Fiduciary relationships often require a party to notarize a document. For example, a party may need to or want to use notary services for each of the following: a person may execute new trust or estate documents, a beneficiary may execute an agreement or release with a fiduciary, a successor trustee or estate representative may want to execute a document accepting their position, fiduciaries may need to execute real estate and oil and gas transactional documents, parties may execute trust termination, merger, or severance documents, and parties may execute court filings. There are countless different examples of when a party may need to notarize a document in the context of fiduciary relationships, disputes, or litigation.

At this time, however, traditional notary services may be more difficult to obtain. Certain stores that traditionally provide that service are not at this time due to the outbreak of the COVID-19 pandemic. Moreover, even if a party can find a traditional notary provider, he or she may not want to risk exposure to COVID-19 by leaving their home. There is a new option for businesses and individuals in Texas (and twenty-one other states) that allow them to use an online notarization service.

Effective July 1, 2018, Texas passed a bill authorizing online notarization via the Texas Government Code Section 406.101, et. seq. Texas was the third state to do so, though twenty-two states currently have a similar statute. This law allows parties to use online services to effectuate a notarization on electronic documents. A provider has to apply to the Texas Secretary of State and be approved to provide the online service. Once approved, an online notary public: “(1) is a notary public for purposes of Subchapter A and is subject to that subchapter to the same extent as a notary public appointed and commissioned under that subchapter; (2) may perform notarial acts as provided by Subchapter A in addition to performing online notarizations; and (3) may perform an online notarization authorized under this subchapter.” Tex. Gov’t Code §406.106. Specifically, an online notary may: “(1) take acknowledgments or proofs of written instruments; (2) protest instruments permitted by law to be protested; (3) administer oaths; (4) take depositions; and (5) certify copies of documents not recordable in the public records.” Tex. Gov’t Code §§ 406.107, 406.016.

The main issue for the online notary is verifying the identity of the person signing the document. Regarding verification, the statute provides:

(b) In performing an online notarization, an online notary public shall verify the identity of a person creating an electronic signature at the time that the signature is taken by using two-way video and audio conference technology that meets the requirements of this subchapter and rules adopted under this subchapter.  Identity may be verified by: (1) the online notary public’s personal knowledge of the person creating the electronic signature; or (2) each of the following: (A) remote presentation by the person creating the electronic signature of a government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the person; (B) credential analysis of the credential described by Paragraph (A); and (C) identity proofing of the person described by Paragraph (A).

(c)  The online notary public shall take reasonable steps to ensure that the two-way video and audio communication used in an online notarization is secure from unauthorized interception.

(d)  The electronic notarial certificate for an online notarization must include a notation that the notarization is an online notarization.

Tex. Gov’t Code § 406.110.

There are multiple different providers of online notary services, and a simple internet search can locate them. Typically, when a party engages the online notary, the party uploads a pdf of the document and forwards it to the company. The company then sends the documents to the signer via electronic means with an option to sign with a notary. The signer and the notary get instructions to complete the electronic notarization. The signer connects with a licensed electronic notary public over live video to sign the document. The electronic notary public confirms the signer’s identity, witnesses the signature, and assists throughout the process. When that occurs, the notarization session is recorded in the notary’s electronic notary journal, and the notary affixes his or her electronic notary stamp.

The process is relatively simple, is affordable, and is a valid way to notarize a document. Importantly, online notarizations avoid face-to-face contact during these difficult times.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law