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NM Senate Bill 246

Legislation

State: New Mexico
Signed: April 04, 2023

Effective: June 16, 2023
Chapter: 110

Summary
Senate Bill 246 creates a new term of “automatic notarial officer,” clarifies who these automatic notarial officers are, and the powers and duties these new officers have.
Affects
Amends Sections 14-13-3, 14-14A-1 through 14-14A-7, 14-14A-9 through 14-14A-28, and 14-14A-30 of the New Mexico Statutes Annotated.
Changes

Definitions

  1. Defines “automatic notarial officer” to mean any of the following who has registered an official stamp with the Secretary of State: (a) a judicial officer; (b) the Secretary of State or a full-time staff member of the Secretary’s office while performing a notarial act within the scope of the Secretary’s or staff member’s duties; and (c) an individual who is a member of the state bar of New Mexico and licensed to practice law.
  2. Defines “judicial officer” to mean (a) a judge of a state court of New Mexico, (b) a special commissioner or hearing officer appointed pursuant to supreme court rule and employed by a state court, (c) a special master appointed pursuant to supreme court rule or state statute, and (d) a court clerk or deputy court clerk of a state court of New Mexico.
  3. Defines “licensed to practice law” to mean a person who is a member of the state bar of New Mexico and, based on such membership, is authorized to practice law before the courts of New Mexico.
  4. Provides that the definition of “notarial act” does not apply to any act that would otherwise be a notarial act if (a) the act is performed by a judicial officer within the scope of the judicial officer’s duties and (b) the record is filed in the court of the judicial officer.
  5. Amends the definition of “notarial officer” to mean (a) an automatic notarial officer and (b) a Notary Public.
  6. Amends the definition of “Notary Public” to mean an individual commissioned by the Secretary of State to be a Notary Public and authorized by such commission to perform notarial acts pursuant to the Revised Uniform Law on Notarial Acts.
  7. Defines “official notary seal” as the great seal of the state or New Mexico, unless the Secretary of State has adopted a seal specific for use by notarial officers; provided that as applied to automatic notarial officers, “official notary seal” includes as an option (a) for judicial officers, the seal of the court, if the supreme court has approved a seal for such court and the seal has been filed with the Secretary of State, (b) for the Secretary of State or a full-time staff member of the Secretary’s office, the seal of the Secretary of State, if the Secretary has approved a seal and the seal has been filed with the Secretary; (c) for county clerks or deputy county clerks, the seal of the county, if the board of county commissioners has approved a seal for the county and the seal has been filed with the Secretary of State, and (d) for a person who is licensed to practice law and who is not performing a notarial act pursuant to NMSA 14-14A-2.L(1)-(3), a seal approved by the State Bar of New Mexico for such purpose and the seal has been filed with the Secretary of State.

Notary Commission and Oversight

  1. No longer requires an applicant for a Notary commission to be a citizen or permanent resident of the United States.
  2. Requires a person qualified to be an automatic notarial officer to attend a course delivered by the Secretary of State or an entity approved by the Secretary of State.
  3. Requires a person qualified to be an automatic notarial officer to demonstrate an understanding of the course material in the required course.
  4. Provides that the course for an automatic notarial officer may be delivered in person or online.
  5. Requires an automatic notarial officer to attend a course before the person’s seal may be registered with the Secretary of State.
  6. Authorizes an automatic notarial officer to obtain continuing legal education credit, pursuant to rules established by the board of bar commissioners of New Mexico, for participating in continuing legal education related to performing notarial acts.
  7. Provides that a judicial officer, the Secretary of State or a full-time staff member of the Secretary’s office, county clerk or deputy county clerk who is not licensed to practice law, may be commissioned as a Notary Public to perform notarial acts outside the individual’s scope of duties as an automatic notarial officer.
  8. Requires the Secretary of State, at least 30 days prior to expiration of a notarial officer’s commission, to mail a notice of expiration to the notarial officer’s mailing address of record.
  9. Clarifies that a notarial officer may be reappointed upon making an application in the same manner as required for an original application.
  10. Clarifies that the state ethics commission may deny, refuse to renew, revoke, suspend or impose a condition on a notarial officer for the grounds listed and amended in NMSA 14-14A-22.A.
  11. Adds to the grounds for a denial, refusal to renew, revoke, suspend, or impose a condition on a notarial officer a violation by the notarial officer of an obligation required of a notarial officer, whether by the provisions of the Revised Uniform Law on Notarial Acts, rules of the Secretary of State or any federal or state law for which the state ethics commission may deny, refuse to renew, revoke, suspend or impose a condition on a commission as notarial officer.
  12. Clarifies that the prohibited acts listed in NMSA 14-14A-24 apply to automatic notarial officers.
  13. Provides that the course for automatic notarial officers must cover laws, rules, procedures and ethics relevant to being an automatic notarial officer.
  14. Clarifies that an individual who performs a purported notarial act with knowledge that the individual’s commission as a Notary Public has expired or that the individual is otherwise disqualified from being a notarial officer is guilty of a misdemeanor for each purported notarial act and upon conviction shall be sentenced pursuant to the provisions of NMSA 31-19-1.
  15. Clarifies that the Secretary of State may deny or refuse to renew an applicant upon notice from the state ethics commission of adverse action upon an applicant or notarial officer.
  16. Repeals the prior provision that a notarial officer authorized to practice law in New Mexico is authorized to perform notarial acts with no expiration of authority.

