiction, and takes the official oath required of appointed officers (Tex. Const. art. XVI, § 1; Tex. Gov't Code Ann. §§ 406.001-.003, 406.010(c) (Vernon 2005)), making a notary a public officer for certain purposes (Lawyers Sur. Corp. v. Gulf Coast Inv. Corp., 410 S.W.2d 654, 657 (Tex. Civ. App.-Tyler), writ ref'd n.r.e., 416 S.W.2d 779 (Tex. 1967)). The Code recognizes notary services performed as an employee (Tex. Gov't Code Ann. §§ 406.010(1), 406.024(a) (Vernon 2005)), and the common law gives an employer control over the details of an employee's work (Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002); Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex. 1990)), so an employer may limit an employee's notarial acts during working hours.

Because chapter 406 commissions individuals, not employers (id. §§ 406.005(a), 406.008, 406.013 (Vernon 2005)), imposes notary duties without reference to employment (id. §§ 406.013(a), 406.014(a)-(c) (Vernon Supp. 2008)), characterizes the record books and public papers as belonging to the office of the notary public, makes book entries public information, and routes them to the county clerk on a vacancy (id. §§ 406.022 (Vernon 2005), 406.014(b) (Vernon Supp. 2008)), the opinion concluded an employer may not retain the notary's records and seal after the employment ends. The Secretary of State may adopt implementing rules (id. § 406.023 (Vernon 2005)).

Citations

Statutes:

• Tex. Const. art. XVI, § 1
• Tex. Gov't Code Ann. §§ 406.001-.003, 406.010(c), 406.010(1), 406.024(a), 406.005(a), 406.013, 406.022, 406.023 (Vernon 2005); 406.014(a)-(c) (Vernon Supp. 2008)

Cases:

• Lawyers Sur. Corp. v. Gulf Coast Inv. Corp., 410 S.W.2d 654 (Tex. Civ. App.-Tyler), writ ref'd n.r.e., 416 S.W.2d 779 (Tex. 1967)
• Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308 (Tex. 2002)
• Thompson v. Travelers Indem. Co., 789 S.W.2d 277 (Tex. 1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0723
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0723.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

June 17, 2009

The Honorable Hope Andrade
Texas Secretary of State
Post Office Box 13697
Austin, Texas 78711-3697

Opinion No. GA-0723

Re: Whether a private employer may limit the notarial acts performed by an employee who is a notary public (RQ-0779-GA)

Dear Secretary Andrade:

You ask two questions about the authority of a private employer to control services performed by an employee who is a notary public.[1] You indicate that there "may be a conflict in this area between the rights of an employer to control the activities of its employees during work hours and the duty of a notary public as a public official to serve the public." Request Letter at 1.

In Texas, a notary public is appointed to serve by the secretary of state for a term of four years, has statewide jurisdiction, and is required to take the official oath that article XVI, section 1 of the Texas Constitution requires of "[a]ll elected and appointed officers." TEX. CONST. art. XVI, § 1; see also TEX. GOV'T CODE ANN. §§ 406.001-.003 (providing for a notary public's appointment, term, and jurisdiction), .010(c) (requiring official oath) (Vernon 2005). Thus, "[a] notary public is a public officer" for certain purposes. Lawyers Sur. Corp. v. Gulf Coast Inv. Corp., 410 S.W.2d 654, 657 (Tex. Civ. App.-Tyler), writ ref'd n.r.e., 416 S.W.2d 779 (Tex. 1967). But while a notary is an "officer" for some purposes in Texas law, no statute or court decision prohibits a notary from performing work for a private employer.

Your first question is whether a private employer may "limit the notarial acts performed by its employees during work hours."[2] Request Letter at 1. The Government Code recognizes that an individual may provide notary public services as the employee of another. TEX. GOV'T CODE ANN. §§ 406.010(1) (Vernon 2005) (stating that certain requirements do not apply to an individual "whose services as a notary public are performed primarily as a state officer or employee") (emphasis added), .024(a) (setting forth the fees that an individual or the individual's employer may charge for performing notary public services). A defining characteristic of the employer-employee relationship under the common law is that an "employer has the right to control the progress, details, and methods of operations of the work. [] The employer controls not merely the end sought to be accomplished, but also the means and details of its accomplishment." Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002) (setting forth the test to distinguish an employee from an independent contractor) (citing Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex. 1990)). Thus, under the common law, an employer determines, and may accordingly limit, the activities undertaken by the employee during working hours.

