CHAPTER 322. UNIFORM ELECTRONIC TRANSACTIONS ACT
BUSINESS AND COMMERCE CODE
TITLE 10. USE OF TELECOMMUNICATIONS
SUBTITLE B. ELECTRONIC COMMUNICATIONS
CHAPTER 322. UNIFORM ELECTRONIC TRANSACTIONS ACT
Sec. 322.001. SHORT TITLE. This chapter may be cited as the
Uniform Electronic Transactions Act.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.002. DEFINITIONS. In this chapter:
(1) "Agreement" means the bargain of the parties in fact, as
found in their language or inferred from other circumstances and
from rules, regulations, and procedures given the effect of
agreements under laws otherwise applicable to a particular
transaction.
(2) "Automated transaction" means a transaction conducted or
performed, in whole or in part, by electronic means or electronic
records, in which the acts or records of one or both parties are
not reviewed by an individual in the ordinary course in forming a
contract, performing under an existing contract, or fulfilling an
obligation required by the transaction.
(3) "Computer program" means a set of statements or instructions
to be used directly or indirectly in an information processing
system in order to bring about a certain result.
(4) "Contract" means the total legal obligation resulting from
the parties' agreement as affected by this chapter and other
applicable law.
(5) "Electronic" means relating to technology having electrical,
digital, magnetic, wireless, optical, electromagnetic, or similar
capabilities.
(6) "Electronic agent" means a computer program or an electronic
or other automated means used independently to initiate an action
or respond to electronic records or performances in whole or in
part, without review or action by an individual.
(7) "Electronic record" means a record created, generated, sent,
communicated, received, or stored by electronic means.
(8) "Electronic signature" means an electronic sound, symbol, or
process attached to or logically associated with a record and
executed or adopted by a person with the intent to sign the
record.
(9) "Governmental agency" means an executive, legislative, or
judicial agency, department, board, commission, authority,
institution, or instrumentality of the federal government or of a
state or of a county, municipality, or other political
subdivision of a state.
(10) "Information" means data, text, images, sounds, codes,
computer programs, software, databases, or the like.
(11) "Information processing system" means an electronic system
for creating, generating, sending, receiving, storing,
displaying, or processing information.
(12) "Record" means information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(13) "Security procedure" means a procedure employed for the
purpose of verifying that an electronic signature, record, or
performance is that of a specific person or for detecting changes
or errors in the information in an electronic record. The term
includes a procedure that requires the use of algorithms or other
codes, identifying words or numbers, encryption, or callback or
other acknowledgment procedures.
(14) "State" means a state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of
the United States. The term includes an Indian tribe or band, or
Alaskan native village, which is recognized by federal law or
formally acknowledged by a state.
(15) "Transaction" means an action or set of actions occurring
between two or more persons relating to the conduct of business,
commercial, or governmental affairs.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.003. SCOPE. (a) Except as otherwise provided in
Subsection (b), this chapter applies to electronic records and
electronic signatures relating to a transaction.
(b) This chapter does not apply to a transaction to the extent
it is governed by:
(1) a law governing the creation and execution of wills,
codicils, or testamentary trusts; or
(2) the Uniform Commercial Code, other than Sections 1.107 and
1.206 and Chapters 2 and 2A.
(c) This chapter applies to an electronic record or electronic
signature otherwise excluded from the application of this chapter
under Subsection (b) when used for a transaction subject to a law
other than those specified in Subsection (b).
(d) A transaction subject to this chapter is also subject to
other applicable substantive law.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.004. PROSPECTIVE APPLICATION. This chapter applies to
any electronic record or electronic signature created, generated,
sent, communicated, received, or stored on or after January 1,
2002.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.005. USE OF ELECTRONIC RECORDS AND ELECTRONIC
SIGNATURES; VARIATION BY AGREEMENT. (a) This chapter does not
require a record or signature to be created, generated, sent,
communicated, received, stored, or otherwise processed or used by
electronic means or in electronic form.
(b) This chapter applies only to transactions between parties
each of which has agreed to conduct transactions by electronic
means. Whether the parties agree to conduct a transaction by
electronic means is determined from the context and surrounding
circumstances, including the parties' conduct.
(c) A party that agrees to conduct a transaction by electronic
means may refuse to conduct other transactions by electronic
means. The right granted by this subsection may not be waived by
agreement.
(d) Except as otherwise provided in this chapter, the effect of
any of its provisions may be varied by agreement. The presence
in certain provisions of this chapter of the words "unless
otherwise agreed," or words of similar import, does not imply
that the effect of other provisions may not be varied by
agreement.
