84R14465 SCL-F
By: Sanford H.B. No. 3309
A BILL TO BE ENTITLED
AN ACT
relating to appointment of and performance of notarial acts by an
electronic notary public; authorizing a fee and creating a criminal
offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 406, Government Code, is amended by
adding Subchapter C to read as follows:
SUBCHAPTER C. ELECTRONIC NOTARY PUBLIC
Sec. 406.101. DEFINITIONS. In this subchapter:
(1) "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic,
or similar capabilities.
(2) "Electronic document" means information that is
created, generated, sent, communicated, received, or stored by
electronic means.
(3) "Electronic notarial certificate" means the
portion of a notarized electronic document that is completed by the
electronic notary public and contains the following:
(A) the electronic notary public's electronic
signature, title, and commission expiration date;
(B) other required information concerning the
date and place of the electronic notarization; and
(C) the facts attested to or certified by the
electronic notary public in the particular notarization.
(4) "Electronic notarization" means an official act by
an electronic notary public under this subchapter or as otherwise
authorized by law that involves an electronic document.
(5) "Electronic notary public" means a notary public
who has been authorized by the secretary of state to notarize
electronic documents.
(6) "Electronic seal" means information within a
notarized electronic document that confirms the electronic notary
public's name, jurisdiction, and commission expiration date and
generally corresponds to information in notary seals used on paper
documents.
(7) "Electronic signature" means an electronic sound,
symbol, or process attached to or logically associated with an
electronic document and executed or adopted by a person with the
intent to sign the electronic document.
Sec. 406.102. STANDARDS FOR ELECTRONIC NOTARIZATION. The
secretary of state by rule shall develop and maintain standards for
electronic notarization in accordance with this subchapter. The
secretary of state may confer with the Department of Information
Resources or other appropriate state agency on matters relating to
equipment, security, and technological aspects of the electronic
notarization standards.
Sec. 406.103. APPLICATION; QUALIFICATIONS. (a) A notary
public or an applicant for appointment as a notary public under
Subchapter A may apply to the secretary of state to be appointed and
commissioned as an electronic notary public in the manner provided
by this section.
(b) A person qualifies to be appointed as an electronic
notary public by satisfying the qualification requirements for
appointment as a notary public under Subchapter A, paying the
application fee described by Subsection (d), and electronically
submitting to the secretary of state an application in the form
prescribed by the secretary of state that satisfies the secretary
of state that the applicant is qualified. The application must
include:
(1) the applicant's full legal and official notary
names;
(2) a general description of the technology that the
applicant will use to create an electronic signature in performing
official acts;
(3) a certification of compliance with the secretary
of state's standards developed under Section 406.102;
(4) an e-mail address of the applicant; and
(5) a decrypting instruction, code, or key or
decrypting software that allows the electronic information in the
application to be read.
(c) The application described by Subsection (b) must be
signed by the applicant using the electronic signature described in
the application.
(d) The secretary of state may charge a fee of $10 for an
application submitted under this section.
Sec. 406.104. UPDATED TECHNOLOGY. If an electronic notary
public begins using technology to perform the electronic notary
public's duties other than the technology described by the
electronic notary public's application under Section 406.103, the
electronic notary public shall notify the secretary of state of the
use of the updated technology and provide a description of the
updated technology not later than the 90th day after the date the
electronic notary public begins to use the updated technology.
Sec. 406.105. PERFORMANCE OF NOTARIAL ACTS. An electronic
notary public:
(1) is a notary public for purposes of Subchapter A and
is subject to that subchapter to the same extent as a notary public
appointed and commissioned under that subchapter; and
(2) may perform notarial acts as provided by
Subchapter A in addition to performing electronic notarizations.
Sec. 406.106. ELECTRONIC RECORD OF ELECTRONIC
NOTARIZATIONS. (a) An electronic notary public shall keep a secure
electronic record of electronic documents notarized by the
electronic notary public. The electronic record must contain for
each electronic notarization:
(1) the date and time of the notarization;
(2) the type of notarization;
(3) the type, the title, or a description of the
electronic document or proceeding;
(4) the printed name and address of each principal
involved in the transaction or proceeding;
(5) evidence of identity of each principal involved in
the transaction or proceeding in the form of:
(A) a statement that the person is personally
known to the electronic notary public;
(B) a notation of the type of identification
document provided to the electronic notary public;
(C) the printed name and address of each credible
witness swearing to or affirming the person's identity and for each
credible witness not personally known to the electronic notary
public, a description of the type of identification documents
provided to the electronic notary public; or
(D) a recording of any video and audio conference
that is the basis for satisfactory evidence of identity and a
notation of the type of identification presented as evidence; and
(6) the fee, if any, charged for the notarization.
