Wednesday, September 21, 2016

Material for Your Notary Reference Shelf

In case you missed it, here's an excerpt from "Part II - Affidavits are Like Spoiled Brats - They Need a Lot of Attention!"

Please make time to read "Attacking Affidavits!"  Texas notaries might enjoy the Texas case laws, too.
  • Attacking Affidavits, an article by Christopher M. Kelly and Laura G. Simons is anassociate with Gallivan, White & Boyd, PA in Greenville, South Carolina is one of the most pmost frequently cited sources on the topic of affidavit problems that you'll find. 

  • Texas Government Code Sec. 312.011  - This section of Texas law defines an affidavit as (1) a statement in writing of a fact or facts, (2) signed by the party making it, (3) sworn to before an officer authorized to administer oaths, and (4) officially certified to by the officer under his seal of office.

  • Case law - For many years affidavits have been targeted as low-hanging fruit because of the sloppy handling of certificates on affidavits. Please review this article on the Potential Notary Hazards in Affidavits . It's a great reminder of how important it is to handle affidavits properly. 
  • Texas Civil Practice and Remedies Code Sec. 132.001 may not be relevant at all, but just for the sake of discussing unsworn declarations, I want to mention it.  This section says that an unsworn declaration may be used in place of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law.  So, could that mean the signer doesn’t have to swear to the facts in the affidavit? I don’t think that’s the point because Sec. 132.001 also says that if property is involved or an affidavit is required by law for a situation, there must be evidence of an oath sworn before an officer authorized to take such oath. (Notably, unsworn declarations also can’t be used for an oath of office.)

  • An opinion of Attorney General Jim Maddox, No. JM-883, that says “It takes the jurat to make the instrument an affidavit.” The same opinion also discusses the possibility of attaching both a jurat and acknowledgment to the same document. 

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