Texas 2015 - 84th Regular

Texas House Bill HB2183 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	84R6531 MTB-F
2	2	By: Leach H.B. No. 2183
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the adoption of the Uniform Fiduciary Access to Digital
8	8	Assets Act.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. The Estates Code is amended by adding Title 4 to
11	11	read as follows:
12	12	TITLE 4. DIGITAL ASSETS
13	13	CHAPTER 2001. UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT
14	14	Sec. 2001.001. SHORT TITLE. This chapter may be cited as
15	15	the Uniform Fiduciary Access to Digital Assets Act.
16	16	Sec. 2001.002. DEFINITIONS. In this chapter:
17	17	(1) "Account holder" means:
18	18	(A) a person that has entered into a
19	19	terms-of-service agreement; and
20	20	(B) a fiduciary for a person described in
21	21	Paragraph (A).
22	22	(2) "Agent" means an attorney in fact granted
23	23	authority under a durable or nondurable power of attorney.
24	24	(3) "Catalogue of electronic communications" means
25	25	information that identifies each person with whom an account holder
26	26	has had an electronic communication, the time and date of the
27	27	communication, and the electronic mail address of the person.
28	28	(4) "Content of an electronic communication" means
29	29	information not readily accessible to the public concerning the
30	30	substance or meaning of an electronic communication.
31	31	(5) "Custodian" means a person that carries,
32	32	maintains, or stores a digital asset of an account holder.
33	33	(6) "Digital asset" means an electronic record. The
34	34	term does not include an underlying asset or liability unless the
35	35	asset or liability is itself an electronic record.
36	36	(7) "Electronic" means relating to technology having
37	37	electrical, digital, magnetic, wireless, optical, electromagnetic,
38	38	or similar capabilities.
39	39	(8) "Electronic communication" means a digital asset
40	40	stored by an electronic-communication service or carried or
41	41	maintained by a remote-computing service. The term includes the
42	42	catalogue of electronic communications and the content of an
43	43	electronic communication.
44	44	(9) "Electronic-communication service" means a
45	45	custodian that provides to the public the ability to send or receive
46	46	an electronic communication.
47	47	(10) "Fiduciary" means a person that is a personal
48	48	representative, guardian of the estate, agent, or trustee.
49	49	(11) "Governing instrument" means a will, trust,
50	50	instrument creating a power of attorney, or other dispositive or
51	51	nominative instrument.
52	52	(12) "Guardian" has the meaning assigned by Section
53	53	1002.012.
54	54	(13) "Information" means data, text, images, videos,
55	55	sounds, codes, computer programs, software, databases, or other
56	56	similar items.
57	57	(14) Notwithstanding Section 22.027, "person" means
58	58	an individual, estate, business or nonprofit entity, public
59	59	corporation, government or governmental subdivision, agency, or
60	60	instrumentality, or other legal entity.
61	61	(15) "Power of attorney" means a record that grants an
62	62	agent authority to act in the place of a principal.
63	63	(16) "Principal" means an individual who grants
64	64	authority to an agent in a power of attorney.
65	65	(17) "Record" means information that is inscribed on a
66	66	tangible medium or that is stored in an electronic or other medium
67	67	and is retrievable in perceivable form.
68	68	(18) "Remote-computing service" means a custodian
69	69	that provides to the public computer processing services or the
70	70	storage of digital assets by means of an electronic communications
71	71	system, as defined in 18 U.S.C. Section 2510(14).
72	72	(19) "Terms-of-service agreement" means an agreement
73	73	that controls the relationship between an account holder and a
74	74	custodian.
75	75	(20) "Trustee" means a fiduciary with legal title to
76	76	an asset under an agreement or declaration that creates a
77	77	beneficial interest in others.
