BUSINESS & COMMERCE CODE
CHAPTER 43. UNIFORM ELECTRONIC TRANSACTIONS ACT
§ 43.001. SHORT TITLE. This chapter may be cited as the
Uniform Electronic Transactions Act.
Added by Acts 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.002. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.003. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.004. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.005. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.006. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.007. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.008. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.009. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.010. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.011. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.012. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.013. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.014. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.015. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.016. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.017. ACCEPTANCE AND DISTRIBUTION OF ELECTRONIC
RECORDS BY GOVERNMENTAL AGENCIES. (a) Except as otherwise
provided by Section 43.012(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 43.012(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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.018. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.019. 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 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.020. APPLICABILITY OF PENAL CODE. This chapter
does not authorize any activity that is prohibited by the Penal
Code.
Added by Acts 2001, 77th Leg., ch. 702, § 1, eff. Jan. 1, 2002.
§ 43.021. 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 2001, 77th Leg., ch. 1158, § 2, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.020 by Acts 2003,
78th Leg., ch. 1275, § 2(5), eff. Sept. 1, 2003.