(e) Whether an electronic record or electronic signature has
legal consequences is determined by this chapter and other
applicable law.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.006. CONSTRUCTION AND APPLICATION. This chapter must
be construed and applied:
(1) to facilitate electronic transactions consistent with other
applicable law;
(2) to be consistent with reasonable practices concerning
electronic transactions and with the continued expansion of those
practices; and
(3) to effectuate its general purpose to make uniform the law
with respect to the subject of this chapter among states enacting
it.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.007. LEGAL RECOGNITION OF ELECTRONIC RECORDS,
ELECTRONIC SIGNATURES, AND ELECTRONIC CONTRACTS. (a) A record
or signature may not be denied legal effect or enforceability
solely because it is in electronic form.
(b) A contract may not be denied legal effect or enforceability
solely because an electronic record was used in its formation.
(c) If a law requires a record to be in writing, an electronic
record satisfies the law.
(d) If a law requires a signature, an electronic signature
satisfies the law.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.008. PROVISION OF INFORMATION IN WRITING; PRESENTATION
OF RECORDS. (a) If parties have agreed to conduct a transaction
by electronic means and a law requires a person to provide, send,
or deliver information in writing to another person, the
requirement is satisfied if the information is provided, sent, or
delivered, as the case may be, in an electronic record capable of
retention by the recipient at the time of receipt. An electronic
record is not capable of retention by the recipient if the sender
or its information processing system inhibits the ability of the
recipient to print or store the electronic record.
(b) If a law other than this chapter requires a record (i) to be
posted or displayed in a certain manner, (ii) to be sent,
communicated, or transmitted by a specified method, or (iii) to
contain information that is formatted in a certain manner, the
following rules apply:
(1) the record must be posted or displayed in the manner
specified in the other law;
(2) except as otherwise provided in Subsection (d)(2), the
record must be sent, communicated, or transmitted by the method
specified in the other law; and
(3) the record must contain the information formatted in the
manner specified in the other law.
(c) If a sender inhibits the ability of a recipient to store or
print an electronic record, the electronic record is not
enforceable against the recipient.
(d) The requirements of this section may not be varied by
agreement, but:
(1) to the extent a law other than this chapter requires
information to be provided, sent, or delivered in writing but
permits that requirement to be varied by agreement, the
requirement under Subsection (a) that the information be in the
form of an electronic record capable of retention may also be
varied by agreement; and
(2) a requirement under a law other than this chapter to send,
communicate, or transmit a record by first class mail may be
varied by agreement to the extent permitted by the other law.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.009. ATTRIBUTION AND EFFECT OF ELECTRONIC RECORD AND
ELECTRONIC SIGNATURE. (a) An electronic record or electronic
signature is attributable to a person if it was the act of the
person. The act of the person may be shown in any manner,
including a showing of the efficacy of any security procedure
applied to determine the person to which the electronic record or
electronic signature was attributable.
(b) The effect of an electronic record or electronic signature
attributed to a person under Subsection (a) is determined from
the context and surrounding circumstances at the time of its
creation, execution, or adoption, including the parties'
agreement, if any, and otherwise as provided by law.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.010. EFFECT OF CHANGE OR ERROR. (a) If a change or
error in an electronic record occurs in a transmission between
parties to a transaction, the rules provided by this section
apply.
(b) If the parties have agreed to use a security procedure to
detect changes or errors and one party has conformed to the
procedure, but the other party has not, and the nonconforming
party would have detected the change or error had that party also
conformed, the conforming party may avoid the effect of the
changed or erroneous electronic record.
(c) In an automated transaction involving an individual, the
individual may avoid the effect of an electronic record that
resulted from an error made by the individual in dealing with the
electronic agent of another person if the electronic agent did
not provide an opportunity for the prevention or correction of
the error and, at the time the individual learns of the error,
the individual:
(1) promptly notifies the other person of the error and that the
individual did not intend to be bound by the electronic record
received by the other person;
(2) takes reasonable steps, including steps that conform to the
other person's reasonable instructions, to return to the other
person or, if instructed by the other person, to destroy the
consideration received, if any, as a result of the erroneous
electronic record; and
(3) has not used or received any benefit or value from the
consideration, if any, received from the other person.
(d) If neither Subsection (b) nor Subsection (c) applies, the
change or error has the effect provided by other law, including
the law of mistake, and the parties' contract, if any.
