TX Administrative Rule (2018) | NNA
Rule

TX Administrative Rule (2018)

Notary Law Update: TX Administrative Rule (2018)

State: Texas

Summary:

New rules adopted by the Texas Secretary of State modify rules for "traditional" Notaries and add new regulations for online Notaries.

Signed:  August 17, 2018

Effective:  August 19, 2018

Chapter: N/A

Affects:

Repeals and adds new sections to Title 1, Chapter 87 of the Texas Administrative Code.

Changes:

Definitions

  1. Defines “credential,” “credential analysis,” “digital certificate,” “identity proofing,” “online Notary Public,” “personal appearance or personally appear,” “principal,” “Notary Public,” and “traditional Notary Public.”

Notary Public Commission

  1. Clarifies that a crime involving moral turpitude which disqualifies an applicant for a Notary commission includes but is not limited to a Class A or B misdemeanor which has not been set aside or for which no pardon or certificate of restoration of citizenship rights have been granted.
  2. Clarifies that Class C misdemeanor convictions will not be considered in determining eligibility for a Notary commission.
  3. Repeals former 1 TAC 87.3(d), relating to the submission of improperly completed applications and the ability of the applicant within 30 days of receiving notice from the Secretary of State regarding curing the deficiencies to respond without forfeiting fees submitted.
  4. Clarifies that applications for a “traditional Notary Public” commission may be handled through the Secretary of State’s electronic submission system.

Online Notary Public Commission

  1. Requires applications for online Notary commissions to use the electronic submission platform developed by the Secretary of State.
  2. Prescribes the following requirements for the online Notary commission application: (a) the applicant’s name to be used in acting as an online Notary must match the name on the applicant’s traditional Notary commission; (b) the applicant’s email address; (c) the applicant’s digital certificate; (d) a copy of applicant’s electronic seal in an acceptable file format; (e) the applicant’s Notary identification number, as assigned by the Secretary of State; and (e) an executed statement of officer, as required by the Texas Constitution.
  3. Requires an applicant for an online Notary commission to certify in the application for a commission that the applicant: (a) will comply with the standards set forth in 1 TAC Chapter 87 relating to identity proofing and credential analysis; (b) will use a third party provider who has provided the Notary with evidence of its ability to provide an electronic technology standard that utilizes Public Key Infrastructure (PKI) technology from a PKI service provider that is X.509 compliant when attaching or logically associating the Notary’s electronic seal and digital certificate to an electronic document; (c) will, upon request by the Secretary of State, promptly provide any necessary instructions or techniques supplied by a vendor that allow the online Notary ’s digital certificate and seal to be read and authenticated; and (d) is at least 18 years of age, is a resident of the State of Texas and has not been convicted of a felony or a crime involving moral turpitude.
  4. Requires an applicant to hold a commission as a traditional Notary before being eligible for appointment as an online Notary.
  5. Provides that the Secretary of State must issue a commission as an online Notary if: (a) the application is properly completed and signed; (c) the applicant makes the statement of officer required by the Texas Constitution; (c) the applicant pays the application fee of $50; and (d) no good cause exists for rejecting the application.
  6. Provides that the Secretary of State will not commission an applicant if the applicant had a prior application rejected or a commission revoked due to a finding of ineligibility or good cause and the reason for ineligibility or grounds for good cause continues to exist.
  7. Provides that an online Notary commission is effective as of the date of qualification and expires on the same date as applicant’s corresponding traditional Notary commission.
  8. Clarifies that a Notary who seeks to renew an online Notary commission must file the application on the same form as for the initial online Notary commission.
  9. Clarifies that the Secretary of State will not accept an online Notary commission application for renewal filed earlier than 90 days before the expiration of the current online commission, and further clarifies that the application for renewal must be received by the Secretary no later than the expiration date of the Notary’s current commission.