78	78	Sec. 2001.003. ACCESS BY PERSONAL REPRESENTATIVE TO DIGITAL
79	79	ASSETS OF DECEDENT. Unless otherwise provided by a court or the
80	80	will of a decedent, a personal representative of the estate of a
81	81	decedent may access:
82	82	(1) the content of an electronic communication sent or
83	83	received by the decedent only if the electronic-communication
84	84	service or remote-computing service is permitted to disclose the
85	85	content under 18 U.S.C. Section 2702(b);
86	86	(2) the catalogue of electronic communications sent or
87	87	received by the decedent; and
88	88	(3) any other digital asset in which the decedent at
89	89	death had a right or interest.
90	90	Sec. 2001.004. ACCESS BY GUARDIAN TO DIGITAL ASSETS OF
91	91	WARD. The court, after an opportunity for a hearing, may authorize
92	92	a guardian of the ward's estate to access:
93	93	(1) the content of an electronic communication sent or
94	94	received by the ward only if the electronic-communication service
95	95	or remote-computing service is permitted to disclose the content
96	96	under 18 U.S.C. Section 2702(b);
97	97	(2) the catalogue of electronic communications sent or
98	98	received by the ward; and
99	99	(3) any other digital asset in which the ward has a
100	100	right or interest.
101	101	Sec. 2001.005. ACCESS BY AGENT TO DIGITAL ASSETS OF
102	102	PRINCIPAL. (a) To the extent a power of attorney expressly grants
103	103	authority to an agent over the content of an electronic
104	104	communication of the principal, the agent may access the content of
105	105	an electronic communication sent or received by the principal if
106	106	the electronic-communication service or remote-computing service
107	107	is permitted to disclose the content under 18 U.S.C. Section
108	108	2702(b).
109	109	(b) Unless otherwise provided by a power of attorney or the
110	110	court, an agent may access:
111	111	(1) the catalogue of electronic communications sent or
112	112	received by the principal; and
113	113	(2) any other digital asset in which the principal has
114	114	a right or interest.
115	115	Sec. 2001.006. ACCESS BY TRUSTEE TO DIGITAL ASSETS. Unless
116	116	otherwise provided by a court or the settlor in the terms of a
117	117	trust:
118	118	(1) a trustee that is an original account holder, or a
119	119	successor of the trustee, may access each digital asset held in
120	120	trust, including the catalogue of electronic communications sent or
121	121	received by the trustee and the content of an electronic
122	122	communication; and
123	123	(2) a trustee that is not an original account holder,
124	124	or a successor of the trustee, may access:
125	125	(A) the content of an electronic communication
126	126	sent or received by the original or any successor account holder
127	127	only if the electronic-communication service or remote-computing
128	128	service is permitted to disclose the content under 18 U.S.C.
129	129	Section 2702(b);
130	130	(B) the catalogue of electronic communications
131	131	sent or received by the original or any successor account holder;
132	132	and
133	133	(C) any other digital asset of the original or
134	134	any successor account holder.
135	135	Sec. 2001.007. FIDUCIARY AUTHORITY. (a) A fiduciary that
136	136	is an account holder or has the right to access a digital asset of an
137	137	account holder:
138	138	(1) subject to the terms-of-service agreement and
139	139	copyright or other applicable law, may take any action concerning
140	140	the asset to the extent of the account holder's authority and the
141	141	fiduciary's powers under the law of this state;
142	142	(2) has, under applicable electronic privacy laws, the
143	143	lawful consent of the account holder for the custodian to divulge
144	144	the content of an electronic communication to the fiduciary; and
145	145	(3) is, under applicable computer fraud and
146	146	unauthorized-access laws, an authorized user.
147	147	(b) If a provision in a terms-of-service agreement limits a
148	148	fiduciary's access to the digital assets of the account holder, the
149	149	provision is void as against the public policy of this state, unless
150	150	the account holder, after September 1, 2015, agreed to the
151	151	provision by an affirmative act separate from the account holder's
152	152	assent to other provisions of the terms-of-service agreement.
153	153	(c) A choice-of-law provision in a terms-of-service
154	154	agreement is unenforceable against a fiduciary acting under this
155	155	chapter to the extent the provision designates law that enforces a
156	156	limitation on a fiduciary's access to digital assets that is void
157	157	under Subsection (b).
