TX
Texas House Bill HB1217

Texas 2017 - 85th Regular

Texas House Bill HB1217 Compare Versions

OldNewDifferences
1-By: Parker (Senate Sponsor - Creighton) H.B. No. 1217
2- (In the Senate - Received from the House May 8, 2017;
3- May 9, 2017, read first time and referred to Committee on State
4- Affairs; May 15, 2017, reported favorably by the following vote:
5- Yeas 8, Nays 0; May 15, 2017, sent to printer.)
6-Click here to see the committee vote
1+H.B. No. 1217
72
83
9- A BILL TO BE ENTITLED
104 AN ACT
115 relating to appointment of and performance of notarial acts by an
126 online notary public and online acknowledgment and proof of written
137 instruments; authorizing a fee and creating a criminal offense.
148 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
159 SECTION 1. Section 121.006, Civil Practice and Remedies
1610 Code, is amended by adding Subsections (c) and (d) to read as
1711 follows:
1812 (c) For purposes of Subsection (b), a person may personally
1913 appear before the officer taking the acknowledgment by:
2014 (1) physically appearing before the officer; or
2115 (2) appearing by an interactive two-way audio and
2216 video communication that meets the online notarization
2317 requirements under Subchapter C, Chapter 406, Government Code, and
2418 rules adopted under that subchapter.
2519 (d) The acknowledgment form provided by this chapter must
2620 include a space for an online notarization as defined by Section
2721 406.101, Government Code, to indicate by which method described by
2822 Subsection (c) the acknowledging person appeared before the
2923 officer.
3024 SECTION 2. Chapter 121, Civil Practice and Remedies Code,
3125 is amended by adding Section 121.016 to read as follows:
3226 Sec. 121.016. EFFECT OF OTHER LAW. To the extent that a
3327 provision of this chapter conflicts with Subchapter C, Chapter 406,
3428 Government Code, that subchapter controls with respect to an online
3529 notarization as defined by Section 406.101, Government Code.
3630 SECTION 3. Chapter 406, Government Code, is amended by
3731 adding Subchapter C to read as follows:
3832 SUBCHAPTER C. ONLINE NOTARY PUBLIC
3933 Sec. 406.101. DEFINITIONS. In this subchapter:
4034 (1) "Credential analysis" means a process or service
4135 operating according to criteria approved by the secretary of state
4236 through which a third person affirms the validity of a
4337 government-issued identification credential through review of
4438 public and proprietary data sources.
4539 (2) "Electronic" means relating to technology having
4640 electrical, digital, magnetic, wireless, optical, electromagnetic,
4741 or similar capabilities.
4842 (3) "Electronic document" means information that is
4943 created, generated, sent, communicated, received, or stored by
5044 electronic means.
5145 (4) "Electronic notarial certificate" means the
5246 portion of a notarized electronic document that is completed by an
5347 online notary public and contains the following:
5448 (A) the online notary public's electronic
5549 signature, electronic seal, title, and commission expiration date;
5650 (B) other required information concerning the
5751 date and place of the online notarization; and
5852 (C) the facts attested to or certified by the
5953 online notary public in the particular notarization.
6054 (5) "Electronic seal" means information within a
6155 notarized electronic document that confirms the online notary
6256 public's name, jurisdiction, identifying number, and commission
6357 expiration date and generally corresponds to information in notary
6458 seals used on paper documents.
6559 (6) "Electronic signature" means an electronic sound,
6660 symbol, or process attached to or logically associated with an
6761 electronic document and executed or adopted by a person with the
6862 intent to sign the electronic document.
6963 (7) "Identity proofing" means a process or service
7064 operating according to criteria approved by the secretary of state
7165 through which a third person affirms the identity of an individual
7266 through review of personal information from public and proprietary
7367 data sources.
7468 (8) "Notarial act" means the performance by an online
7569 notary public of a function authorized under Section 406.016.
7670 (9) "Online notarization" means a notarial act
7771 performed by means of two-way video and audio conference technology
7872 that meets the standards adopted under Section 406.104.
7973 (10) "Online notary public" means a notary public who
8074 has been authorized by the secretary of state to perform online
8175 notarizations under this subchapter.
8276 (11) "Principal" means an individual:
8377 (A) whose electronic signature is notarized in an
8478 online notarization; or
8579 (B) taking an oath or affirmation from the online
8680 notary public but not in the capacity of a witness for the online
8781 notarization.
8882 (12) "Remote presentation" means transmission to the
8983 online notary public through communication technology of an image
9084 of a government-issued identification credential that is of
9185 sufficient quality to enable the online notary public to:
9286 (A) identify the individual seeking the online
9387 notary public's services; and
9488 (B) perform credential analysis.
