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A BILL TO BE ENTITLED
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AN ACT
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relating to the adoption of the Uniform Fiduciary Access to Digital |
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Assets Act. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The Estates Code is amended by adding Title 4 to |
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read as follows: |
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TITLE 4. DIGITAL ASSETS |
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CHAPTER 2001. UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT |
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Sec. 2001.001. SHORT TITLE. This chapter may be cited as |
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the Uniform Fiduciary Access to Digital Assets Act. |
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Sec. 2001.002. DEFINITIONS. In this chapter: |
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(1) "Account holder" means: |
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(A) a person that has entered into a |
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terms-of-service agreement; and |
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(B) a fiduciary for a person described in |
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Paragraph (A). |
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(2) "Agent" means an attorney in fact granted |
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authority under a durable or nondurable power of attorney. |
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(3) "Catalogue of electronic communications" means |
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information that identifies each person with whom an account holder |
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has had an electronic communication, the time and date of the |
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communication, and the electronic mail address of the person. |
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(4) "Content of an electronic communication" means |
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information not readily accessible to the public concerning the |
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substance or meaning of an electronic communication. |
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(5) "Custodian" means a person that carries, |
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maintains, or stores a digital asset of an account holder. |
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(6) "Digital asset" means an electronic record. The |
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term does not include an underlying asset or liability unless the |
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asset or liability is itself an electronic record. |
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(7) "Electronic" means relating to technology having |
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electrical, digital, magnetic, wireless, optical, electromagnetic, |
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or similar capabilities. |
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(8) "Electronic communication" means a digital asset |
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stored by an electronic-communication service or carried or |
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maintained by a remote-computing service. The term includes the |
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catalogue of electronic communications and the content of an |
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electronic communication. |
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(9) "Electronic-communication service" means a |
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custodian that provides to the public the ability to send or receive |
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an electronic communication. |
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(10) "Fiduciary" means a person that is a personal |
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representative, guardian of the estate, agent, or trustee. |
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(11) "Governing instrument" means a will, trust, |
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instrument creating a power of attorney, or other dispositive or |
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nominative instrument. |
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(12) "Guardian" has the meaning assigned by Section |
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1002.012. |
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(13) "Information" means data, text, images, videos, |
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sounds, codes, computer programs, software, databases, or other |
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similar items. |
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(14) Notwithstanding Section 22.027, "person" means |
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an individual, estate, business or nonprofit entity, public |
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corporation, government or governmental subdivision, agency, or |
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instrumentality, or other legal entity. |
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(15) "Power of attorney" means a record that grants an |
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agent authority to act in the place of a principal. |
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(16) "Principal" means an individual who grants |
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authority to an agent in a power of attorney. |
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(17) "Record" means information that is inscribed on a |
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tangible medium or that is stored in an electronic or other medium |
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and is retrievable in perceivable form. |
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(18) "Remote-computing service" means a custodian |
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that provides to the public computer processing services or the |
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storage of digital assets by means of an electronic communications |
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system, as defined in 18 U.S.C. Section 2510(14). |
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(19) "Terms-of-service agreement" means an agreement |
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that controls the relationship between an account holder and a |
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custodian. |
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(20) "Trustee" means a fiduciary with legal title to |
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an asset under an agreement or declaration that creates a |
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beneficial interest in others. |
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Sec. 2001.003. ACCESS BY PERSONAL REPRESENTATIVE TO DIGITAL |
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ASSETS OF DECEDENT. Unless otherwise provided by a court or the |
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will of a decedent, a personal representative of the estate of a |
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decedent may access: |
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(1) the content of an electronic communication sent or |
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received by the decedent only if the electronic-communication |
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service or remote-computing service is permitted to disclose the |
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content under 18 U.S.C. Section 2702(b); |
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(2) the catalogue of electronic communications sent or |
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received by the decedent; and |
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(3) any other digital asset in which the decedent at |
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death had a right or interest. |
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Sec. 2001.004. ACCESS BY GUARDIAN TO DIGITAL ASSETS OF |
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WARD. The court, after an opportunity for a hearing, may authorize |
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a guardian of the ward's estate to access: |
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(1) the content of an electronic communication sent or |
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received by the ward only if the electronic-communication service |
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or remote-computing service is permitted to disclose the content |
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under 18 U.S.C. Section 2702(b); |
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(2) the catalogue of electronic communications sent or |
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received by the ward; and |
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(3) any other digital asset in which the ward has a |
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right or interest. |
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Sec. 2001.005. ACCESS BY AGENT TO DIGITAL ASSETS OF |
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PRINCIPAL. (a) To the extent a power of attorney expressly grants |
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authority to an agent over the content of an electronic |
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communication of the principal, the agent may access the content of |
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an electronic communication sent or received by the principal if |
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the electronic-communication service or remote-computing service |
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is permitted to disclose the content under 18 U.S.C. Section |
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2702(b). |
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(b) Unless otherwise provided by a power of attorney or the |
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court, an agent may access: |
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(1) the catalogue of electronic communications sent or |
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received by the principal; and |
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(2) any other digital asset in which the principal has |
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a right or interest. |
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Sec. 2001.006. ACCESS BY TRUSTEE TO DIGITAL ASSETS. Unless |
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otherwise provided by a court or the settlor in the terms of a |
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trust: |
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(1) a trustee that is an original account holder, or a |
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successor of the trustee, may access each digital asset held in |