Changes to a Notary or Online Notary Commission

  1. Clarifies that a Notary who removes his or her residence from Texas or no longer qualifies under the residency exceptions provided under 1 TAC §87.12 vacates the office of Notary and must surrender the Notary commission to the Secretary of State.
  2. Provides that during the four-year term of office, a Notary may change the name on the Notary commission by submitting to the Secretary of State: (a) an Application for Change of Name as a Texas Notary Public (Form 2305); (b) for traditional Notaries, a rider or endorsement to the bond on file with the Secretary of State from the Notary’s surety company or its agent or representative specifying the change of name; (c) the current certificate of commission or a signed and notarized statement that the Notary will perform all future notarial acts under the name specified on the amended commission; and (d) the statutory fee equal to the sum of the fee for the issuance of a commission and the fee for filing of a bond.
  3. Provides that in changing the name on a commission, an online Notary must check the appropriate box on Form 2305 to update the name on both the traditional and online commission and pay the fee for issuance of two commissions and the bond.
  4. Provides that if the Notary who qualifies under a new name is commissioned as both a traditional and online Notary, the Notary must obtain both a new traditional seal and new electronic seal and digital certificate that contains the name, as specified on the amended commission, under which the Notary will perform all future notarial acts.
  5. Requires an online Notary at all times to maintain an electronic seal and a digital certificate that includes the online Notary’s electronic signature, both which must comply with the provisions of Government Code Chapter 406 and 1 TAC Chapter 87.
  6. Requires an online Notary to replace an electronic seal or digital certificate under the following circumstances: (a) the electronic seal or digital certificate has expired; (b) the electronic seal or digital certificate has been revoked or terminated by the device’s issuing or registering authority; or (c) the electronic seal or digital certificate is for any reason no longer valid or capable of authentication.
  7. Requires an online Notary who replaces an electronic seal or digital certificate to provide the following to the Secretary of State within 10 days of the replacement: (a) the electronic technology or technologies to be used in attaching or logically associating the new electronic seal or digital certificate to an electronic document; (b) the applicant’s new digital certificate, if applicable; (c) a copy of applicant’s new electronic seal, if applicable; and (4) any necessary instructions or techniques supplied by the vendor that allow the Notary’s electronic seal or digital certificate to be read and authenticated.

Administrative Action Against a Notary or Online Notary Commission

  1. Specifies the following as additional grounds for “good cause” for the Secretary of State to take action against the commission of a Notary: (a) a failure to include in the notarial certificate for an online notarization a notation that the notarization is an online notarization; (b) a failure to take reasonable steps to ensure that the two-way audio-visual communication used during an online notarization is secure from unauthorized interception; (c) a failure to safely and securely maintain Notary materials; (d) performing a notarial act that the Notary is not authorized to perform; (e) a failure to report a new digital certificate or seal as required by 1 TAC 87.63; (f) notarizing one’s own signature; (g) a failure to pay the filing fee required by Government Code 406.007, and 1 TAC 87.13 and 1 TAC 87.14 or when such payment was rejected for payment; (h) a failure to timely respond to a request for information from the Secretary of State; and (i) a failure to maintain a current address as required by Government Code 406.019.
  2. Requires a complaint against a Notary to include (a) the email address of the person filing the complaint and (b) whether the Notary was performing an online notarization In addition to the information required for submitting a complaint in the existing rules.
  3. Clarifies that a response of a Notary to a complaint must be received by the Secretary of State within 21 days of the date of the Secretary’s notice of the complaint to the Notary.
  4. Clarifies that if an individual has been commissioned as a traditional and online Notary, the Secretary of State has the discretion to pursue revocation of either the online Notary commission alone or both the traditional and online Notary commission.

Notary Seal

  1. Requires the name on the Notary seal to match the name, as stated on the application, under which the Notary is commissioned and performs all notarial acts.
  2. Requires the Notary seal to remain within the exclusive control of the Notary at all times.

