SB0012JUS

SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE BILL 12

55th legislature - STATE OF NEW MEXICO - first session, 2021

AN ACT

RELATING TO NOTARIAL ACTS; ENACTING THE REVISED UNIFORM LAW ON NOTARIAL ACTS; REQUIRING RULEMAKING BY THE SECRETARY OF STATE; REPEALING SECTIONS OF THE NMSA 1978 PERTAINING TO NOTARIAL ACTS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 32 of this act may be cited as the "Revised Uniform Law on Notarial Acts".

SECTION 2. [NEW MATERIAL] DEFINITIONS.--In addition to the general definitions provided in Section 12-2A-3 of the Uniform Statute and Rule Construction Act, as used in the Revised Uniform Law on Notarial Acts:

A. "acknowledgment" means a declaration by an individual before a notarial officer that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record;

B. "electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;

C. "electronic signature" means an electronic symbol, sound or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record;

D. "foreign state" means a government other than the United States, a state or a federally recognized Indian tribe;

E. "in a representative capacity" means acting as:

(1) an authorized officer, agent, partner, trustee or other representative for a person other than an individual;

(2) a public officer, personal representative, guardian or other representative, in the capacity stated in a record;

(3) an agent or attorney-in-fact for a principal; or

(4) an authorized representative of another in any other capacity;

F. "notarial act" means an act, whether performed with respect to a tangible or electronic record, that a notarial officer may perform under the law of this state. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy and noting a protest of a negotiable instrument;

G. "notarial officer" means a notary public or other individual authorized to perform a notarial act;

H. "notary public" means an individual commissioned to perform a notarial act by the secretary of state;

I. "official stamp" means a physical image affixed to or embossed on a tangible record or an electronic image attached to or logically associated with an electronic record and includes an official notary seal;

J. "person" also includes a statutory trust, public corporation, government or governmental subdivision, agency or instrumentality;

K. "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

L. "sign" or "subscribe", when used with present intent to authenticate or adopt a record, means to:

(1) execute or adopt a tangible symbol; or

(2) attach to or logically associate with the record an electronic symbol, sound or process;

M. "signature" means a tangible symbol or an electronic signature that evidences the signing of a record;

N. "stamping device" means:

(1) a physical device capable of affixing to or embossing on a tangible record an official stamp; or

(2) an electronic device or process capable of attaching to or logically associating with an electronic record an official stamp; and

O. "verification on oath or affirmation" means a declaration, made by an individual on oath or affirmation before a notarial officer, that a statement in a record is true.

SECTION 3. [NEW MATERIAL] AUTHORITY TO PERFORM NOTARIAL ACT.--

A. A notary public or notarial officer shall perform all notarial acts pursuant to the Revised Uniform Law on Notarial Acts or by law of this state other than the Revised Uniform Law on Notarial Acts.

B. A notarial officer shall not perform a notarial act with respect to a record to which the officer or the officer's spouse or domestic partner is a party or in which either of them has a direct beneficial interest. A notarial act performed in violation of this subsection is voidable.

C. A notarial officer may certify that a tangible copy of an electronic record is an accurate copy of the electronic record.

SECTION 4. [NEW MATERIAL] REQUIREMENTS FOR CERTAIN NOTARIAL ACTS.--

A. A notarial officer who takes an acknowledgment of a record shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the acknowledgment has the identity claimed and that the signature on the record is the signature of the individual.

B. A notarial officer who takes a verification of a statement on oath or affirmation shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the verification has the identity claimed and that the signature on the statement verified is the signature of the individual.

C. A notarial officer who witnesses or attests to a signature shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and signing the record has the identity claimed.

D. A notarial officer who certifies or attests a copy of a record or an item that was copied shall determine that the copy is a full, true and accurate transcription or reproduction of the record or item.

E. A notarial officer who makes or notes a protest of a negotiable instrument shall determine the matters set forth in Subsection B of Section 55-3-505 NMSA 1978.

SECTION 5. [NEW MATERIAL] PERSONAL APPEARANCE REQUIRED--EXCEPTION AUTHORIZED FOR REMOTE NOTARIZATIONS.--

A. If a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer.

B. A remotely located individual may comply with this section or with any other requirement of the laws of this state that state that a person appear before a notarial officer at the time of a notarial act by using communication technology to appear before a notary public or notarial officer.

C. A notary public or notarial officer located in this state may perform a notarial act using communication technology for a remotely located individual if:

(1) the notary public:

(a) has personal knowledge of the identity of the individual pursuant to Subsection A of Section 6 of the Revised Uniform Law on Notarial Acts;

(b) has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public pursuant to Subsection B of Section 6 of the Revised Uniform Law on Notarial Acts or this section; or

(c) has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing;

(2) the notary public is able to reasonably confirm that a record before the notary public is the same record in which the remotely located individual made a statement or on which the individual executed a signature;

(3) the notary public, or a person acting on behalf of the notary public, creates an audiovisual recording of the performance of the notarial act; and

(4) for a remotely located individual located outside the United States:

(a) the record: 1) is to be filed with or relates to a matter before a public official or court, governmental entity or other entity subject to the jurisdiction of the United States; or 2) involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and

(b) the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.

D. If a notarial act is performed pursuant to this section, the certificate of notarial act required by Section 15 of the Revised Uniform Law on Notarial Acts and the short-form certificate provided in Section 15 of the Revised Uniform Law on Notarial Acts shall indicate that the notarial act was performed using communication technology.

