By Dunnam H.B. No. 1379 77R246 LJR-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the Uniform Electronic Transactions Act. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. Title 6, Civil Practice and Remedies Code, is 1-5 amended by adding Chapter 148 to read as follows: 1-6 CHAPTER 148. UNIFORM ELECTRONIC TRANSACTIONS ACT 1-7 Sec. 148.001. SHORT TITLE. This chapter may be cited as the 1-8 Uniform Electronic Transactions Act. 1-9 Sec. 148.002. DEFINITIONS. In this chapter: 1-10 (1) "Agreement" means the bargain of the parties in 1-11 fact, as found in their language or inferred from other 1-12 circumstances and from rules, regulations, and procedures given the 1-13 effect of agreements under laws otherwise applicable to a 1-14 particular transaction. 1-15 (2) "Automated transaction" means a transaction 1-16 conducted or performed, in whole or in part, by electronic means or 1-17 electronic records, in which the acts or records of one or both 1-18 parties are not reviewed by an individual in the ordinary course in 1-19 forming a contract, performing under an existing contract, or 1-20 fulfilling an obligation required by the transaction. 1-21 (3) "Computer program" means a set of statements or 1-22 instructions to be used directly or indirectly in an information 1-23 processing system in order to bring about a certain result. 1-24 (4) "Contract" means the total legal obligation 2-1 resulting from the parties' agreement as affected by this chapter 2-2 and other applicable law. 2-3 (5) "Electronic" means relating to technology having 2-4 electrical, digital, magnetic, wireless, optical, electromagnetic, 2-5 or similar capabilities. 2-6 (6) "Electronic agent" means a computer program or an 2-7 electronic or other automated means used independently to initiate 2-8 an action or respond to electronic records or performances in whole 2-9 or in part, without review or action by an individual. 2-10 (7) "Electronic record" means a record created, 2-11 generated, sent, communicated, received, or stored by electronic 2-12 means. 2-13 (8) "Electronic signature" means an electronic sound, 2-14 symbol, or process attached to or logically associated with a 2-15 record and executed or adopted by a person with the intent to sign 2-16 the record. 2-17 (9) "Governmental agency" means an executive, 2-18 legislative, or judicial agency, department, board, commission, 2-19 authority, institution, or instrumentality of the federal 2-20 government or of a State or of a county, municipality, or other 2-21 political subdivision of a State. 2-22 (10) "Information" means data, text, images, sounds, 2-23 codes, computer programs, software, databases, or the like. 2-24 (11) "Information processing system" means an 2-25 electronic system for creating, generating, sending, receiving, 2-26 storing, displaying, or processing information. 2-27 (12) "Record" means information that is inscribed on a 3-1 tangible medium or that is stored in an electronic or other medium 3-2 and is retrievable in perceivable form. 3-3 (13) "Security procedure" means a procedure employed 3-4 for the purpose of verifying that an electronic signature, record, 3-5 or performance is that of a specific person or for detecting 3-6 changes or errors in the information in an electronic record. The 3-7 term includes a procedure that requires the use of algorithms or 3-8 other codes, identifying words or numbers, encryption, or callback 3-9 or other acknowledgment procedures. 3-10 (14) "State" means a State of the United States, the 3-11 District of Columbia, Puerto Rico, the United States Virgin 3-12 Islands, or any territory or insular possession subject to the 3-13 jurisdiction of the United States. The term includes an Indian 3-14 tribe or band, or Alaskan native village, which is recognized by 3-15 federal law or formally acknowledged by a State. 3-16 (15) "Transaction" means an action or set of actions 3-17 occurring between two or more persons relating to the conduct of 3-18 business, commercial, or governmental affairs. 3-19 Sec. 148.003. SCOPE. (a) Except as otherwise provided in 3-20 Subsection (b), this chapter applies to electronic records and 3-21 electronic signatures relating to a transaction. 3-22 (b) This chapter does not apply to a transaction to the 3-23 extent it is governed by: 3-24 (1) a law governing the creation and execution of 3-25 wills, codicils, or testamentary trusts; 3-26 (2) the Uniform Commercial Code, other than Sections 3-27 1.107 and 1.206, and Chapters 2 and 2A; and 4-1 (3) (other laws, if any, identified by State). 