85R5949 SCL-F
By: Parker H.B. No. 1217
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.
(8) "Online notarization" means the performance of an
electronic notarization by means of two-way video and audio
conference technology that meets the standards adopted under
Section 406.103.
Sec. 406.102. APPLICABILITY OF SUBCHAPTER. This subchapter
applies only to an electronic notarization relating to:
(1) a document involving real estate located in this
state;
(2) an agreement performable wholly or partly in this
state;
(3) an agreement or instrument creating a debt that is
payable at a location in this state;
(4) an agreement that specifically requires the
application of the laws of this state;
(5) a document, including an affidavit, that is
intended to be filed or used in a court located in this state; or
(6) an acknowledgment or affirmation made by a person
while the person is located in this state.
Sec. 406.103. 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. 406.104. 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 (c), 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 certification of compliance with the secretary
of state's standards developed under Section 406.103; and
(3) an e-mail address of the applicant.
(c) The secretary of state may charge a fee for an
application submitted under this section in an amount necessary to
administer this subchapter.
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; or
(C) the following:
(i) the printed name and address of each
credible witness swearing to or affirming the person's identity;
(ii) 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; and
(iii) 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. ONLINE NOTARIZATION REQUIREMENTS. (a) An
electronic notary public may perform an online notarization that
meets the requirements of this section and rules adopted under this
subchapter.
(b) In performing an online notarization, an electronic
notary public shall verify the identity of a person creating an
electronic signature at the time that the signature is taken by
using two-way video and audio conference technology that meets the
requirements of this subchapter and rules adopted under this
subchapter. Identity may be verified by:
(1) the electronic notary public's personal knowledge
of the person creating the electronic signature;
(2) using an in-person identity proofing process that
meets the specifications of the Federal Bridge Certification
Authority before the online notarization;
(3) using a valid digital certificate accessed by
biometric data; or
(4) using an interoperable personal identity
verification card that is designed, issued, and managed in
accordance with the specifications in:
(A) Personal Identity Verification of Federal
Employees and Contractors published by the National Institute of
Standards and Technology;
(B) Personal Identity Verification
Interoperability for Non-Federal Issuers published by the Federal
Chief Information Officers Council; and
(C) any supplements or revisions to the
publications described by Paragraphs (A) and (B).
(c) If an electronic notary public verifies an identity
under Subsection (b)(3) or (4), the electronic notary public's
electronic notarization system must ensure that the digital
certificate or personal identity verification card is current and
has not been revoked at the time the online notarization is
performed.
(d) The electronic notary public shall take reasonable
steps to ensure that the two-way video and audio communication used
in an online notarization is secure from unauthorized interception.
(e) The electronic notarial certificate for an online
notarization must include a notation that the notarization is an
online notarization.
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 January 1, 2018.