Chapter 406 of the Government Code does not purport to alter this aspect of the common-law employer-employee relationship, nor does it mandate when or to whom notaries public must offer their services. While we have found neither case law nor a Texas attorney general opinion that addresses your specific inquiry, we believe that by reconciling chapter 406 with the common law, a court would conclude that an employer may limit the notarial acts performed by its employees during working hours. Cf. 30 Okla. Op. Att'y Gen. 127 (2000) at 2 (advising that under Oklahoma law, an "employer [may] prohibit [a] notary from performing notarial acts for anyone other than the employer while at work.").

You next ask whether an employer may "retain the notary materials of an employee upon termination of employment," including the notary's seal and record book. Request Letter at 2. As you observe, "[a]lthough an employer may pay for the bond, application and notary materials, the individual who has been commissioned as a notary public is responsible for properly affixing the seal to authenticate his notarial acts, maintaining the notary record book, and making it available to the public." Id. Neither the notary statutes, nor any published case that we have found, specifically addresses the matter of the disposition of the book and seal when a notary public changes employment. Chapter 406 of the Government Code, however, provides for commissioning individual applicants, not their employers, as notaries public. An applicant must provide personal information to the secretary of state, such as name and address, date of birth, and social security number. TEX. GOV'T CODE ANN. § 406.005(a) (Vernon 2005). When the applicant qualifies as a notary, the secretary of state furnishes the applicant with the applicant's commission and with relevant materials and sample forms. Id. § 406.008. The notary public seal of office must be personalized with the name of the individual and the date the individual's commission expires. Id. § 406.013. Because a notary is commissioned as an individual, without reference to the person's employer, chapter 406 suggests that an employer may not take possession of or transfer that individual's commission, book, and seal upon termination of the individual's employment.

Additionally, chapter 406 imposes a duty on a notary public, without reference to employment, to "authenticate all official acts with the seal of office," to "keep in a book a record of each instrument notarized," and to "provide a certified copy of any record in the notary public's office to any person requesting the copy." Id. §§ 406.013(a) (Vernon 2005), 406.014(a)-(c) (Vernon Supp. 2008). Because, as we have noted, a notary is appointed for a term of years without reference to employment status, chapter 406 suggests that a commissioned notary may continue to use the notary's book and seal after leaving the employment of an entity, even though that entity may have paid the notary's application fee.

Moreover, chapter 406 characterizes "the record books and public papers" of a notary public as "belonging to the office of the notary public" rather than to the individual or the individual's employer. Id. § 406.022 (Vernon 2005) (emphasis added). Furthermore, the chapter expressly states that "[e]ntries in the notary's book are public information." Id. § 406.014(b) (Vernon Supp. 2008) (emphasis added). Ultimately, upon vacancy of the office of notary public, the office's record books and public papers must be deposited in the county clerk's office. Id. These provisions provide additional evidence that even though the employer may have paid an employee's bond and application fees, the employer is not the owner of the record book and public papers from the employee's services as notary public. Construing chapter 406 as a whole, we conclude that a court would likely determine that an employer may not retain the notary records and seal of an employee who is a notary public upon termination of employment.

We also note that another provision of the notary statutes directs the "secretary of state [to] adopt rules necessary for the administration and enforcement of this subchapter," provided that the "rules be consistent with the provisions" of the subchapter. Id. § 406.023 (Vernon 2005). Texas law thus furnishes the secretary of state with the means to implement the notary statutes and to specify the details of the disposition of a notary's book and seal.

SUMMARY

A notary public is an appointed public officer for limited purposes. A private employer may limit or prohibit an employee who is a notary public from performing notarial acts during employment hours.

Because a commission is issued to an individual notary, the notary's private employer may not take possession of or transfer the notary's book and seal after the notary leaves employment. The secretary of state may adopt rules to specify the details of the disposition of a notary's book and seal.

Very truly yours,

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: We do not construe this question to ask whether an employer may control or direct the notary in the conduct of his/her official duties when conducting those notarial acts authorized by the employer during business hours.]