Notary Folly to Nolle

1. Notary Folly to Nolle PRESENTED BY SCOTT MARKOWITZ AND SHAWN HORROCKS TRAFFIC LAWYERS OF TEXAS (T.L.O.T) ARLINGTON, TX AUGUST 18, 2018

3. What is a Notary Public? A “Notary Public” is an officer of the State of Texas with statewide jurisdiction who is authorized to take acknowledgements, protest instruments permitted by law to be protested (i.e. negotiable instruments, etc.), administer oaths, take depositions, and certify copies of documents not recordable in the public records.

4. Duties of the Notary Public To show that a disinterested party has duly notified the signer of an instrument as to the of the importance of the instrument, to verify the signer’s identity, and to receive a declaration, acknowledgement, or oath as to the contents of the document being signed. …in other words TO PREVENT FRAUD & COLLUSION and permit documents to flow in commerce, trade, real estate and the legal system, etc.

5. Notarial Acts • “Acknowledgement” – Usually found in conveyances or controlling instruments of valuable assets, like real estate deeds. The signer must appear before the notary to be positively identified and for the signer to “acknowledge” the document and signatures are genuine. • “Verification” Person is swearing or affirming the truth of the statements in a document and the Notary has properly identified the individual signing. • “Affidavit” means a written statement of facts signed by the party making it, sworn before an official authorized to administer an oath, and certified by that officer under seal. Tex. Gov’t Code § 312.011(1).

6. OATHS • The purpose of the oath is to call upon the affiant’s sense of moral duty to tell the truth and to instill in her a sense of seriousness and responsibility. The oath also reminds her that society will impose harsh legal consequences for untruthfulness, namely punishment for the crime of perjury. • “Oath” includes affirmation. Tex. Gov’t Code § 312.011(8). • “Official Oath” means the oath required by Art. XVI, Sect. 1, of the Texas Constitution. Tex. Gov’t Code § 312.011(9).

7. TEXAS CONSTITUTION Article 16, Sec. 1 Official Oath (a) All elected and appointed officers, before they enter upon the duties of their offices, shall take the following Oath or Affirmation: "I, _______________________, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ___________________ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God." (b) All elected or appointed officers, before taking the Oath or Affirmation of office prescribed by this section and entering upon the duties of office, shall subscribe to the following statement: "I, _______________________, do solemnly swear (or affirm) that I have not directly or indirectly paid, offered, promised to pay, contributed, or promised to contribute any money or thing of value, or promised any public office or employment for the giving or withholding of a vote at the election at which I was elected or as a reward to secure my appointment or confirmation, whichever the case may be, so help me God."

8. Gov Code 406.014 Notary recordbook keeping is not required when swearing out complaints. A NOTARY must keep a written or electronic notary book: CCP 45.019 Requisites of a Complaint • description of the instrument • date of the notarization • name & mailing address of the signer (and witnesses, if any) exception - notarization of complaints under CCP 45.019 (a)(6) complaint must bear the signature or mark of the affiant (d) JP complaint may be sworn to before any officer authorized to administer oaths (e) Municipal complaint may be sworn before the Judges, Clerks, City Attorneys **KEY POINT These folks are not required to keep a book of notarial acts!

9. Tex. Gov’t. Code § 312.011  “Affidavit” means a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office. • Wilie v. Signature Geophysical Services, Inc., 65 S.W.3d 355, 361 (Tex. App. – Houston 2001) held that an affidavit without a seal is defective. • Kaspar v. Texas Dept. of Public Safety, 03-10-00003-CV (Tex. App. – Austin 2010), rev’d on other grounds, 369 S.W.3d 172 (Tex. 2012) held that a Peace Officer’s Sworn Report was not an affidavit because no seal of office had been affixed and the authority administering the oath was not identified.

10. Tex. Gov’t. Code § 406 Key regulations we should know • § 406.013 requires the use of a seal of office to authenticate the Notary Public’s official acts. The seal must include the notary’s name, notary ID, and the date on which the notary’s commission expires. • Each element must be fully legible when affixed to a document. Tex. Gov’t. Code § 406.013(c). • § 406.014 requires the notary’s record keeping of official acts

11. The Jurat - notarization by an authorized person • A jurat is a certification by an authorized individual, stating that the writing was sworn to by oath or affirmation before that authorized individual. Mansions in the Forrest, L.P. v. Montgomery County, 365 S.W.3d 314 (2012). • Black’s Law Dictionary notes that a jurat typically indicates “that the officer administered an oath or affirmation to the signer, who swore to or affirmed the contents of the document.” Black’s Law Dictionary (9th ed. 2009). • Without a jurat, additional evidence is required to confirm that the oath was given. Mansions, 365 S.W.3d at 317.

