1-1 By: Harris S.B. No. 888 1-2 (In the Senate - Filed March 4, 1999; March 8, 1999, read 1-3 first time and referred to Committee on Intergovernmental 1-4 Relations; March 29, 1999, reported adversely, with favorable 1-5 Committee Substitute by the following vote: Yeas 5, Nays 0; 1-6 March 29, 1999, sent to printer.) 1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 888 By: Moncrief 1-8 A BILL TO BE ENTITLED 1-9 AN ACT 1-10 relating to electronic filing of records with a county clerk. 1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-12 SECTION 1. Chapter 191, Local Government Code, is amended by 1-13 adding Section 191.009 to read as follows: 1-14 Sec. 191.009. ELECTRONIC FILING AND RECORDING. (a) A 1-15 county clerk may accept instruments by electronic filing and record 1-16 the instruments electronically if the filing or recording complies 1-17 with the rules adopted by the Texas State Library and Archives 1-18 Commission under Chapter 195. 1-19 (b) An instrument that is filed electronically in compliance 1-20 with the rules adopted under Chapter 195 is considered to have been 1-21 filed in compliance with any law relating to the filing of 1-22 instruments with a county clerk. 1-23 SECTION 2. Subtitle B, Title 6, Local Government Code, is 1-24 amended by adding Chapter 195 to read as follows: 1-25 CHAPTER 195. ELECTRONIC FILING OF RECORDS WITH AND 1-26 RECORDING BY COUNTY CLERK 1-27 Sec. 195.001. DEFINITIONS. In this chapter: 1-28 (1) "Commission" means the Texas State Library and 1-29 Archives Commission. 1-30 (2) "Director and librarian" means the executive and 1-31 administrative officer of the Texas State Library and Archives 1-32 Commission. 1-33 Sec. 195.002. ADOPTION OF RULES. (a) The commission shall 1-34 adopt rules by which a county clerk may accept instruments by 1-35 electronic filing and record instruments electronically under 1-36 Section 191.009. 1-37 (b) The rules must provide for: 1-38 (1) the electronic filing with and recording by the 1-39 county clerk of: 1-40 (A) real property records; and 1-41 (B) except for records maintained under Section 1-42 192.006, other instruments filed with and recorded by the county 1-43 clerk as determined by the commission; 1-44 (2) the means by which an instrument may be 1-45 electronically transmitted to a county clerk for filing; 1-46 (3) the means by which a county clerk may 1-47 electronically record an instrument filed electronically; 1-48 (4) requiring that the means adopted under Subdivision 1-49 (2) or (3) be generally available, nonproprietary technology; and 1-50 (5) security standards to prevent the filing and 1-51 recording of fraudulent instruments or alteration of instruments 1-52 that were previously filed and recorded electronically. 1-53 (c) Rules adopted by the commission under this section that 1-54 permit the use of digital signatures in the electronic filing of 1-55 instruments with the county clerk must be, to the extent 1-56 practicable, consistent with rules governing digital signatures 1-57 adopted by the Department of Information Resources under Section 1-58 2054.060, Government Code, as added by Chapter 528, Acts of the 1-59 75th Legislature, Regular Session, 1997. 1-60 (d) Before adopting or amending a rule under this section, 1-61 the commission shall consider the recommendations of the Electronic 1-62 Recording Advisory Committee established under Section 195.008. 1-63 Sec. 195.003. PERSONS AUTHORIZED TO FILE ELECTRONICALLY. 1-64 The following persons may file documents electronically for 2-1 recording with a county clerk that accepts electronic filing and 2-2 recording under this chapter: 2-3 (1) an attorney licensed in this state; 2-4 (2) a bank, savings and loan association, savings 2-5 bank, or credit union doing business under laws of the United 2-6 States or this state; 2-7 (3) a federally chartered lending institution, a 2-8 federal government-sponsored entity, an instrumentality of the 2-9 federal government, or a person approved as a mortgagee by the 2-10 United States to make federally insured loans; 2-11 (4) a person licensed to make regulated loans in this 2-12 state; 2-13 (5) a title insurance company or title insurance agent 2-14 licensed to do business in this state; or 2-15 (6) an agency of this state. 2-16 Sec. 195.004. NOTICE OF CONFIRMATION. (a) A county clerk 2-17 that accepts electronic filing and recording under this chapter 2-18 shall confirm or reject an electronic filing of an instrument not 2-19 later than the first business day after the date an instrument is 2-20 filed. Notice under this section must be made: 2-21 (1) by electronic means if possible; or 2-22 (2) if notice under Subdivision (1) is not possible, 2-23 by telephone or electronic facsimile machine. 2-24 (b) If the county clerk fails to provide notice of rejection 2-25 within the time provided by Subsection (a), the instrument is 2-26 considered accepted for filing and may not subsequently be 2-27 rejected. 2-28 Sec. 195.005. TIME INSTRUMENT CONSIDERED FILED OR RECORDED. 2-29 An instrument that is recorded electronically under this chapter is 2-30 considered to be recorded in compliance with a law relating to the 2-31 recording of instruments as of the county clerk's business day on 2-32 which the instrument is filed electronically. An instrument filed 2-33 electronically under this chapter must be recorded as timely as an 2-34 instrument filed by any other means. 