(e) Subsections (c) and (d) may not be varied by agreement.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.011. NOTARIZATION AND ACKNOWLEDGMENT. If a law
requires a signature or record to be notarized, acknowledged,
verified, or made under oath, the requirement is satisfied if the
electronic signature of the person authorized to perform those
acts, together with all other information required to be included
by other applicable law, is attached to or logically associated
with the signature or record.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.012. RETENTION OF ELECTRONIC RECORDS; ORIGINALS. (a)
If a law requires that a record be retained, the requirement is
satisfied by retaining an electronic record of the information in
the record which:
(1) accurately reflects the information set forth in the record
after it was first generated in its final form as an electronic
record or otherwise; and
(2) remains accessible for later reference.
(b) A requirement to retain a record in accordance with
Subsection (a) does not apply to any information the sole purpose
of which is to enable the record to be sent, communicated, or
received.
(c) A person may satisfy Subsection (a) by using the services of
another person if the requirements of that subsection are
satisfied.
(d) If a law requires a record to be presented or retained in
its original form, or provides consequences if the record is not
presented or retained in its original form, that law is satisfied
by an electronic record retained in accordance with Subsection
(a).
(e) If a law requires retention of a check, that requirement is
satisfied by retention of an electronic record of the information
on the front and back of the check in accordance with Subsection
(a).
(f) A record retained as an electronic record in accordance with
Subsection (a) satisfies a law requiring a person to retain a
record for evidentiary, audit, or like purposes, unless a law
enacted after January 1, 2002, specifically prohibits the use of
an electronic record for the specified purpose.
(g) This section does not preclude a governmental agency of this
state from specifying additional requirements for the retention
of a record subject to the agency's jurisdiction.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.013. ADMISSIBILITY IN EVIDENCE. In a proceeding,
evidence of a record or signature may not be excluded solely
because it is in electronic form.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.014. AUTOMATED TRANSACTION. (a) In an automated
transaction, the rules provided by this section apply.
(b) A contract may be formed by the interaction of electronic
agents of the parties, even if no individual was aware of or
reviewed the electronic agents' actions or the resulting terms
and agreements.
(c) A contract may be formed by the interaction of an electronic
agent and an individual, acting on the individual's own behalf or
for another person, including by an interaction in which the
individual performs actions that the individual is free to refuse
to perform and which the individual knows or has reason to know
will cause the electronic agent to complete the transaction or
performance.
(d) The terms of the contract are determined by the substantive
law applicable to it.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.015. TIME AND PLACE OF SENDING AND RECEIPT. (a)
Unless otherwise agreed between the sender and the recipient, an
electronic record is sent when it:
(1) is addressed properly or otherwise directed properly to an
information processing system that the recipient has designated
or uses for the purpose of receiving electronic records or
information of the type sent and from which the recipient is able
to retrieve the electronic record;
(2) is in a form capable of being processed by that system; and
(3) enters an information processing system outside the control
of the sender or of a person that sent the electronic record on
behalf of the sender or enters a region of the information
processing system designated or used by the recipient which is
under the control of the recipient.
(b) Unless otherwise agreed between the sender and the
recipient, an electronic record is received when:
(1) it enters an information processing system that the
recipient has designated or uses for the purpose of receiving
electronic records or information of the type sent and from which
the recipient is able to retrieve the electronic record; and
(2) it is in a form capable of being processed by that system.
(c) Subsection (b) applies even if the place the information
processing system is located is different from the place the
electronic record is deemed to be received under Subsection (d).
(d) Unless otherwise expressly provided in the electronic record
or agreed between the sender and the recipient, an electronic
record is deemed to be sent from the sender's place of business
and to be received at the recipient's place of business. For
purposes of this subsection, the following rules apply:
(1) if the sender or the recipient has more than one place of
business, the place of business of that person is the place
having the closest relationship to the underlying transaction;
and
(2) if the sender or the recipient does not have a place of
business, the place of business is the sender's or the
recipient's residence, as the case may be.
(e) An electronic record is received under Subsection (b) even
if no individual is aware of its receipt.
(f) Receipt of an electronic acknowledgment from an information
processing system described in Subsection (b) establishes that a
record was received but, by itself, does not establish that the
content sent corresponds to the content received.
(g) If a person is aware that an electronic record purportedly
sent under Subsection (a), or purportedly received under
Subsection (b), was not actually sent or received, the legal
effect of the sending or receipt is determined by other
applicable law. Except to the extent permitted by the other law,
the requirements of this subsection may not be varied by
agreement.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.016. TRANSFERABLE RECORDS. (a) In this section,
"transferable record" means an electronic record that:
(1) would be a note under Chapter 3, or a document under Chapter
7, if the electronic record were in writing; and
(2) the issuer of the electronic record expressly has agreed is
a transferable record.
(b) A person has control of a transferable record if a system
employed for evidencing the transfer of interests in the
transferable record reliably establishes that person as the
person to which the transferable record was issued or
transferred.
