Untitled Texas Attorney General Opinion ( 1972 )

.
Tn.- ‘E NEW GENERAL
IFTEXAS
Honorable Bob Bullock Opinion No. M-1179
Office of the Secretary of State
State Capitol Building Re: IS the office automatically
Austin, Texas 78711 vacated if the notary public,
appointed in the county of
Attention: Donald W. Ray his residence, subsequently
Legal Counsel removes his residence to
another county while con-
tinuing to maintain his
principal place of employ-
ment or business in the
county for which he received
Dear Sir: his appointment?
In your recent request you asked for an opinion from
this office on the following question:
If a person is appointed as notary public in
the county of his residence and later moves his
residence to another county but continues to maia-
tain his principal place of business or employment
in the county for which he was appointed notary
public, is his office automatically vacated?
Several articles govern the office of notary public. TWO
articles pertinent to your question are Articles 5949 and 5958,
Vernon's Civil Statutes.
Article 5949, Section 2, as last amended in 1969, reads
in part:
"To be eligible for appointment as Notary Public
for any county, a person shall be a resident citizen
of this state and at least twenty-one (21) years of
age, and either a resident of the county for which he
is appointed, or shall maintain his principal place
of business or of employment in such county; pro-
vided that any person may be appointed, as herein-
above set out, in only one county in this state at
the same time; . . ." (Emphasis added.)
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Hon. Bob Bullock, page 2 (M-1179)
Article 5949, Section 6, also last amended in 1969,
reads in part:
"Any qualified Notary Public whose term is
expirinq may be reappointed by the Secretary of
State without the necessity of the county clerk re-
submitting his name to the Secretary of State, pro-
vided such appointment is made in sufficient time
for such Notary Public to be qualified on the ex-
piration date of the term for which he is then serv-
ing; and provided that -if any such Notary Public
has removed~-iiisresidence, or his principal place
of business or employment, to a county or counties
other than the one for which he has been appointed,
his office in such county or counties shall be auto-
matically vacated and if he desires to act as a
Notary Public in such other county or counties, his
commiss ion in such county or counties shall be sii?=
rendeired to the Secretary of State and his narne shall
be submitted
~~~ by the clerk of such county or ccIunties
as hereinabove provided." (Emphasis added.)
In addition Article 5958, which was enacted several years
prior to 1969, states:
"Whenever any notary public shall remove
permanently from the county for which he was ap-
pointed, or an ex officio notary public from his
precinct, his office shall thereupon be deemed
vacant." (Emphasis added.)
One rule of statutory construction or interpretation
is that statutes dealing with the same subject are considered to
be in pari materia even though they were enacted in different
sessions of the Legislature and do not refer to each other.
Buford v. State, 322 S.W.2d 366 (Tex.Civ.App. 1959, error ref.
n.r.e.);d Independent School Dist. v. Richardson, 2
S.W.2d 513(Tex.Civ.App. 1928); Lingner v. Haly, 277 S.W.2d
302 (Tex.Civ.App. 1954, error dism. w.0.j.); State v. Dyer,
145 Tex. 586, 200 S.W.2d 813 (1947).
To determine legislative intent and to properly con-
strue the statutes involved, all of the acts in pari materia should
be read together to harmonize any conflict between their provisions
so that the acts, if possible, can stand together. Hunter v.
Whiteaker and Washington, 230 S.W. 1096 (Tex.Civ.App. 1921);
-5760.
Hon. Bob Bullock, page 3 (M-1179)
Hurt v. Oak Downs, Inc., 85 S.W.2d 294 (Tex.Civ.App. 1935);
Roby v. Hawthorne, 84 S.W.2d 1108 (Tex.Civ.App. 1935); Goldman
v. State, 277 S.W.2d 217 (Tex.Civ.App. 1954, error ref. n.r.e.);
Townsend v. Terrell, 118 Tex. 463, 16 S.W.2d 1063 (1929).
When an existing statute is amended, it is to be con-
strued, if possible, in harmony with existins law on the same
subject. Shipley v. Flovdada rndenendent School Dist.. 250
,Aoo. ~~~~
S.W. 159 (Tex.Comm--,, .,, Cole v. State, 106 Tex.'472; 170
1923):
S.W. 1036 (1914); scting vLy Texas State Bd. of Medical Exami-
ners, 158 Tex. 279, 310 S.W.2d 557 (1958).
Applying the rules of construction to the statutes in-
volved, Sections 2 and 6 of Article 5949 can be harmonized with
Article 5958. As a result it is our opinion that one who is ap-
pointed a notary public in the county of his residence, or of his
place of business or of his employment, and continues to meet any
one of these statutory bases after his original appointment in
that county, regardless of which one or more of these was the
basis of that appointment, has not "permanently removed" himself
so as to create an automatic vacancy in the office of notary public
under Article 5958.
Although Section 10 of Article 5949 empowers the Secre-
tary of State to make necessary rules and regulations to carry
out the act, a check with that office indicates no administrative
policy or rules or regulations have ever been established. It is
assumed by that office, unless otherwise indicated, that the basis
of an application for a notary's commission is the applicant's
residence. However, it is not always possible to tell from the
current application form just what basis the applicant is using.
There is a simple statement at the bottom of the application, to
which the applicant agrees by signing his application, that he will
notify the Secretary of State and the county clerk of "any change
of address." There are no statutory provisions to this effect
nor are there any provisions for investigation or a penalty of any
kind. Article 5949, Section 5, does provide that the Secretary
of State may, "for good cause, reject any application or revoke
the commission of any Notary Public", but he cannot do so without
the proper safeguards of due process which are also included in
Article 5949, Section 5.
To summarize, one who is a notary and continues to meet
any one of the three statutory requirements has not "permanently
removed" himself.
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Hon. Bob Bullock, page 4 (M-1179)
SUMMARY
One who is appointed a notary public in the
county of his residence, or of his place of business,
or of his employment, and continues to meet any one
of these statutory bases after his original appoint-
ment, regardless of the basis of that appointment,
has not "permanently removed" himself so as to
create an automatic vacancy in his office.
truly yours,
Prepared by Linda Neeley
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jack Goodman
Jim Swearingen
James Hackney
Scott Garrison
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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