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trust, including the catalogue of electronic communications sent or |
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received by the trustee and the content of an electronic |
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communication; and |
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(2) a trustee that is not an original account holder, |
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or a successor of the trustee, may access: |
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(A) the content of an electronic communication |
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sent or received by the original or any successor account holder |
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only if the electronic-communication service or remote-computing |
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service is permitted to disclose the content under 18 U.S.C. |
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Section 2702(b); |
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(B) the catalogue of electronic communications |
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sent or received by the original or any successor account holder; |
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and |
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(C) any other digital asset of the original or |
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any successor account holder. |
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Sec. 2001.007. FIDUCIARY AUTHORITY. (a) A fiduciary that |
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is an account holder or has the right to access a digital asset of an |
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account holder: |
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(1) subject to the terms-of-service agreement and |
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copyright or other applicable law, may take any action concerning |
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the asset to the extent of the account holder's authority and the |
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fiduciary's powers under the law of this state; |
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(2) has, under applicable electronic privacy laws, the |
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lawful consent of the account holder for the custodian to divulge |
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the content of an electronic communication to the fiduciary; and |
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(3) is, under applicable computer fraud and |
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unauthorized-access laws, an authorized user. |
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(b) If a provision in a terms-of-service agreement limits a |
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fiduciary's access to the digital assets of the account holder, the |
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provision is void as against the public policy of this state, unless |
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the account holder, after September 1, 2015, agreed to the |
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provision by an affirmative act separate from the account holder's |
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assent to other provisions of the terms-of-service agreement. |
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(c) A choice-of-law provision in a terms-of-service |
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agreement is unenforceable against a fiduciary acting under this |
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chapter to the extent the provision designates law that enforces a |
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limitation on a fiduciary's access to digital assets that is void |
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under Subsection (b). |
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(d) A fiduciary's access under this chapter to a digital |
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asset does not violate a terms-of-service agreement, |
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notwithstanding a provision of the agreement that limits |
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third-party access or requires notice of change in the account |
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holder's status. |
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(e) If tangible personal property of a decedent, ward, |
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principal, or settlor can receive, store, process, or send a |
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digital asset, a fiduciary with authority over the property may |
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access the property and any digital asset stored in it. The |
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fiduciary is an authorized user for purposes of any applicable |
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computer fraud and unauthorized-access laws. |
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Sec. 2001.008. COMPLIANCE. (a) If a fiduciary with a right |
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under this chapter to access a digital asset of an account holder |
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complies with Subsection (b), the custodian shall comply with the |
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fiduciary's request for: |
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(1) access to the asset; |
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(2) control of the asset; and |
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(3) a copy of the asset to the extent permitted by |
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copyright law. |
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(b) If a request under Subsection (a) is made by: |
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(1) a personal representative with a right of access |
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under Section 2001.003, the request must be accompanied by a |
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certified copy of the letters testamentary or of administration |
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appointing the representative; |
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(2) a guardian of the estate with the right of access |
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under Section 2001.004, the request must be accompanied by a |
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certified copy of the court order that gives the guardian authority |
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over the digital asset; |
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(3) an agent with the right of access under Section |
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2001.005, the request must be accompanied by an original or a copy |
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of the power of attorney that authorizes the agent to exercise |
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authority over the digital asset and a certification of the agent, |
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under penalty of perjury, that the power of attorney is in effect; |
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and |
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(4) a trustee with the right of access under Section |
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2001.006, the request must be accompanied by a certified copy of the |
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trust instrument, or a certification of the trust under Section |
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114.086, Property Code, that authorizes the trustee to exercise |
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authority over the digital asset. |
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(c) A custodian shall comply with a request made under |
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Subsection (a) not later than 60 days after receipt. If the |
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custodian fails to comply, the fiduciary may apply to the court for |
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an order directing compliance. |
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(d) This section does not limit the right of a person to |
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obtain a copy of a trust instrument in a judicial proceeding |
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concerning the trust. |
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Sec. 2001.009. CUSTODIAN IMMUNITY. A custodian and the |
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custodian's officers, employees, and agents are immune from |
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liability for any act done in good faith in compliance with this |
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chapter. |
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Sec. 2001.010. UNIFORMITY OF APPLICATION AND CONSTRUCTION. |
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In applying and construing this uniform act, consideration must be |
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given to the need to promote uniformity of the law with respect to |
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its subject matter among states that enact it. |
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Sec. 2001.011. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL |
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AND NATIONAL COMMERCE ACT. This chapter modifies, limits, and |
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supersedes the Electronic Signatures in Global and National |
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Commerce Act (15 U.S.C. Section 7001 et seq.), but does not modify, |
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limit, or supersede Section 101(c) of that Act (15 U.S.C. Section |
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7001(c)) or authorize electronic delivery of any of the notices |
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described in Section 103(b) of that Act (15 U.S.C. Section |
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7003(b)). |
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SECTION 2. This Act applies to: |
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(1) a fiduciary or agent acting under a will, trust, or |
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power of attorney executed before, on, or after the effective date |
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of this Act; |
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(2) a personal representative acting for a decedent |
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who died before, on, or after the effective date of this Act; and |
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(3) a guardianship proceeding pending or commenced |
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before, on, or after the effective date of this Act. |
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SECTION 3. This Act takes effect September 1, 2015. |