HB 1923

Present law authorizes the members of a county legislative body to elect as many notaries public as they deem necessary. This bill, instead, generally requires notaries public to be appointed or reappointed by the secretary of state if they have an appro ved application, have completed a notary public basic education course with at least six hours of instruction, have successfully completed an examination, and are approved by the governor. The basic education course must have been completed within the si x- month period immediately preceding the application. However, an applicant who has been duly admitted to practice law in this state or who holds a valid notarial commission in this state is not required to take the written examination or complete the nota ry public basic education course. Notary Public Application This bill requires the notary public application to include a (i) the applicant's age, county, and address of residence, (ii) a fee as prescribed by the secretary of state, (iii) a sworn statement declaring the information in the application is true and correct, and (iv) any other information required by the secretary of state. An application submitted to the secretary of state must be sent to the clerk of the county in which the appointment is sought for review and approval by the county commission. I f all requirements are met, then the chair of the county commission must issue a certificate of competency and fitness signed by the chair. The secretary of state is prohibited from approving an application until such certificate is received. Members of County Legislative Body Commissioned as Notary Publics This bill authorizes a member of a county legislative body to be commissioned as a notary public if such a member meets the eligibility requirements described in this bill. NOTARY PUBLIC REQUIREMENTS In addition to completion of the basic education course and written examination, if required, an applicant for appointment or reappointment as a notary public must certify that the applicant meets all of the following requirements:  The applicant is a citizen or legal permanent resident of the United States.  The applicant has never been removed from the office of notary public for official misconduct.  The applicant has never had a notarial commission or appointment revoked or suspended in any state.  The applicant has never been found by a court of any state to have engaged in the unauthorized practice of law.  The applicant is at least 18.  The applicant reads, writes, speaks, and is sufficiently fluent in English.  The applicant has obtained a high school diploma or its equivalent.  The applicant is not under interdiction or incapable of serving as a notary public because of mental infirmity.  The applicant has not been convicted of a felony, or if convicted of a felony, has been pardoned. BASIC EDUCATION COURSE This bill generally requires a notary public education course to be approved by the secretary of state. The course must include instruction on all of the following topics:  State law governing notaries public and governing licensed attorneys, including the unauthorized practice of law.  Obligations and procedures for individuals prior to witnessing documents and acceptable forms of identification.  Methods and procedures for verifying the authenticity of acceptable identification documents .  The proper language for and usage of the statutory forms of acknowledgements .  The proper language for and use of jurats .  Certification of marriages conducted by a notary public .  The proper language for the signature of an individual signing in a representative capacity .  Requirements for, and usage of, alternative deed forms as it pertains to affidavits and the authentication of documents, including what must be included and excluded in various types of deeds .  Requirements for various common affidavits regarding wills, affidavits of heirship, and other testamentary instruments .  Intestate heirship and succession in this state as it pertains to affidavits and the authentication of documents .  Notarization of immigration documents .  Necessity and use of an apostille and the method of obtaining an apostille .  Recordkeeping requirements .  Ethical conduct and potential liability for failure to comply with obligations under this chapter or applicable state law .  Requirements for legal descriptions in notarized instruments .  Identifying competency and duress of those witnessed .  The accurate completion of a notarial certificate with a seal and signature . However, this bill clarifies that an applicant admitted to practice law in this state or who holds a valid notarial commission in this state is not required to complete the notary public basic education course. WRITTEN EXAMINATION This bill requires the secretary of state to administer a written examination covering the topics included in the basic education course, as described above. Such examination may be administered in person or digitally, and must be offered at least six t imes per year. The secretary of state must notify an applicant that they are approved and qualified to take the written examination, once the applicant satisfies all requirements. The applicant must take the exam within one year of approval. However, a n applicant admitted to practice law in this state or who holds a valid notarial commission in this state is not required to take the written examination. This bill requires the secretary of state to publish and regularly update an official study guide for the notary public written examination. Such study guide must be designated "The Fundamentals of Tennessee Notarial Law and Practice."" The guide must b e made available to applicants at a cost determined by the secretary of state and may be made available digitally, in print, or both. BOND REQUIREMENTS Present law requires every notary public, before entering upon the duties of the office, to give a bond executed by a surety company in the penalty amount of $10, 000, payable to this state, conditioned upon the faithful discharge of the notary's duties. This bill increases the penalty amount to $50, 000. ISSUANCE OF COMMISSION Upon approval of a notary public, based on the requirements described above, this bill requires the secretary of state to forward such commission to the county clerk in which the notary public resides. The county clerk must notify the person to whom suc h commission is issued that it has been received by the clerk's office. This bill provides that the county clerk is entitled to a fee of $7.00 from the commissioned notary public for its services, and such fee must be received no later than 10 days follo wi ng receipt of notice of the commission. SCOPE OF AUTHORITY Present law authorizes a notary public in this state to act in any county in this state and has the power to acknowledge signatures upon personal knowledge or satisfactory proof, to administer oaths, to take depositions, to qualify parties to bills in ch ancery, and to take affidavits. This bill clarifies that this authority is only valid for notarizations where the notary public is in the actual physical presence of the signatory appearing before the notary public. Remote electronic and online notariza ti on is subject to the exclusive authority of the Online Notary Public Act. This bill authorizes a notary public to refuse to perform a notarial act if the notary public is not satisfied that the individual executing the document is competent or has the capacity to execute the document, or has knowingly and voluntarily affixed t he individual's signature to the document. Further, a notary public may refuse to perform a notarial act if the notary public cannot sufficiently identify the individual, or an individual does not consent to pay the fee for notarization or identity proof in g. IDENTIFICATION REQUIREMENTS This bill authorizes a notary public to require an individual to provide additional information or identification credentials, including identify proofing, necessary to assure the notary public of the identity of an individual. However, there is no liab ility imposed on a notary public for failure to require additional information, identification credentials, or identity proofing. A notary public may charge a fee for identity proofing, with advanced consent. This bill provides that a notary public has personal knowledge of the identity of an individual appearing before the notary public if the individual is personally known to the notary public through dealings sufficient to provide reasonable certainty of the individual's identity. Further, a notary public may identify an individual by means of (i) a passport, driver license, or other government-issued photo identification card that is current or has not been expired for more than three years; or (ii) verification on oath or affirmation of a credible w itness personally appearing before the notary public and known to the notary public, or whom the notary public can identify from an identification document. RECORD OF NOTARIZATIONS This bill requires a notary public to keep a record of all documents notarized, affirmed, or for which an oath was given by the notary public for at least five years. Such a record may be kept in an electronic or physical format. Records must contain ( i) the date and time of the notarization; (ii) the type of notarial act; (iii) the type, title, or a description of the document or proceeding; (iv) the printed name and address of each principal involved in the transaction or proceeding; (v) evidence of th e identify of each principal in the form of a statement that the person is personally known to the notary public, a notation of the type of identity document provided, a record of the identity-verification method, or the printed name and address of each c redible witness swearing to or affirming the person's identity; and (vi) the fee charged for the notarization. RULEMAKING This bill authorizes the secretary of state to promulgate rules and carry out administrative duties to effectuate this bill."