SECTION 1. Chapter 406,
Government Code, is amended by adding Subchapter C to read as follows:
SUBCHAPTER C. ELECTRONIC
NOTARY PUBLIC
Sec. 406.101.
DEFINITIONS. In this subchapter:
(1)
"Electronic" means relating to technology having electrical,
digital, magnetic, wireless, optical, electromagnetic, or similar
capabilities.
(2) "Electronic
document" means information that is created, generated, sent,
communicated, received, or stored by electronic means.
(3) "Electronic
notarial certificate" means the portion of a notarized electronic
document that is completed by the
electronic notary public and
contains the following:
(A) the electronic notary public's electronic
signature, title, and commission expiration date;
(B) other required
information concerning the date and place of the electronic notarization; and
(C) the facts attested to
or certified by the electronic
notary public in the particular notarization.
(4) "Electronic notarization" means an official act
by an electronic notary public under this subchapter or as otherwise
authorized by law that involves an electronic document.
(5) "Electronic notary public" means a notary public
who has been authorized by the secretary of state to notarize electronic
documents.
(6) "Electronic
seal" means information within a notarized electronic document that
confirms the electronic notary
public's name, jurisdiction, and commission expiration date and generally
corresponds to information in notary seals used on paper documents.
(7) "Electronic
signature" means an electronic sound, symbol, or process attached to
or logically associated with an electronic document and executed or adopted
by a person with the intent to sign the electronic document.
(8) "Online
notarization" means the performance
of an electronic notarization by means of two-way video and audio
conference technology that meets the standards adopted under Section
406.103.
Sec. 406.102.
APPLICABILITY OF SUBCHAPTER. This subchapter applies only to an electronic notarization relating to:
(1) a document involving real estate located in this state;
(2) an agreement performable wholly or partly in this state;
(3) an agreement or instrument creating a debt that is payable
at a location in this state;
(4) an agreement that specifically requires the application of
the laws of this state;
(5) a document, including an affidavit, that is intended to be
filed or used in a court located in this state; or
(6) an acknowledgment or affirmation made by a person while the
person is located in this state.
Sec. 406.103. STANDARDS
FOR ELECTRONIC NOTARIZATION. The secretary of state by rule shall develop
and maintain standards for electronic
notarization in accordance with this subchapter.
The secretary of state may
confer with the Department of Information Resources or other appropriate
state agency on matters relating to equipment, security, and technological
aspects of the electronic
notarization standards.
Sec. 406.104.
APPLICATION; QUALIFICATIONS. (a) A notary public or an applicant for
appointment as a notary public under Subchapter A may apply to the
secretary of state to be appointed and commissioned as an electronic notary public in the manner
provided by this section.
(b) A person qualifies to
be appointed as an electronic
notary public by
satisfying the
qualification requirements for appointment as a notary public under
Subchapter A,
paying the application fee
described by Subsection (c), and
electronically submitting
to the secretary of state an application in the form prescribed by the
secretary of state that satisfies the secretary of state that the applicant
is qualified.
The application must
include:
(1) the applicant's full legal and official notary names;
(2) a certification of
compliance with the secretary of state's standards developed under Section
406.103; and
(3) an e-mail address of
the applicant.
(c) The secretary of
state may charge a fee for an application submitted under this section in
an amount necessary to administer this subchapter.
Sec. 406.105. PERFORMANCE
OF NOTARIAL ACTS. An electronic
notary public:
(1) is a notary public
for purposes of Subchapter A and is subject to that subchapter to the same
extent as a notary public appointed and commissioned under that subchapter;
and
(2) may perform notarial
acts as provided by Subchapter A in addition to performing electronic notarizations.
(See Sec. 406.102 above.)