4-2 (c) This chapter applies to an electronic record or 4-3 electronic signature otherwise excluded from the application of 4-4 this chapter under Subsection (b) when used for a transaction 4-5 subject to a law other than those specified in Subsection (b). 4-6 (d) A transaction subject to this chapter is also subject to 4-7 other applicable substantive law. 4-8 Sec. 148.004. PROSPECTIVE APPLICATION. This chapter applies 4-9 to any electronic record or electronic signature created, 4-10 generated, sent, communicated, received, or stored on or after the 4-11 effective date of this chapter. 4-12 Sec. 148.005. USE OF ELECTRONIC RECORDS AND ELECTRONIC 4-13 SIGNATURES; VARIATION BY AGREEMENT. (a) This chapter does not 4-14 require a record or signature to be created, generated, sent, 4-15 communicated, received, stored, or otherwise processed or used by 4-16 electronic means or in electronic form. 4-17 (b) This chapter applies only to transactions between 4-18 parties each of which has agreed to conduct transactions by 4-19 electronic means. Whether the parties agree to conduct a 4-20 transaction by electronic means is determined from the context and 4-21 surrounding circumstances, including the parties' conduct. 4-22 (c) A party that agrees to conduct a transaction by 4-23 electronic means may refuse to conduct other transactions by 4-24 electronic means. The right granted by this subsection may not be 4-25 waived by agreement. 4-26 (d) Except as otherwise provided in this chapter, the effect 4-27 of any of its provisions may be varied by agreement. The presence 5-1 in certain provisions of this chapter of the words "unless 5-2 otherwise agreed," or words of similar import, does not imply that 5-3 the effect of other provisions may not be varied by agreement. 5-4 (e) Whether an electronic record or electronic signature has 5-5 legal consequences is determined by this chapter and other 5-6 applicable law. 5-7 Sec. 148.006. CONSTRUCTION AND APPLICATION. This chapter 5-8 must be construed and applied: 5-9 (1) to facilitate electronic transactions consistent 5-10 with other applicable law; 5-11 (2) to be consistent with reasonable practices 5-12 concerning electronic transactions and with the continued expansion 5-13 of those practices; and 5-14 (3) to effectuate its general purpose to make uniform 5-15 the law with respect to the subject of this chapter among states 5-16 enacting it. 5-17 Sec. 148.007. LEGAL RECOGNITION OF ELECTRONIC RECORDS, 5-18 ELECTRONIC SIGNATURES, AND ELECTRONIC CONTRACTS. (a) A record or 5-19 signature may not be denied legal effect or enforceability solely 5-20 because it is in electronic form. 5-21 (b) A contract may not be denied legal effect or 5-22 enforceability solely because an electronic record was used in its 5-23 formation. 5-24 (c) If a law requires a record to be in writing, an 5-25 electronic record satisfies the law. 5-26 (d) If a law requires a signature, an electronic signature 5-27 satisfies the law. 6-1 Sec. 148.008. PROVISION OF INFORMATION IN WRITING; 6-2 PRESENTATION OF RECORDS. (a) If parties have agreed to conduct a 6-3 transaction by electronic means and a law requires a person to 6-4 provide, send, or deliver information in writing to another person, 6-5 the requirement is satisfied if the information is provided, sent, 6-6 or delivered, as the case may be, in an electronic record capable 6-7 of retention by the recipient at the time of receipt. An 6-8 electronic record is not capable of retention by the recipient if 6-9 the sender or its information processing system inhibits the 6-10 ability of the recipient to print or store the electronic record. 6-11 (b) If a law other than this chapter requires a record (i) 6-12 to be posted or displayed in a certain manner, (ii) to be sent, 6-13 communicated, or transmitted by a specified method, or (iii) to 6-14 contain information that is formatted in a certain manner, the 6-15 following rules apply: 6-16 (1) The record must be posted or displayed in the 6-17 manner specified in the other law. 6-18 (2) Except as otherwise provided in Subsection (d)(2), 6-19 the record must be sent, communicated, or transmitted by the method 6-20 specified in the other law. 6-21 (3) The record must contain the information formatted 6-22 in the manner specified in the other law. 6-23 (c) If a sender inhibits the ability of a recipient to store 6-24 or print an electronic record, the electronic record is not 6-25 enforceable against the recipient. 