2-35 Sec. 195.006. ADDITIONAL FEE PROHIBITED. The fee to file or 2-36 record an instrument electronically under this chapter is the same 2-37 as the fee for filing or recording the instrument by other means, 2-38 and a county clerk may not charge an additional fee for filing or 2-39 recording an instrument electronically under this chapter. 2-40 Sec. 195.007. ACCESS TO INSTRUMENT RECORDED ELECTRONICALLY. 2-41 (a) An instrument filed or recorded electronically must be 2-42 available for public inspection in the same manner and at the same 2-43 time as an instrument filed or recorded by other means. 2-44 (b) The county clerk shall provide a requestor, as defined 2-45 by Section 552.003, Government Code, of an instrument filed or 2-46 recorded electronically under this chapter with electronic copies 2-47 of the instrument in a form that is capable of being processed by 2-48 the use of technology that is generally available and 2-49 nonproprietary in nature. The county clerk shall provide the 2-50 copies to the requestor at the cost of producing the copies in 2-51 accordance with Section 552.262, Government Code. 2-52 Sec. 195.008. ELECTRONIC RECORDING ADVISORY COMMITTEE. (a) 2-53 The Electronic Recording Advisory Committee shall be appointed as 2-54 required by this section to recommend to the commission initial and 2-55 subsequent rules to be adopted under this chapter. 2-56 (b) The committee consists of: 2-57 (1) the following persons appointed by the director 2-58 and librarian: 2-59 (A) one person who is employed by or is an 2-60 officer of a title insurance agent or title insurance company; 2-61 (B) an officer or employee of a federal 2-62 government-sponsored entity; 2-63 (C) a person who as a usual business practice 2-64 obtains copies of recorded instruments from a county clerk to 2-65 maintain an abstract or title plant; and 2-66 (D) a public representative; 2-67 (2) two persons who are county judges or county 2-68 commissioners appointed by the County Judges and Commissioners 2-69 Association of Texas; 3-1 (3) four county clerks appointed by the County and 3-2 District Clerks' Association of Texas; 3-3 (4) three persons who are employed by or officers of 3-4 different title insurance agents or companies appointed by the 3-5 Texas Land Title Association; 3-6 (5) the presiding officer of the Title Insurance 3-7 Subcommittee of the Real Estate, Probate, and Trust Law section of 3-8 the State Bar of Texas or the functional equivalent of that 3-9 subcommittee; 3-10 (6) the attorney general or a person designated by the 3-11 attorney general; 3-12 (7) the comptroller or a person designated by the 3-13 comptroller; 3-14 (8) the executive director of the General Services 3-15 Commission or a person designated by the executive director; 3-16 (9) the executive director of the Department of 3-17 Information Resources or a person designated by the executive 3-18 director; and 3-19 (10) the director and librarian or a person designated 3-20 by the director and librarian, who also serves as presiding officer 3-21 of the committee. 3-22 (c) A member of the committee serves a term of two years 3-23 that expires on August 31 of each odd-numbered year. 3-24 (d) A vacancy in the membership of the committee is filled 3-25 in the same manner as the initial appointment and is for the 3-26 remainder of the unexpired term. 3-27 (e) A meeting of the committee is at the call of the 3-28 presiding officer and is subject to Chapter 551, Government Code. 3-29 (f) A member of the committee is not entitled to 3-30 compensation or reimbursement of expenses from the commission for 3-31 serving on the committee. A member of the committee who is an 3-32 employee or officer of a state agency is entitled to compensation 3-33 and reimbursement of expenses for service on the committee as 3-34 determined by the state agency of which the member is an officer or 3-35 employee. Chapter 2110, Government Code, does not apply to the 3-36 committee. 3-37 SECTION 3. (a) The entities entitled to make appointments 3-38 to the Electronic Recording Advisory Committee established under 3-39 Section 195.008, Local Government Code, as added by this Act, shall 3-40 make the appointments not later than November 1, 1999. The terms 3-41 of the initial members of the Electronic Recording Advisory 3-42 Committee expire August 31, 2001. 3-43 (b) The Electronic Recording Advisory Committee shall make 3-44 its recommendations for the initial adoption of rules under Chapter 3-45 195, Local Government Code, as added by this Act, not later than 3-46 September 1, 2000. 3-47 (c) The Texas State Library and Archives Commission shall 3-48 adopt rules to implement Chapter 195, Local Government Code, as 3-49 added by this Act, not later than January 1, 2001. 3-50 (d) Not later than December 31, 2000, the Electronic 3-51 Recording Advisory Committee shall make written recommendations on 3-52 statutory changes necessary to allow for digital signatures on real 3-53 estate transactions and the electronic filing and recording of 3-54 instruments executed by digital signature. The committee shall 3-55 send the recommendations to the lieutenant governor, the speaker of 3-56 the house of representatives, and the Texas State Library and 3-57 Archives Commission. 3-58 SECTION 4. The importance of this legislation and the 3-59 crowded condition of the calendars in both houses create an 3-60 emergency and an imperative public necessity that the 3-61 constitutional rule requiring bills to be read on three several 3-62 days in each house be suspended, and this rule is hereby suspended, 3-63 and that this Act take effect and be in force from and after its 3-64 passage, and it is so enacted. 3-65 * * * * *