Can a Texas notary public refuse to release or black out entries in their notary record book?

Plain-English summary

The Texas Secretary of State, Nandita Berry, asked the Attorney General whether a notary public can withhold or black out information when someone requests copies from the notary's record book. The question grew out of a complaint: a notary had handed over copies that were "almost completely redacted," and defended the redactions by citing the First Amendment right of association and the National Labor Relations Act.

The AG started with the statute. Under Chapter 406 of the Government Code, the entries in a notary's record book are public information, and a notary must provide a certified copy of any record to anyone who requests it and pays the fees. The statute lists no exceptions. So as a matter of Texas law, those records cannot be withheld.

The notary's federal-law argument did not change that on the facts presented. Federal law can override a state openness statute under the Supremacy Clause, but the AG explained that courts presume state law is not preempted, and the burden of proving that some federal privilege or confidentiality rule actually applies falls on the person trying to withhold the records. Whether that burden is met depends on the specific facts, and the AG noted that nothing in the materials provided showed this notary had met it.

On whether other state-law privileges (such as those in the Texas Rules of Evidence) might excuse a notary, the AG declined to predict an answer in the abstract. No statute or court decision recognized such an exception, and without specific facts he would not guess whether a court might read some particular nondisclosure statute as overriding the notary-records duty.

Finally, the AG addressed the Secretary of State's enforcement role. The Secretary of State may suspend or revoke a notary's commission for good cause, including failing to faithfully discharge a notary's duties or failing to respond to a public-information request, subject to the notary's rights to notice, a hearing, adjudication, and appeal. Whether good cause exists in a given case is for the Secretary of State's office to decide in the first instance, so that office is the body authorized to resolve, in administrative proceedings, whether a notary lawfully withheld or redacted records.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Secretary of State (as the opinion described it): The opinion described the Secretary of State's office as the body authorized to determine, in administrative proceedings, whether a notary complied with the duty to provide records, with power to reprimand, suspend, or revoke a commission for good cause, subject to the notary's hearing and appeal rights.

Notaries public (as the opinion described it): The opinion described a notary's record-book entries as public information that, under Chapter 406, must be copied for any requester who pays the fees, with no statutory exceptions. A notary invoking federal law to withhold records was described as bearing the burden of proving the federal privilege applies.

People requesting notary records (as the opinion described it): The opinion described the requester's right to a certified copy of any record-book entry on payment of fees, and described the Secretary of State complaint process for a notary who refuses.

Anyone asking about state-law privileges (as the opinion described it): The opinion declined to predict, in the abstract and without specific facts, whether any particular state nondisclosure statute could relieve a notary of the records duty, noting that no statute or case had recognized such an exception.

Common questions

Are a Texas notary's record-book entries public?
Yes. The AG explained that under Chapter 406 of the Government Code, entries in a notary public's record book are public information, and the notary must provide a certified copy of any record to anyone who requests it and pays the fees.

Can a notary redact or refuse to release record-book entries?
The AG concluded the statute lists no exceptions, so as a matter of state law the records cannot be withheld. A notary claiming a federal privilege has to prove federal law makes the materials confidential, and the AG said nothing in the materials showed that the notary in this case had met that burden.

Does the First Amendment or the National Labor Relations Act let a notary withhold records?
Not on the showing here. The AG explained that federal law can override a state openness statute, but only if the party invoking it carries the burden of establishing the federal privilege, which depends on the facts of each case. The opinion found nothing indicating the burden had been met.

What can the Secretary of State do about a notary who improperly withholds records?
The AG explained the Secretary of State may suspend or revoke a notary's commission for good cause, which includes failing to faithfully discharge a notary's duties or failing to respond to a public-information request, subject to notice, hearing, and appeal. The Secretary of State decides in the first instance whether good cause exists.

Did the AG decide whether this specific notary broke the law?
No. The AG described that determination as one for the Secretary of State's office to make in administrative proceedings, applying the facts of the complaint.