E. A short-form certificate provided pursuant to Section 15 of the Revised Uniform Law on Notarial Acts for a notarial act subject to this section is sufficient if it:

(1) complies with rules adopted under Paragraph (1) of Subsection H of this section; or

(2) is in the form provided in Section 15 of the Revised Uniform Law on Notarial Acts and contains a statement substantially as follows: "This notarial act involved the use of communication technology.".

F. A notary public, a guardian, a conservator or an agent of a notary public or a personal representative of a deceased notary public shall retain the audiovisual recording created pursuant to Paragraph (3) of Subsection C of this section or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Unless a different period is required by rule adopted pursuant to Paragraph (4) of Subsection H of this

section, the recording must be retained for a period of at least ten years after the recording is made.

G. Before a notarial officer performs the notarial officer's initial notarial act with a remotely located individual under this section, the notarial officer shall notify the secretary of state that the notarial officer will be performing notarial acts with respect to remotely located individuals and identify the technologies the notarial officer intends to use. If the secretary of state has established standards pursuant to Subsection H of this section and Section 26 of the Revised Uniform Law on Notarial Acts for approval of communication technology or identity proofing, the communication technology and identity proofing shall conform to the standards.

H. In addition to adopting rules pursuant to Section 26 of the Revised Uniform Law on Notarial Acts, the secretary of state may adopt rules under this section regarding performance of a notarial act. The rules may:

(1) prescribe the means of performing a notarial act involving a remotely located individual using communication technology;

(2) establish standards for communication technology and identity proofing;

(3) establish requirements or procedures to approve providers of communication technology and the process of identity proofing; and

(4) establish standards and a period for the retention of an audiovisual recording created pursuant to Paragraph (3) of Subsection C of this section.

I. Before adopting, amending or repealing a rule governing performance of a notarial act with respect to a remotely located individual, the secretary of state shall consider:

(1) the most recent standards regarding the performance of a notarial act with respect to a remotely located individual promulgated by national standard-setting organizations and the recommendations of the national association of secretaries of state;

(2) standards, practices and customs of other jurisdictions that have laws substantially similar to this section; and

(3) input from governmental officials and entities and other interested persons.

J. By allowing its communication technology or identity proofing to facilitate a notarial act for a remotely located individual or by providing storage of the audiovisual recording created pursuant to Paragraph (3) of Subsection C of this section, the provider of the communication technology, identity proofing or storage appoints the secretary of state as the provider's agent for service of process in a civil action in this state related to the notarial act.

K. As used in this section:

(1) "communication technology" means an electronic device or process that:

(a) allows a notarial officer and a remotely located individual to communicate with each other simultaneously by sight and sound; and

(b) when necessary and consistent with other applicable law, facilitates communication with a remotely located individual who has a vision, hearing or speech impairment;

(2) "identity proofing" means a process or service by which a third person provides a notarial officer with the means to verify the identity of a remotely located individual by a review of personal information from public or private data sources;

(3) "outside the United States" means a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands and any territory, insular possession or other location subject to the jurisdiction of the United States; and

(4) "remotely located individual" means an individual who is not in the physical presence of the notarial officer who performs a notarial act under Subsection C of this section.

SECTION 6. [NEW MATERIAL] IDENTIFICATION OF INDIVIDUAL.--

A. A notarial officer has personal knowledge of the identity of an individual appearing before the officer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that individual has the identity claimed.

B. A notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual:

(1) by means of:

(a) a passport, driver's license or government-issued nondriver identification card, which is current or expired not more than one year before performance of the notarial act; or

(b) another form of government identification issued to an individual, which is current or expired not more than one year before performance of the notarial act, contains the signature or a photograph of the individual and is satisfactory to the officer; or

(2) by a verification on oath or affirmation of a credible witness personally appearing before the officer, who is unrelated to and unaffected by the document or transaction, and known to the officer and whom the officer can identify on the basis of a passport, driver's license or government-issued nondriver identification card, which is current or expired not more than one year before performance of the notarial act.

C. A notarial officer may require an individual to provide additional information or identification credentials necessary to assure the officer of the identity of the individual.

SECTION 7. [NEW MATERIAL] AUTHORITY TO REFUSE TO PERFORM NOTARIAL ACTS.--

A. A notarial officer may refuse to perform a notarial act if the officer is not satisfied that:

(1) the individual executing the record is competent or has the capacity to execute the record; or

(2) the individual's signature is knowingly and voluntarily made.

B. A notarial officer may refuse to perform a notarial act unless refusal is prohibited by a state or federal law other than the Revised Uniform Law on Notarial Acts.

C. In accordance with the Human Rights Act, a notary public or notarial officer shall not discriminate in the performance of a notarial act pursuant to the Revised Uniform Law on Notarial Acts.

SECTION 8. [NEW MATERIAL] SIGNATURE IF INDIVIDUAL IS UNABLE TO SIGN.--If an individual is physically unable to sign a record, the individual may direct an individual other than the notarial officer to sign the individual's name on the record. The notarial officer shall insert "Signature affixed by (name of other individual) at the direction of (name of individual)" or words of similar import.