12. TX Gov Code 602.002 Sec. 602.002. OATH MADE IN TEXAS. An oath made in this state may be administered and a certificate of the fact given by: (1) a judge, retired judge, or clerk of a municipal court; (2) a judge, retired judge, senior judge, clerk, or commissioner of a court of record; (3) a justice of the peace or a clerk of a justice court; (4) an associate judge, magistrate, master, referee, or criminal law hearing officer; (5) a notary public; (6) a member of a board or commission created by a law of this state, in a matter pertaining to a duty of the board or commission; (7) a person employed by the Texas Ethics Commission who has a duty related to a report required by Title 15, Election Code, in a matter pertaining to that duty; (8) a county tax assessor-collector or an employee of the county tax assessor-collector if the oath relates to a document that is required or authorized to be filed in the office of the county tax assessor-collector; (9) the secretary of state or a former secretary of state; (10) an employee of a personal bond office, or an employee of a county, who is employed to obtain information required to be obtained under oath if the oath is required or authorized by Article 17.04 or by Article 26.04(n) or (o), Code of Criminal Procedure; (11) the lieutenant governor or a former lieutenant governor; (12) the speaker of the house of representatives or a former speaker of the house of representatives; (13) the governor or a former governor; (14) a legislator or retired legislator; (15) the attorney general or a former attorney general; (16) the secretary or clerk of a municipality in a matter pertaining to the official business of the municipality; (17) a peace officer described by Article 2.12, Code of Criminal Procedure, if: (A) the oath is administered when the officer is engaged in the performance of the officer's duties; and (B) the administration of the oath relates to the officer's duties; or (18) a county treasurer.

13. An oath may be “administered” and a “certificate” of the fact given by certain public officers and employees of Texas. GOVERNMENT CODE Title 6. Public Officers and Employees Subtitle A. Provisions Generally Applicable to Public Officers and Employees Chapter 602. Administration of Oaths Some are very limited, including “peace officers” and others are not limited in scope such as a governor, speaker of the house of representatives or a retired municipal judge.

14. Texas Code of Criminal Procedure - CRIM P Art. 2.12. Who Are Peace Officers The following are peace officers: (1) sheriffs, their deputies, and those reserve deputies who hold a permanent peace officer license issued under Chapter 1701, Occupations Code; (2) constables, deputy constables, and those reserve deputy constables who hold a permanent peace officer license issued under Chapter 1701, Occupations Code; (3) marshals or police officers of an incorporated city, town, or village, and those reserve municipal police officers who hold a permanent peace officer license issued under Chapter 1701, Occupations Code; (4) rangers, officers, and members of the reserve officer corps commissioned by the Public Safety Commission and the Director of the Department of Public Safety; (5) investigators of the district attorneys', criminal district attorneys', and county attorneys' offices; (6) law enforcement agents of the Texas Alcoholic Beverage Commission; (7) each member of an arson investigating unit commissioned by a city, a county, or the state; (8) officers commissioned under Section 37.081, Education Code , or Subchapter E, Chapter 51, Education Code;   1 (9) officers commissioned by the General Services Commission; (10) law enforcement officers commissioned by the Parks and Wildlife Commission; (11) airport police officers commissioned by a city with a population of more than 1.18 million located primarily in a county with a population of 2 million or more that operates an airport that serves commercial air carriers; (12) airport security personnel commissioned as peace officers by the governing body of any political subdivision of this state, other than a city described by Subdivision (11), that operates an airport that serves commercial air carriers; (13) municipal park and recreational patrolmen and security officers; (14) security officers and investigators commissioned as peace officers by the comptroller; (15) officers commissioned by a water control and improvement district under Section 49.216, Water Code; (16) officers commissioned by a board of trustees under Chapter 54, Transportation Code; (17) investigators commissioned by the Texas Medical Board;

