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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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(8) "Online notarization" means the performance of an |
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electronic notarization by means of two-way video and audio |
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conference technology that meets the standards adopted under |
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Section 406.103. |
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Sec. 406.102. APPLICABILITY OF SUBCHAPTER. This subchapter |
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applies only to an electronic notarization relating to: |
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(1) a document involving real estate located in this |
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state; |
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(2) an agreement performable wholly or partly in this |
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state; |
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(3) an agreement or instrument creating a debt that is |
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payable at a location in this state; |
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(4) an agreement that specifically requires the |
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application of the laws of this state; |
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(5) a document, including an affidavit, that is |
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intended to be filed or used in a court located in this state; or |
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(6) an acknowledgment or affirmation made by a person |
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while the person is located in this state. |
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Sec. 406.103. 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. 406.104. 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 (c), 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 certification of compliance with the secretary |
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of state's standards developed under Section 406.103; and |
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(3) an e-mail address of the applicant. |
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(c) The secretary of state may charge a fee for an |
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application submitted under this section in an amount necessary to |
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administer this subchapter. |
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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; or |
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(C) the following: |
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(i) the printed name and address of each |
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credible witness swearing to or affirming the person's identity; |
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(ii) for each credible witness not |
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personally known to the electronic notary public, a description of |
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the type of identification documents provided to the electronic |
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notary public; and |
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(iii) a recording of any video and audio |
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conference that is the basis for satisfactory evidence of identity |
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and a notation of the type of identification presented as evidence; |
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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. ONLINE NOTARIZATION REQUIREMENTS. (a) An |
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electronic notary public may perform an online notarization that |
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meets the requirements of this section and rules adopted under this |
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subchapter. |
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(b) In performing an online notarization, an electronic |
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notary public shall verify the identity of a person creating an |
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electronic signature at the time that the signature is taken by |
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using two-way video and audio conference technology that meets the |
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requirements of this subchapter and rules adopted under this |
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subchapter. Identity may be verified by: |
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(1) the electronic notary public's personal knowledge |
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of the person creating the electronic signature; |
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(2) using an in-person identity proofing process that |
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meets the specifications of the Federal Bridge Certification |
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Authority before the online notarization; |
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(3) using a valid digital certificate accessed by |
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biometric data; or |
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(4) using an interoperable personal identity |
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verification card that is designed, issued, and managed in |
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accordance with the specifications in: |
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(A) Personal Identity Verification of Federal |
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Employees and Contractors published by the National Institute of |
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Standards and Technology; |
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(B) Personal Identity Verification |
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Interoperability for Non-Federal Issuers published by the Federal |
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Chief Information Officers Council; and |
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(C) any supplements or revisions to the |
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publications described by Paragraphs (A) and (B). |
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(c) If an electronic notary public verifies an identity |
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under Subsection (b)(3) or (4), the electronic notary public's |
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electronic notarization system must ensure that the digital |
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certificate or personal identity verification card is current and |
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has not been revoked at the time the online notarization is |
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performed. |
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(d) The electronic notary public shall take reasonable |
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steps to ensure that the two-way video and audio communication used |
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in an online notarization is secure from unauthorized interception. |
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(e) The electronic notarial certificate for an online |
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notarization must include a notation that the notarization is an |
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online notarization. |
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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 public |
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shall certify compliance with this subsection to the secretary of |
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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 January 1, 2018. |