SECTION 9. [NEW MATERIAL] NOTARIAL ACTS IN THIS STATE.--

A. A notarial act may be performed in this state by:

(1) a notary public of this state;

(2) a judge of a court of this state;

(3) a court clerk or deputy court clerk of this state while performing a notarial act within the scope of a court clerk's or deputy court clerk's duties;

(4) a county clerk or deputy county clerk while performing a notarial act within the scope of the county clerk's or deputy county clerk's duties;

(5) an individual licensed to practice law in this state; or

(6) any other individual authorized to perform a specific notarial act by the law of this state other than the Revised Uniform Law on Notarial Acts.

B. The signature and title of an individual performing a notarial act in this state are prima facie evidence that the signature is genuine and that the individual holds the designated title.

C. The signature and title of a notarial officer described in Subsection A of this section conclusively establish the authority of the officer to perform the notarial act. An official stamp is required if the laws of this state require an official stamp.

SECTION 10. [NEW MATERIAL] NOTARIAL ACT IN ANOTHER STATE.--

A. A notarial act performed in another state has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed in that state is performed by a notarial officer or other individual authorized by the law of that state to perform the notarial act.

B. The signature and title of an individual performing a notarial act in another state are prima facie evidence that the signature is genuine and that the individual holds the designated title.

SECTION 11. [NEW MATERIAL] NOTARIAL ACT UNDER THE AUTHORITY OF A FEDERALLY RECOGNIZED INDIAN TRIBE.--

A. A notarial act performed under the authority and in the jurisdiction of a federally recognized Indian tribe has the same effect as if performed by a notarial officer of this state, if the act performed in the jurisdiction of the tribe is performed by a notarial officer or other individual authorized by the law of the tribe to perform the notarial act.

B. The signature and title of an individual performing a notarial act under the authority of and in the jurisdiction of a federally recognized Indian tribe are prima facie evidence that the signature is genuine and that the individual holds the designated title.

SECTION 12. [NEW MATERIAL] NOTARIAL ACT UNDER FEDERAL AUTHORITY.--

A. A notarial act performed under federal law has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed under federal law is performed by:

(1) a judge;

(2) a court clerk or deputy court clerk;

(3) an individual in military service or performing duties under the authority of military service who is authorized to perform notarial acts under federal law;

(4) an individual designated a notarizing officer by the United States department of state for performing notarial acts overseas; or

(5) any other individual authorized by federal law to perform the notarial act.

B. The signature and title of an individual acting under federal authority and performing a notarial act are prima facie evidence that the signature is genuine and that the individual holds the designated title.

C. The signature and title of an officer described in Subsection A of this section conclusively establish the authority of the officer to perform the notarial act.

SECTION 13. [NEW MATERIAL] FOREIGN NOTARIAL ACTS.--

A. If a notarial act is 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, the act has the same effect under the law of this state as if performed by a notarial officer of this state.

B. If the title of office and indication of authority to perform notarial acts in a foreign state appears in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established.

C. The signature and official stamp of an individual holding an office described in Subsection B of this section are prima facie evidence that the signature is genuine and the individual holds the designated title.

D. An apostille in the form prescribed by the Hague Convention of October 5, 1961 and issued by a foreign state party to the Hague Convention of October 5, 1961 conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

E. A consular authentication issued by an individual designated by the United States department of state as a notarizing officer for performing notarial acts overseas and attached to the record with respect to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

SECTION 14. [NEW MATERIAL] CERTIFICATE OF NOTARIAL ACT.--

A. A notarial act shall be evidenced by a certificate. The certificate shall:

(1) be executed contemporaneously with the performance of the notarial act;

(2) be signed and dated by the notarial officer and, if the notarial officer is a notary public, be signed in the same manner as on file with the secretary of state;

(3) identify the jurisdiction in which the notarial act is performed;

(4) contain the title of office of the notarial officer;

(5) if the notarial officer is a notary public, indicate the notary public's commission number and the date of expiration of the notarial officer's commission;

(6) identify the judicial district or area served if the notarial officer is a judge, court clerk or deputy court clerk;

(7) identify the county served if the notarial officer is a county clerk or deputy county clerk; and

(8) identify the state bar number if the notarial officer is an attorney but is not in a category identified in Paragraph (6) or (7) of this subsection and is not a judge.

B. If a notarial act regarding a tangible record is performed by a notary public, an official stamp shall be affixed to or embossed on the certificate. If a notarial act is performed regarding a tangible record by a notarial officer other than a notary public and the certificate contains the information specified in Paragraphs (2), (3), (4), (5), (6) and (7) of Subsection A of this section, an official stamp shall be affixed to or embossed on the certificate. If a notarial act regarding an electronic record is performed by a notarial officer and the certificate contains the information specified in Paragraphs (2), (3), (4), (5), (6) and (7) of Subsection A of this section, an official stamp shall be attached to or logically associated with the certificate.

C. A certificate of a notarial act is sufficient if it meets the requirements of Subsections A and B of this section and:

(1) is in a short-form set forth in Section 15 of the Revised Uniform Law on Notarial Acts;

(2) is in a form otherwise permitted by the law of this state;

(3) is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed; or

(4) sets forth the actions of the notarial officer, and the actions are sufficient to meet the requirements of the notarial act as provided in Sections 4, 5 and 6 of the Revised Uniform Law on Notarial Acts or law of this state other than the Revised Uniform Law on Notarial Acts.