Background and statutory framework

A notary public is a public officer commissioned to administer oaths and take acknowledgments (Tex. Const. art. IV, § 26). The Texas Constitution lets the Legislature prescribe a notary's duties (Tex. Const. art. IV, § 26(a)), and the Secretary of State administers and enforces the statutes and rules governing notaries (Tex. Gov't Code Ann. § 406.023(a) (West 2013)).

A notary must enter a description of each instrument notarized in a record book (Tex. Gov't Code Ann. § 406.014(a) (West 2013)). Those entries "are public information," and the notary must "provide a certified copy of any record in the notary public's office to any person requesting the copy" on payment of fees (id. § 406.014(b)-(c)). A notary is also subject to Chapter 121 of the Civil Practice and Remedies Code, which makes statements of acknowledgment "original public records, open for public inspection" (Tex. Civ. Prac. & Rem. Code Ann. §§ 121.001, 121.012(a), (e) (West 2011)).

On the federal question, the AG applied the presumption against preemption (Graber v. Fuqua, 279 S.W.3d 608 (2009)) and placed the burden of establishing an overriding federal privilege on the party seeking to avoid state law (Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737 (Tex. 2001)), while recognizing that genuine federal confidentiality must be honored under the Supremacy Clause (U.S. Const. art. VI, cl. 2; Willy v. Admin. Review Bd., 423 F.3d 483 (5th Cir. 2005)). On possible state-law exceptions, the AG noted a court would give full effect to the openness statutes unless that were impossible (La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558 (Tex. 1984)), and declined to predict an outcome without facts.

For enforcement, the Secretary of State may suspend or revoke a commission for good cause, subject to the notary's rights of notice, hearing, adjudication, and appeal (Tex. Gov't Code Ann. § 406.009(a)-(b), (d)(5) (West 2013)), and may adopt rules to administer and enforce the notary subchapter (id. § 406.023(a)-(b)). The Secretary of State's rules treat failure to faithfully discharge a notary's duties and failure to respond to a public-information request as good cause for revocation, and set out the complaint, response, and disciplinary process (1 Tex. Admin. Code §§ 87.11(a)(7), (19), 87.23, 87.24, 87.43 (2014)).

Citations

Constitutional, statutory, and rule provisions:

• U.S. Const. art. VI, cl. 2 (Supremacy Clause)
• Tex. Const. art. IV, § 26 (notary public office; Legislature prescribes duties)
• Tex. Gov't Code Ann. § 406.014(a) (West 2013) (record-book entries)
• Tex. Gov't Code Ann. § 406.014(b)-(c) (entries are public; certified copies on request)
• Tex. Gov't Code Ann. § 406.009(a)-(b) (West 2013) (suspension or revocation for good cause)
• Tex. Gov't Code Ann. § 406.009(d)(5) (good cause includes penalty for violating a notary-duty law or rule)
• Tex. Gov't Code Ann. § 406.023(a) (West 2013) (Secretary of State administers and enforces notary statutes)
• Tex. Civ. Prac. & Rem. Code Ann. § 121.001 (West 2011) (officers taking acknowledgments)
• Tex. Civ. Prac. & Rem. Code Ann. § 121.012(a) (record of acknowledgments)
• 1 Tex. Admin. Code §§ 87.11(a)(7), (19), 87.43 (2014) (good cause; failure to respond to public-information request)
• 1 Tex. Admin. Code §§ 87.23-.24 (2014) (complaint and disciplinary process)

Cases:

• 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)
• Graber v. Fuqua, 279 S.W.3d 608, 611 (2009)
• Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743 (Tex. 2001)
• Willy v. Admin. Review Bd., 423 F.3d 483, 495 (5th Cir. 2005)
• La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1095
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1095.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 23, 2014

The Honorable Nandita Berry Opinion No. GA-1095
Texas Secretary of State
Post Office Box 12697 Re: Authority of a notary public to withhold
Austin, Texas 78711-2697 or redact certain information from copies of
entries in a notary public record book
(RQ-1209-GA)

