Can someone with a felony or a crime of moral turpitude on their record become a Texas notary public?

TX AG Opinion GA-0733: Does a felony or moral-turpitude conviction block a notary commission?

Plain-English summary

The Texas Secretary of State asked how two parts of the Notary Public Act (Government Code chapter 406) fit together when an applicant or commissioned notary has a criminal conviction. Section 406.004 says each person commissioned as a notary "must not have been convicted of a felony or crime involving moral turpitude." Subsection 406.009(a) separately gives the Secretary discretion to "for good cause, reject an application or suspend or revoke" a commission, and its list of "good cause" reasons in subsection 406.009(d)(1) names a final conviction for a crime of moral turpitude but does not mention a felony.

The Secretary's office explained that, in practice, it had been treating the moral-turpitude requirement as procedural and using the 406.009(a) discretion to commission some applicants who had moral-turpitude convictions, while treating felony convictions as an absolute bar. It asked the Attorney General to sort out which provision controls.

On the eligibility question, the opinion concluded that section 406.004 controls. Its "must not have been convicted" language is mandatory, so the Secretary of State is precluded from commissioning an applicant who has been convicted of either a felony or a crime of moral turpitude. Where the discretion in 406.009(a) appeared to conflict with that bar on the moral-turpitude point, the opinion applied the rule that the later-enacted statute prevails: the eligibility bar in 406.004 was added in 1995, after the 1987 discretion provision, so it wins.

On the revocation question, the opinion reached a different result because of the word "may." Subsection 406.009(a) says the Secretary "may" suspend or revoke a commission for good cause, which is discretionary, and the "good cause" list is illustrative rather than exclusive, so it can include a felony as well as a crime of moral turpitude. The Secretary therefore may, but is not required to, begin revocation proceedings against a sitting notary who has such a conviction.

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 Texas Administrative Code rules on notaries may have been amended since 2009. Confirm the current statute and rules before relying on anything below.

Who this opinion affected (as of 2009)

People applying to become notaries: The opinion explained that, under section 406.004, the Secretary of State could not commission an applicant who had been convicted of a felony or a crime of moral turpitude. The eligibility bar was read as mandatory.

People who already held a notary commission: The opinion described the Secretary's revocation power as discretionary. A conviction was "good cause" that could support revocation, but section 406.009(a) did not require the Secretary to start proceedings.

The Secretary of State's office: The opinion resolved the tension the office had identified between its longstanding practice of commissioning some moral-turpitude applicants and the 1995 eligibility amendment, concluding the later eligibility bar controlled the commissioning decision.

Common questions

Is the bar the same for felonies and crimes of moral turpitude?
For new applicants, yes. The opinion concluded that section 406.004 precludes commissioning anyone convicted of either a felony or a crime of moral turpitude.

If someone is already a notary and gets convicted, do they automatically lose the commission?
No. The opinion explained that the Secretary "may, but is not required to" begin revocation proceedings, because the word "may" in section 406.009(a) grants discretion rather than imposing a duty.

Why did the eligibility bar win where the two provisions clashed?
The opinion applied the statutory-construction rule that when two provisions are in direct and irreconcilable conflict, the later-enacted one controls. The eligibility bar in section 406.004 was enacted in 1995, after the 1987 discretion provision.

What counts as a crime of moral turpitude?
The opinion did not give a full list. It noted an administrative rule describing a crime of moral turpitude as a crime "mala in se" (wrong by its own nature), which may include certain misdemeanors and felonies.

Background and statutory framework

Section 406.004 provides that each person commissioned as a notary public "must not have been convicted of a felony or crime involving moral turpitude" (Tex. Gov't Code Ann. § 406.004 (Vernon 2005)), and the opinion read "must" as mandatory (Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)). Subsection 406.009(a) gives the Secretary discretion to reject an application or suspend or revoke a commission "for good cause," with "good cause" defined in subsection 406.009(d)(1) to include a final conviction for a crime of moral turpitude (id. § 406.009(a), (d)(1)). The eligibility bar was added by the Act of May 24, 1995, 74th Leg., R.S., ch. 719, after the discretion provision in the Act of May 21, 1987, 70th Leg., R.S., ch. 147.