6-26 (d) The requirements of this section may not be varied by 6-27 agreement, but: 7-1 (1) to the extent a law other than this chapter 7-2 requires information to be provided, sent, or delivered in writing 7-3 but permits that requirement to be varied by agreement, the 7-4 requirement under Subsection (a) that the information be in the 7-5 form of an electronic record capable of retention may also be 7-6 varied by agreement; and 7-7 (2) a requirement under a law other than this chapter 7-8 to send, communicate, or transmit a record by first-class mail may 7-9 be varied by agreement to the extent permitted by the other law. 7-10 Sec. 148.009. ATTRIBUTION AND EFFECT OF ELECTRONIC RECORD 7-11 AND ELECTRONIC SIGNATURE. (a) An electronic record or electronic 7-12 signature is attributable to a person if it was the act of the 7-13 person. The act of the person may be shown in any manner, 7-14 including a showing of the efficacy of any security procedure 7-15 applied to determine the person to which the electronic record or 7-16 electronic signature was attributable. 7-17 (b) The effect of an electronic record or electronic 7-18 signature attributed to a person under Subsection (a) is determined 7-19 from the context and surrounding circumstances at the time of its 7-20 creation, execution, or adoption, including the parties' agreement, 7-21 if any, and otherwise as provided by law. 7-22 Sec. 148.010. EFFECT OF CHANGE OR ERROR. (a) If a change or 7-23 error in an electronic record occurs in a transmission between 7-24 parties to a transaction, the rules provided by this section apply. 7-25 (b) If the parties have agreed to use a security procedure 7-26 to detect changes or errors and one party has conformed to the 7-27 procedure, but the other party has not, and the nonconforming party 8-1 would have detected the change or error had that party also 8-2 conformed, the conforming party may avoid the effect of the changed 8-3 or erroneous electronic record. 8-4 (c) In an automated transaction involving an individual, the 8-5 individual may avoid the effect of an electronic record that 8-6 resulted from an error made by the individual in dealing with the 8-7 electronic agent of another person if the electronic agent did not 8-8 provide an opportunity for the prevention or correction of the 8-9 error and, at the time the individual learns of the error, the 8-10 individual: 8-11 (1) promptly notifies the other person of the error 8-12 and that the individual did not intend to be bound by the 8-13 electronic record received by the other person; 8-14 (2) takes reasonable steps, including steps that 8-15 conform to the other person's reasonable instructions, to return to 8-16 the other person or, if instructed by the other person, to destroy 8-17 the consideration received, if any, as a result of the erroneous 8-18 electronic record; and 8-19 (3) has not used or received any benefit or value from 8-20 the consideration, if any, received from the other person. 8-21 (d) If neither Subsection (b) nor Subsection (c) applies, 8-22 the change or error has the effect provided by other law, including 8-23 the law of mistake, and the parties' contract, if any. 8-24 (e) Subsections (c) and (d) may not be varied by agreement. 8-25 Sec. 148.011. NOTARIZATION AND ACKNOWLEDGMENT. If a law 8-26 requires a signature or record to be notarized, acknowledged, 8-27 verified, or made under oath, the requirement is satisfied if the 9-1 electronic signature of the person authorized to perform those 9-2 acts, together with all other information required to be included 9-3 by other applicable law, is attached to or logically associated 9-4 with the signature or record. 9-5 Sec. 148.012. RETENTION OF ELECTRONIC RECORDS; ORIGINALS. 9-6 (a) If a law requires that a record be retained, the requirement 9-7 is satisfied by retaining an electronic record of the information 9-8 in the record which: 9-9 (1) accurately reflects the information set forth in 9-10 the record after it was first generated in its final form as an 9-11 electronic record or otherwise; and 9-12 (2) remains accessible for later reference. 9-13 (b) A requirement to retain a record in accordance with 9-14 Subsection (a) does not apply to any information the sole purpose 9-15 of which is to enable the record to be sent, communicated, or 9-16 received. 