Notary Records

  1. Prohibits a Notary, other than a court clerk notarizing instruments for the court, to record in the Notary’s record book a biometric identifier, including a fingerprint, voice print and retina or iris image.
  2. Clarifies that the prohibitions against recording information in the record book do not apply to the audio-visual recording required by an online Notary performing an online notarization.
  3. Clarifies that a Notary is not prohibited from recording a number related to the mailing address of the principal of the document or the instrument in the record book.
  4. Provides that a Notary who inadvertently records information that is prohibited under 1 TAC § 87.50 Subsection (a) must redact the information prior to providing public access to or copies of the Notary record book.
  5. Requires records of an online notarization to be maintained electronically in computers or other storage devices that are capable of recording the information required by Government Code §406.108, including a recording of any video and audio conference that is the basis for identifying the principal.
  6. Authorizes an online Notary to contract with a third party to provide storage of the online Notary’s records if the third party (a) has provided reasonable evidence to the online Notary that it is capable of providing such services; and (b) provides complete access to the online Notary of all the Notary’s records for an agreed period of time, which at minimum, complies with the retention requirements in 1 TAC §87.54 even if such a contract is terminated.
  7. Provides that if the contract between the online Notary and the third party who maintains the online Notary’s records is terminated, all records must be transferred to the online Notary.
  8. Requires that the records of a Notary must remain within the exclusive control of the Notary at all times.
  9. Allows a Notary who performs multiple notarizations for the same principal within a single document to abbreviate the entry of those notarizations in the Notary record book, except that a separate entry must be made for each type of notarial act; and further provides that the abbreviated entry must contain all the information required by Government Code §406.014 and must include the number of notarizations performed within the specified document.
  10. Provides that if any portion of the audio-visual recording of an online notarization includes biometric information or includes an image of the identification card used to identify the principal, that portion of the recording is confidential and must not be released without consent of the individual(s) whose identity is being established, unless ordered by a court of competent jurisdiction or upon request by the Secretary of State.
  11. Provides that failure of a Notary to promptly and adequately respond to a request for public information in accordance with 1 TAC §87.52 may be good cause for commission suspension or revocation or other disciplinary action against the Notary.
  12. Requires records of an online notarization to be retained, in a safe and secure manner, for five years following the date of the notarization, not three years as is required for traditional Notary records.
  13. Requires an online Notary to maintain a back-up of the electronic records for five years, protecting both the original records and the back-up from unauthorized use.

Notary Procedures

  1. Prohibits a traditional Notary from performing a notarization if the principal does not personally appear before the Notary in accordance with 1 TAC §87.1 at the time of notarization.
  2. Provides that the methods by which a traditional Notary identifies a principal are: (a) the traditional Notary personally knows the principal; (b) the principal is introduced by oath of credible witness who personally knows the principal and either is personally known to the traditional Notary or provides qualifying identification; or (c) identification by a credential.
  3. Provides that for all notarial acts that require a notarial certificated the traditional Notary must attach a notarial certificate that names the principal, the date of the notarization, the state and county in which the notarization is performed and language evidencing the type of notarial act performed; and further requires the notarial certificate to be signed and include an impression of the Notary’s seal.
  4. Provides that a traditional Notary must keep a record of all notarial acts in accordance with Government Code §406.014 and 1 TAC Chapter 87.
  5. Clarifies that these traditional Notary procedures apply to notarizations on tangible or electronic records.