9589 Sec. 406.102. APPLICABILITY OF SUBCHAPTER. This subchapter
9690 applies only to an online notarization.
9791 Sec. 406.103. RULEMAKING. The secretary of state may adopt
9892 rules necessary to implement this subchapter, including rules to
9993 facilitate online notarizations.
10094 Sec. 406.104. STANDARDS FOR ONLINE NOTARIZATION. (a) The
10195 secretary of state by rule shall develop and maintain standards for
10296 online notarization in accordance with this subchapter, including
10397 standards for credential analysis and identity proofing.
10498 (b) The secretary of state may confer with the Department of
10599 Information Resources or other appropriate state agency on matters
106100 relating to equipment, security, and technological aspects of the
107101 online notarization standards.
108102 Sec. 406.105. APPLICATION; QUALIFICATIONS. (a) A notary
109103 public or an applicant for appointment as a notary public under
110104 Subchapter A may apply to the secretary of state to be appointed and
111105 commissioned as an online notary public in the manner provided by
112106 this section.
113107 (b) A person qualifies to be appointed as an online notary
114108 public by:
115109 (1) satisfying the qualification requirements for
116110 appointment as a notary public under Subchapter A;
117111 (2) paying the application fee described by Subsection
118112 (d); and
119113 (3) electronically submitting to the secretary of
120114 state an application in the form prescribed by the secretary of
121115 state that satisfies the secretary of state that the applicant is
122116 qualified.
123117 (c) The application required by Subsection (b) must
124118 include:
125119 (1) the applicant's name to be used in acting as a
126120 notary public;
127121 (2) a certification that the applicant will comply
128122 with the secretary of state's standards developed under Section
129123 406.104; and
130124 (3) an e-mail address of the applicant.
131125 (d) The secretary of state may charge a fee for an
132126 application submitted under this section in an amount necessary to
133127 administer this subchapter.
134128 Sec. 406.106. PERFORMANCE OF NOTARIAL ACTS. An online
135129 notary public:
136130 (1) is a notary public for purposes of Subchapter A and
137131 is subject to that subchapter to the same extent as a notary public
138132 appointed and commissioned under that subchapter;
139133 (2) may perform notarial acts as provided by
140134 Subchapter A in addition to performing online notarizations; and
141135 (3) may perform an online notarization authorized
142136 under this subchapter.
143137 Sec. 406.107. AUTHORITY TO PERFORM ONLINE NOTARIZATIONS.
144138 An online notary public has the authority to perform any of the
145139 functions authorized under Section 406.016 as an online
146140 notarization.
147141 Sec. 406.108. ELECTRONIC RECORD OF ONLINE NOTARIZATIONS.
148142 (a) An online notary public shall keep a secure electronic record
149143 of electronic documents notarized by the online notary public. The
150144 electronic record must contain for each online notarization:
151145 (1) the date and time of the notarization;
152146 (2) the type of notarial act;
153147 (3) the type, the title, or a description of the
154148 electronic document or proceeding;
155149 (4) the printed name and address of each principal
156150 involved in the transaction or proceeding;
157151 (5) evidence of identity of each principal involved in
158152 the transaction or proceeding in the form of:
159153 (A) a statement that the person is personally
160154 known to the online notary public;
161155 (B) a notation of the type of identification
162156 document provided to the online notary public;
163157 (C) a record of the identity verification made
164158 under Section 406.110, if applicable; or
165159 (D) the following:
166160 (i) the printed name and address of each
167161 credible witness swearing to or affirming the person's identity;
168162 and
169163 (ii) for each credible witness not
170164 personally known to the online notary public, a description of the
171165 type of identification documents provided to the online notary
172166 public;
173167 (6) a recording of any video and audio conference that
174168 is the basis for satisfactory evidence of identity and a notation of
175169 the type of identification presented as evidence; and
176170 (7) the fee, if any, charged for the notarization.
177171 (b) The online notary public shall take reasonable steps to:
178172 (1) ensure the integrity, security, and authenticity
179173 of online notarizations;
180174 (2) maintain a backup for the electronic record
181175 required by Subsection (a); and
182176 (3) protect the backup record from unauthorized use.
183177 (c) The electronic record required by Subsection (a) shall
184178 be maintained for at least five years after the date of the
185179 transaction or proceeding.
186180 Sec. 406.109. USE OF ELECTRONIC RECORD, SIGNATURE, AND
187181 SEAL. (a) An online notary public shall take reasonable steps to
188182 ensure that any registered device used to create an electronic
189183 signature is current and has not been revoked or terminated by the
190184 device's issuing or registering authority.
