84R6531 MTB-F
By: Leach H.B. No. 2183
A BILL TO BE ENTITLED
AN ACT
relating to the adoption of the Uniform Fiduciary Access to Digital
Assets Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The Estates Code is amended by adding Title 4 to
read as follows:
TITLE 4. DIGITAL ASSETS
CHAPTER 2001. UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT
Sec. 2001.001. SHORT TITLE. This chapter may be cited as
the Uniform Fiduciary Access to Digital Assets Act.
Sec. 2001.002. DEFINITIONS. In this chapter:
(1) "Account holder" means:
(A) a person that has entered into a
terms-of-service agreement; and
(B) a fiduciary for a person described in
Paragraph (A).
(2) "Agent" means an attorney in fact granted
authority under a durable or nondurable power of attorney.
(3) "Catalogue of electronic communications" means
information that identifies each person with whom an account holder
has had an electronic communication, the time and date of the
communication, and the electronic mail address of the person.
(4) "Content of an electronic communication" means
information not readily accessible to the public concerning the
substance or meaning of an electronic communication.
(5) "Custodian" means a person that carries,
maintains, or stores a digital asset of an account holder.
(6) "Digital asset" means an electronic record. The
term does not include an underlying asset or liability unless the
asset or liability is itself an electronic record.
(7) "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic,
or similar capabilities.
(8) "Electronic communication" means a digital asset
stored by an electronic-communication service or carried or
maintained by a remote-computing service. The term includes the
catalogue of electronic communications and the content of an
electronic communication.
(9) "Electronic-communication service" means a
custodian that provides to the public the ability to send or receive
an electronic communication.
(10) "Fiduciary" means a person that is a personal
representative, guardian of the estate, agent, or trustee.
(11) "Governing instrument" means a will, trust,
instrument creating a power of attorney, or other dispositive or
nominative instrument.
(12) "Guardian" has the meaning assigned by Section
1002.012.
(13) "Information" means data, text, images, videos,
sounds, codes, computer programs, software, databases, or other
similar items.
(14) Notwithstanding Section 22.027, "person" means
an individual, estate, business or nonprofit entity, public
corporation, government or governmental subdivision, agency, or
instrumentality, or other legal entity.
(15) "Power of attorney" means a record that grants an
agent authority to act in the place of a principal.
(16) "Principal" means an individual who grants
authority to an agent in a power of attorney.
(17) "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.
(18) "Remote-computing service" means a custodian
that provides to the public computer processing services or the
storage of digital assets by means of an electronic communications
system, as defined in 18 U.S.C. Section 2510(14).
(19) "Terms-of-service agreement" means an agreement
that controls the relationship between an account holder and a
custodian.
(20) "Trustee" means a fiduciary with legal title to
an asset under an agreement or declaration that creates a
beneficial interest in others.
Sec. 2001.003. ACCESS BY PERSONAL REPRESENTATIVE TO DIGITAL
ASSETS OF DECEDENT. Unless otherwise provided by a court or the
will of a decedent, a personal representative of the estate of a
decedent may access:
(1) the content of an electronic communication sent or
received by the decedent only if the electronic-communication
service or remote-computing service is permitted to disclose the
content under 18 U.S.C. Section 2702(b);
(2) the catalogue of electronic communications sent or
received by the decedent; and
(3) any other digital asset in which the decedent at
death had a right or interest.
Sec. 2001.004. ACCESS BY GUARDIAN TO DIGITAL ASSETS OF
WARD. The court, after an opportunity for a hearing, may authorize
a guardian of the ward's estate to access:
(1) the content of an electronic communication sent or
received by the ward only if the electronic-communication service
or remote-computing service is permitted to disclose the content
under 18 U.S.C. Section 2702(b);
(2) the catalogue of electronic communications sent or
received by the ward; and
(3) any other digital asset in which the ward has a
right or interest.
Sec. 2001.005. ACCESS BY AGENT TO DIGITAL ASSETS OF
PRINCIPAL. (a) To the extent a power of attorney expressly grants
authority to an agent over the content of an electronic
communication of the principal, the agent may access the content of
an electronic communication sent or received by the principal if
the electronic-communication service or remote-computing service
is permitted to disclose the content under 18 U.S.C. Section
2702(b).
(b) Unless otherwise provided by a power of attorney or the
court, an agent may access:
(1) the catalogue of electronic communications sent or
received by the principal; and
(2) any other digital asset in which the principal has
a right or interest.