Online Notarization Procedures

  1. Provides that an online notarization may only be performed by a Notary who is commissioned as an online Notary.
  2. Prohibits an online Notary from performing an online notarization if the online Notary is not physically in Texas at the time of the notarization.
  3. Prohibits an online Notary from performing an online notarization if the principal does not personally appear before the Notary in accordance with 1 TAC §87.1 at the time of notarization.
  4. Provides that the methods by which a online Notary identifies a principal are: (a) the online Notary personally knows the principal; (b) the principal is introduced by oath of credible witness who personally knows the principal and either is personally known to the online Notary or provides qualifying identification; or (c) the principal or credible witness is identified using the identity proofing and credential analysis standards in accordance with Subchapter H of 1 TAC Chapter 87.
  5. Provides that for all notarial acts that require a notarial certificate, the online Notary must attach an electronic notarial certificate that identifies the principal, the date of the notarization, the state and county in which the notarization was performed, that the notarial act was an online notarization and language evidencing the type of the notarial act performed; and further requires the notarial certificate to be signed by affixing the online Notary’s digital certificate and including an attachment of the online Notary’s electronic seal.
  6. Clarifies that the liability, sanctions and remedies for the improper performance of online notarial acts are the same as described and provided by law for the improper performance of traditional notarial acts.
  7. Requires an online Notary to keep a record of all notarial acts in accordance with Government Code §406.108 and 1 TAC Chapter 87.
  8. Provides that the record that must be kept of online notarial acts must include a recording of the audio-visual conference that is the basis for satisfactory evidence of identity and a notation of the type of identification presented as evidence by the principal, if the principal is not personally known to the online Notary.
  9. Provides that the recording of the audio-visual conference must include, at minimum (a) confirmation by the Notary that the principal has successfully completed identity proofing and credential analysis; (b) visual confirmation of the identity of the principal through visual inspection of the credential used during credential analysis; and (c) the actual notarial act performed.
  10. Provides that if the principal is personally known to the online Notary, the audio-visual conference must include a statement to that effect and a recording of the actual notarial act performed.
  11. Prohibits an online Notary from disclosing any access information used to affix the Notary’s digital certificate and seal except when requested by the Secretary of State, law enforcement, the courts and, with reasonable precautions, electronic document preparation and transmission vendors.
  12. Requires online Notaries to attach their digital certificate 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.
  13. Requires identity proofing and credential analysis to be performed by a reputable third party who has provided evidence to the online Notary of the ability to satisfy the requirements of 1 TAC Chapter 87.
  14. Requires identity proofing to be performed through dynamic knowledge-based authentication that meets the following requirements: (a) the principal must answer a minimum of five questions related to the principal’s personal history or identity formulated from public and proprietary data sources; (b) each question must have a minimum of five possible answer choices; (c) at least 80% of the questions must be answered correctly; (d) all questions must be answered within two minutes; (e) if the principal fails their first attempt, they may retake the quiz one time within 24 hours; (f) during the retake, a minimum of 60% of the prior questions must be replaced; and (g) if the principal fails their second attempt, they are not permitted to retry with the same online Notary for 24 hours.
  15. Requires credential analysis to be performed utilizing public and proprietary data sources to verify the credential presented by the principal.
  16. Requires credential analysis, at a minimum, to use automated software processes to aid the online Notary in verifying the identity of a principal or any credible witness.
  17. Requires credential analysis, at a minimum, to ensure that the credential passes an authenticity test, consistent with sound commercial practices that (a) use appropriate technologies to confirm the integrity of visual, physical or cryptographic security features; (b) use appropriate technologies to confirm that the credential is not fraudulent or inappropriately modified; (c) use information held or published by the issuing source or authoritative source(s), as available, to confirm the validity of personal details and credential details; and (d) provide output of the authenticity test to the Notary.
  18. Provides that if the principal must exit the workflow the principal must meet the criteria outlined in 1 TAC §87.70 and must restart the identity proofing and credential analysis from the beginning.
  19. Requires an online system used to perform online notarial acts by means of audio-video communication to (a) provide for continuous, synchronous audio-visual feeds; (b) provide sufficient video resolution and audio clarity to enable the online Notary and the principal to see and speak to each other simultaneously through live, real time transmission; (c) provide sufficient captured image resolution for credential analysis to be performed in accordance with 1 TAC Chapter 87 Subchapter H; (d) include a means of authentication that reasonably ensures only the proper parties have access to the audio-video communication; (e) provide some manner of ensuring that the electronic record that is presented for online notarization is the same record electronically signed by the principal; (f) be capable of securely creating and storing or transmitting securely to be stored an electronic recording of the audio-video communication, keeping confidential the questions asked as part of any identity proofing quiz, and the means and methods used to generate the credential analysis output; and (g) provide reasonable security measures to prevent unauthorized access to the live transmission of the audio-visual communication, a recording of the audio-visual communication, the verification methods and credentials used to verify the identity of the principal and the electronic documents presented for electronic notarization.

Refusal of Requests for Notary or Online Notary Services

  1. Clarifies that any employer may limit or prohibit an employee who is a Notary from notarizing during work hours. Note: the prior rule allowed private employers to limit the services of their Notaries.
  2. Authorizes an online Notary to refuse to perform an online notarization if the online Notary is unable to verify the identity of the principal using an acceptable means of identification in accordance with Subchapter H of 1 TAC Chapter 87.
  3. Authorizes an online Notary to refuse to perform an online notarization if the online Notary is unable to verify the security of the two-way audio-visual transmission.
  4. Authorizes an online Notary to refuse to perform an online notarization if the signature of the principal cannot be attached to the electronic document.
  5. Authorizes an online Notary to refuse to perform an online notarization if the digital certificate or electronic seal of online Notary cannot be attached to the electronic document in a manner that renders any subsequent change or modification to the document evident.
Analysis:

The Texas Secretary of State has adopted final rules to implement its online notarization statute that took effect on July 1, 2018. While most of the new rules affect online notarization, there are some notable changes to the “traditional” Notary rules. For example, Texas Notaries now are prohibited from obtaining a biometric (e.g., a thumbprint, iris scan, etc.) in their record books. Notaries also now are required to keep their physical seals and record books under their exclusive control at all times. But, largely the new rules contain provisions that flesh out the online notarization statute by providing definitions of key terms and standards for identity proofing and credential analysis, among others. Every Texas Notary who applies for an online Notary commission is expected to know the rules and to follow them when performing online notarizations.

Read the text of the adopted rules.

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