D. By executing a certificate of a notarial act, a notarial officer certifies that the officer has complied with the requirements and made the determinations specified in Sections 4, 5 and 6 of the Revised Uniform Law on Notarial Acts.

E. A notarial officer shall not affix the officer's signature to, or logically associate it with, a certificate until after the notarial act has been performed.

F. If a notarial act is performed regarding a tangible record, a certificate shall be part of, or securely attached to, the record. If a notarial act is performed regarding an electronic record, the certificate shall be affixed to, or logically associated with, the electronic record. If the secretary of state has established standards pursuant to Section 26 of the Revised Uniform Law on Notarial Acts for attaching, affixing or logically associating the certificate, the process shall conform to the standards.

SECTION 15. [NEW MATERIAL] SHORT-FORM CERTIFICATES.--The following short-form certificates of notarial acts are sufficient for the purposes indicated, if completed with the information required by Subsections A and B of Section 14 of the Revised Uniform Law on Notarial Acts:

A. for an acknowledgment in an individual capacity:

State of ________________________________________

[County] of ___________________________________

This record was acknowledged before me on ________

Date

by _______________________.

Name(s) of individual(s)

__________________________________

Signature of notarial officer

Stamp

[__________________________________]

Title of office

[New Mexico state bar identification number, judicial district or area, county or notary public commission number and date of commission expiration: _________];

B. for an acknowledgment in a representative capacity:

State of _________________________________________

[County] of ______________________________________

This record was acknowledged before me on ________ by

Date

________________________

Name(s) of individual(s)

as (type of authority, such as officer or trustee) of (name of party on behalf of whom record was executed).

__________________________________

Signature of notarial officer

Stamp

[__________________________________]

Title of office

[New Mexico state bar identification number, judicial district or area, county served or notary public commission number and date of commission expiration: ___________];

C. for a verification on oath or affirmation:

State of _________________________________________

[County] of ______________________________________

Signed and sworn to (or affirmed) before me on ________

Date

by ________________________.

Name(s) of individual(s)

making statement

__________________________________

Signature of notarial officer

Stamp

[__________________________________]

Title of office

[New Mexico state bar identification number, judicial district or area, county served or notary public commission number and date of commission expiration: __________________];

D. for witnessing or attesting a signature:

State of _________________________________________

[County] of ______________________________________

Signed (or attested) before me on ________ by

Date

________________________.

Name(s) of individual(s)

__________________________________

Signature of notarial officer

Stamp

[__________________________________]

Title of office

[New Mexico state bar identification number, judicial district or area, county served or notary public commission number and date of commission expiration: __________________]; and

E. for certifying a copy of a record:

State of _________________________________________

[County] of ______________________________________

I certify that this is a true and correct copy of a record in the possession of ________________________________________.

Dated ___________________________

________________________________

Signature of notarial officer

Stamp

[__________________________________]

Title of office

[New Mexico state bar identification number, judicial district or area, county served or notary public commission number and date of commission expiration: __________________].

SECTION 16. [NEW MATERIAL] OFFICIAL STAMP.--The official stamp of a notarial officer shall:

A. include the notarial officer's name, jurisdiction and New Mexico state bar identification number if the notary public is licensed to practice law in this state, judicial district or area served if the notarial officer is a judge, court clerk or deputy court clerk, county if the notarial officer is a county clerk or deputy county clerk or notary public commission number and date of commission expiration and other information required by the secretary of state;

B. be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated; and

C. be filed with the secretary of state before the notarial officer performs the notarial officer's initial notarial act.

SECTION 17. [NEW MATERIAL] STAMPING DEVICE.--

A. A notary public is responsible for the security of the notary public's stamping device and may not allow another individual to use the device to perform a notarial act. On resignation from, or the revocation or expiration of, the notary public's commission, or on the expiration of the date set forth in the stamping device, if any, the notary public shall disable the stamping device by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable. On the death or adjudication of incompetency of a notary public, the notary public's personal representative or guardian or any other person knowingly in possession of the stamping device shall render it unusable by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable.

B. If a notary public's stamping device is lost or stolen, the notary public or the notary public's personal representative or guardian shall promptly notify the secretary of state on discovering that the device is lost or stolen.

SECTION 18. [NEW MATERIAL] JOURNAL.--

A. A notary public in this state shall maintain a journal in which the notary public chronicles all notarial acts that the notary public performs. The notary public shall retain the journal for ten years after the performance of the last notarial act chronicled in the journal.

B. A journal may be created on a tangible medium or in an electronic format. A notary public performing notarial acts pursuant to Subsection E of this section shall maintain only one journal at a time to chronicle all notarial acts, whether those notarial acts are performed regarding tangible or electronic records; provided that a notary public may keep a journal in a tangible medium for tangible records and an electronic journal for electronic records. If the journal is maintained on a tangible medium, it must be a permanent, bound register with numbered pages. If the journal is maintained in an electronic format, it must be in a permanent, tamper-evident electronic format complying with the rules of the secretary of state.

C. An entry in a journal must be made contemporaneously with performance of the notarial act and contain the following information:

(1) the date and time of the notarial act;

(2) a description of the record, if any, and type of notarial act;

(3) the full name and address of each individual for whom the notarial act is performed;

(4) if identity of the individual is based on personal knowledge, a statement to that effect;

(5) if identity of the individual is based on satisfactory evidence, a brief description of the method of identification and the identification credential presented, if any, including the date of issuance and expiration of any identification credential; and

(6) the fee, if any, charged by the notary public.

