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A BILL TO BE ENTITLED
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AN ACT
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relating to appointment of and performance of notarial acts by an |
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electronic notary public; authorizing a fee and creating a criminal |
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offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 406, Government Code, is amended by |
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adding Subchapter C to read as follows: |
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SUBCHAPTER C. ELECTRONIC NOTARY PUBLIC |
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Sec. 406.101. DEFINITIONS. In this subchapter: |
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(1) "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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(2) "Electronic document" means information that is |
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created, generated, sent, communicated, received, or stored by |
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electronic means. |
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(3) "Electronic notarial certificate" means the |
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portion of a notarized electronic document that is completed by the |
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electronic notary public and contains the following: |
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(A) the electronic notary public's electronic |
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signature, title, and commission expiration date; |
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(B) other required information concerning the |
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date and place of the electronic notarization; and |
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(C) the facts attested to or certified by the |
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electronic notary public in the particular notarization. |
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(4) "Electronic notarization" means an official act by |
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an electronic notary public under this subchapter or as otherwise |
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authorized by law that involves an electronic document. |
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(5) "Electronic notary public" means a notary public |
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who has been authorized by the secretary of state to notarize |
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electronic documents. |
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(6) "Electronic seal" means information within a |
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notarized electronic document that confirms the electronic notary |
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public's name, jurisdiction, and commission expiration date and |
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generally corresponds to information in notary seals used on paper |
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documents. |
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(7) "Electronic signature" means an electronic sound, |
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symbol, or process attached to or logically associated with an |
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electronic document and executed or adopted by a person with the |
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intent to sign the electronic document. |
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Sec. 406.102. STANDARDS FOR ELECTRONIC NOTARIZATION. The |
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secretary of state by rule shall develop and maintain standards for |
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electronic notarization in accordance with this subchapter. The |
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secretary of state may confer with the Department of Information |
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Resources or other appropriate state agency on matters relating to |
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equipment, security, and technological aspects of the electronic |
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notarization standards. |
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Sec. 406.103. APPLICATION; QUALIFICATIONS. (a) A notary |
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public or an applicant for appointment as a notary public under |
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Subchapter A may apply to the secretary of state to be appointed and |
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commissioned as an electronic notary public in the manner provided |
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by this section. |
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(b) A person qualifies to be appointed as an electronic |
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notary public by satisfying the qualification requirements for |
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appointment as a notary public under Subchapter A, paying the |
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application fee described by Subsection (d), and electronically |
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submitting to the secretary of state an application in the form |
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prescribed by the secretary of state that satisfies the secretary |
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of state that the applicant is qualified. The application must |
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include: |
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(1) the applicant's full legal and official notary |
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names; |
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(2) a general description of the technology that the |
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applicant will use to create an electronic signature in performing |
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official acts; |
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(3) a certification of compliance with the secretary |
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of state's standards developed under Section 406.102; |
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(4) an e-mail address of the applicant; and |
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(5) a decrypting instruction, code, or key or |
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decrypting software that allows the electronic information in the |
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application to be read. |
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(c) The application described by Subsection (b) must be |
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signed by the applicant using the electronic signature described in |
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the application. |
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(d) The secretary of state may charge a fee of $10 for an |
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application submitted under this section. |
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Sec. 406.104. UPDATED TECHNOLOGY. If an electronic notary |
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public begins using technology to perform the electronic notary |
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public's duties other than the technology described by the |
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electronic notary public's application under Section 406.103, the |
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electronic notary public shall notify the secretary of state of the |
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use of the updated technology and provide a description of the |
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updated technology not later than the 90th day after the date the |
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electronic notary public begins to use the updated technology. |
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Sec. 406.105. PERFORMANCE OF NOTARIAL ACTS. An electronic |
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notary public: |
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(1) is a notary public for purposes of Subchapter A and |
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is subject to that subchapter to the same extent as a notary public |
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appointed and commissioned under that subchapter; and |
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(2) may perform notarial acts as provided by |
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Subchapter A in addition to performing electronic notarizations. |
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Sec. 406.106. ELECTRONIC RECORD OF ELECTRONIC |
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NOTARIZATIONS. (a) An electronic notary public shall keep a secure |
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electronic record of electronic documents notarized by the |
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electronic notary public. The electronic record must contain for |
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each electronic notarization: |
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(1) the date and time of the notarization; |
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(2) the type of notarization; |
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(3) the type, the title, or a description of the |
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electronic document or proceeding; |
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(4) the printed name and address of each principal |
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involved in the transaction or proceeding; |
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(5) evidence of identity of each principal involved in |
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the transaction or proceeding in the form of: |
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(A) a statement that the person is personally |
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known to the electronic notary public; |
