Bill Text: MS SB2546 | 2024 | Regular Session | Comm Sub
Bill Title: Remote online notarization; allow.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2024-03-14 - Died On Calendar [SB2546 Detail]
Download: Mississippi-2024-SB2546-Comm_Sub.html
MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Business and Financial Institutions
By: Senator(s) Polk
Senate Bill 2546
(COMMITTEE SUBSTITUTE)
AN ACT TO AMEND SECTION 25-34-3, MISSISSIPPI CODE OF 1972, TO UPDATE THE NOTARIAL ACT DEFINITIONS TO DEFINE TERMS ASSOCIATED WITH THE ALLOWANCE OF REMOTE ONLINE NOTARIZATION; TO AMEND SECTION 25-34-5, MISSISSIPPI CODE OF 1972, TO CHANGE THE EFFECTIVE DATE OF THIS CHAPTER; TO AMEND SECTION 25-34-7, MISSISSIPPI CODE OF 1972, TO ALLOW NOTARIAL OFFICERS TO CERTIFY TANGIBLE COPIES OF AN ELECTRONIC RECORDS AS TRUE AND CORRECT; TO AMEND SECTION 25-34-9, MISSISSIPPI CODE OF 1972, TO ALLOW NOTARIAL OFFICERS TO CHARGE HIGHER RATES AS AUTHORIZED BY THE SECRETARY OF STATE; TO AMEND SECTION 25-34-11, MISSISSIPPI CODE OF 1972, TO OUTLINE HOW A NOTARIAL OFFICER MUST DETERMINE THE IDENTITY AND VALIDITY OF A SIGNATURE; TO AMEND SECTION 25-34-15, MISSISSIPPI CODE OF 1972, TO CLARIFY WHAT IS ALLOWED FOR PERSONAL OR REMOTE APPEARANCES; TO AMEND SECTION 25-34-17, MISSISSIPPI CODE OF 1972, TO SPECIFY WHEN A NOTARIAL OFFICER SHALL REFUSE TO PREFORM REMOTE ONLINE NOTARIZATIONS; TO AMEND SECTION 25-34-29, MISSISSIPPI CODE OF 1972, TO CONFORM; TO AMEND SECTION 25-34-31, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT REMOTE ONLINE NOTARIZED DOCUMENTS INCLUDE LANGUAGE THAT INDICATE THAT REMOTE INK-SIGNED NOTARIZATION WAS USED TO NOTARIZE THE DOCUMENT; TO AMEND SECTION 25-34-33, MISSISSIPPI CODE OF 1972, TO CONFORM LANGUAGE; TO AMEND SECTION 25-34-37, MISSISSIPPI CODE OF 1972, TO INCLUDE THE NOTATION OF REMOTE ONLINE NOTARIZATION SYSTEMS AND TECHNOLOGY IN THE JOURNAL ENTRY REQUIREMENTS FOR NOTARIES; TO AMEND 25-34-51, MISSISSIPPI CODE OF 1972, TO AMEND THE RULES THAT THE SECRETARY OF STATE MAY PROMULGATE TO IMPLEMENT THE MISSISSIPPI ADMINISTRATIVE PROCEDURES LAWS; TO AMEND SECTIONS 25-34-53 AND 25-34-55, MISSISSIPPI CODE OF 1972, TO AMEND THE EFFECTIVE DATES WITHIN THE MISSISSIPPI ADMINISTRATIVE PROCEDURES LAW; AN ACT TO BRING FORWARD SECTIONS 25-34-1, 25-34-13, 25-34-19, 25-34-21, 25-34-23, 25-34-25, 25-34-27, 25-34-35, 25-34-39, 25-34-41, 25-34-43, 25-34-45, 25-34-47, 25-34-49 AND 25-34-57, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 25-34-1, Mississippi Code of 1972, is brought forward as follows:
25-34-1. This act shall be known and may be cited as the "Revised Mississippi Law on Notarial Acts."
SECTION 2. Section 25-34-3, Mississippi Code of 1972, is amended as follows:
25-34-3. As used in this act, the following words and phrases have the meanings ascribed in this section unless the context clearly requires otherwise:
(a) "Acknowledgment" means a declaration by an individual in person before a notarial officer that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record.