Dear Secretary Berry:

You ask about the authority of a notary public to withhold or redact certain information from copies of entries in a notary public record book.[1] As you note, your office is responsible for administering and enforcing the statutes and rules governing notaries public. Request Letter at 1; TEX. CONST. art. IV, § 26; TEX. GOV'T CODE ANN. § 406.023(a) (West 2013). You relate that you have received a complaint about a particular notary public who, when asked for copies of records in the notary's record book, provided copies that "were almost completely redacted." Request Letter at 2. You inform us that the notary responded to the complaint by citing "the First Amendment right of association and the National Labor Relations Act" as grounds for redacting the records. Id.

A notary public is a public officer who "is given a commission of authority to administer oaths and take acknowledgements to documents of any kind requiring an oath." TEX. CONST. art. IV, § 26 interp. commentary (West 2013); 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 Texas Constitution authorizes the Legislature to decide the duties of a notary public. TEX. CONST. art. IV, § 26(a) (requiring notaries to "perform such duties as now are or may be prescribed by law").

A notary public's primary duty is "to attest and certify ... to the genuineness of documents so that they will be rendered available as evidence of the facts contained therein." Id. interp. commentary (West 2013). This duty requires a notary public to enter a description of each instrument notarized and other specified information in a notary public record book. TEX. GOV'T CODE ANN. § 406.014(a) (West 2013). Such "[e]ntries in the notary's book are public information," and a notary public must "provide a certified copy of any record in the notary public's office to any person requesting the copy" upon the payment of all fees. Id. § 406.014(b)-(c). A notary public is also subject to chapter 121 of the Civil Practice and Remedies Code, which governs officers who are authorized to take acknowledgment or proof of written instruments. See TEX. CIV. PRAC. & REM. CODE ANN. § 121.001 (West 2011). Such officers are required to enter "in a well-bound book" a short statement about each acknowledgement or proof of a written instrument that is required or permitted to be recorded. Id. § 121.012(a). These "statements of acknowledgment ... are original public records, open for public inspection and examination at all reasonable times." Id. § 121.012(e).

You first ask whether a notary public may "withhold or redact information from a notary record book on the grounds of federal constitutional or statutory reasons." Request Letter at 3. Section 406.014 of the Government Code does not state any exceptions to a notary public's duty to provide a certified copy of notary records. TEX. GOV'T CODE ANN. § 406.014(c) (West 2013). Thus, as a matter of state law, any such records, including those at issue in your request, are public records that cannot be withheld when requested. You ask whether federal law may override the Legislature's decision to make these records public. As an initial matter, courts presume that state law is not preempted by federal law. Graber v. Fuqua, 279 S.W.3d 608, 611 (2009). Thus, the burden to establish an overriding federal-law privilege or confidentiality provision rests squarely on the party seeking to avoid the application of state law. Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743 (Tex. 2001). If, however, the party seeking to withhold the records can clearly establish that federal law makes the materials confidential, federal law should be followed notwithstanding the state statutes to the contrary. See U.S. CONST. art. VI, cl. 2 (providing that the United States Constitution and federal statutes enacted pursuant to the Constitution are "the supreme Law of the Land"). Whether the burden to establish preemption has been met will depend on the particular facts of each case. See Willy v. Admin. Review Bd., 423 F.3d 483, 495 (5th Cir. 2005) (determining that in particular circumstances, federal law of privilege governs rather than state law). We note that nothing in the materials provided to us indicates that the notary seeking to withhold the records at issue has satisfied this burden.

