Bill Text: TX HB1217 | 2017-2018 | 85th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to appointment of and performance of notarial acts by an online notary public and online acknowledgment and proof of written instruments; authorizing a fee and creating a criminal offense.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2017-06-01 - Effective on . . . . . . . . . . . . . . . [HB1217 Detail]
Download: Texas-2017-HB1217-Introduced.html
Bill Title: Relating to appointment of and performance of notarial acts by an online notary public and online acknowledgment and proof of written instruments; authorizing a fee and creating a criminal offense.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2017-06-01 - Effective on . . . . . . . . . . . . . . . [HB1217 Detail]
Download: Texas-2017-HB1217-Introduced.html
85R5949 SCL-F | ||
By: Parker | H.B. No. 1217 |
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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. |