191185 (b) An online notary public shall keep the online notary
192186 public's electronic record, electronic signature, and electronic
193187 seal secure and under the online notary public's exclusive control.
194188 The online notary public may not allow another person to use the
195189 online notary public's electronic record, electronic signature, or
196190 electronic seal.
197191 (c) An online notary public may use the online notary
198192 public's electronic signature only for performing online
199193 notarization.
200194 (d) An online notary public shall attach the online notary
201195 public's electronic signature and seal to the electronic notarial
202196 certificate of an electronic document in a manner that is capable of
203197 independent verification and renders any subsequent change or
204198 modification to the electronic document evident.
205199 (e) An online notary public shall immediately notify an
206200 appropriate law enforcement agency and the secretary of state of
207201 the theft or vandalism of the online notary public's electronic
208202 record, electronic signature, or electronic seal. An online notary
209203 public shall immediately notify the secretary of state of the loss
210204 or use by another person of the online notary public's electronic
211205 record, electronic signature, or electronic seal.
212206 Sec. 406.110. ONLINE NOTARIZATION PROCEDURES. (a) An
213207 online notary public may perform an online notarization authorized
214208 under Section 406.107 that meets the requirements of this
215209 subchapter and rules adopted under this subchapter regardless of
216210 whether the principal is physically located in this state at the
217211 time of the online notarization.
218212 (b) In performing an online notarization, an online notary
219213 public shall verify the identity of a person creating an electronic
220214 signature at the time that the signature is taken by using two-way
221215 video and audio conference technology that meets the requirements
222216 of this subchapter and rules adopted under this subchapter.
223217 Identity may be verified by:
224218 (1) the online notary public's personal knowledge of
225219 the person creating the electronic signature; or
226220 (2) each of the following:
227221 (A) remote presentation by the person creating
228222 the electronic signature of a government-issued identification
229223 credential, including a passport or driver's license, that contains
230224 the signature and a photograph of the person;
231225 (B) credential analysis of the credential
232226 described by Paragraph (A); and
233227 (C) identity proofing of the person described by
234228 Paragraph (A).
235229 (c) The online notary public shall take reasonable steps to
236230 ensure that the two-way video and audio communication used in an
237231 online notarization is secure from unauthorized interception.
238232 (d) The electronic notarial certificate for an online
239233 notarization must include a notation that the notarization is an
240234 online notarization.
241235 Sec. 406.111. FEES FOR ONLINE NOTARIZATION. An online
242236 notary public or the online notary public's employer may charge a
243237 fee in an amount not to exceed $25 for performing an online
244238 notarization in addition to any other fees authorized under Section
245239 406.024.
246240 Sec. 406.112. TERMINATION OF ONLINE NOTARY PUBLIC'S
247241 COMMISSION. (a) Except as provided by Subsection (b), an online
248242 notary public whose commission terminates shall destroy the coding,
249243 disk, certificate, card, software, or password that enables
250244 electronic affixation of the online notary public's official
251245 electronic signature or seal. The online notary public shall
252246 certify compliance with this subsection to the secretary of state.
253247 (b) A former online notary public whose commission
254248 terminated for a reason other than revocation or a denial of renewal
255249 is not required to destroy the items described by Subsection (a) if
256250 the former online notary public is recommissioned as an online
257251 notary public with the same electronic signature and seal within
258252 three months after the former online notary public's former
259253 commission terminated.
260254 Sec. 406.113. WRONGFUL POSSESSION OF SOFTWARE OR HARDWARE;
261255 CRIMINAL OFFENSE. (a) A person who, without authorization,
262256 knowingly obtains, conceals, damages, or destroys the certificate,
263257 disk, coding, card, program, software, or hardware enabling an
264258 online notary public to affix an official electronic signature or
265259 seal commits an offense.
266260 (b) An offense under this section is a Class A misdemeanor.
267261 SECTION 4. This Act takes effect July 1, 2018.
268- * * * * *
262+ ______________________________ ______________________________
263+ President of the Senate Speaker of the House
264+ I certify that H.B. No. 1217 was passed by the House on May 6,
265+ 2017, by the following vote: Yeas 141, Nays 1, 2 present, not
266+ voting.
267+ ______________________________
268+ Chief Clerk of the House
269+ I certify that H.B. No. 1217 was passed by the Senate on May
270+ 22, 2017, by the following vote: Yeas 27, Nays 3.
271+ ______________________________
272+ Secretary of the Senate
273+ APPROVED: _____________________
274+ Date
275+ _____________________
276+ Governor