9-17 (c) A person may satisfy Subsection (a) by using the 9-18 services of another person if the requirements of that subsection 9-19 are satisfied. 9-20 (d) If a law requires a record to be presented or retained 9-21 in its original form, or provides consequences if the record is not 9-22 presented or retained in its original form, that law is satisfied 9-23 by an electronic record retained in accordance with Subsection (a). 9-24 (e) If a law requires retention of a check, that requirement 9-25 is satisfied by retention of an electronic record of the 9-26 information on the front and back of the check in accordance with 9-27 Subsection (a). 10-1 (f) A record retained as an electronic record in accordance 10-2 with Subsection (a) satisfies a law requiring a person to retain a 10-3 record for evidentiary, audit, or like purposes, unless a law 10-4 enacted after January 1, 2002, specifically prohibits the use of an 10-5 electronic record for the specified purpose. 10-6 (g) This section does not preclude a governmental agency of 10-7 this State from specifying additional requirements for the 10-8 retention of a record subject to the agency's jurisdiction. 10-9 Sec. 148.013. ADMISSIBILITY IN EVIDENCE. In a proceeding, 10-10 evidence of a record or signature may not be excluded solely 10-11 because it is in electronic form. 10-12 Sec. 148.014. AUTOMATED TRANSACTION. (a) In an automated 10-13 transaction, the rules provided by this section apply. 10-14 (b) A contract may be formed by the interaction of 10-15 electronic agents of the parties, even if no individual was aware 10-16 of or reviewed the electronic agents' actions or the resulting 10-17 terms and agreements. 10-18 (c) A contract may be formed by the interaction of an 10-19 electronic agent and an individual, acting on the individual's own 10-20 behalf or for another person, including by an interaction in which 10-21 the individual performs actions that the individual is free to 10-22 refuse to perform and which the individual knows or has reason to 10-23 know will cause the electronic agent to complete the transaction or 10-24 performance. 10-25 (d) The terms of the contract are determined by the 10-26 substantive law applicable to it. 10-27 Sec. 148.015. TIME AND PLACE OF SENDING AND RECEIPT. (a) 11-1 Unless otherwise agreed between the sender and the recipient, an 11-2 electronic record is sent when it: 11-3 (1) is addressed properly or otherwise directed 11-4 properly to an information processing system that the recipient has 11-5 designated or uses for the purpose of receiving electronic records 11-6 or information of the type sent and from which the recipient is 11-7 able to retrieve the electronic record; 11-8 (2) is in a form capable of being processed by that 11-9 system; and 11-10 (3) enters an information processing system outside 11-11 the control of the sender or of a person that sent the electronic 11-12 record on behalf of the sender or enters a region of the 11-13 information processing system designated or used by the recipient 11-14 which is under the control of the recipient. 11-15 (b) Unless otherwise agreed between a sender and the 11-16 recipient, an electronic record is received when: 11-17 (1) it enters an information processing system that 11-18 the recipient has designated or uses for the purpose of receiving 11-19 electronic records or information of the type sent and from which 11-20 the recipient is able to retrieve the electronic record; and 11-21 (2) it is in a form capable of being processed by that 11-22 system. 11-23 (c) Subsection (b) applies even if the place the information 11-24 processing system is located is different from the place the 11-25 electronic record is deemed to be received under Subsection (d). 11-26 (d) Unless otherwise expressly provided in the electronic 11-27 record or agreed between the sender and the recipient, an 12-1 electronic record is deemed to be sent from the sender's place of 12-2 business and to be received at the recipient's place of business. 12-3 For purposes of this subsection, the following rules apply: 12-4 (1) if the sender or recipient has more than one place 12-5 of business, the place of business of that person is the place 12-6 having the closest relationship to the underlying transaction; and 12-7 (2) if the sender or the recipient does not have a 12-8 place of business, the place of business is the sender's or 12-9 recipient's residence, as the case may be. 12-10 (e) An electronic record is received under Subsection (b) 12-11 even if no individual is aware of its receipt. 