Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from November 11, 2022 through December 10, 2022.

KP-0422 (Numbering Election Ballots): Section 52.062 of the Election Code provides that “[t]he ballots prepared by each authority responsible for having the official ballot prepared shall be numbered consecutively beginning with the number ‘1.’” A court could find that the machine-generation method of numbering ballots complies with section 52.062.

The Hood County elections administrator selects the ballot-numbering method for certain elections while the commissioners court selects the voting system.

We cannot answer as a matter of law whether a jurisdiction using a voting system for an election may number split ballot batches in certain instances as proposed by the Secretary of State in Advisory 2019-23 because it is a fact question beyond the scope of an Attorney General opinion. But pursuant to section 52.075 of the Election Code, there must be a connection between any ballot form or content modification such as the one set forth in the Advisory, and the formatting requirements of the voting system.

KP-0423 (Online Notaries): Chapter 406 of the Government Code provides for notaries public, including online notaries. A court would likely conclude that the law does not prohibit a notary public performing an online notarization from including additional information such as a barcode within the electronic notarial certificate or elsewhere on the document, provided doing so does not interfere with the notary’s obligations under subsections 406.108(b)(1) and 406.109(d) of the Government Code, or the Texas Secretary of State’s rules.

To the extent an online notary public charges a $5 fee for identification verification and document storage associated with performing an online notarization and is not otherwise charging online notarization fees that would cause the $25 maximum fee for online notarization to be exceeded, a court would likely conclude that the notary public may charge $5 for identification verification and document storage pursuant to section 406.111. At the same time, a court is unlikely to conclude that a catch-all fee in subsection 406.024(a)(11) for “notarial acts not provided for” was intended to encompass components of the online notarization process such as identity verification and document storge.

While chapter 406 and the Secretary’s rules do not expressly provide for emailing a record of an online notarization, a court would likely conclude that any release of an audio visual recording containing the presentation of an identification card or credential would require the removal of biometric information as well as the entire image of the identification card or credential, not just the numbers on the card or credential. Otherwise, a notary public must obtain the consent of the person whose identity is being established before releasing a record of an online notarization containing those items, whether by secure email or otherwise.