Construing the provisions to ascertain legislative intent (Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999); Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999)) and harmonizing them where possible (State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston 1963), aff'd, 376 S.W.2d 341 (Tex. 1964)), the opinion found a direct conflict on the moral-turpitude point and applied the later-enacted statute (Tex. Gov't Code Ann. § 311.025(a)). For revocation, "may" creates discretionary authority (id. § 311.016(1)), and "include" is a term of enlargement that does not exclude unlisted items (id. § 311.005(13); Jackson Law Office v. Chappell, 37 S.W.3d 15, 25-26 (Tex. App.-Tyler 2000, pet. denied)), so a felony could also be good cause. On the meaning of moral turpitude generally, the opinion noted 1 Tex. Admin. Code § 87.43(b) (2009) and In re Lock, 54 S.W.3d 305, 308 (Tex. 2001).

Citations

Statutes:

• Tex. Gov't Code Ann. §§ 406.004, 406.009(a), (d)(1) (Vernon 2005); 311.016(1), 311.025(a), 311.005(13)
• Act of May 24, 1995, 74th Leg., R.S., ch. 719, 1995 Tex. Gen. Laws 3807; Act of May 21, 1987, 70th Leg., R.S., ch. 147, 1987 Tex. Gen. Laws 316
• 1 Tex. Admin. Code § 87.43(b) (2009)

Cases:

• Leland v. Brandal, 257 S.W.3d 204 (Tex. 2008)
• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999)
• Albertson's, Inc. v. Sinclair, 984 S.W.2d 958 (Tex. 1999)
• State v. Jackson, 370 S.W.2d 797 (Tex. Civ. App.-Houston 1963), aff'd, 376 S.W.2d 341 (Tex. 1964)
• Helena Chem. Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001)
• In re Lock, 54 S.W.3d 305 (Tex. 2001)
• Jackson Law Office v. Chappell, 37 S.W.3d 15 (Tex. App.-Tyler 2000, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0733
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0733.pdf

Original opinion text

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

GREG ABBOTT

July 23, 2009

The Honorable Hope Andrade
Texas Secretary of State
Post Office Box 12697
Austin, Texas 78711-2697

Opinion No. GA-0733

Re: Effect of a final conviction for a felony or misdemeanor crime involving moral turpitude on a notary public's application or commission (RQ-0785-GA)

Dear Secretary Andrade:

Your office writes seeking our opinion on questions that arise under Government Code, chapter 406, the Notary Public Act (the "Act").[1] Your office indicates that the questions stem in particular from sections 406.004 and 406.009 of the Act.[2] See Request Letter at 1.

Section 406.004 provides that "[e]ach person appointed and commissioned as a notary public ... must not have been convicted of a felony or crime involving moral turpitude."[3] TEX. GOV'T CODE ANN. § 406.004 (Vernon 2005). Subsection 406.009(a) provides that the "secretary of state may, for good cause, reject an application or suspend or revoke the commission of a notary public." Id. § 406.009(a). The term "good cause" is defined to include a list of items, one of which is "a final conviction for a crime involving moral turpitude," but it does not expressly include a conviction for a felony. Id. § 406.009(d)(1).

The letter from your office discusses the impact of a 1995 amendment on chapter 406. Request Letter at 1-2; see Act of May 24, 1995, 74th Leg., R.S., ch. 719, 1995 Tex. Gen. Laws 3807. Prior to the amendment, section 406.004, pertaining to eligibility, required only that a person be of the specified age and a Texas resident. See Act of May 21, 1987, 70th Leg., R.S., ch. 147, § 1, 1987 Tex. Gen. Laws 316, 366. At that time, section 406.005 required an applicant to swear in the application that the person had not been convicted of a crime of moral turpitude, but chapter 406 did not require a similar statement as to convictions for felonies. See id. § 1 at 366-67. The 1995 enactment repealed the section 406.005 requirement of a sworn statement about a conviction of a crime involving moral turpitude. See Act of May 24, 1995, 74th Leg., R.S., ch. 719, § 2, 1995 Tex. Gen. Laws 3807, 3807. It also amended section 406.004 to provide that to be eligible for an appointment and commission as a notary public, a person "must not have been convicted of a felony or crime involving moral turpitude." Id. § 1 at 3807. The 1995 amendment, however, did not amend the definition of "good cause" in section 406.009 to include any express reference to conviction of a felony. See id. § 5 at 3808.

