HBA-DMD C.S.H.B. 2262 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 2262
By: Ramsay
County Affairs
3/29/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

With the rapid development of electronic technology in the transfer of
information, states are beginning to adopt electronic recording statutes
for the filing and recording of documents and instruments in the public
record. C.S.H.B. 2262 requires the Texas State Library and Archives
Commission (commission) to adopt rules authorizing county clerks to accept
instruments by electronic filing and to record the instruments
electronically. This bill specifies persons who are authorized to file
documents electronically with a county clerk. This bill also prohibits a
county clerk from assessing an additional fee for the electronic filing.
C.S.H.B. 2262 creates the Electronic Recording Advisory Committee to
recommend initial rules for adoption by the commission. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas State Library and Archives
Commission in SECTION 2 (Section 195.002, Local Government Code) of this
bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 191, Local Government Code, by adding Section
191.009, as follows: 

Sec. 191.009.  ELECTRONIC FILING AND RECORDING. (a) Authorizes a county
clerk to accept instruments by electronic filing and to record the
instruments electronically if the filing or recording complies with the
rules adopted by the Texas State Library and Archives Commission
(commission) under Chapter 195.  

(b) Provides that an instrument that is filed electronically in compliance
with the rules adopted under Chapter 195 is considered to have been filed
in compliance with any law relating to the filing of instruments with a
county clerk.  

SECTION 2.  Amends Subtitle B, Title 6, Local Government Code, by adding
Chapter 195, as follows: 

CHAPTER 195.  ELECTRONIC FILING OF RECORDS WITH AND
RECORDING BY COUNTY CLERK

Sec. 195.001.  DEFINITIONS. Defines "commission" and "director and
librarian."    

Sec. 195.002.  ADOPTION OF RULES. (a) Requires the commission to adopt
rules by which a county clerk is authorized to accept instruments by
electronic filing and to record instruments electronically under Section
191.009.  

(b) Provides guidelines for the rules. 

(c) Provides that rules adopted by the commission under this section
permitting the use of digital signatures in the electronic filing of
instruments with the county clerk must be, to the extent practicable,
consistent with rules governing digital signatures adopted by the
Department of Information Resources under Section 2054.060 (Digital
Signature), Government Code.  

(d) Requires the commission, before adopting or amending a rule under this
section, to consider the recommendations of the Electronic Recording
Advisory Committee (committee) established under Section 195.008.  

Sec. 195.003.  PERSONS AUTHORIZED TO FILE ELECTRONICALLY. Specifies persons
who are authorized to file documents electronically for recording with a
county clerk who accepts electronic filing and recording under this
chapter. 

Sec. 195.004.  NOTICE OF CONFIRMATION.  (a) Requires a county clerk who
accepts electronic filing and recording under this chapter to confirm or
reject an electronic filing of an instrument no later than the first
business day after the date an instrument is filed. Provides that notice
under this section must be made by electronic means if possible, or if that
is impossible, by telephone or electronic facsimile machine.  

(b) Provides that if the county clerk fails to provide notice of rejection
within the time provided by Subsection (a), the instrument is considered
accepted for filing and prohibited from subsequently being rejected.  

Sec. 195.005.  TIME INSTRUMENT CONSIDERED FILED OR RECORDED. Provides that
an instrument that is recorded electronically under this chapter is
considered to be recorded in compliance with a law relating to the
recording of instruments as of the county clerk's business day on which the
instrument is filed electronically. Provides that an instrument filed
electronically under this chapter must be recorded as timely as an
instrument filed by any other means.  

Sec. 195.006.  ADDITIONAL FEE PROHIBITED. Provides that the fee to file or
record an instrument electronically under this chapter is the same as the
fee for filing or recording the instrument by other means, and a county
clerk is prohibited from charging an additional fee for filing or recording
an instrument electronically under this chapter.  

Sec. 195.007.  ACCESS TO INSTRUMENT RECORDED ELECTRONICALLY. (a) Provides
that an instrument filed or recorded electronically must be available for
public inspection in the same manner and at the same time as an instrument
filed or recorded by other means.  

(b) Requires the county clerk to provide a requestor, as defined by Section
552.003 (Definitions), Government Code, of an instrument filed or recorded
electronically under this chapter with electronic copies of the instrument
in a form that is capable of being processed by the use of technology that
is generally available and nonproprietary in nature. Requires the county
clerk to provide the copies to the requestor at the cost of producing the
copies in accordance with Section 552.262 (Rules of the General Services
Commission), Government Code.  

Sec. 195.008.  ELECTRONIC RECORDING ADVISORY COMMITTEE. (a) Requires the
committee to be appointed as required by this section in order to recommend
to the commission initial and subsequent rules to be adopted under this
chapter.  

(b) Specifies the composition of the committee.

(c) Provides that a member of the committee serves a term of two years that
expires on August 31 of each odd-numbered year.  

(d) Provides that a vacancy in the membership of the committee is filled in
the same manner as the initial appointment and is for the remainder of the
unexpired term.  

(e) Provides that a meeting of the committee is at the call of the
presiding officer and is  subject to Chapter 551 (Open Meetings),
Government Code.  

(f) Provides that a member of the committee is not entitled to compensation
or reimbursement of expenses from the commission for serving on the
committee. Entitles a member of the committee who is an employee or officer
of a state agency to compensation and reimbursement of expenses for service
on the committee as determined by the state agency of which the member is
an officer or employee. Sets forth that Chapter 2110 (State Agency Advisory
Committees), Government Code, does not apply to the committee.  

SECTION 3. (a) Requires the entities entitled to make appointments to the
committee established under Section 195.008, to make the appointments no
later than November 1, 1999. Sets forth that the terms of the initial
members of the committee expire August 31, 2001.  

(b) Requires the committee to make its recommendations for the initial
adoption of rules under Chapter 195, as added by this Act, no later than
September 1, 2000.  

(c) Requires the commission to adopt rules to implement Chapter 195, no
later than January 1, 2001.  

(d) Requires the committee, no later than December 31, 2000, to make
written recommendations on statutory changes necessary to allow for digital
signatures on real estate transactions and the electronic filing and
recording of instruments executed by digital signature. Requires the
committee to send the recommendations to the lieutenant governor, the
speaker of the house of representatives, and the commission.  

SECTION 4.Emergency clause.
  Effective date: upon passage.


COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 2622 differs from the original bill in SECTION 2 (proposed
Sections 195.003 and 195.008, Local Government Code) by modifying the list
of persons who are authorized to file documents electronically for
recording with a county clerk and by modifying the composition of the
Electronic Recording Advisory Committee.