Sec. 406.106. ELECTRONIC
RECORD OF ELECTRONIC NOTARIZATIONS. (a) An electronic
notary public shall keep a secure electronic record of electronic documents
notarized by the electronic
notary public. The electronic record must contain for each electronic notarization:
(1) the date and time of
the notarization;
(2) the type of notarization;
(3) the type, the title,
or a description of the electronic document or proceeding;
(4) the printed name and
address of each principal involved in the transaction or proceeding;
(5) evidence of identity
of each principal involved in the transaction or proceeding in the form of:
(A) a statement that the
person is personally known to the electronic
notary public;
(B) a notation of the
type of identification document provided to the electronic notary public; or
(C) the following:
(i) the printed name and
address of each credible witness swearing to or affirming the person's
identity;
(ii) for each credible
witness not personally known to the electronic
notary public, a description of the type of identification documents
provided to the electronic notary
public; and
(iii) a recording of any
video and audio conference that is the basis for satisfactory evidence of
identity and a notation of the type of identification presented as
evidence; and
(6) the fee, if any,
charged for the notarization.
(b) The electronic notary public shall take
reasonable steps to:
(1) ensure the integrity,
security, and authenticity of electronic
notarizations;
(2) maintain a backup for
the electronic record required by Subsection (a); and
(3) protect the backup
record from unauthorized use.
(c) The electronic record
required by Subsection (a) shall be maintained for at least five years
after the date of the transaction or proceeding.
Sec. 406.107. USE OF
ELECTRONIC RECORD, ELECTRONIC SIGNATURE, AND SEAL. (a) An electronic notary public shall take
reasonable steps to ensure that any registered device used to create an
electronic signature is current and has not been revoked or terminated by
the device's issuing or registering authority.
(b) An electronic notary public shall keep the
electronic notary public's
electronic record, electronic signature, and electronic seal secure and
under the electronic notary
public's exclusive control. The electronic
notary public may not allow another person to use the electronic notary public's electronic
record, electronic signature, or electronic seal.
(c) An electronic notary public may use the electronic notary public's electronic
signature only for performing electronic
notarization.
(d) An electronic notary public shall attach
the electronic notary public's
electronic signature and seal to the electronic notarial certificate of an
electronic document in a manner that is capable of independent verification
and renders any subsequent change or modification to the electronic
document evident.
(e) An electronic notary public shall
immediately notify an appropriate law enforcement agency and the secretary
of state of the theft or vandalism of the electronic
notary public's electronic record, electronic signature, or electronic
seal. An electronic notary
public shall immediately notify the secretary of state of the loss or use
by another person of the electronic
notary public's electronic record, electronic signature, or electronic
seal.
Sec. 406.108. ONLINE
NOTARIZATION REQUIREMENTS. (a) An electronic
notary public may perform an online notarization that meets the
requirements of this section and
rules adopted under this subchapter.
(b) In performing an
online notarization, an electronic
notary public shall verify the identity of a person creating an electronic
signature at the time that the signature is taken by using two-way video
and audio conference technology that meets the requirements of this
subchapter and rules adopted under this subchapter. Identity may be
verified by:
(1) the electronic notary public's personal
knowledge of the person creating the electronic signature;
(2) using an in-person identity proofing process that meets the
specifications of the Federal Bridge Certification Authority before the
online notarization;
(3) using a valid digital certificate accessed by biometric
data; or
(4) using an interoperable personal identity verification card
that is designed, issued, and managed in accordance with the specifications
in:
(A) Personal Identity Verification of Federal Employees and
Contractors published by the National Institute of Standards and
Technology;
(B) Personal Identity Verification Interoperability for
Non-Federal Issuers published by the Federal Chief Information Officers
Council; and
(C) any supplements or revisions to the publications described
by Paragraphs (A) and (B).
(c) If an electronic notary public verifies an identity under
Subsection (b)(3) or (4), the electronic notary public's electronic notarization
system must ensure that the digital certificate or personal identity
verification card is current and has not been revoked at the time the
online notarization is performed.
(d) The electronic notary public shall take
reasonable steps to ensure that the two-way video and audio communication
used in an online notarization is secure from unauthorized interception.
(e) The electronic
notarial certificate for an online notarization must include a notation
that the notarization is an online notarization.
Sec. 406.109. FEES FOR
ELECTRONIC NOTARIZATION. An electronic
notary public may charge a fee in an amount not to exceed $25 for
performing an electronic
notarization.
