By: Parker S.B. No. 1780
(Capriglione)
A BILL TO BE ENTITLED
AN ACT
relating to online notarizations.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 406.101, Government Code, is amended by
adding Subdivisions (1-a), (13), and (14) and amending Subdivision
(11) to read as follows:
(1-a) "Document" means a tangible instrument or
electronic document.
(11) "Principal" means an individual:
(A) whose [electronic] signature is notarized in
an online notarization; or
(B) taking an oath or affirmation from the online
notary public but not in the capacity of a witness for the online
notarization.
(13) "Sign" means, with the present intent to
authenticate or adopt a record, to:
(A) execute or adopt a tangible symbol; or
(B) execute an electronic signature, as defined
by Section 322.002, Business & Commerce Code.
(14) "Signature" means a tangible symbol or electronic
signature that evidences the signing of a record executed or
adopted by a person with the intent to sign the document.
SECTION 2. Section 406.108, Government Code, is amended by
amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) An online notary public shall keep a secure electronic
record of electronic documents notarized by the online notary
public. The electronic record must contain for each online
notarization:
(1) the date and time of the online notarization;
(2) the type of notarial act;
(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 online notary public;
(B) a notation of the type of identification
document provided to the online notary public;
(C) a record of the identity verification made
under Section 406.110, if applicable; or
(D) the following:
(i) the printed name and address of each
credible witness swearing to or affirming the person's identity;
and
(ii) for each credible witness not
personally known to the online notary public, a description of the
type of identification documents provided to the online notary
public;
(6) 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
(7) the fee, if any, charged for the notarization.
(d) For documents that are tangible instruments, an online
notary public shall keep a record of the documents notarized by the
online notary public with a tangible symbol. The record for each
online notarization with a tangible symbol must contain the same
elements required by Subsection (a) for an electronic record.
SECTION 3. Section 406.109, Government Code, is amended by
adding Subsection (f) to read as follows:
(f) An online notary public shall authenticate all online
notarizations with the online notary public's:
(1) electronic seal, if the online notarization was
performed with respect to an electronic document; or
(2) seal of office as provided under Section 406.013,
if the online notarization was performed with respect to a tangible
document.
SECTION 4. The heading to Section 406.110, Government Code,
is amended to read as follows:
Sec. 406.110. ONLINE NOTARIZATION PROCEDURES GENERALLY.
SECTION 5. Sections 406.110(b) and (d), Government Code,
are amended to read as follows:
(b) In performing an online notarization, an online notary
public shall verify the identity of a person signing a document
[creating an electronic signature] at the time of the online
notarization [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 shall
[may] be verified by:
(1) the online notary public's personal knowledge of
the person signing a document [creating the electronic signature];
or
(2) each of the following:
(A) remote presentation by the person signing a
document [creating the electronic signature] of a
government-issued identification credential, including a passport
or driver's license, that contains the signature and a photograph
of the person;
(B) credential analysis of the credential
described by Paragraph (A); and
(C) identity proofing of the person described by
Paragraph (A).
(d) The [electronic] notarial certificate for an online
notarization must include a notation that the notarization is an
online notarization and must indicate if the signature was a
tangible symbol or an electronic signature.
SECTION 6. Subchapter C, Chapter 406, Government Code, is
amended by adding Sections 406.1103 and 406.1107 to read as
follows:
Sec. 406.1103. ONLINE NOTARIZATION PROCEDURES FOR TANGIBLE
DOCUMENTS. (a) In performing an online notarization in which the
principal signs with a tangible symbol and not an electronic
signature, an online notary public shall reasonably confirm that a
document before the online notary public is the same document in
which the principal made a statement or on which the principal
executed a signature.
(b) An online notary public satisfies the requirement of
Subsection (a) to take an acknowledgment of a signature on a
tangible document if:
(1) during a video and audio recording described by
Section 406.108(a)(6):
(A) the acknowledgment is displayed to and
identified by the principal; and
(B) the principal signs the document and a
declaration in substantially the following form that is a part of or
securely attached to the document:
"I declare under penalty of perjury that the
document of which this declaration is a part or to which it is
attached is the same document on which (name of online notary
public), an online notary public, performed an online notarization
and before whom I appeared by means of two-way video and audio
conference technology on (date).
________________________
(Signature of principal)
________________________
(Printed name of principal)";
(2) the principal sends the document and declaration
to the online notary public not later than the third day after the
date the online notarization was performed; and
(3) the online notary public:
(A) in the video and audio recording under
Subdivision (1), records the principal signing the document and
declaration;
(B) receives the document and declaration sent by
the principal under Subdivision (2) not later than the 10th day
after the date the online notarization was performed; and
(C) after receipt of the document and declaration
from the principal, executes a notarial certificate that includes a
statement in substantially the following form:
"I, (name of online notary public),
witnessed, by means of video and audio conference technology, (name
of principal) sign the attached document and declaration on
(date).".
(c) An online notarization performed in compliance with
Subsection (b) complies with any requirement regarding the
execution of a notarial certificate and is effective on the date the
principal signed the declaration under Subsection (b)(1)(B).
(d) A notarial certificate executed in the form described by
Subsection (b)(3)(C) may be relied on as conclusive evidence of
compliance with Subsections (b)(2) and (b)(3)(B).
(e) Subsection (b) does not preclude use of another
procedure to satisfy Subsection (a) for an online notarization
performed with respect to a tangible document.
Sec. 406.1107. ONLINE NOTARIZATION PROCEDURES FOR OATHS OR
AFFIRMATIONS. An online notary public may administer an oath or
affirmation to a principal as an online notarization if, except as
otherwise provided by other law of this state, the online notary
public:
(1) identifies the principal under Section
406.110(b);
(2) creates or causes the creation under Section
406.108 of a video and audio recording of the principal taking the
oath or affirmation; and
(3) retains or causes the retention under Section
406.108 of the recording.
SECTION 7. This Act takes effect January 1, 2024.