By: Harris S.B. No. 888 A BILL TO BE ENTITLED AN ACT 1-1 relating to electronic filing of records with a county clerk. 1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-3 SECTION 1. Chapter 191, Local Government Code, is amended by 1-4 adding Section 191.009 to read as follows: 1-5 Sec. 191.009. ELECTRONIC FILING AND RECORDING. (a) A 1-6 county clerk may accept instruments by electronic filing and record 1-7 the instruments electronically if the filing or recording complies 1-8 with the rules adopted by the Texas State Library and Archives 1-9 Commission under Chapter 195. 1-10 (b) An instrument that is filed electronically in compliance 1-11 with the rules adopted under Chapter 195 is considered to have been 1-12 filed in compliance with any law relating to the filing of 1-13 instruments with a county clerk. 1-14 SECTION 2. Subtitle B, Title 6, Local Government Code, is 1-15 amended by adding Chapter 195 to read as follows: 1-16 CHAPTER 195. ELECTRONIC FILING OF RECORDS WITH AND 1-17 RECORDING BY COUNTY CLERK 1-18 Sec. 195.001. DEFINITIONS. In this chapter: 1-19 (1) "Commission" means the Texas State Library and 1-20 Archives Commission. 1-21 (2) "Director and librarian" means the executive and 1-22 administrative officer of the Texas State Library and Archives 1-23 Commission. 1-24 Sec. 195.002. ADOPTION OF RULES. (a) The commission shall 2-1 adopt rules by which a county clerk may accept instruments by 2-2 electronic filing and record instruments electronically under 2-3 Section 191.009. 2-4 (b) The rules must provide for: 2-5 (1) the electronic filing with and recording by the 2-6 county clerk of: 2-7 (A) real property records; and 2-8 (B) except for records maintained under Section 2-9 192.006, other instruments filed with and recorded by the county 2-10 clerk as determined by the commission; 2-11 (2) the means by which an instrument may be 2-12 electronically transmitted to a county clerk for filing; 2-13 (3) the means by which a county clerk may 2-14 electronically record an instrument filed electronically; 2-15 (4) requiring that the means adopted under Subdivision 2-16 (2) or (3) be generally available, nonproprietary technology; and 2-17 (5) security standards to prevent the filing and 2-18 recording of fraudulent instruments or alteration of instruments 2-19 that were previously filed and recorded electronically. 2-20 (c) Rules adopted by the commission under this section that 2-21 permit the use of digital signatures in the electronic filing of 2-22 instruments with the county clerk must be, to the extent 2-23 practicable, consistent with rules governing digital signatures 2-24 adopted by the Department of Information Resources under Section 2-25 2054.060, Government Code, as added by Chapter 528, Acts of the 2-26 75th Legislature, Regular Session, 1997. 3-1 (d) Before adopting or amending a rule under this section, 3-2 the commission shall consider the recommendations of the Electronic 3-3 Recording Advisory Committee established under Section 195.008. 3-4 Sec. 195.003. PERSONS AUTHORIZED TO FILE ELECTRONICALLY. 3-5 The following persons may file documents electronically for 3-6 recording with a county clerk that accepts electronic filing and 3-7 recording under this chapter: 3-8 (1) an attorney licensed in this state; 3-9 (2) a bank, savings and loan association, savings 3-10 bank, or credit union doing business under laws of the United 3-11 States or this state; 3-12 (3) a federally chartered lending institution, a 3-13 federal government-sponsored entity, an instrumentality of the 3-14 federal government, or a person approved as a mortgagee by the 3-15 United States to make federally insured loans; 3-16 (4) a person licensed to make regulated loans in this 3-17 state; 3-18 (5) a title insurance company or title insurance agent 3-19 licensed to do business in this state; or 3-20 (6) an agency of this state. 3-21 Sec. 195.004. NOTICE OF CONFIRMATION. (a) A county clerk 3-22 that accepts electronic filing and recording under this chapter 3-23 shall confirm or reject an electronic filing of an instrument not 3-24 later than the first business day after the date an instrument is 3-25 filed. Notice under this section must be made: 3-26 (1) by electronic means if possible; or 4-1 (2) if notice under Subdivision (1) is not possible, 4-2 by telephone or electronic facsimile machine. 4-3 (b) If the county clerk fails to provide notice of rejection 4-4 within the time provided by Subsection (a), the instrument is 4-5 considered accepted for filing and may not subsequently be 4-6 rejected. 4-7 Sec. 195.005. TIME INSTRUMENT CONSIDERED FILED OR RECORDED. 4-8 An instrument that is recorded electronically under this chapter is 4-9 considered to be recorded in compliance with a law relating to the 4-10 recording of instruments as of the county clerk's business day on 4-11 which the instrument is filed electronically. An instrument filed 4-12 electronically under this chapter must be recorded as timely as an 4-13 instrument filed by any other means. 4-14 Sec. 195.006. ADDITIONAL FEE PROHIBITED. The fee to file or 4-15 record an instrument electronically under this chapter is the same 4-16 as the fee for filing or recording the instrument by other means, 4-17 and a county clerk may not charge an additional fee for filing or 4-18 recording an instrument electronically under this chapter. 