D. If a notary public's journal is lost or stolen, the notary public shall promptly notify the secretary of state on discovering that the journal is lost or stolen.

E. Pursuant to the requirements provided in Subsections B and C of this section, a notarial officer licensed to practice law in this state shall maintain a journal when performing notarial acts for members of the public unrelated to an established attorney-client relationship.

F. On resignation from, or the revocation or suspension of, a notary public's commission, the notary public shall retain the notary public's journal in accordance with Subsection A of this section and inform the secretary of state of where the journal is located.

G. Instead of retaining a journal as provided in Subsections A and F of this section, a current or former notary public may transmit the journal to the secretary of state, the state records officer or a repository approved by the secretary of state.

H. On the death or adjudication of incompetency of a current or former notary public, the notary public's personal representative or guardian or any other person knowingly in possession of the journal shall transmit the journal to the secretary of state, the state records officer or a repository approved by the secretary of state.

SECTION 19. [NEW MATERIAL] NOTIFICATION REGARDING PERFORMANCE OF NOTARIAL ACT ON ELECTRONIC RECORD--SELECTION OF TECHNOLOGY.--

A. A notary public or notarial officer shall select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. A person may not require a notary public or notarial officer to perform a notarial act with respect to an electronic record with a technology that the notary public has not selected.

B. Before performing the notary public's or notarial officer's initial notarial act with respect to an electronic record, a notary public or notarial officer shall notify the secretary of state that the notary public will be performing notarial acts with respect to electronic records and identify the technology the notary public intends to use. If the secretary of state has established standards for approval of technology pursuant to Section 26 of the Revised Uniform Law on Notarial Acts, the technology must conform to the standards. If the technology conforms to those standards, the secretary of state shall approve the use of the technology.

SECTION 20. [NEW MATERIAL] COMMISSION AS NOTARY PUBLIC QUALIFICATIONS--NO IMMUNITY OR BENEFIT.--

A. An individual may apply to the secretary of state for a commission as a notary public. The applicant shall comply with and provide the information required by rules established by the secretary of state and pay any application fee.

B. To qualify for the commission as a notary public, an applicant shall:

(1) be at least eighteen years of age;

(2) be a citizen or permanent legal resident of the United States;

(3) be a resident of or have a place of employment in this state;

(4) be able to read and write English;

(5) not be disqualified to receive a commission under Section 22 of the Revised Uniform Law on Notarial Acts;

(6) have passed the examination required pursuant to Subsection A of Section 21 of the Revised Uniform Law on Notarial Acts; and

(7) not otherwise be qualified as a notarial officer; provided that an individual who is employed as a court clerk, deputy court clerk, county clerk or deputy county clerk may also be commissioned as a notary public.

C. Before issuance of a commission as a notary public, an applicant for the commission shall execute an oath of office pursuant to the laws of this state and submit it to the secretary of state.

D. Before issuance of a commission as a notary public, the notary public or applicant for a commission shall submit to the secretary of state an assurance in the form of a surety bond or its functional equivalent in the amount of ten thousand dollars ($10,000). The assurance must be issued by a surety or other entity licensed or authorized to do business in this state. The assurance must cover acts performed during the term of the notary public's commission and must be in the form prescribed by the secretary of state. If a notary public violates law with respect to notaries public in this state, the surety or issuing entity is liable under the assurance. The surety or issuing entity shall give thirty days notice to the secretary of state before canceling the assurance. The surety or issuing entity shall notify the secretary of state not later than thirty days after making a payment to a claimant under the assurance. A notary public may perform notarial acts in this state only during the period that a valid assurance is on file with the secretary of state.

E. On compliance with this section, the secretary of state shall issue a commission as a notary public to an applicant for a term of four years.

F. A commission to act as a notary public authorizes the notary public to perform notarial acts. The commission does not provide the notary public any immunity or benefit conferred by law of this state on public officials or employees.

G. At least thirty days before expiration of each notary public's commission, the secretary of state shall mail a notice of expiration to the notary public's mailing address of record. A notary public may be reappointed upon making an application in the same manner as required for an original application.

SECTION 21. [NEW MATERIAL] EXAMINATION OF NOTARY PUBLIC AND NOTARIAL OFFICERS--CONTINUING LEGAL EDUCATION REQUIREMENTS.--

A. An applicant for a commission as a notary public who does not hold a commission in this state is required to pass an examination administered by the secretary of state or an entity approved by the secretary of state. The examination will be based on the course of study described in Subsection B of this section.

B. The secretary of state or an entity approved by the secretary of state shall offer regularly a course of study to applicants who do not hold commissions as notaries public in this state. The course must cover the laws, rules, procedures and ethics relevant to notarial acts.

C. A notarial officer authorized to practice law in this state may obtain one unit of continuing legal education credit, pursuant to rules established by the board of bar commissioners of the state of New Mexico, for participating in continuing legal education related to performing the notarial acts.