(c) A system satisfies Subsection (b), and a person is deemed to
have control of a transferable record, if the transferable record
is created, stored, and assigned in such a manner that:
(1) a single authoritative copy of the transferable record
exists which is unique, identifiable, and, except as otherwise
provided in Subdivisions (4), (5), and (6), unalterable;
(2) the authoritative copy identifies the person asserting
control as:
(A) the person to which the transferable record was issued; or
(B) if the authoritative copy indicates that the transferable
record has been transferred, the person to which the transferable
record was most recently transferred;
(3) the authoritative copy is communicated to and maintained by
the person asserting control or its designated custodian;
(4) copies or revisions that add or change an identified
assignee of the authoritative copy can be made only with the
consent of the person asserting control;
(5) each copy of the authoritative copy and any copy of a copy
is readily identifiable as a copy that is not the authoritative
copy; and
(6) any revision of the authoritative copy is readily
identifiable as authorized or unauthorized.
(d) Except as otherwise agreed, a person having control of a
transferable record is the holder, as defined in Section 1.201,
of the transferable record and has the same rights and defenses
as a holder of an equivalent record or writing under the Uniform
Commercial Code, including, if the applicable statutory
requirements under Section 3.302(a), 7.501, or 9.330 are
satisfied, the rights and defenses of a holder in due course, a
holder to which a negotiable document of title has been duly
negotiated, or a purchaser, respectively. Delivery, possession,
and indorsement are not required to obtain or exercise any of the
rights under this subsection.
(e) Except as otherwise agreed, an obligor under a transferable
record has the same rights and defenses as an equivalent obligor
under equivalent records or writings under the Uniform Commercial
Code.
(f) If requested by a person against which enforcement is
sought, the person seeking to enforce the transferable record
shall provide reasonable proof that the person is in control of
the transferable record. Proof may include access to the
authoritative copy of the transferable record and related
business records sufficient to review the terms of the
transferable record and to establish the identity of the person
having control of the transferable record.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.017. ACCEPTANCE AND DISTRIBUTION OF ELECTRONIC RECORDS
BY GOVERNMENTAL AGENCIES. (a) Except as otherwise provided by
Section 322.012(f), each state agency shall determine whether,
and the extent to which, the agency will send and accept
electronic records and electronic signatures to and from other
persons and otherwise create, generate, communicate, store,
process, use, and rely upon electronic records and electronic
signatures.
(b) To the extent that a state agency uses electronic records
and electronic signatures under Subsection (a), the Department of
Information Resources and Texas State Library and Archives
Commission, pursuant to their rulemaking authority under other
law and giving due consideration to security, may specify:
(1) 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;
(2) if electronic records must be signed by electronic means,
the type of electronic signature required, the manner and format
in which the electronic signature must be affixed to the
electronic record, and the identity of, or criteria that must be
met by, any third party used by a person filing a document to
facilitate the process;
(3) control processes and procedures as appropriate to ensure
adequate preservation, disposition, integrity, security,
confidentiality, and auditability of electronic records; and
(4) any other required attributes for electronic records which
are specified for corresponding nonelectronic records or
reasonably necessary under the circumstances.
(c) Except as otherwise provided in Section 322.012(f), this
chapter does not require a governmental agency of this state to
use or permit the use of electronic records or electronic
signatures.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.018. INTEROPERABILITY. The Department of Information
Resources may encourage and promote consistency and
interoperability with similar requirements adopted by other
governmental agencies of this and other states and the federal
government and nongovernmental persons interacting with
governmental agencies of this state. If appropriate, those
standards may specify differing levels of standards from which
governmental agencies of this state may choose in implementing
the most appropriate standard for a particular application.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.019. EXEMPTION TO PREEMPTION BY FEDERAL ELECTRONIC
SIGNATURES ACT. This chapter modifies, limits, or supersedes the
provisions of the Electronic Signatures in Global and National
Commerce Act (15 U.S.C. Section 7001 et seq.) as authorized by
Section 102 of that Act (15 U.S.C. Section 7002).
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.020. APPLICABILITY OF PENAL CODE. This chapter does
not authorize any activity that is prohibited by the Penal Code.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 322.021. CERTAIN REQUIREMENTS CONSIDERED TO BE
RECOMMENDATIONS. Any requirement of the Department of
Information Resources or the Texas State Library and Archives
Commission under this chapter that generally applies to one or
more state agencies using electronic records or electronic
signatures is considered to be a recommendation to the
comptroller concerning the electronic records or electronic
signatures used by the comptroller. The comptroller may adopt or
decline to adopt the recommendation.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.