law-notary-public | proper notarization | affidavits not properly notarized | defects in affidavit summary judgment
proof
Section 312.011(1) of the Texas Government Code defines an affidavit as a "statement in writing of a fact or
facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially
certified to by the officer under his seal of office." Tex. Gov't Code Ann. § 312.011(1) (Vernon 2005). An
affidavit without a notary's seal is not properly notarized and therefore, is defective. Venable v. State, 113 S.W.
3d 797, 800 (Tex. App.-Beaumont 2003, pet. ref'd); see also Wilie v. Signature Geophysical Services, Inc., 65 S.
W.3d 355, 361 (Tex. App.-Houston [14th Dist.] 2001, pet. denied).
HOUSTON CASE LAW ON NOTARIZATION
United Fire & Casualty Company v. Boring & Tunneling Company of America
(Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Keyes) (construction bond, notice provisions of the McGregor Act
substantially complied with, sworn statement was defective in that notary signature and seal was missing, but
issue overruled as a technicality)
Here, although Bortunco’s sworn statement is missing the official certification by the notary to qualify as a affidavit, it is
uncontested that Bortunco’s agent swore to the statement before an “officer authorized to administer oaths” and signed the
statement in the notary’s presence. Likewise, the notice otherwise supplies the statutorily required statements and information
and was delivered by the required deadline. Bortunco’s notification was only deficient because of the nortary’s clerical error in
failing to attach her signature and seal before mailing the document.
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Evelyn Keyes
Before Justices Keyes, Hanks and Sharp
01-08-00487-CV United Fire & Casualty Company v. Boring & Tunneling Company of America d/b/a Bortunco
Appeal from 270th District Court of Harris County
Trial Court Judge: Hon. Brent Gamble
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