Your office tells us that since the Act's inception, the Secretary of State's office has considered the requirement of a sworn statement regarding crimes of moral turpitude as a procedural one and exercised the discretion in subsection 406.009(a) so that "[a]s a result, some applicants with convictions for crimes involving moral turpitude have been commissioned as notaries public." Request Letter at 1. Your office also tells us that, though the 1995 legislation repealed the requirement of a sworn statement regarding convictions of crimes of moral turpitude and changed the eligibility section to require that a person not have been convicted of a crime involving moral turpitude, the Secretary of State continued to exercise discretion under subsection 406.009(a) to commission some applicants who had been convicted of crimes involving moral turpitude. Id. Further, your office informs us that the Secretary of State's treatment of applications from a person with a felony conviction is much different. See id. Because the 1995 amendment did not add felony convictions to the definition of "good cause" in subsection 406.009(d)(1), the Secretary of State "has interpreted the Act to absolutely bar felons from commission as notaries and to require the Secretary of State to institute revocation proceedings upon discovery that a commissioned notary has been convicted of a felony." Id. Your office notes further that the "language of [s]ection 406.004 does not support this disparate treatment, but [sub]section 406.009(d)(1) and longstanding ... practice do." Id. at 2.

Within this context, your office asks several questions about these provisions. See id. Specifically, you ask whether "an applicant's conviction for a felony [or a misdemeanor involving moral turpitude] preclude[s] the secretary of state from commissioning the applicant as a notary public" and whether "an applicant's conviction for a felony [or a misdemeanor involving moral turpitude] require[s] the secretary of state to institute commission revocation proceedings[.]" Id. These questions require us to construe section 406.004 and subsection 406.009(a). As we parse subsection 406.009(a), we consider it first as it pertains to the rejection of an application, and second as it pertains to the suspension or revocation of a commission.

The cardinal rule of statutory construction is to ascertain the Legislature's intent. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). The best indicator of that intent is the language of the statute as determined by the plain and common meaning of the words of the statute. Id. (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999)); see also Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999). When two statutes are in apparent conflict, courts seek to harmonize them so that all provisions are fully effective. State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston 1963), aff'd, 376 S.W.2d 341 (Tex. 1964). In the event of a direct and irreconcilable conflict, however, the later expression of legislative intent controls, and the later statute will be held to have repealed the earlier statute. See id. ("The law is well settled that it is only when two statutes are directly and irreconcilably in conflict that the latter repeals the former."). With these rules to guide us, we consider provisions in sections 406.004 and 406.009. Section 406.004 expressly provides that a person "appointed and commissioned as a notary public ... must not have been convicted of a felony or a crime involving moral turpitude." TEX. GOV'T CODE ANN. § 406.004 (Vernon 2005) (emphasis added). The term "must" is generally "recognized as mandatory, creating a duty or obligation." Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). Absent any indication that "must" in section 406.004 is intended to have a construction here that is different from its typical mandatory construction, section 406.004 expressly requires that the person not have been convicted of a felony or crime involving moral turpitude before a person may be appointed and commissioned as a notary public. Thus, with respect to your question concerning the Secretary of State's authority to commission as a notary an applicant with a felony conviction, we conclude that section 406.004 by its terms precludes the Secretary of State from commissioning such an applicant.

Your question concerning the Secretary of State's authority to commission an applicant with a conviction of a crime involving moral turpitude requires us to consider and construe section 406.009. Subsection 406.009(a) gives the Secretary of State discretion to "reject an application" for good cause, which includes a "final conviction for a crime involving moral turpitude." TEX. GOV'T CODE ANN. § 406.009(a), (d)(1) (Vernon 2005); see also id. § 311.016(1) ("'May' creates discretionary authority or grants permission or a power."). It follows then that subsection 406.009(a) does not by its plain language require the Secretary of State to reject an applicant with a conviction of a crime involving moral turpitude. Under section 406.004, however, a person convicted of a crime involving moral turpitude would not be eligible to be commissioned as notary. The discretion provided in subsection 406.009(a) cannot be harmonized with the absolute prohibition in section 406.004. To the contrary, any discretion the Secretary of State may have under subsection 406.009(a) to not "reject an application" of an applicant who has been convicted of a crime involving moral turpitude directly and irreconcilably conflicts with the requirement that a person with such a conviction is not eligible to be appointed and commissioned as a notary public.

