By Amanda Crouch
Governor Greg Abbott has suspended a statute concerning appearance before a notary public to acknowledge real-estate instruments. This suspension will temporarily allow for appearance before a notary public via two-way audio-video communication technology when executing such documents. The suspension is intended to permit flexibility for notaries to execute real-estate instruments without the need for in-person contact to protect themselves and others from COVID-19.
Under the governor’s order, the following conditions must be present whenever this suspension is invoked:
- The notary public shall use two-way audio-video communication technology that allows for direct and contemporaneous interaction between a person signing a document and the notary public by sight and sound.
- The notary public shall verify the identity of the signatory at the time the signature is taken by using two-way audio-video communication technology. The notary public may verify identity by:
- Personal knowledge of the signatory;
- Analysis based on the signatory’s remote presentation of a government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the signatory, and is of sufficient quality to allow for identification; or
- An introduction of the signatory by oath of a credible witness who personally knows the signatory and who is personally known to the notary public.
- During the two-way audio-video communication:
- The notary public shall attest to being physically located in Texas;
- The signatory shall attest to being physically located in Texas;
- The signatory shall affirmatively state which documents are being signed; and
- The signatory’s act of signing shall be close enough to the camera for the notary public to view it clearly.
- A recording of the two-way audio-video communication of the notarial act shall be kept by the notary public for two years from the date of the notarial act.
- The signatory shall send the original signed documents by courier, U.S. Mail or overnight carrier directly to the notary public for the notary public to sign and to affix the official stamp or seal.
- The official date and time of the notarization shall be the date and time when the notary public witnessed the signatory signing the documents during the two-way audio-video communication.
- The documents shall include, whether in a notarial certificate, a jurat, or an acknowledgment, language substantially similar to the following:
- “This notarization involved the use of two-way audio-video communication pursuant to the suspension granted by the Office of the Governor on April 27, 2020, under Section 418.016 of the Texas Government Code.”
This suspension is in effect until the earlier of May 30, 2020, or the termination of the March 13, 2020, disaster declaration. The governor has directed that any document acknowledged while this suspension is in effect and in accordance with the conditions contained herein shall be considered duly acknowledged and fully compliant with Texas law after termination of this suspension.
This suspension and exercise of authority is unprecedented, so notaries should consult an attorney with questions. Additionally, due to the novelty and uniqueness of the COVID-19 situation, no Texas Court has ever opined on either the validity of this order or any document notarized pursuant to it.
Amanda N. Crouch is a commercial litigator who regularly practices in state and federal court. Amanda has represented clients in a wide range of litigation matters, including oil and gas disputes, creditor representation, financial institution disputes, life insurance disputes, and defending personal injury claims.
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