(b) The electronic notary public shall take reasonable
steps to:
(1) ensure the integrity, security, and authenticity
of electronic notarizations;
(2) maintain a backup for the electronic record
required by Subsection (a); and
(3) protect the backup record from unauthorized use.
(c) The electronic record required by Subsection (a) shall
be maintained for at least five years after the date of the
transaction or proceeding.
Sec. 406.107. USE OF ELECTRONIC RECORD, ELECTRONIC
SIGNATURE, AND SEAL. (a) An electronic notary public shall take
reasonable steps to ensure that any registered device used to
create an electronic signature is current and has not been revoked
or terminated by the device's issuing or registering authority.
(b) An electronic notary public shall keep the electronic
notary public's electronic record, electronic signature, and
electronic seal secure and under the electronic notary public's
exclusive control. The electronic notary public may not allow
another person to use the electronic notary public's electronic
record, electronic signature, or electronic seal.
(c) An electronic notary public may use the electronic
notary public's electronic signature only for performing
electronic notarization.
(d) An electronic notary public shall attach the electronic
notary public's electronic signature and seal to the electronic
notarial certificate of an electronic document in a manner that is
capable of independent verification and renders any subsequent
change or modification to the electronic document evident.
(e) An electronic notary public shall immediately notify an
appropriate law enforcement agency and the secretary of state of
the theft or vandalism of the electronic notary public's electronic
record, electronic signature, or electronic seal. An electronic
notary public shall immediately notify the secretary of state of
the loss or use by another person of the electronic notary public's
electronic record, electronic signature, or electronic seal.
Sec. 406.108. NOTARIZED ELECTRONIC DOCUMENTS TRANSMITTED
OUTSIDE OF THIS STATE. (a) If electronic evidence of the
authenticity of an electronic notary public's official signature
and seal is required for a notarized electronic document
transmitted to another state or a foreign country, an electronic
notary public shall attach or logically associate that evidence in
the form of an electronic certificate of authenticity provided
under Subsection (b).
(b) The secretary of state shall provide an electronic
certificate of authenticity for purposes of Subsection (a) by
providing an independently verifiable document in a form
substantially similar to the following:
Certificate of Authenticity for an Electronic Notarization
I, _______________ (name and title), certify that
_______________ (name of electronic notary public), the person
named as an electronic notary public in the attached or associated
electronic document, was commissioned as an electronic notary
public for the State of Texas and authorized to act as an electronic
notary public at the time of the document's electronic
notarization.
To verify this certificate, I have included my electronic
signature this _____ day of __________ 20____
(Electronic signature and seal of commissioning official)
(c) The secretary of state may charge a fee for providing a
certificate of authenticity under this section.
Sec. 406.109. FEES FOR ELECTRONIC NOTARIZATION. An
electronic notary public may charge a fee in an amount not to exceed
$25 for performing an electronic notarization.
Sec. 406.110. TERMINATION OF ELECTRONIC NOTARY PUBLIC'S
COMMISSION. (a) Except as provided by Subsection (b), an
electronic notary public whose commission terminates shall destroy
the coding, disk, certificate, card, software, or password that
enables electronic affixation of the electronic notary public's
official electronic signature or seal. The electronic notary
public shall certify compliance with this subsection to the
secretary of state.
(b) A former electronic notary public whose commission
terminated for a reason other than revocation or a denial of renewal
is not required to destroy the items described by Subsection (a) if
the former electronic notary public is recommissioned as an
electronic notary public with the same electronic signature and
seal within three months after the former electronic notary
public's former commission terminated.
Sec. 406.111. WRONGFUL POSSESSION OF SOFTWARE OR HARDWARE;
CRIMINAL OFFENSE. A person who, without authorization, knowingly
obtains, conceals, damages, or destroys the certificate, disk,
coding, card, program, software, or hardware enabling an electronic
notary public to affix an official electronic signature or seal
commits an offense. An offense under this section is a Class A
misdemeanor.
SECTION 2. This Act takes effect September 1, 2015.