SECTION 22. [NEW MATERIAL] GROUNDS TO DENY, REFUSE TO RENEW, REVOKE, SUSPEND OR CONDITION COMMISSION OF NOTARY PUBLIC.--

A. The state ethics commission may deny, refuse to renew, revoke, suspend or impose a condition on a commission as notary public for any act or omission that demonstrates that the individual lacks the honesty, integrity, competence or reliability to act as a notary public, including:

(1) failure to comply with the Revised Uniform Law on Notarial Acts;

(2) a fraudulent, dishonest or deceitful misstatement or omission in the application for a commission as a notary public submitted to the state ethics commission;

(3) a conviction of the applicant or notary public of any felony or a crime involving fraud, dishonesty or deceit during the term of the notary public's commission or during the five years immediately preceding such term;

(4) a finding against, or admission of liability by, the applicant or notary public in any legal proceeding or disciplinary action based on the applicant's or notary public's fraud, dishonesty or deceit;

(5) failure by the notary public to discharge any duty required of a notary public, whether by the provisions of the Revised Uniform Law on Notarial Acts, rules of the secretary of state or any federal or state law;

(6) use of false or misleading advertising or representation by the notary public representing that the notary has a duty, right or privilege that the notary does not have;

(7) violation by the notary public of a rule of the secretary of state regarding a notary public;

(8) denial, refusal to renew, revocation, suspension or conditioning of a notary public commission in another state;

(9) failure of the notary public to maintain an assurance as provided in Subsection D of Section 20 of the Revised Uniform Law on Notarial Acts; or

(10) if the individual ceases to be a resident of this state or ceases to be employed in this state.

B. The secretary of state may deny or refuse to renew an applicant upon notice from the state ethics commission of adverse action upon a notary public.

C. The authority of the state ethics commission to deny, refuse to renew, suspend, revoke or impose conditions on a commission as a notary public does not prevent a person from seeking and obtaining other criminal or civil remedies provided by law.

SECTION 23. [NEW MATERIAL] DATABASE OF NOTARIES PUBLIC.--The secretary of state shall maintain an electronic database of notaries public providing the following:

A. information and a means through which a person may verify the authority of a notary public to perform notarial acts; and

B. indication of whether a notary public has notified the secretary of state that the notary public will be performing notarial acts on electronic records.

SECTION 24. [NEW MATERIAL] PROHIBITED ACTS.--

A. A commission as a notary public does not authorize an individual to:

(1) assist persons in drafting legal records, give legal advice or otherwise practice law;

(2) act as an immigration consultant or an expert on immigration matters;

(3) represent a person in a judicial or administrative proceeding relating to immigration to the United States, United States citizenship or related matters; or

(4) receive compensation for performing any of the activities listed in this subsection.

B. A notary public shall not engage in false or deceptive advertising.

C. A notary public, other than an attorney licensed to practice law in this state, shall not use the term "notario" or "notario publico".

D. A notary public shall not advertise or represent that the notary public may assist persons in drafting legal records, give legal advice or otherwise practice law. If a notary public who is not an attorney licensed to practice law in this state in any manner advertises or represents that the notary public offers notarial services, whether orally or in a record, including broadcast media, print media and the internet, the notary public shall include the following statement or an alternate statement authorized or required by the secretary of state, in the advertisement or representation, prominently and in each language used in the advertisement or representation: "I am not an attorney licensed to practice law in this state. I am not allowed to draft legal records,

give advice on legal matters, including immigration, or charge a fee for those activities.". If the form of advertisement or representation is not broadcast media, print media or the internet and does not permit inclusion of the statement required by this subsection because of size, the statement shall be displayed prominently or provided at the place of performance of the notarial act before the notarial act is performed.

E. Except as otherwise allowed by law, a notary public shall not withhold access to or possession of an original record provided by a person that seeks performance of a notarial act by the notary public.

F. A notary public shall not:

(1) perform a notarial act on a blank or incomplete record;

(2) certify or authenticate a photograph;

(3) perform a notarial act with intent to deceive or defraud; or

(4) use the title of notary public or official stamp to endorse, promote, denounce or oppose any product, service, contest, candidate or other offering.

G. A notarial officer shall not:

(1) make or deliver a certificate of notarial act containing statements that the notarial officer knows to be false; or

(2) knowingly perform a notarial act for an individual who does not comply with Section 6 of the Revised Uniform Law on Notarial Acts.

H. A notarial officer who violates any of the provisions of Subsections A through G of this section is guilty of a misdemeanor for each violation and upon conviction shall be punished by a fine not exceeding one thousand dollars ($1,000) or by imprisonment for a period not exceeding six months, or both.

I. 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 the office of notary public or as a notarial officer is guilty of a misdemeanor and upon conviction shall be punished by a fine of five hundred dollars ($500) and shall be removed from office by the state ethics commission.

SECTION 25. [NEW MATERIAL] VALIDITY OF NOTARIAL ACTS.--Except as otherwise provided in Subsection B of Section 3 of the Revised Uniform Law on Notarial Acts, the failure of a notarial officer to perform a duty or meet a requirement specified in the Revised Uniform Law on Notarial Acts does not invalidate a notarial act performed by the notarial officer. The validity of a notarial act under the Revised Uniform Law on Notarial Acts does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based on law of this state other than the Revised Uniform Law on Notarial Acts or law of the United States. This section does not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts.