Sec. 406.110. TERMINATION
OF ELECTRONIC NOTARY PUBLIC'S COMMISSION. (a) Except as provided by
Subsection (b), an electronic
notary public whose commission terminates shall destroy the coding, disk,
certificate, card, software, or password that enables electronic affixation
of the electronic notary public's
official electronic signature or seal. The electronic
notary public shall certify compliance with this subsection to the
secretary of state.
(b) A former electronic notary public whose
commission terminated for a reason other than revocation or a denial of
renewal is not required to destroy the items described by Subsection (a) if
the former electronic notary
public is recommissioned as an electronic
notary public with the same electronic signature and seal within three
months after the former electronic
notary public's former commission terminated.
Sec. 406.111. WRONGFUL
POSSESSION OF SOFTWARE OR HARDWARE; CRIMINAL OFFENSE. A person who,
without authorization, knowingly obtains, conceals, damages, or destroys
the certificate, disk, coding, card, program, software, or hardware enabling
an electronic notary public to
affix an official electronic signature or seal commits an offense.
An offense under this
section is a Class A misdemeanor.
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SECTION 3. Chapter 406,
Government Code, is amended by adding Subchapter C to read as follows:
SUBCHAPTER C. ONLINE
NOTARY PUBLIC
Sec. 406.101.
DEFINITIONS. In this subchapter:
(1) "Credential analysis" means a process or service
operating according to criteria approved by the secretary of state through
which a third person affirms the validity of a government-issued
identification credential through review of public and proprietary data
sources.
(2)
"Electronic" means relating to technology having electrical,
digital, magnetic, wireless, optical, electromagnetic, or similar
capabilities.
(3) "Electronic
document" means information that is created, generated, sent,
communicated, received, or stored by electronic means.
(4) "Electronic
notarial certificate" means the portion of a notarized electronic
document that is completed by an online
notary public and contains the following:
(A) the online notary public's electronic
signature, electronic seal,
title, and commission expiration date;
(B) other required
information concerning the date and place of the online notarization; and
(C) the facts attested to
or certified by the online notary
public in the particular notarization.
(5) "Electronic
seal" means information within a notarized electronic document that
confirms the online notary
public's name, jurisdiction, identifying
number, and commission expiration date and generally corresponds to
information in notary seals used on paper documents.
(6) "Electronic
signature" means an electronic sound, symbol, or process attached to
or logically associated with an electronic document and executed or adopted
by a person with the intent to sign the electronic document.
(7) "Identity proofing" means a process or service
operating according to criteria approved by the secretary of state through
which a third person affirms the identity of an individual through review
of personal information from public and proprietary data sources.
(8) "Notarial act" means the performance by an online
notary public of a function authorized under Section 406.016.
(9) "Online
notarization" means a notarial act
performed by means of two-way video and audio conference technology
that meets the standards adopted under Section 406.104.
(10) "Online notary public" means a notary public who
has been authorized by the secretary of state to perform online
notarizations under this subchapter.
(11) "Principal" means an individual:
(A) whose electronic signature is notarized in an online
notarization; or
(B) taking an oath or affirmation from the online notary public
but not in the capacity of a witness for the online notarization.
(12) "Remote presentation" means transmission to the
online notary public through communication technology of an image of a
government-issued identification credential that is of sufficient quality
to enable the online notary public to:
(A) identify the individual seeking the online notary public's
services; and
(B) perform credential analysis.
Sec. 406.102.
APPLICABILITY OF SUBCHAPTER. This subchapter applies only to an online notarization.
(See Sec. 406.107 below.)
Sec. 406.103. RULEMAKING. The secretary of state may adopt
rules necessary to implement this subchapter, including rules to facilitate
online notarizations.
Sec. 406.104. STANDARDS
FOR ONLINE NOTARIZATION. (a) The secretary of state by rule shall develop
and maintain standards for online
notarization in accordance with this subchapter, including standards for credential analysis and identity
proofing.
