Lost in Translation: Texas Notary Public v. Mexico Notario Publico by Jonathan A. Pikoff and Charles J. Crimmins

The Secretary of State's office would like to thank Jonathan A. Pikoff and Charles J. Crimmins for permitting us to use the following article.

I. Introduction

When you are told the Mexican Notario Publico will charge $3,000 dollars to make you the beneficiary of a trust on a Mexican beachfront condo, you certainly know things are different in Mexico. This article will clarify the misconception that commonly occurs when individuals familiar with the Texas Office of Notary Public encounter a Mexican Notario Publico.

Despite sharing a common linguistic derivation, these two titles convey vastly different responsibilities upon their respective officeholders. The differences between Notary Public and Notario Publico are profound; according to Texas law the "literal translation of the phrase ‘Notary Public’ into Spanish is prohibited."ⁱ The intent of this legislation is to prevent Spanish speakers from confusing the roles of the Mexican Notario Publico with the limited services offered by the Texas Notary Public.

In this article, we will compare Texas with the Federal District of Mexico (Mexico City) to illustrate our points; although there may be differences in other American or Mexican states, these two jurisdictions are generally reflective of their countries’ systems.

II. History

The root of "notary" is from the Latin "notarius" for clerk and can be traced back to the time of Cicero. Cicero was often longwinded and his secretary, M. Tullius Tiro, was said to have invented a new form of shorthand. This shorthand, named after his secretary, was called Notae Tironinae. In the 13^th Century, the Notary emerged as a Papal appointee. These Roman appointees were given ecclesiastical jurisdiction. Under the imprimatur of the church, the Notary was an official whose acts and records were revered and acknowledged internationally. At the same time in England, a region geographically distant from the Roman seat of power, a unique system based on customary law, rather than Roman law, emerged.ⁱⁱ Today’s Mexican Notario Publico is heir to the Roman system while the Texas Notary Public is a descendant of its English cousin.

III. Qualifications

A candidate to be a Texas Notary Public must

fill out an application
be at least 18 years of age
be a legal resident of the State of Texas
be a legal resident of the United States or a permanent resident alien
pay applicable fees and post a $2,500* dollar bond.ⁱⁱⁱ

A candidate to be a Notario Publico in the Federal District of Mexico must

be Mexican by birth
be older than 25 but younger than 60
be in good health
have a good reputation
not be the leader of a church
not have a criminal record
have studied under a notary for at least 6 months prior
take a written exam
be a legal professional with the title of lawyer.^iv

In Texas, virtually anyone can qualify and become a Notary Public. The population of the state of Texas is roughly 22.5 million people^v and is served by approximately 360,000 registered notaries.^vi In comparison, Mexico City has a population of 9 million^vii people and is served by only 243 Notario Publicos.^viii While Texas is served by a notary pool roughly equivalent to 1.6% of its population, Mexico City is served by a population of notaries that equates to roughly 0.0027% of its population. Mexican Notary positions are extremely sought after due to the limited number of positions and the high earning potential that accompanies the office. Even if a candidate has met the above qualifications and scored well on the written exam, a position is far from guaranteed as new positions are available only when there is a vacancy.^ix

IV. Powers and Duties

A Texas Notary Public may

take acknowledgements
protest instruments
administer oaths
take depositions
certify copies of documents not recordable in the public records
show that a disinterested party duly notifies the validity of a document
show that the signer is indeed who s/he says s/he is and that his/her reasons for signing are genuine^x

A Notario Publico in Mexico City may

be an arbitrator
be a mediator
issue judicial opinions
intervene in judicial proceedings^xi
ensure that documents such as bylaws of companies, wills, deeds, powers of attorney, real estate purchases and establishments of trusts do not include any legal inconsistencies^xii
ensure payment of taxes
protocolize public deeds

In Mexico, the incorporation of every company, the buying and selling of all types of real estate, the establishment of deeds and wills, the creation of mortgages, among other transactions, must be protocolized by a Notario Publico. Additionally, in certain cases, failure by a Notario Publico to properly calculate and withhold taxes can result in personal liability. Franciso Visoso, Notario Publico number 145 for Mexico City notes, "It is the Notario Publico’s responsibility to labor over the document and make sure it is in conformance with the law." In many respects, the Mexican Notario Publico serves not only as a lawyer but also as a judge in his role as protector of the law."^xiii For example, next to the Notario Publico’s signature on a document is the phrase "I Give Faith" (Doy Fe).

