HBA-MPM S.B. 393 77(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 393 By: Carona Business & Industry 4/17/2001 Engrossed BACKGROUND AND PURPOSE Current state law does not contain any provisions governing the use of electronic signatures, contracts, and records. Therefore, parties enter into electronic contracts or send electronic records at their own risk. The Electronic Signatures in Global and National Commerce Act, passed by the 106th Congress in 2000, provided that in any transaction affecting interstate commerce an electronic signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form. The federal legislation also authorized states to enact or adopt the Uniform Electronic Transactions Act, as approved and recommended for enactment in all states by the National Conference of Commissioners on Uniform State Laws in 1999. Several states have passed such an act. Senate Bill 393 creates the Uniform Electronic Transactions Act to regulate the use of transactions involving electronic records, signatures, and contracts. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to state regulatory agencies in SECTION 6 of this bill. ANALYSIS Senate Bill 393 amends the Business & Commerce Code to create the Uniform Electronic Transactions Act to regulate the use of transactions involving electronic records and electronic signatures (Secs. 43.001 and 43.003). The bill provides for the legal recognition and enforceability of electronic records, electronic signatures, and contracts utilizing electronic records. The bill provides that if a law requires a signature of for a record to be in writing, an electronic signature or record satisfies the law (Sec. 43.007). The bill does not apply to a transaction governed by other laws concerning the creation and execution of wills, codicils, or testamentary trusts, or certain sections of the Uniform Commercial Code (Sec. 43.003). The bill applies only to transactions between parties that agree to conduct transactions by electronic means (Sec. 43.005). The bill provides that if two parties have agreed to conduct a transaction by electronic means and the law requires one party to send information in writing, the requirement is satisfied if the information is provided, sent, or delivered in an electronic record capable of retention by the recipient. The bill provides that an electronic record is not enforceable against the recipient if a sender inhibits the ability of the recipient to store or print an electronic record (Sec. 43.008). S.B. 393 provides that an electronic record or electronic signature is attributable to a person if it was the act of the person (Sec. 43.009). The bill provides remedies for situations in which errors or changes occur in an electronic record between parties in an electronic transaction who have agreed on security procedures and between an individual and an electronic agent of another person involved in an automated transaction (Sec. 43.010). The bill provides that the requirement of a law requiring a signature or record to be notarized, acknowledged, verified, or made under oath is satisfied if the electronic signature of the person authorized to perform those acts is attached to or logically associated with the signature or record (Sec. 43.011). If a law requires a record to be retained, the requirement is satisfied by retaining an electronic record of the information in the record that is accurate and accessible for later reference. If a law requires the retention of a check, that requirement is satisfied by the retention of an electronic record of the pertinent information contained on the check (Sec. 43.012). The bill provides that, in a proceeding, evidence of a record or signature may not be excluded solely because it is in electronic form (Sec. 43.013). The bill provides the terms of a contract between electronic agents for electronic automated transactions, the terms under which an electronic record is considered as being sent and received, and the terms under which an electronic record is considered a transferable record and provisions regarding the control of a transferable record (Secs. 43.014, 43.015, and 43.016). The bill requires each state agency to determine whether, and the extent to which, the agency will send and accept electronic records and electronic signatures to and from other persons. The bill authorizes the Department of Information Resources and the Texas State Library and Archives Commission, pursuant to their rulemaking authority under other law and giving due consideration to security, to specify the manner and format in which the electronic records must be created, generated, sent, communicated, received, and stored, and the systems established for those purposes. The bill does not require a governmental agency of this state to use or permit the use of electronic records or electronic signatures (Sec. 43.017). The bill authorizes the Department of Information Resources to encourage and promote consistency and interoperability within governmental agencies of this state, other states, the federal government, and nongovernmental persons who interact with state governmental agencies (Sec. 43.018). The bill modifies, limits, or supersedes the provisions of the Electronic Signatures in Global and National Commerce Act as authorized by that Act and applies to any electronic record or electronic signature created, generated, sent, communicated, received, or stored on or after January 1, 2002 (Secs. 43.019 and 43.004). S.B. 393 amends the Local Government Code to provide that the instruments filed electronically that may be accepted by a county clerk are electronic records and authorizes a county clerk to accept any filed electronic record and to electronically record that record if the filing and recording of the record complies with rules adopted by the Texas State Library and Archives Commission (commission) (Secs. 191.009 and 195.002, Local Government Code). The bill authorizes a regulatory agency of this state by rule or order issued after notice and an opportunity for public comment, to exempt without condition a specific category or type of record from the requirements related to global consent in the federal Electronic Signatures in Global and National Commerce Act, if the exception is necessary to eliminate a substantial burden on electronic commerce and will not increase the material risk of harm to consumers. If a regulatory agency determines after notice and an opportunity for public comment, and publishes a finding, that one or more exceptions are no longer necessary for the protection of consumers, the agency is authorized to extend the application of this bill to the exceptions (SECTION 6). EFFECTIVE DATE January 1, 2002.