SECTION 26. [NEW MATERIAL] RULES.--

A. The secretary of state may adopt rules to implement the Revised Uniform Law on Notarial Acts. Rules adopted regarding the performance of notarial acts with respect to electronic records may not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification. The rules may:

(1) prescribe the manner of performing notarial acts regarding tangible and electronic records;

(2) include provisions to ensure that any change to or tampering with a record bearing a certificate of a notarial act is self-evident;

(3) include provisions to ensure integrity in the creation, transmittal, storage or authentication of electronic records or signatures;

(4) prescribe the process of granting, renewing, conditioning, denying, suspending or revoking a notary public commission and assuring the trustworthiness of an individual holding a commission as notary public;

(5) include provisions to prevent fraud or mistake in the performance of notarial acts;

(6) establish the process for approving and accepting surety bonds and other forms of assurance pursuant to Subsection D of Section 20 of the Revised Uniform Law on Notarial Acts;

(7) provide for the administration of the examination pursuant to Subsection A of Section 21 of the Revised Uniform Law on Notarial Acts and the course of study pursuant to Subsection B of Section 21 of the Revised Uniform Law on Notarial Acts; and

(8) provide for the administration of continuing legal education for notarial officers authorized to practice law in this state in collaboration with the board of bar commissioners of the state of New Mexico and pursuant to rules adopted by the board of bar commissioners of the state of New Mexico.

B. In adopting, amending or repealing rules about notarial acts with respect to electronic records, the secretary of state shall consider, so far as is consistent with the Revised Uniform Law on Notarial Acts:

(1) the most recent standards regarding electronic records promulgated by national bodies, such as the national association of secretaries of state;

(2) standards, practices and customs of other jurisdictions that substantially enact the Revised Uniform Law on Notarial Acts; and

(3) the views of governmental officials and entities and other interested persons.

SECTION 27. [NEW MATERIAL] NOTARY PUBLIC COMMISSION IN EFFECT.--

A. A commission as a notary public in effect on the effective date of the Revised Uniform Law on Notarial Acts continues until its date of expiration.

B. A notarial officer authorized to practice law in this state is authorized to practice notarial acts with no expiration of this authority but shall maintain an active license to practice law.

C. A notary public not authorized to practice law in this state who applies to renew a commission as a notary public on or after the effective date of the Revised Uniform Law on Notarial Acts is subject to and shall comply with the Revised Uniform Law on Notarial Acts.

D. A notary public or notarial officer, in performing notarial acts after the effective date of the Revised Uniform Law on Notarial Acts, shall comply with the Revised Uniform Law on Notarial Acts.

SECTION 28. [NEW MATERIAL] FEES.--

A. A notary public or notarial officer may charge the maximum fee specified in this section, charge less than the maximum fee or waive the fee.

B. An employer shall not establish fees for notarial services that are in excess of those specified in this section nor on the attributes of the principal as delineated.

C. The maximum fees that may be charged by a notary public or notarial officer licensed to practice law for notarial acts are:

(1) for acknowledgments, five dollars ($5.00) per acknowledgment;

(2) for oaths or affirmations without a signature, five dollars ($5.00) per person;

(3) for jurats, five dollars ($5.00) per jurat; and

(4) for copy certifications, fifty cents ($.50) per page with a minimum total charge of five dollars ($5.00).

D. A notary public or notarial officer may charge a travel fee when traveling to perform a notarial act if:

(1) the notary public and the person requesting the notarial act agree upon the travel fee in advance of the travel; and

(2) the notary public explains to the person requesting the notarial act that the travel fee is separate from the notarial fees and not mandated by law.

E. In addition to the fees prescribed in Subsections C and D of this section, a notary public may charge a technology fee not to exceed twenty-five dollars ($25.00) or other amount established by rule by the secretary of state per notarial act performed with respect to an electronic record.

SECTION 29. [NEW MATERIAL] INSPECTION OF PUBLIC RECORDS ACT COMPLIANCE.--

A. Members of the public may request journal entry or audiovisual recordings related to a specified notarial act transaction pursuant to the Inspection of Public Records Act.

B. A request made pursuant to Subsection A of this section shall name the notarial act transaction with particularity, naming the document subject to the notarial act in the request for which the journal entry or audiovisual recording is sought.

C. No request for records relating to a notarial act that does not name the document subject to the notarial act shall be enforceable pursuant to the Inspection of Public Records Act.

SECTION 30. [NEW MATERIAL] SAVING CLAUSE.--The Revised Uniform Law on Notarial Acts does not affect the validity or effect of a notarial act performed before the effective date of the Revised Uniform Law on Notarial Acts.

SECTION 31. [NEW MATERIAL] UNIFORMITY OF APPLICATION AND CONSTRUCTION.--In applying and construing the Revised Uniform Law on Notarial Acts, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

SECTION 32. [NEW MATERIAL] RELATION TO FEDERAL ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.--The Revised Uniform Law on Notarial Acts modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, but does not modify, limit or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

SECTION 33. Section 10-16G-9 NMSA 1978 (being Laws 2019, Chapter 86, Section 9) is amended to read:

"10-16G-9. COMMISSION JURISDICTION--COMPLIANCE PROVISIONS.--

A. The commission has jurisdiction to enforce the applicable civil compliance provisions for public officials, public employees, candidates, persons subject to the Campaign Reporting Act, government contractors, lobbyists and lobbyists' employers of:

(1) the Campaign Reporting Act;

(2) the Financial Disclosure Act;

(3) the Gift Act;

(4) the Lobbyist Regulation Act;

(5) the Voter Action Act;

(6) the Governmental Conduct Act;

(7) the Procurement Code;

(8) the State Ethics Commission Act; [and]

(9) the Revised Uniform Law on Notarial Acts; and

[(9)] (10) Article 9, Section 14 of the constitution of New Mexico.