Having found that section 406.009(a), as it pertains to the rejection of an application based on the conviction of a crime involving moral turpitude, directly and irreconcilably conflicts with subsection 406.004, we look to the dates of enactment. See id. § 311.025(a). Subsection 406.009(a), giving the Secretary of State discretion to reject an application that indicates a conviction of a crime involving moral turpitude, was codified in 1987. See Act of May 21, 1987, 70th Leg., R.S., ch. 147, § 1, 1987 Tex. Gen. Laws 316, 367-68. The amendment to section 406.004 that made it an eligibility requirement not to have been convicted of a crime involving moral turpitude was enacted in 1995. See Act of May 24, 1995, 74th Leg., R.S., ch. 719, § 1, 1995 Tex. Gen. Laws 3807, 3807. Because section 406.004 is the later-enacted statute, it prevails over subsection 406.009(a) with respect to the Secretary of State's authority to reject applications for those convicted of crimes involving moral turpitude. Accordingly, we conclude that section 406.004 precludes the Secretary of State from appointing and commissioning as a notary public an applicant with a conviction of a crime involving moral turpitude.

We next consider your query about whether a conviction for a felony or a crime involving moral turpitude requires the Secretary of State to institute commission revocation proceedings.[4] As we noted before, subsection 406.009(a) by use of the permissive term "may" thereby gives the Secretary of State discretion regarding the suspension and revocation of the commission of a notary public. See TEX. GOV'T CODE ANN. § 406.009(a) (Vernon 2005). We see no indication in chapter 406 that "may" here is intended to be mandatory and thus construe it as a grant of discretion. Further, "good cause" is defined in subsection 406.009(d) to include a specified list of reasons. Id. § 406.009(d)(1)-(6). The term "include" is a "term of enlargement" that does not limit a series of terms to only the terms listed, and "does not create a presumption that components not expressed are excluded." Id. § 311.005(13). By the plain language of subsection 406.009(d)(1), a conviction for a crime involving moral turpitude constitutes good cause. Because the list is not exclusive, a conviction of a felony could also constitute good cause. Cf. Jackson Law Office v. Chappell, 37 S.W.3d 15, 25-26 (Tex. App.-Tyler 2000, pet. denied) (stating that a statutory list following the term includes or including is "for purposes of illustration"). On its face then, subsection 406.009(a), as it pertains to the suspension and revocation of commissions, authorizes, but does not require, the Secretary of State to initiate commission revocation proceedings against a commissioned notary public for good cause, which includes convictions for a crime involving moral turpitude and could include convictions for felonies. Accordingly, we conclude that the Secretary of State may, but is not required to, initiate commission revocation proceedings against a notary public on the basis of a conviction of a felony or a crime involving moral turpitude.

SUMMARY

The Secretary of State is precluded from appointing or commissioning as a notary public an applicant with a conviction of a felony or a crime involving moral turpitude. The Secretary of State may, but is not required to, initiate commission revocation proceedings against a notary public on the basis of a conviction of a felony or a crime involving moral turpitude.

Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

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

[Footnote 2: Because you ask about only sections 406.004 and 406.009, we limit our opinion to these two sections and do not address other statutory provisions that may impose consequences for convictions.]

[Footnote 3: The statutes do not define the term "crime involving moral turpitude." An administrative rule provides that a "crime involving moral turpitude means the commission of a crime mala in se (an offense that is evil or wrong from its own nature or by natural law irrespective of statute)," which may include, but is not limited to, Class A and B misdemeanors and felonies. 1 TEX. ADMIN. CODE § 87.43(b) (2009); cf. In re Lock, 54 S.W.3d 305, 308 (Tex. 2001) (observing that, in the context of attorney discipline "crimes of moral turpitude must involve dishonesty, fraud, deceit, misrepresentation, or deliberate violence, or must reflect adversely on an attorney's honesty, trustworthiness, or fitness as an attorney").]

[Footnote 4: Your office phrases this question in terms of "commission revocation" proceedings due to an "applicant's" conviction. See Request Letter at 2. We presume for the purposes of this opinion that the proceeding about which you ask is one to revoke the commission of a person who is already a notary public. As such, our discussion considers the question with respect to a notary public that currently holds a commission.]