CHAPTER 322. UNIFORM ELECTRONIC TRANSACTIONS ACT

State Codes and Statutes

Statutes > Texas > Business-and-commerce-code > Title-10-use-of-telecommunications > 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

State Codes and Statutes

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