Your second question is whether there are "other grounds, such as the privileges noted in Article V of the Texas Rules of Evidence, under which a notary public may withhold or redact information from a notary record book." Request Letter at 3. Neither the statutes nor any judicial opinion addresses exceptions to a notary public's duty to provide information from the notary's record book. If a conflict between chapter 406 and other state law were alleged, a court would give full effect to the statutes making a notary's records public unless it was not possible to do so. La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984). Without guidance from the Legislature or the courts and without reference to particular facts, we are unable to predict whether a court might construe a specific statute prohibiting disclosure of information as relieving a notary public of the duty to provide certified copies of notary records. Once again, we note that nothing in the materials provided to us suggests that the notary's duty to provide these records does not apply in this instance.

While this office cannot determine in the abstract whether other state law may constitute an exception to the notary statutes, your office is authorized to investigate and enforce a notary public's duties in specific cases. See TEX. GOV'T CODE ANN. § 406.023(a)-(b) (West 2013). Your third question asks us to identify the "scope of [your office's] authority to take disciplinary action against a notary public's commission ... on the grounds of withholding or redacting information contained in a record book which the notary claims is protected by state or federal law." Request Letter at 3. The Secretary of State may suspend or revoke a notary public's commission for good cause, subject to the notary's rights of notice, hearing, adjudication, and appeal. TEX. GOV'T CODE ANN. § 406.009(a)-(b) (West 2013). Such good cause includes "the imposition on the notary public of an administrative, criminal, or civil penalty for a violation of a law or rule prescribing the duties of a notary public." Id. § 406.009(d)(5).

The Secretary of State is authorized to adopt rules to administer, investigate, and enforce the subchapter governing notaries. Id. § 406.023(a)-(b). According to your rules, good cause for revoking a notary public's commission includes "a failure to fully and faithfully discharge any of the duties or responsibilities required of a notary public" and "a failure to respond to a request for public information." 1 TEX. ADMIN. CODE §§ 87.11(a)(7), (19), 87.43 (2014). A person harmed by the actions of a notary public may submit a complaint to your office. Id. § 87.23(a). If your office determines that the complaint states sufficient facts to constitute good cause, it may require the notary to respond in writing and "include copies of the pages of the notary record book referencing the notarization that is the subject of the complaint." Id. § 87.23(d)(3). After reviewing the response, your office may pursue disciplinary actions such as reprimand, an agreement with the notary that may include suspension, or revocation of the notary commission. Id. § 87.24(a). If no agreement can be reached, your office may seek suspension or revocation after affording the notary the "right to a hearing in accordance with the rules of practice and procedure before the secretary of state." Id. § 87.24(b).

Whether good cause exists to pursue disciplinary action against a notary public for not "fully and faithfully" discharging the notary's statutory duties is a question for your office to determine in the first instance. See id. § 87.11(a)(7). Thus, your office is authorized to resolve in administrative proceedings whether federal or state law allows a notary to withhold or redact information in a record book. TEX. GOV'T CODE ANN. § 406.009(a)-(b) (West 2013); 1 TEX. ADMIN. CODE §§ 87.23-.24 (2014). Accordingly, chapter 406 and administrative rules promulgated thereunder authorize the Secretary of State to determine in administrative proceedings whether a notary public has complied with the duty to provide such information, subject to the notary's rights of hearing, adjudication, and appeal.

SUMMARY

Chapter 406 of the Government Code requires a notary public to provide a certified copy of any entry in the notary public's record book upon the request and payment of fees by any person. A party invoking federal law to avoid compliance with chapter 406 bears the burden to demonstrate that federal law preempts the Legislature's provision for openness. Nothing in the materials provided to this office indicates that the burden has been met in the case about which you ask. Chapter 406 and administrative rules promulgated thereunder authorize the office of the Secretary of State to determine in administrative proceedings whether a notary public has complied with the duty to provide such information, subject to the notary's rights of hearing, adjudication, and appeal.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Mr. Wroe Jackson, Gen. Counsel to Hon. Nandita Berry, Tex. Sec'y of State, to Hon. Greg Abbott, Tex. Att'y Gen. at 1 (July 3, 2014), http://www.texasattorneygeneral.gov/opin ("Request Letter").