4-19 Sec. 195.007. ACCESS TO INSTRUMENT RECORDED ELECTRONICALLY. 4-20 (a) An instrument filed or recorded electronically must be 4-21 available for public inspection in the same manner and at the same 4-22 time as an instrument filed or recorded by other means. 4-23 (b) The county clerk shall provide a requestor, as defined 4-24 by Section 552.003, Government Code, of an instrument filed or 4-25 recorded electronically under this chapter with electronic copies 4-26 of the instrument in a form that is capable of being processed by 5-1 the use of technology that is generally available and 5-2 nonproprietary in nature. The county clerk shall provide the 5-3 copies to the requestor at the cost of producing the copies in 5-4 accordance with Section 552.262, Government Code. 5-5 Sec. 195.008. ELECTRONIC RECORDING ADVISORY COMMITTEE. (a) 5-6 The Electronic Recording Advisory Committee shall be appointed as 5-7 required by this section to recommend to the commission initial and 5-8 subsequent rules to be adopted under this chapter. 5-9 (b) The committee consists of: 5-10 (1) the following persons appointed by the director 5-11 and librarian: 5-12 (A) one person who is employed by or is an 5-13 officer of a title insurance agent or title insurance company; 5-14 (B) an officer or employee of a federal 5-15 government-sponsored entity; 5-16 (C) a person who as a usual business practice 5-17 obtains copies of recorded instruments from a county clerk to 5-18 maintain an abstract or title plant; and 5-19 (D) a public representative; 5-20 (2) two persons who are county judges or county 5-21 commissioners appointed by the County Judges and Commissioners 5-22 Association of Texas; 5-23 (3) four county clerks appointed by the County and 5-24 District Clerks' Association of Texas; 5-25 (4) three persons who are employed by or officers of 5-26 different title insurance agents or companies appointed by the 6-1 Texas Land Title Association; 6-2 (5) the presiding officer of the Title Insurance 6-3 Subcommittee of the Real Estate, Probate, and Trust Law section of 6-4 the State Bar of Texas or the functional equivalent of that 6-5 subcommittee; 6-6 (6) the attorney general or a person designated by the 6-7 attorney general; 6-8 (7) the comptroller or a person designated by the 6-9 comptroller; 6-10 (8) the executive director of the General Services 6-11 Commission or a person designated by the executive director; 6-12 (9) the executive director of the Department of 6-13 Information Resources or a person designated by the executive 6-14 director; and 6-15 (10) the director and librarian or a person designated 6-16 by the director and librarian, who also serves as presiding officer 6-17 of the committee. 6-18 (c) A member of the committee serves a term of two years 6-19 that expires on August 31 of each odd-numbered year. 6-20 (d) A vacancy in the membership of the committee is filled 6-21 in the same manner as the initial appointment and is for the 6-22 remainder of the unexpired term. 6-23 (e) A meeting of the committee is at the call of the 6-24 presiding officer and is subject to Chapter 551, Government Code. 6-25 (f) A member of the committee is not entitled to 6-26 compensation or reimbursement of expenses from the commission for 7-1 serving on the committee. A member of the committee who is an 7-2 employee or officer of a state agency is entitled to compensation 7-3 and reimbursement of expenses for service on the committee as 7-4 determined by the state agency of which the member is an officer or 7-5 employee. Chapter 2110, Government Code, does not apply to the 7-6 committee. 7-7 SECTION 3. (a) The entities entitled to make appointments 7-8 to the Electronic Recording Advisory Committee established under 7-9 Section 195.008, Local Government Code, as added by this Act, shall 7-10 make the appointments not later than November 1, 1999. The terms 7-11 of the initial members of the Electronic Recording Advisory 7-12 Committee expire August 31, 2001. 7-13 (b) The Electronic Recording Advisory Committee shall make 7-14 its recommendations for the initial adoption of rules under Chapter 7-15 195, Local Government Code, as added by this Act, not later than 7-16 September 1, 2000. 7-17 (c) The Texas State Library and Archives Commission shall 7-18 adopt rules to implement Chapter 195, Local Government Code, as 7-19 added by this Act, not later than January 1, 2001. 7-20 (d) Not later than December 31, 2000, the Electronic 7-21 Recording Advisory Committee shall make written recommendations on 7-22 statutory changes necessary to allow for digital signatures on real 7-23 estate transactions and the electronic filing and recording of 7-24 instruments executed by digital signature. The committee shall 7-25 send the recommendations to the lieutenant governor, the speaker of 7-26 the house of representatives, and the Texas State Library and 8-1 Archives Commission. 8-2 SECTION 4. The importance of this legislation and the 8-3 crowded condition of the calendars in both houses create an 8-4 emergency and an imperative public necessity that the 8-5 constitutional rule requiring bills to be read on three several 8-6 days in each house be suspended, and this rule is hereby suspended, 8-7 and that this Act take effect and be in force from and after its 8-8 passage, and it is so enacted.