(b) The secretary of
state may confer with the Department of Information Resources or other
appropriate state agency on matters relating to equipment, security, and
technological aspects of the online
notarization standards.
Sec. 406.105.
APPLICATION; QUALIFICATIONS. (a) A notary public or an applicant for
appointment as a notary public under Subchapter A may apply to the
secretary of state to be appointed and commissioned as an online notary public in the manner
provided by this section.
(b) A person qualifies to
be appointed as an online notary
public by:
(1) satisfying the
qualification requirements for appointment as a notary public under
Subchapter A;
(2) paying the
application fee described by Subsection (d); and
(3) electronically
submitting to the secretary of state an application in the form prescribed
by the secretary of state that satisfies the secretary of state that the
applicant is qualified.
(c) The application
required by Subsection (b) must include:
(1) the applicant's name to be used in acting as a notary public;
(2) a certification that
the applicant will comply with the secretary of state's standards developed
under Section 406.104; and
(3) an e-mail address of
the applicant.
(d) The secretary of
state may charge a fee for an application submitted under this section in
an amount necessary to administer this subchapter.
Sec. 406.106. PERFORMANCE
OF NOTARIAL ACTS. An online
notary public:
(1) is a notary public
for purposes of Subchapter A and is subject to that subchapter to the same
extent as a notary public appointed and commissioned under that subchapter;
(2) may perform notarial
acts as provided by Subchapter A in addition to performing online notarizations; and
(3) may perform an online notarization authorized under this
subchapter.
Sec. 406.107. AUTHORITY TO PERFORM ONLINE NOTARIZATIONS. (a)
An online notary public may perform an online notarization relating only
to:
(1) a document involving real estate located in this state;
(2) a document or agreement relating to a transaction in which
at least one of the parties is a resident of this state or authorized to
conduct business in this state;
(3) an agreement or instrument securing a debt that is payable
at a location in this state;
(4) a document, including an affidavit, that is intended to be
filed in the public records of this state, including a document, pleading,
affidavit, or deposition to be filed in a proceeding in a local, state, or
federal court located in this state;
(5) an acknowledgment or affirmation made by a person while the
person is physically located in this state; or
(6) a document signed by a person who is a resident of this
state at the time of signing as evidenced by a valid government-issued
identification credential that includes a photograph and a current address
in this state.
(b) Before performing an online notarization, an online notary
public shall determine the basis for which the online notarization is
authorized under Subsection (a) by requesting information from the person
for which the notarization will be performed. The online notary public
shall maintain a record of the information provided to the online notary
public under this subsection in accordance with Section 406.108.
(c) An online notary public is not liable for a false statement
made to the online notary public under this section unless the online
notary public knows that the statement is false.
Sec. 406.108. ELECTRONIC
RECORD OF ONLINE NOTARIZATIONS. (a)
An online notary public shall keep a secure electronic
record of electronic documents notarized by the online notary public. The electronic record must contain
for each online notarization:
(1) the date and time of
the notarization;
(2) the type of notarial act;
(3) the type, the title,
or a description of the electronic document or proceeding;
(4) the printed name and
address of each principal involved in the transaction or proceeding;
(5) evidence of identity
of each principal involved in the transaction or proceeding in the form of:
(A) a statement that the
person is personally known to the online
notary public;
(B) a notation of the
type of identification document provided to the online notary public;
(C) a record of the identity verification made under Section
406.110, if applicable; or
(D) the following:
(i) the printed name and
address of each credible witness swearing to or affirming the person's
identity; and
(ii) for each credible
witness not personally known to the online
notary public, a description of the type of identification documents
provided to the online notary
public;
(6) a recording of any
video and audio conference that is the basis for satisfactory evidence of
identity and a notation of the type of identification presented as
evidence;
(7) the fee, if any,
charged for the notarization; and
(8) the basis for which the online notarization was authorized
under Section 406.107.
(b) The online notary public shall take
reasonable steps to:
(1) ensure the integrity,
security, and authenticity of online
notarizations;
(2) maintain a backup for
the electronic record required by Subsection (a); and
(3) protect the backup
record from unauthorized use.