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(B) a notation of the type of identification |
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document provided to the electronic notary public; |
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(C) the printed name and address of each credible |
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witness swearing to or affirming the person's identity and for each |
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credible witness not personally known to the electronic notary |
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public, a description of the type of identification documents |
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provided to the electronic notary public; or |
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(D) a recording of any video and audio conference |
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that is the basis for satisfactory evidence of identity and a |
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notation of the type of identification presented as evidence; and |
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(6) the fee, if any, charged for the notarization. |
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(b) The electronic notary public shall take reasonable |
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steps to: |
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(1) ensure the integrity, security, and authenticity |
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of electronic notarizations; |
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(2) maintain a backup for the electronic record |
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required by Subsection (a); and |
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(3) protect the backup record from unauthorized use. |
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(c) The electronic record required by Subsection (a) shall |
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be maintained for at least five years after the date of the |
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transaction or proceeding. |
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Sec. 406.107. USE OF ELECTRONIC RECORD, ELECTRONIC |
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SIGNATURE, AND SEAL. (a) An electronic notary public shall take |
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reasonable steps to ensure that any registered device used to |
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create an electronic signature is current and has not been revoked |
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or terminated by the device's issuing or registering authority. |
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(b) An electronic notary public shall keep the electronic |
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notary public's electronic record, electronic signature, and |
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electronic seal secure and under the electronic notary public's |
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exclusive control. The electronic notary public may not allow |
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another person to use the electronic notary public's electronic |
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record, electronic signature, or electronic seal. |
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(c) An electronic notary public may use the electronic |
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notary public's electronic signature only for performing |
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electronic notarization. |
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(d) An electronic notary public shall attach the electronic |
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notary public's electronic signature and seal to the electronic |
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notarial certificate of an electronic document in a manner that is |
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capable of independent verification and renders any subsequent |
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change or modification to the electronic document evident. |
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(e) An electronic notary public shall immediately notify an |
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appropriate law enforcement agency and the secretary of state of |
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the theft or vandalism of the electronic notary public's electronic |
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record, electronic signature, or electronic seal. An electronic |
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notary public shall immediately notify the secretary of state of |
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the loss or use by another person of the electronic notary public's |
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electronic record, electronic signature, or electronic seal. |
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Sec. 406.108. NOTARIZED ELECTRONIC DOCUMENTS TRANSMITTED |
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OUTSIDE OF THIS STATE. (a) If electronic evidence of the |
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authenticity of an electronic notary public's official signature |
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and seal is required for a notarized electronic document |
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transmitted to another state or a foreign country, an electronic |
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notary public shall attach or logically associate that evidence in |
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the form of an electronic certificate of authenticity provided |
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under Subsection (b). |
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(b) The secretary of state shall provide an electronic |
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certificate of authenticity for purposes of Subsection (a) by |
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providing an independently verifiable document in a form |
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substantially similar to the following: |
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Certificate of Authenticity for an Electronic Notarization |
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I, _______________ (name and title), certify that |
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_______________ (name of electronic notary public), the person |
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named as an electronic notary public in the attached or associated |
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electronic document, was commissioned as an electronic notary |
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public for the State of Texas and authorized to act as an electronic |
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notary public at the time of the document's electronic |
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notarization. |
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To verify this certificate, I have included my electronic |
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signature this _____ day of __________ 20____ |
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(Electronic signature and seal of commissioning official) |
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(c) The secretary of state may charge a fee for providing a |
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certificate of authenticity under this section. |
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Sec. 406.109. FEES FOR ELECTRONIC NOTARIZATION. An |
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electronic notary public may charge a fee in an amount not to exceed |
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$25 for performing an electronic notarization. |
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Sec. 406.110. TERMINATION OF ELECTRONIC NOTARY PUBLIC'S |
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COMMISSION. (a) Except as provided by Subsection (b), an |
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electronic notary public whose commission terminates shall destroy |
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the coding, disk, certificate, card, software, or password that |
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enables electronic affixation of the electronic notary public's |
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official electronic signature or seal. The electronic notary |
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public shall certify compliance with this subsection to the |
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secretary of state. |
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(b) A former electronic notary public whose commission |
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terminated for a reason other than revocation or a denial of renewal |
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is not required to destroy the items described by Subsection (a) if |
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the former electronic notary public is recommissioned as an |
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electronic notary public with the same electronic signature and |
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seal within three months after the former electronic notary |
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public's former commission terminated. |
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Sec. 406.111. WRONGFUL POSSESSION OF SOFTWARE OR HARDWARE; |
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CRIMINAL OFFENSE. A person who, without authorization, knowingly |
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obtains, conceals, damages, or destroys the certificate, disk, |
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coding, card, program, software, or hardware enabling an electronic |
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notary public to affix an official electronic signature or seal |
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commits an offense. An offense under this section is a Class A |
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misdemeanor. |
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SECTION 2. This Act takes effect September 1, 2015. |