Summary:
Texas allows electronic and remote online notarization of documents. Texas was one of the first states to pass legislation to permit electronic or online notary public. Electronic and remote online notary are two different types of notary. Electronic notarizations require that the signer and the notary are in the same physical location; therefore, more convenient and safe process during these uncertain times will be the remote online notarization.
There are various requirements to qualify as an online notary and record keeping requirements of the Online Notary (“ON”). These requirements will be discussed in-depth below, but one of the requirements of online notary process is that ON must keep a recording of the notarial act.[1]
Online notary process requires strict electronic record keeping and it is strongly recommended that every ON should confer with their company’s IT department to determine the best practices to safely store recordings and related evidence. The rest of this memorandum will dive deeper into the remote online notary requirements and process.
How to become an Online Notary?
First, one must be a notary public with a current (unexpired) notary commission from the State of Texas. If you are a current notary then you can apply for a separate ON public commission from the Texas Secretary of State. To be an ON an individual must meet all qualifications to become a traditional notary, plus have a notary identification number and hold a current (unexpired) commission as a traditional Texas notary public and pay a $50.00 application fee to the Texas Secretary of State.
Using your new Online Notary (“ON”) ability?
1. ON must be physically located in Texas at the time of the document notarization, but the signer for which you are notarizing the document does not have to be in Texas.[2] The entire process must be completed via a livestream two-way audio/visual video that can be recorded[3]. The audio and video must be clear so all parties can hear and see each other, identify the document, see what document is signed, and see the signer signing the document. ON must be able to have sufficient audio/visual evidence that the final signed documents is what was intended to signed before them.
2. ON must verify the identification of the signer. There are 3 ways to do this: (a) ON personally knows the signer, (b) a credible witness swears by oath to the identity of the signer, or (c) the signer provides valid identification.
a. If neither the signer or the witness are personally known by ON, then the signer or witness must prove their identity by showing a valid unexpired ID AND by using the following procedures, either “credential analysis” of “identity-proofing, both of which use a Texas Secretary of State sanctioned process from a 3rd-party that confirms the validity of the government issued ID or the person’s identity. There are programs that can be purchased that will run the necessary “credential analysis” or “identity proofing” for an ID.
3. ON must affix their seal and signature to the document that is tamper-resistant or provide evidence in the event that ON’s signature or seal were tampered with. Again, there are programs can be purchased to assist this with process.
a.The Notarial Certificate must state it was conducted by online notarization.
4. ON must have and affix ON’s digital certificate, which must:
a. Be provided by a 3rd party,
b. Use Public Key Infrastructure (PKI) technology,
c. Be X.509 compliant,
d. Include image of electronic signature, and may include image of electronic seal, and
e. Be capable of independent verification and make document tamper-evident after affixed.
f. Not disclose any access information used to affix ON’s digital certificate and seal, except by State or Court order or with signer’s prior consent.
5. ON must be able to create and store a copy of the online notarial act, including all audio/visual evidence of the act. ON must keep and safeguard copies of the electronic documents in a safe storage manner that is under the exclusive control of ON.
Retention of Electronic Records:
1. ON must retain electronic records, under ON’s exclusive control or with 3rd-parties, for 5 years in a safe and secure manner and in such a way as to satisfy identification of the process, including the parties and the documents, on an evidentiary basis-standard.
2. Electronic Notary Journal must include:
a. Name of the signer and “evidence of identity”
i. Statement of personal knowledge of the signer or notation of type of ID of signer, and
ii. Record of identity verification or the printed name and address (as well as form of ID) of witness swearing to know the signer.
b. Type, time, date, and description of notarial act,
c. The fee, if any, paid for performing the notary act, which cannot exceed $25.00.
Online Notarization using Electronic Signature Programs:
ON may notarize documents using electronic signature programs. The requirements are the same; ON must be able to verify the signer, identify the document prior to execution, be able to watch via the audio/visual livestream the signer signing/affixing the electronic signature to the document in the same image and, lastly, ON must be provided the executed document to verify the document and the signer’s identity prior to affixing ON’s digital certification.
Additional Notes:
1. It is recommended that you always check with the entity requiring a notarized document. As private entities and government offices may have differing requirements for accepting online notarized documents.
