85R5949 SCL-F
 
  By: Parker H.B. No. 1217
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to appointment of and performance of notarial acts by an
  electronic notary public; authorizing a fee and creating a criminal
  offense.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         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.
         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.
         SECTION 2.  This Act takes effect January 1, 2018.