Texas 2023 - 88th Regular

Texas House Bill HB5004 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	88R20395 MZM-F
2	2	By: Capriglione H.B. No. 5004
3	3	Substitute the following for H.B. No. 5004:
4	4	By: Schofield C.S.H.B. No. 5004
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to online notarizations.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 406.101, Government Code, is amended by
12	12	adding Subdivisions (1-a), (13), and (14) and amending Subdivision
13	13	(11) to read as follows:
14	14	(1-a) "Document" means a tangible instrument or
15	15	electronic document.
16	16	(11) "Principal" means an individual:
17	17	(A) whose [electronic] signature is notarized in
18	18	an online notarization; or
19	19	(B) taking an oath or affirmation from the online
20	20	notary public but not in the capacity of a witness for the online
21	21	notarization.
22	22	(13) "Sign" means, with the present intent to
23	23	authenticate or adopt a record, to:
24	24	(A) execute or adopt a tangible symbol; or
25	25	(B) execute an electronic signature, as defined
26	26	by Section 322.002, Business & Commerce Code.
27	27	(14) "Signature" means a tangible symbol or electronic
28	28	signature that evidences the signing of a record executed or
29	29	adopted by a person with the intent to sign the document.
30	30	SECTION 2. Section 406.108, Government Code, is amended by
31	31	amending Subsection (a) and adding Subsection (d) to read as
32	32	follows:
33	33	(a) An online notary public shall keep a secure electronic
34	34	record of electronic documents notarized by the online notary
35	35	public. The electronic record must contain for each online
36	36	notarization:
37	37	(1) the date and time of the online notarization;
38	38	(2) the type of notarial act;
39	39	(3) the type, the title, or a description of the
40	40	[electronic] document or proceeding;
41	41	(4) the printed name and address of each principal
42	42	involved in the transaction or proceeding;
43	43	(5) evidence of identity of each principal involved in
44	44	the transaction or proceeding in the form of:
45	45	(A) a statement that the person is personally
46	46	known to the online notary public;
47	47	(B) a notation of the type of identification
48	48	document provided to the online notary public;
49	49	(C) a record of the identity verification made
50	50	under Section 406.110, if applicable; or
51	51	(D) the following:
52	52	(i) the printed name and address of each
53	53	credible witness swearing to or affirming the person's identity;
54	54	and
55	55	(ii) for each credible witness not
56	56	personally known to the online notary public, a description of the
57	57	type of identification documents provided to the online notary
58	58	public;
59	59	(6) a recording of any video and audio conference that
60	60	is the basis for satisfactory evidence of identity and a notation of
61	61	the type of identification presented as evidence; and
62	62	(7) the fee, if any, charged for the notarization.
63	63	(d) For documents that are tangible instruments, an online
64	64	notary public shall keep a record of the documents notarized by the
65	65	online notary public with a tangible symbol. The record for each
66	66	online notarization with a tangible symbol must contain the same
67	67	elements required by Subsection (a) for an electronic record.
68	68	SECTION 3. Section 406.109, Government Code, is amended by
69	69	adding Subsection (f) to read as follows:
70	70	(f) An online notary public shall authenticate all online
71	71	notarizations with the online notary public's:
72	72	(1) electronic seal, if the online notarization was
73	73	performed with respect to an electronic document; or
74	74	(2) seal of office as provided under Section 406.013,
75	75	if the online notarization was performed with respect to a tangible
76	76	document.
77	77	SECTION 4. The heading to Section 406.110, Government Code,
78	78	is amended to read as follows:
79	79	Sec. 406.110. ONLINE NOTARIZATION PROCEDURES GENERALLY.
80	80	SECTION 5. Sections 406.110(b) and (d), Government Code,
81	81	are amended to read as follows:
82	82	(b) In performing an online notarization, an online notary
83	83	public shall verify the identity of a person signing a document
84	84	[creating an electronic signature] at the time of the online
85	85	notarization [that the signature is taken] by using two-way video
86	86	and audio conference technology that meets the requirements of this
87	87	subchapter and rules adopted under this subchapter. Identity shall
88	88	[may] be verified by:
89	89	(1) the online notary public's personal knowledge of
90	90	the person signing a document [creating the electronic signature];
91	91	or
92	92	(2) each of the following:
93	93	(A) remote presentation by the person signing a
94	94	document [creating the electronic signature] of a
95	95	government-issued identification credential, including a passport
96	96	or driver's license, that contains the signature and a photograph
97	97	of the person;
98	98	(B) credential analysis of the credential
99	99	described by Paragraph (A); and
100	100	(C) identity proofing of the person described by
101	101	Paragraph (A).