12-12 (f) Receipt of an electronic acknowledgment from an 12-13 information processing system described in Subsection (b) 12-14 establishes that a record was received but, by itself, does not 12-15 establish that the content sent corresponds to the content 12-16 received. 12-17 (g) If a person is aware that an electronic record 12-18 purportedly sent under Subsection (a), or purportedly received 12-19 under Subsection (b), was not actually sent or received, the legal 12-20 effect of the sending or receipt is determined by other applicable 12-21 law. Except to the extent permitted by the other law, the 12-22 requirements of this subsection may not be varied by agreement. 12-23 Sec. 148.016. TRANSFERABLE RECORDS. (a) In this section, 12-24 "transferable record" means an electronic record: 12-25 (1) that would be a note under Chapter 3, Business & 12-26 Commerce Code, or a document under Chapter 7, Business & Commerce 12-27 Code, if the electronic record were in writing; and 13-1 (2) that the issuer of the electronic record expressly 13-2 has agreed is a transferable record. 13-3 (b) A person has control of a transferable record if a 13-4 system employed for evidencing the transfer of interests in the 13-5 transferable record reliably establishes that person as the person 13-6 to which the transferable record was issued or transferred. 13-7 (c) A system satisfies Subsection (b), and a person is 13-8 deemed to have control of a transferable record, if the 13-9 transferable record is created, stored, and assigned in such a 13-10 manner that: 13-11 (1) a single authoritative copy of the transferable 13-12 record exists which is unique, identifiable, and, except as 13-13 otherwise provided in Subdivisions (4), (5), and (6), unalterable; 13-14 (2) the authoritative copy identifies the person 13-15 asserting control as: 13-16 (A) the person to which the transferable record 13-17 was issued; or 13-18 (B) if the authoritative copy indicates that the 13-19 transferable record has been transferred, the person to which the 13-20 transferable record was most recently transferred; 13-21 (3) the authoritative copy is communicated to and 13-22 maintained by the person asserting control or its designated 13-23 custodian; 13-24 (4) copies or revisions that add or change an 13-25 identified assignee of the authoritative copy can be made only with 13-26 the consent of the person asserting control; 13-27 (5) each copy of the authoritative copy and any copy 14-1 of a copy is readily identifiable as a copy that is not the 14-2 authoritative copy; and 14-3 (6) any revision of the authoritative copy is readily 14-4 identifiable as authorized or unauthorized. 14-5 (d) Except as otherwise agreed, a person having control of a 14-6 transferable record is the holder, as defined in Section 1.201, 14-7 Business & Commerce Code, of the transferable record and has the 14-8 same rights and defenses as a holder of an equivalent record or 14-9 writing under the Uniform Commercial Code, including, if the 14-10 applicable statutory requirements under Section 3.302(a), 7.501, or 14-11 9.308, Business & Commerce Code, are satisfied, the rights and 14-12 defenses of a holder in due course, a holder to which a negotiable 14-13 document of title has been duly negotiated, or a purchaser, 14-14 respectively. Delivery, possession, and indorsement are not 14-15 required to obtain or exercise any of the rights under this 14-16 subsection. 14-17 (e) Except as otherwise agreed, an obligor under a 14-18 transferable record has the same rights and defenses as an 14-19 equivalent obligor under equivalent records or writings under the 14-20 Uniform Commercial Code. 14-21 (f) If requested by a person against which enforcement is 14-22 sought, the person seeking to enforce the transferable record shall 14-23 provide reasonable proof that the person is in control of the 14-24 transferable record. Proof may include access to the authoritative 14-25 copy of the transferable record and related business records 14-26 sufficient to review the terms of the transferable record and to 14-27 establish the identity of the person having control of the 15-1 transferable record. 15-2 SECTION 2. This Act takes effect January 1, 2002.