§ 121.009.Proof of Acknowledgment by Witness

The alternative to acknowledgment, used where the person who executed the instrument will not or cannot appear.

At least one of the witnesses who signed the instrument must personally appear before an officer authorized to take proofs and must swear to two things.

First, execution: either that he saw the grantor or person who executed the instrument sign it, or that that person acknowledged in the presence of the witness that he executed it for the purposes and consideration expressed in it.

Either alternative suffices, so a witness who arrived after the signing can still prove the instrument if the signer confirmed it in their presence.

Second, the witness’s own role: that he signed the instrument at the request of the grantor or person who executed it.

That second oath is what distinguishes a subscribing witness from a bystander. Signing at the signer’s request is what makes the witness part of the execution rather than an observer of it.

The officer must make a certificate of the testimony and sign and officially seal it.

Subsection (c) applies the identity rule to the witness. The officer may take the testimony only if the officer personally knows or has satisfactory evidence on the oath of a credible witness that the individual testifying is the person who signed as a witness — and must note the use of that evidence in the certificate.

Note how the identification routes differ here. For proof by a witness the section names personal knowledge or a credible witness’s oath, where the acknowledgment section also allows an identification document.