15. (18) officers commissioned by: (A) the board of managers of the Dallas County Hospital District, the Tarrant County Hospital District, the Bexar County Hospital District, or the El Paso County Hospital District under Section 281.057, Health and Safety Code ; (B) the board of directors of the Ector County Hospital District under Section 1024.117, Special District Local Laws Code ;  and (C) the board of directors of the Midland County Hospital District of Midland County, Texas, under Section 1061.121, Special District Local Laws Code ; (19) county park rangers commissioned under Subchapter E, Chapter 351, Local Government Code;   2 (20) investigators employed by the Texas Racing Commission; (21) officers commissioned under Chapter 554, Occupations Code; (22) officers commissioned by the governing body of a metropolitan rapid transit authority under Section 451.108, Transportation Code , or by a regional transportation authority under Section 452.110, Transportation Code ; (23) investigators commissioned by the attorney general under Section 402.009, Government Code ; (24) security officers and investigators commissioned as peace officers under Chapter 466, Government Code; (25) officers appointed by an appellate court under Subchapter F, Chapter 53, Government Code;   3 (26)  officers commissioned by the state fire marshal under Chapter 417, Government Code; (27)  an investigator commissioned by the commissioner of insurance under Section 701.104, Insurance Code ; (28)  apprehension specialists and inspectors general commissioned by the Texas Juvenile Justice Department as officers under Sections 242.102 and 243.052, Human Resources Code ; (29)  officers appointed by the inspector general of the Texas Department of Criminal Justice under Section 493.019, Government Code ; (30)  investigators commissioned by the Texas Commission on Law Enforcement under Section 1701.160, Occupations Code ; (31)  commission investigators commissioned by the Texas Private Security Board under Section 1702.0611702.061(f), Occupations Code ; (32)  the fire marshal and any officers, inspectors, or investigators commissioned by an emergency services district under Chapter 775, Health and Safety Code; (33)  officers commissioned by the State Board of Dental Examiners under Section 254.013, Occupations Code , subject to the limitations imposed by that section; (34)  investigators commissioned by the Texas Juvenile Justice Department as officers under Section 221.011, Human Resources Code ;  and (35)  the fire marshal and any related officers, inspectors, or investigators commissioned by a county under Subchapter B, Chapter 352, Local Government Code.

16. Duties of Peace Officers TX CODE CRIM PROC Art. 2.13. DUTIES AND POWERS. (a) It is the duty of every peace officer to preserve the peace within the officer's jurisdiction. To effect this purpose, the officer shall use all lawful means. (b) The officer shall: (1) in every case authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime; (2) execute all lawful process issued to the officer by any magistrate or court; (3) give notice to some magistrate of all offenses committed within the officer's jurisdiction, where the officer has good reason to believe there has been a violation of the penal law; and (4) arrest offenders without warrant in every case where the officer is authorized by law, in order that they may be taken before the proper magistrate or court and be tried. (c) It is the duty of every officer to take possession of a child under Article 63.009(g).

17. H.B. 135 75(R) Public Safetyby: West, George “Buddy” in 1997 - Bill Analysis and Committee Report At present, sheriffs offices, police departments, state police, and correctional agencies must obtain notary commissions for their employeesfor the purposes of signing affidavits, complaints, and probable causes.

18. H.B. 135 75(R) Public Safety continued These entities must expend funds to purchase notary bonds and they must monitor constantly their personnel to be certain that adequate numbers of notaries public are on hand and available for these purposes. Often officers are delayed in the discharge of their duties by waiting for a notary to be found.

19. H.B. 135 75(R) Public Safety continued In addition, the number of notaries public within each county is under the control of the Secretary of State, the issuing authority. Current law (Article 4, Section 26, Texas Constitution and Section 406.001, Government Code) gives the Secretary of State sole authority to appoint notary publics.

20. H.B. 135 75(R) Public Safety continued Purpose: This bill will take effect if HJR 18 is adopted by the legislature and passed by the citizens in an election scheduled for November 4, 1997.This bill will allow peace officers to act as notaries public strictly through the course of their duties.

21. H.B. 135 75(R) Public Safety This bill will take effect if HJR 18 is adopted by the legislature andpassed by the citizens in an election scheduled for November 4, 1997.This bill will allow peace officers to act as notaries public strictlythrough the course of their duties.

22. H.B. 135 75(R) Public Safety (did not become law) Limited peace officer notarizations to documents related to the duties of that particular officer and only while in the course and scope. No document relating to any civil proceeding. Disqualified if indicted for or convicted of official misconduct or willful neglect of duty Peace officer is not authorized to notarize his/her own signature (Well thank goodness for that reminder!) Secretary of State stripped of any regulatory authority over peace officer notarizations.