This is very distinct from the Texas system where, as Guy Joyner, Chief of the Legal Support Unit to the Office of the Texas Secretary of State notes, "A Texas Notary Public's primary duty is to verify a signer's identity and signature, and attest that the signer personally appeared before the Notary at the time the notarization was taken. The Notary is not verifying the truth of the statements in the document. The individual appearing before the Notary and signing the document is responsible for the truth of such statements. The Notary is only responsible for the truth of the statements in the notarial certificate that the Notary completes, which says the person appeared before the Notary and that such person signed or acknowledged his signature on the document on a specified date."^xiv

V. FEES

Texas Notary Publics may charge

a fixed fee for their services established by the state of Texas
never exceeding $6 dollars^xv

A Mexican Notario Publico must charge based on an established fee schedule

Percentages range from .015% to 1.12%, of the cost of the transaction.^xvi In many cases fees reach thousands of U.S. dollars.

The largest fee a Texas Notary Public may charge for his/her services is six dollars. Few, if any, people in Texas earn a living solely from notarial services. In contrast, the Mexican Notario Publico may earn fees into the many thousands of dollars and most Notario Publicos work full time in their notarial practices. In Mexico, it is not uncommon to see many lawyers and secretaries preparing paperwork for the review and approval of the Notario Publico. Given the extensive need for the Notario Publico in all kinds of transactions and their limited availability, good relations with a Notario Publico are vital to the expeditious processing of documentation.

VI. Conclusion

The principal difference between the Mexican Notario Publico and a Texas Notary Public is that the Mexican Notario Publico is responsible for the legality of the content of the document while the Texas Notary Public only certifies the identity of the signer. As Notario Publico Visoso notes, "That is a substantial difference."^xvii

About the Authors.

Jonathan A. Pikoff is licensed to practice law in Mexico and Texas. He is a partner in the law firm Pikoff, Sztrigler and Soriano and can be reached at: Tel. (011) (5255) 5280-6766.

Charles J. Crimmins is a recent graduate of the University of Virginia who spent a year studying at the Universidad de las Americas, Puebla. He is taking part in Pikoff, Sztrigler and Soriano's International Intern Program and can be reached at: Tel. (011) (5255) 5280-6766.

Footnotes:

*Note: Bond is now $10,000.

ⁱ Texas Young Lawyers Association and the State Bar of Texas . Texas State Notary Handbook. Section: Unauthorized Practice of Law, 406.017 c Texas Government Code. Austin : Texas State Notary Bureau, 1994
ⁱⁱ Holliwell, Tom. “The Notary: A Short History” 24 Oct. 2004
ⁱⁱⁱ Texas Young Lawyers Association and the State Bar of Texas . Texas State Notary Handbook. Section: Appointment and Qualification. Austin : Texas State Notary Bureau, 1994
^iv “Ley del Notario Publico,” Gobierno del Distrito Federal . Estados Unidos Mexicanos. Article 54. 21 November 2004.
^v“Population, Population change and estimated components of population change: April 1, 2000 to July 1, 2004” US Census Bureau. United States Census Bureau, 14 Feb. 2005
^vi Joyner, Guy. Chief of the Legal Support Unit to the Office of the Texas Secretary of State. Telephone Interview. 23 February 2005.
^vii “Censo General de Población y Vivienda,” Sistemas Nacionales de Estadística Geografía y Información, Instituto Nacional de Estadística Geografía y Información, 17 Feb. 2005.
^viii Visoso, Francisco Jose. Mexico City Notary Public Number 145. Personal Interview. 15 Feb 2005 .
^ix Visoso, Francisco Jose. Personal Interview. 15 Feb 2005.
^x Texas Young Lawyers Association and the State Bar of Texas. Texas State Notary Handbook. Section: Powers and Duties, 406.016 Texas Government Code. Austin : Texas State Notary Bureau, 1994
^xi “Ley del Notario Publico,” Gobierno del Distrito Federal. Estados Unidos Mexicanos. Article 33, 21 November 2004.
^xii Visoso, Francisco Jose. Personal Interview. 15 Feb 2005.
^xiii Visoso, Francisco Jose. Personal Interview. 15 Feb 2005.
^xivJoyner, Guy. Telephone Interview. 23 February 2005.
^xv Texas Young Lawyers Association and the State Bar of Texas.
^xvi “Gaceta Oficial del Distrito Federal,” Gobierno del Distrito Federal. Estadis Unidos Mexicanos. Article 15 and 22, 7 February 2005.
^xvii Visoso, Francisco Jose. Personal Interview. 15 Feb 2005.