Notarial Acts

  1. Replaces the term “Notary Public” with “notarial officer” throughout certain (but not all) sections of the Revised Uniform Law on Notarial Acts.
  2. Clarifies that a notarial act may be performed in New Mexico by an automatic notarial officer.
  3. Authorizes notarial officers other than Notaries Public to perform notarial acts for remotely located individuals and provides that notarial officers must satisfy all requirements of these notarial acts when performing them.
  4. Clarifies that a notarial act for remotely located individuals located outside of New Mexico is deemed to be performed in New Mexico and therefore does not require an apostille.
  5. Clarifies that the fees for notarial acts are applicable to all notarial officers who perform notarial acts.
  6. Clarifies that a notarial officer may perform a notarial act with respect to electronic records.
  7. Clarifies that a notarial officer may perform a notarial act using communication technology if they have taken the required class.

Journal of Notarial Acts

  1. Requires notarial officers to keep a journal.
  2. Requires notarial officer to perform the duties related to the keeping of a journal, including reporting a lost or stolen journal, retaining the journal, and disposition of the journal upon the adjudication of incompetency or death of the officer.

Certificate of Notarial Act; Official Stamp

  1. Provides if the notarial officer is an automatic notarial officer, a certificate of notarial act must (a) identify the judicial district or area served if the notarial officer is a judicial officer, (b) identify the county served if the notarial officer is a county clerk or deputy county clerk, and (c) identify the state bar number if the notarial officer is an attorney but is not performing a notarial act pursuant to NMSA 14-14A-15.A.6(a) or (b) and is not a judge.
  2. Provides that if a notarial act is performed on a tangible record by an automatic notarial officer and the certificate contains the information specified in NMSA 14-14A-15.A(2), (3), (4), (5), (6) and (7), an official stamp must be affixed to or embossed on the certificate.
  3. Provides that if a notarial act regarding an electronic record is performed by a notarial officer and the information contains the information specified in NMSA 14-14A-15.A(2), (3), (4), (5), and (6), an official stamp must be attached to or logically associated with the certificate.
  4. Clarifies [confusingly] that the official stamp of a notarial officer must include the notarial officer’s official Notary seal.
  5. Provides that when changes to the official stamp are adopted in the Revised Uniform Law on Notarial Acts or by rules issued by the Secretary of State, a notarial officer who has registered a stamp with the Secretary may continue to use the registered stamp until (a) the expiration of the officer’s commission, in the case of a Notary Public, or (b) one year following the effective date of the change, in the case of an automatic notarial officer.
  6. Requires the Secretary of State to notify notarial officers when a change to the official stamp is adopted.

Recognition of Notarial Acts

  1. Clarifies that for notarial acts performed in New Mexico by Notaries Public and automatic notarial officers, an official stamp is required unless a state law specifies that an official stamp is not required by that notarial officer for that notarial act.
  2. Clarifies that for notarial acts performed in another state, an official stamp is required unless the laws of the state specify that an official stamp is not required by that notarial officer or for that notarial act.
  3. Recognizes notarial acts performed in New Mexico by Indian nations, tribes and pueblos.
  4. Clarifies that for notarial acts performed in New Mexico by Indian nations, tribes and pueblos, an official stamp is required unless the laws of the nation, tribe or pueblo specify that an official stamp is not required by that notarial officer for that notarial act.
  5. Clarifies that for notarial acts performed under federal authority, an official stamp is required unless a law specifies that an official stamp is not required by that federal notarial officer or for that notarial act.
  6. Clarifies that for notarial acts performed under authority and in the jurisdiction of a foreign state or constituent unit of the foreign state or is performed under the authority of a multinational or international governmental organization, an official stamp is required unless a law of the foreign state specifies that an official stamp is not required by that notarial officer or for that notarial act.

Other Changes

  1. Authorizes the Secretary of State to adopt rules for serving as an automatic notarial officer.
  2. Authorizes the State Ethics Commission to adopt rules to implement the commission’s responsibilities pursuant to the RULONA.
  3. Requires the Secretary of State’s database of Notaries Public to include all notarial officers.
  4. Makes technical corrections.
  5. Makes pointer reference corrections.
  6. Strikes outdated provisions.
Analysis
Senate Bill 246 is an interesting bill. It creates a new term “automatic notarial officer” that to the NNA’s knowledge does not exist in the law of any other state. Essentially, an automatic notarial officer is a judicial officer like a judge or a clerk of a court. Other states may refer to these officers as "ex officio" Notaries or notarial officers. Under the new law the Secretary of State is considered an automatic notarial officer. Automatic notarial officers may perform notarial acts, in-person electronic notarial acts, and remote notarial acts in accordance with New Mexico law. They also have to follow most of the same laws as Notaries Public, including using an official seal or stamp, keeping a journal, and taking a required education course. The Secretary of State is authorized to adopt rules for automatic notarial officers, so we’ll learn more if rules are adopted and will report them in a new law update at that time.

Read Senate Bill 246.
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