102	102	(d) The [electronic] notarial certificate for an online
103	103	notarization must include a notation that the notarization is an
104	104	online notarization and must indicate if the signature was a
105	105	tangible symbol or an electronic signature.
106	106	SECTION 6. Subchapter C, Chapter 406, Government Code, is
107	107	amended by adding Sections 406.1103 and 406.1107 to read as
108	108	follows:
109	109	Sec. 406.1103. ONLINE NOTARIZATION PROCEDURES FOR TANGIBLE
110	110	DOCUMENTS. (a) In performing an online notarization in which the
111	111	principal signs with a tangible symbol and not an electronic
112	112	signature, an online notary public shall reasonably confirm that a
113	113	document before the online notary public is the same document in
114	114	which the principal made a statement or on which the principal
115	115	executed a signature.
116	116	(b) An online notary public satisfies the requirement of
117	117	Subsection (a) to take an acknowledgment of a signature on a
118	118	tangible document if:
119	119	(1) during a video and audio recording described by
120	120	Section 406.108(a)(6):
121	121	(A) the acknowledgment is displayed to and
122	122	identified by the principal; and
123	123	(B) the principal signs the document and a
124	124	declaration in substantially the following form that is a part of or
125	125	securely attached to the document:
126	126	"I declare under penalty of perjury that the
127	127	document of which this declaration is a part or to which it is
128	128	attached is the same document on which (name of online notary
129	129	public), an online notary public, performed an online notarization
130	130	and before whom I appeared by means of two-way video and audio
131	131	conference technology on (date).
132	132	________________________
133	133	(Signature of principal)
134	134	________________________
135	135	(Printed name of principal)";
136	136	(2) the principal sends the document and declaration
137	137	to the online notary public not later than the third day after the
138	138	date the online notarization was performed; and
139	139	(3) the online notary public:
140	140	(A) in the video and audio recording under
141	141	Subdivision (1), records the principal signing the document and
142	142	declaration;
143	143	(B) receives the document and declaration sent by
144	144	the principal under Subdivision (2) not later than the 10th day
145	145	after the date the online notarization was performed; and
146	146	(C) after receipt of the document and declaration
147	147	from the principal, executes a notarial certificate that includes a
148	148	statement in substantially the following form:
149	149	"I, (name of online notary public),
150	150	witnessed, by means of video and audio conference technology, (name
151	151	of principal) sign the attached document and declaration on
152	152	(date).".
153	153	(c) An online notarization performed in compliance with
154	154	Subsection (b) complies with any requirement regarding the
155	155	execution of a notarial certificate and is effective on the date the
156	156	principal signed the declaration under Subsection (b)(1)(B).
157	157	(d) A notarial certificate executed in the form described by
158	158	Subsection (b)(3)(C) may be relied on as conclusive evidence of
159	159	compliance with Subsections (b)(2) and (b)(3)(B).
160	160	(e) Subsection (b) does not preclude use of another
161	161	procedure to satisfy Subsection (a) for an online notarization
162	162	performed with respect to a tangible document.
163	163	Sec. 406.1107. ONLINE NOTARIZATION PROCEDURES FOR OATHS OR
164	164	AFFIRMATIONS. An online notary public may administer an oath or
165	165	affirmation to a principal as an online notarization if, except as
166	166	otherwise provided by other law of this state, the online notary
167	167	public:
168	168	(1) identifies the principal under Section
169	169	406.110(b);
170	170	(2) creates or causes the creation under Section
171	171	406.108 of a video and audio recording of the principal taking the
172	172	oath or affirmation; and
173	173	(3) retains or causes the retention under Section
174	174	406.108 of the recording.
175	175	SECTION 7. This Act takes effect January 1, 2024.