Sec. 2001.006. ACCESS BY TRUSTEE TO DIGITAL ASSETS. Unless
otherwise provided by a court or the settlor in the terms of a
trust:
(1) a trustee that is an original account holder, or a
successor of the trustee, may access each digital asset held in
trust, including the catalogue of electronic communications sent or
received by the trustee and the content of an electronic
communication; and
(2) a trustee that is not an original account holder,
or a successor of the trustee, may access:
(A) the content of an electronic communication
sent or received by the original or any successor account holder
only if the electronic-communication service or remote-computing
service is permitted to disclose the content under 18 U.S.C.
Section 2702(b);
(B) the catalogue of electronic communications
sent or received by the original or any successor account holder;
and
(C) any other digital asset of the original or
any successor account holder.
Sec. 2001.007. FIDUCIARY AUTHORITY. (a) A fiduciary that
is an account holder or has the right to access a digital asset of an
account holder:
(1) subject to the terms-of-service agreement and
copyright or other applicable law, may take any action concerning
the asset to the extent of the account holder's authority and the
fiduciary's powers under the law of this state;
(2) has, under applicable electronic privacy laws, the
lawful consent of the account holder for the custodian to divulge
the content of an electronic communication to the fiduciary; and
(3) is, under applicable computer fraud and
unauthorized-access laws, an authorized user.
(b) If a provision in a terms-of-service agreement limits a
fiduciary's access to the digital assets of the account holder, the
provision is void as against the public policy of this state, unless
the account holder, after September 1, 2015, agreed to the
provision by an affirmative act separate from the account holder's
assent to other provisions of the terms-of-service agreement.
(c) A choice-of-law provision in a terms-of-service
agreement is unenforceable against a fiduciary acting under this
chapter to the extent the provision designates law that enforces a
limitation on a fiduciary's access to digital assets that is void
under Subsection (b).
(d) A fiduciary's access under this chapter to a digital
asset does not violate a terms-of-service agreement,
notwithstanding a provision of the agreement that limits
third-party access or requires notice of change in the account
holder's status.
(e) If tangible personal property of a decedent, ward,
principal, or settlor can receive, store, process, or send a
digital asset, a fiduciary with authority over the property may
access the property and any digital asset stored in it. The
fiduciary is an authorized user for purposes of any applicable
computer fraud and unauthorized-access laws.
Sec. 2001.008. COMPLIANCE. (a) If a fiduciary with a right
under this chapter to access a digital asset of an account holder
complies with Subsection (b), the custodian shall comply with the
fiduciary's request for:
(1) access to the asset;
(2) control of the asset; and
(3) a copy of the asset to the extent permitted by
copyright law.
(b) If a request under Subsection (a) is made by:
(1) a personal representative with a right of access
under Section 2001.003, the request must be accompanied by a
certified copy of the letters testamentary or of administration
appointing the representative;
(2) a guardian of the estate with the right of access
under Section 2001.004, the request must be accompanied by a
certified copy of the court order that gives the guardian authority
over the digital asset;
(3) an agent with the right of access under Section
2001.005, the request must be accompanied by an original or a copy
of the power of attorney that authorizes the agent to exercise
authority over the digital asset and a certification of the agent,
under penalty of perjury, that the power of attorney is in effect;
and
(4) a trustee with the right of access under Section
2001.006, the request must be accompanied by a certified copy of the
trust instrument, or a certification of the trust under Section
114.086, Property Code, that authorizes the trustee to exercise
authority over the digital asset.
(c) A custodian shall comply with a request made under
Subsection (a) not later than 60 days after receipt. If the
custodian fails to comply, the fiduciary may apply to the court for
an order directing compliance.
(d) This section does not limit the right of a person to
obtain a copy of a trust instrument in a judicial proceeding
concerning the trust.
Sec. 2001.009. CUSTODIAN IMMUNITY. A custodian and the
custodian's officers, employees, and agents are immune from
liability for any act done in good faith in compliance with this
chapter.
Sec. 2001.010. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
In applying and construing this uniform act, consideration must be
given to the need to promote uniformity of the law with respect to
its subject matter among states that enact it.
Sec. 2001.011. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT. This chapter modifies, limits, and
supersedes the Electronic Signatures in Global and National
Commerce Act (15 U.S.C. Section 7001 et seq.), 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 2. This Act applies to:
(1) a fiduciary or agent acting under a will, trust, or
power of attorney executed before, on, or after the effective date
of this Act;
(2) a personal representative acting for a decedent
who died before, on, or after the effective date of this Act; and
(3) a guardianship proceeding pending or commenced
before, on, or after the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2015.