23. Notarizations commonly seen in Class C Misdemeanor Defense • Complaints (drawn up by courts) • Affidavits made in Application for DSC • Affidavits of Compliance • Probable cause affidavits (PC Affidavits) accompanying citations. (drawn up by law enforcement)

24. COMPLAINTS • Tex. Code Crim. Proc. § 45.019 *REQUISITES OF COMPLAINT (d) A complaint may be sworn to before any officer authorized to administer oaths. TX Gov Code 406.014(d) states that a notary public who administers an oath pursuant to Article 45.019*, Code of Criminal Procedure*, is exempt from the requirement of record keeping (ie. a notary book) (e) A complaint in municipal court may be sworn to before: (1) the municipal judge; (2) the clerk of the court or a deputy clerk; (3) the city secretary; or (4) the city attorney or a deputy city attorney.

25. A complaint is defective if it does not contain a proper jurat. If a jurat shows that the oath was administered by an individual without proper authority, the complaint is invalid. Brown v. State, 294 S.W.2d 772 (Tex. Crim. App. 1956). • ……OR, if the authority cannot be determined!!

26. Tx Code of Criminal Procedure 27.14(d) • If punishment is by fine only…(traffic ticket) has been prepared, delivered, and filed with the court and a legible duplicate copy has been given to the defendant, the written notice to appear serves as a complaint to which the defendant may plead ‘guilty,’ ‘not guilty,’ or ‘nolo contendere.’ • See State v. Shaw, 822 S.W.2d 807 (Tex.App.—Austin 1992) – “…the written notice of traffic violation serves as a complaint to which the defendant may enter his plea. A formal complaint must be filed only if the defendant pleads not guilty, thus necessitating a trial…a formal complaint is required to be filed in traffic offenses such as this only if the defendant pleads not guilty. If the defendant pleads guilty or no contest, no formal complaint is required and there is nothing for the defendant to waive.

27. Applicable Case Law • The Court of Appeals, 9th District, held that for the purposes of the DIC-23 affidavit, administering an oath complied with Tex. Gov’t. Code § 602.002(17) and was within the scope of a peace officer’s duties. Hooker v. Texas Department of Public Safety, 09-07-125 CV (Tex. App. – Beaumont 2008). • The Court of Appeals, 10th District, upheld an affidavit of probable cause attached to a search warrant and attested to by an unidentified peace officer, though they did not discuss the authority limitations in § 602.002(17)(a) or § 602.002(17)(b). Futch v. State, 10-11-00283-CR (Tex. App. – Waco 2011). • The Court of Appeals, 10th District, held that an officer was acting in the course of his duties when he administered an oath for an affidavit of probable cause related to a DWI investigation, even though the administering officer directly participated in the investigation. Swinnie v. State, 10-12-00266 (Tex. App. – Waco 2013).

28. SO WHAT DO WE HAVE HERE?- typical probable cause affidavits accompanying citations filed in JP courts.

29. An “almost” correct Affidavit of Probable Cause

30. Tex. Gov’t. Code § 312.011  “Affidavit” means a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.

31. Illegible Notary Stamp

32. No Identification No Color of Authority No Seal

33. Unidentified Peace Officer

34. Digitally stamped notary signature overlayed with a notary stamp. Perhaps both were digitally cut and paste? Under any circumstance, sloppy work !

35. Struck out PEACE OFFICER and NOTARY PUBLIC Dismissed, no notary seal

36. MISSING REQUIRED DATE

38. AFFIANT DATED (compare the handwriting) THAT IS A DUTY OF THE NOTARY!

39. Affiant identity? Oath taker identity? s

40. Stamped Signature & Affiant Dated

41. No Affiant Signature, Yet “Notarized”

42. ??

43. Three Different People Worked on This Jurat

44. BOGUSGENUINE

46. Perhaps the worst of the worst. Signatures of affiant and notary are in the same hand. The perpetrator of this fraud went so far as to change pens to conceal it.

47. Unlike indictments and informations, the complaint cannot be amended, because it is a sworn statement, Givens v. State, 235 S.W. 2d 899 (Tex.Crim.Appl 1951) When a complaint is amended and the affiant “reswears” to the amended complaint, the complaint is valid, Cannon v. State, 925 S.W.2d 126 (Tex.App.--Amarillo 1996, pet. refd.) Thank you Joe Varela!

48. Notary Public References • Art. XVI, Sect. 1, of the Texas Constitution • Government Code, Sections 312 (definitions), 406 (governance), 602.001 et seq (persons authorized to administer oaths) • Administrative Code, Section 87 (notary qualifications, applications, discipline, etc) • Civil Practices and Remedies Code, Section 121 (notary conduct) • Regulatory agency in TX is the Secretary of State’s Office www.sos.state.tx.us/statdoc/notary-public.shtml