(c) The electronic record
required by Subsection (a) shall be maintained for at least five years
after the date of the transaction or proceeding.
Sec. 406.109. USE OF
ELECTRONIC RECORD, SIGNATURE, AND SEAL. (a) An online notary public shall take reasonable steps to
ensure that any registered device used to create an electronic signature is
current and has not been revoked or terminated by the device's issuing or
registering authority.
(b) An online notary public shall keep the online notary public's electronic
record, electronic signature, and electronic seal secure and under the online notary public's exclusive
control. The online notary
public may not allow another person to use the online notary public's electronic record, electronic
signature, or electronic seal.
(c) An online notary public may use the online notary public's electronic
signature only for performing online
notarization.
(d) An online notary public shall attach the online notary public's electronic
signature and seal to the electronic notarial certificate of an electronic
document in a manner that is capable of independent verification and
renders any subsequent change or modification to the electronic document
evident.
(e) An online notary public shall immediately
notify an appropriate law enforcement agency and the secretary of state of
the theft or vandalism of the online
notary public's electronic record, electronic signature, or electronic
seal. An online notary public
shall immediately notify the secretary of state of the loss or use by
another person of the online
notary public's electronic record, electronic signature, or electronic
seal.
Sec. 406.110. ONLINE
NOTARIZATION PROCEDURES. (a) An online
notary public may perform an online notarization authorized under Section 406.107 that meets the
requirements of this subchapter
and rules adopted under this subchapter regardless
of whether the principal is physically located in this state at the time of
the online notarization.
(b) In performing an
online notarization, an online
notary public shall verify the identity of a person creating an electronic
signature at the time that the signature is taken by using two-way video
and audio conference technology that meets the requirements of this
subchapter and rules adopted under this subchapter. Identity may be
verified by:
(1) the online notary public's personal
knowledge of the person creating the electronic signature; or
(2) each of the following:
(A) remote presentation by the person creating the electronic
signature of a government-issued identification credential, including a
passport or driver's license, that contains the signature and a photograph
of the person;
(B) credential analysis of the credential described by
Paragraph (A); and
(C) identity proofing of the person described by Paragraph (A).
(c) The online notary public shall take
reasonable steps to ensure that the two-way video and audio communication
used in an online notarization is secure from unauthorized interception.
(d) The electronic
notarial certificate for an online notarization must include a notation
that the notarization is an online notarization.
Sec. 406.111. FEES FOR
ONLINE NOTARIZATION. An online
notary public or the online notary
public's employer may charge a fee in an amount not to exceed $25
for performing an online
notarization in addition to any other
fees authorized under Section 406.024.
Sec. 406.112. TERMINATION
OF ONLINE NOTARY PUBLIC'S COMMISSION. (a) Except as provided by
Subsection (b), an online notary
public whose commission terminates shall destroy the coding, disk, certificate,
card, software, or password that enables electronic affixation of the online notary public's official
electronic signature or seal. The online
notary public shall certify compliance with this subsection to the
secretary of state.
(b) A former online notary public whose commission
terminated for a reason other than revocation or a denial of renewal is not
required to destroy the items described by Subsection (a) if the former online notary public is recommissioned
as an online notary public with
the same electronic signature and seal within three months after the former
online notary public's former
commission terminated.
Sec. 406.113. WRONGFUL
POSSESSION OF SOFTWARE OR HARDWARE; CRIMINAL OFFENSE. (a) A person who,
without authorization, knowingly obtains, conceals, damages, or destroys
the certificate, disk, coding, card, program, software, or hardware
enabling an online notary public
to affix an official electronic signature or seal commits an offense.
(b) An offense under this
section is a Class A misdemeanor.
Sec. 406.114. COUNTY CLERK RECORDING. An online notarization
for a document accepted by a county clerk for purposes of the recording of
real estate located in this state is considered to have been conducted in
accordance with this subchapter if the online notary public certifies, in
accordance with rules adopted under this subchapter, that the online
notarization was conducted in accordance with this subchapter.
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