2. ON may refuse to perform an online notarization for a variety of reasons, for example not being able determine the identity of the signor.
3. ON may lose their commission for similar things as a “traditional notary” might lose their commission, such as failing to properly notarize a document.
4. Electronic Notary and (Remote) Online Notary are two different things.
a. In Texas, an electronic notarization (i.e., affixing an electronic or digital signature and seal to an electronic document) may be performed by a traditional notary. Although the signing of the document and notarization are performed electronically, both the notary public and the person signing the document must be physically present at the same location at the time of the notarization.
Update:
April 9, 2020, Governor Greg Abbott suspended certain statutes related to the signatory’s physical appearance requirements of executing the document in front of a notary public. The Governor’s order was very limited in scope and only applied to the following statutes: Tex. Estates Code § 251.104(b), Tex. Estates Code § 2511045(a), Tex. Estates Code § 751.0021(a)(4), Tex. Estates Code § 305.054, Tex. Estates Code § 1105.052, Tex. Health & Safety Code § 166.154(b), and Tex. Health & Safety Code § 166.032(b-1). These statutes primarily impact self-proving affidavits for wills, durable powers of attorneys, medical powers of attorney, directives to physicians, and oaths of executors, administrators, and guardians.
The Governor’s order modified requirements of physical appearance by the following:
(1) A notary public shall verify the identity of a person signing a document at the time the signature is taken by using two-way video and audio conference technology,
(2) A notary public may verify identity by personal knowledge of the signing person, or by analysis based on the signing person’s remote presentation of a government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the person, and
(3) The signing person shall transmit by fax or electronic means a legible copy of the signed document to the notary public, who may notarize the transmitted copy and then transmit the notarized copy back to the signing person by fax or electronic means, at which point the notarization is valid.[4]
The limited exceptions only apply to the signing party, but not to the witness(es) of the signing party. The Governor’s order will terminate by either a superseding order issued by the Office of the Governor or until the March 13, 2020 disaster declaration is lifted or expires.
Update 2:
April 27, 2020, Governor Greg Abbott further modified and suspended certain notary execution requirements. The latest order from the Governor’s office suspends Texas Civil Practices & Remedies § 121.006(c)(1) to the extent that this section required physically appearing before a notary public for the purpose of executing real estate instruments and allowed for execution of documents to occur via videoconferencing.
The Governor’s order provided substitute requirements for the execution of real estate instruments via videoconference:
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- (1) The videoconference must be conducted with audio and video so as to allow the notary public to be able to identify the signatory and the document being signed.
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- (2) Notary public must verify the identity of the signatory and this can be done by:
a. Personal knowledge of the person executing the document,
b. Examination of a government issued form of identification that includes a signature and a photograph of the person executing the document, or
c. A sworn statement by a witness attesting to personal knowledge of the person signing and their signature.
(3) During the video conference:
a. Notary public must be located within the physical boundaries of Texas,
b. Party signing the document must be physically located in Texas and attest to such,
c. Party must affirmatively identify the document being executed, and
d. The act of signing the document must be conducted in such a manner as to allow the Notary public to observe the actual signature.
The audio-video recording must be kept for 2 years from the date of the notarization of the instrument. The original document executed must be sent to the notary public who will then sign and affix their seal to the document and date the document as of the date of the audio-video recording.
It is critical that the notary certification include the following or something substantially similar, “This notarization involved the use of two-way audio-video communications pursuant to the suspension granted by the Office of the Governor on April 24, 2020, under Section 418.016 of the Texas Government Code.”
This suspension granted by the Office of the Governor on April 27, 2020, is in effect until the earlier of May 30, 2020, or the termination of the March 13, 2020 disaster declaration.
[1] Texas only requires one-party consent to recording it is prudent and recommended that you receive affirmative acknowledgment that the person being recorded agrees to be recorded.
[2] Case law and statutes are unclear if the person signing must be in the US at the time of signing.
[3] There are programs and services offered you can pay to record the process in a compliant manner.
[4] https://gov.texas.gov/news/post/governor-abbott-temporarily-suspends-certain-statutes-to-allow-for-appearance-before-notary-public-via-videoconference