B. All complaints filed with a public agency regarding the statutes listed in Subsection A of this section shall be forwarded to the commission.

C. The commission may choose to act on some or all aspects of a complaint and forward other aspects of a complaint to another state or federal agency with jurisdiction over the matter in accordance with Subsection E of this section.

D. If the commission decides not to act on a complaint, whether the complaint was filed with the commission or forwarded from another public agency, or decides only to act on part of a complaint, the commission shall promptly forward the complaint, or any part of a complaint on which it does not wish to act, to the public agency that has appropriate jurisdiction within ten days of the decision. The complainant and respondent shall be notified in writing when the complainant's request has been forwarded to another agency unless otherwise provided pursuant to Subsection H of Section [10 of the State Ethics Commission Act] 10-16G-10 NMSA 1978.

E. The commission may share jurisdiction with other public agencies having authority to act on a complaint or any aspect of a complaint. Such shared jurisdiction shall be formalized through an agreement entered into by all participating agencies involved with the complaint and the director. The commission may also investigate a complaint referred to the commission by the legislature, or a legislative committee, in accordance with an agreement entered into pursuant to policies of the New Mexico legislative council or rules of the house of representatives or senate.

F. The commission may file a court action to enforce the civil compliance provisions of an act listed in Subsection A of this section. The court action shall be filed in the district court in the county where the respondent resides."

SECTION 34. Section 14-8-4 NMSA 1978 (being Laws 1901, Chapter 62, Section 18, as amended) is amended to read:

"14-8-4. ACKNOWLEDGMENT NECESSARY FOR RECORDING-- EXCEPTIONS--RECORDING OF DUPLICATES.--

A. Any original instrument of writing duly acknowledged may be filed and recorded. Any instrument of writing not duly acknowledged may not be filed and recorded or considered of record, though so entered, unless otherwise provided in this section.

B. For purposes of this section, "acknowledged" means notarized by a person empowered to perform notarial acts pursuant to the [Notary Public Act or the] Revised Uniform Law on Notarial Acts.

C. The following documents need not be acknowledged but may be filed and recorded:

(1) court-certified copies of a court order, judgment or other judicial decree;

(2) court-certified transcripts of any money judgment obtained in a court of New Mexico or, pursuant to Section 14-9-9 NMSA 1978, in the United States district court for the district of New Mexico;

(3) land patents and land office receipts;

(4) notice of lis pendens filed pursuant to Section 38-1-14 NMSA 1978;

(5) provisional orders creating improvement districts pursuant to Section 4-55A-7 NMSA 1978;

(6) notices of levy on real estate under execution or writ of attachment when filed by a peace officer pursuant to Section 39-4-4 NMSA 1978;

(7) surveys of land that do not create a division of land but only show existing tracts of record when filed by a professional surveyor pursuant to Section 61-23-28.2 NMSA 1978;

(8) certified copies of foreign wills, marriages or birth certificates duly authenticated; and

(9) instruments of writing in any manner affecting lands in the state filed pursuant to Section 14-9-7 NMSA 1978, when these instruments have been duly executed by an authorized public officer.

D. If an original instrument of writing is unavailable but, if it were available, could be filed and recorded in accordance with this section, a duplicate of that instrument shall be accepted for filing and recording if accompanied by an affidavit executed pursuant to this subsection. The affidavit shall:

(1) provide the name, [phone] telephone number and mailing address of the affiant;

(2) provide information regarding the execution of the instrument, consideration paid, delivery or other information establishing that the original instrument, if it were available, would be entitled to be recorded pursuant to Subsection A of this section;

(3) specify the reason the duplicate is filed and recorded in place of the original instrument;

(4) include a statement that the duplicate is a true and correct copy of the original instrument; and

(5) be acknowledged and made under oath confirming that the statements set forth in the affidavit are true and correct and of the personal knowledge of the affiant.

E. The filing of a duplicate instrument in accordance with Subsection D of this section shall not incur a fee in addition to the fee, if any, charged for filing an original instrument. When the clerk records the instrument, the grantor and grantee shall be those of the duplicate instrument and the name of the affiant shall be indexed under miscellaneous information.

F. Any filing or recording permitted or required under the provisions of the Uniform Commercial Code need not comply with the requirements of this section.

G. Instruments acknowledged on behalf of a corporation need not have the corporation's seal affixed thereto in order to be filed and recorded."

SECTION 35. TEMPORARY PROVISION--REVISED UNIFORM LAWS ON NOTARIAL ACTS.--References in the New Mexico Statutes Annotated to the Notary Public Act or the Uniform Law on Notarial Acts shall be deemed to be references to the Revised Uniform Law on Notarial Acts.

SECTION 36. REPEAL.--Sections 14-12A-1 through 14-12A-26 and 14-14-1 through 14-14-11 NMSA 1978 (being Laws 2003, Chapter 286, Sections 1 through 26 and Laws 1993, Chapter 281, Sections 1 through 11) are repealed.

SECTION 37. APPLICABILITY.--The provisions of this act apply to notarial acts performed in this state on and after January 1, 2022.

SECTION 38. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2022.

- 48 -