158	158	(d) A fiduciary's access under this chapter to a digital
159	159	asset does not violate a terms-of-service agreement,
160	160	notwithstanding a provision of the agreement that limits
161	161	third-party access or requires notice of change in the account
162	162	holder's status.
163	163	(e) If tangible personal property of a decedent, ward,
164	164	principal, or settlor can receive, store, process, or send a
165	165	digital asset, a fiduciary with authority over the property may
166	166	access the property and any digital asset stored in it. The
167	167	fiduciary is an authorized user for purposes of any applicable
168	168	computer fraud and unauthorized-access laws.
169	169	Sec. 2001.008. COMPLIANCE. (a) If a fiduciary with a right
170	170	under this chapter to access a digital asset of an account holder
171	171	complies with Subsection (b), the custodian shall comply with the
172	172	fiduciary's request for:
173	173	(1) access to the asset;
174	174	(2) control of the asset; and
175	175	(3) a copy of the asset to the extent permitted by
176	176	copyright law.
177	177	(b) If a request under Subsection (a) is made by:
178	178	(1) a personal representative with a right of access
179	179	under Section 2001.003, the request must be accompanied by a
180	180	certified copy of the letters testamentary or of administration
181	181	appointing the representative;
182	182	(2) a guardian of the estate with the right of access
183	183	under Section 2001.004, the request must be accompanied by a
184	184	certified copy of the court order that gives the guardian authority
185	185	over the digital asset;
186	186	(3) an agent with the right of access under Section
187	187	2001.005, the request must be accompanied by an original or a copy
188	188	of the power of attorney that authorizes the agent to exercise
189	189	authority over the digital asset and a certification of the agent,
190	190	under penalty of perjury, that the power of attorney is in effect;
191	191	and
192	192	(4) a trustee with the right of access under Section
193	193	2001.006, the request must be accompanied by a certified copy of the
194	194	trust instrument, or a certification of the trust under Section
195	195	114.086, Property Code, that authorizes the trustee to exercise
196	196	authority over the digital asset.
197	197	(c) A custodian shall comply with a request made under
198	198	Subsection (a) not later than 60 days after receipt. If the
199	199	custodian fails to comply, the fiduciary may apply to the court for
200	200	an order directing compliance.
201	201	(d) This section does not limit the right of a person to
202	202	obtain a copy of a trust instrument in a judicial proceeding
203	203	concerning the trust.
204	204	Sec. 2001.009. CUSTODIAN IMMUNITY. A custodian and the
205	205	custodian's officers, employees, and agents are immune from
206	206	liability for any act done in good faith in compliance with this
207	207	chapter.
208	208	Sec. 2001.010. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
209	209	In applying and construing this uniform act, consideration must be
210	210	given to the need to promote uniformity of the law with respect to
211	211	its subject matter among states that enact it.
212	212	Sec. 2001.011. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
213	213	AND NATIONAL COMMERCE ACT. This chapter modifies, limits, and
214	214	supersedes the Electronic Signatures in Global and National
215	215	Commerce Act (15 U.S.C. Section 7001 et seq.), but does not modify,
216	216	limit, or supersede Section 101(c) of that Act (15 U.S.C. Section
217	217	7001(c)) or authorize electronic delivery of any of the notices
218	218	described in Section 103(b) of that Act (15 U.S.C. Section
219	219	7003(b)).
220	220	SECTION 2. This Act applies to:
221	221	(1) a fiduciary or agent acting under a will, trust, or
222	222	power of attorney executed before, on, or after the effective date
223	223	of this Act;
224	224	(2) a personal representative acting for a decedent
225	225	who died before, on, or after the effective date of this Act; and
226	226	(3) a guardianship proceeding pending or commenced
227	227	before, on, or after the effective date of this Act.
228	228	SECTION 3. This Act takes effect September 1, 2015.