(b) "Communication technology" means an electronic device or process that:
(i) Allows a notarial officer and a remotely located individual to communicate with each other simultaneously by sight and sound; and
(ii) When necessary and consistent with other applicable laws, facilitates communication with a remotely located individual who has vision, hearing or speech impairment.
(c) "Credential analysis" means a process or service operating according to criteria approved by the Secretary of State through which a third person or party affirms the validity of a government-issued identification credential through a review of public or proprietary data sources.
( * * *d) "Electronic" means relating
to technology having electrical, digital, magnetic, wireless, optical, electromagnetic
or similar capabilities.
(e) "Electronic notarization system" means a set of applications, programs, hardware, software or technologies designed to enable a notary public to perform electronic notarizations that renders every electronic notarial act tamper-evident through the use of a security procedure and that meets the requirements of this act and any rules established by the Secretary of State.
( * * *f) "Electronic signature" means
an electronic symbol, sound or process attached to or logically associated with
a record and executed or adopted by an individual with the intent to sign the record.
(g) "Foreign state" as used in Section 6 of this act, means a jurisdiction other than the United States, a state or a federally recognized Indian tribe.
(h) "Identity proofing" means a process or service by which a third person provides a notarial officer with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.
( * * *i) "In a representative capacity"
means acting as:
(i) An authorized officer, manager, member, agent, partner, trustee or other representative for a person other than an individual;
(ii) A public officer, personal representative, guardian or other representative, in the capacity stated in a record;
(iii) An agent or attorney-in-fact for a principal; or
(iv) An authorized representative of another in any other capacity.
( * * *j) "Notarial act" means an act,
whether performed with respect to a tangible or electronic record, that a notarial
officer may perform under this act and any other law of this state. The term
includes taking an acknowledgment, administering an oath or affirmation, taking
a verification on oath or affirmation, witnessing or attesting a signature, certifying
or attesting a copy and noting a protest of a negotiable instrument.
( * * *k) "Notarial officer" means a
notary public or other individual authorized to perform a notarial act.
( * * *l) "Notary public" means an individual
commissioned to perform a notarial act by the Secretary of State.
( * * *m) "Official seal" means a physical
image affixed to a tangible record or an electronic image attached to or logically
associated with an electronic record.
(n) "Outside the United States" means a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands and any other territory, insular possession or other location subject to the jurisdiction of the United States.
( * * *o) "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.
(p) "Remotely located individual" means an individual who is not in the physical presence of a notarial officer performing a notarial act.
(q) "Remote ink-signed notarization" or "RIN" means a notarial act performed for a remotely located individual by means of communication technology on a tangible record.
(r) "Remote online notarization" or "RON" means a notarial act performed for a remotely located individual by means of communication technology and an electronic notarization system on an electronic record.
( * * *s) "Sign" means, with present
intent to authenticate or adopt a record:
(i) To execute or adopt a tangible symbol; or
(ii) To attach to or logically associate with the record an electronic symbol, sound or process.
( * * *t) "Signature" means a tangible
symbol or an electronic signature that evidences the signing of a record.
( * * *u) "Stamping device" means:
(i) A physical device capable of affixing to a tangible record an official seal; or
(ii) An electronic device or process capable of attaching to or logically associating an official seal with an electronic record.
( * * *v) "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.
( * * *w) "Verification on oath or affirmation,"
formerly known as a jurat, means a declaration, made by an individual on oath or
affirmation before a notarial officer, that a statement in a record is true.
SECTION 3. Section 25-34-5, Mississippi Code of 1972, is amended as follows:
25-34-5. This act applies to
a notarial act performed on or after July 1, * * * 2024.
SECTION 4. Section 25-34-7, Mississippi Code of 1972, is amended as follows:
25-34-7. (1) A notarial officer may perform the following notarial acts:
(a) Take acknowledgments;
(b) Administer oaths and affirmations;
(c) Take verifications on oath or affirmation;
(d) Certify depositions of witnesses;
(e) Witness or attest signatures;
(f) Make or note a protest of a negotiable instrument;
(g) Make an affidavit
regarding the truth of any witnesses or attested signatures in question along
with any corrected language and, if the authenticity or correctness of language
affects real property, file the same in the land records in the office of the
chancery clerk where the land is located; * * *
(h) Certify that a tangible copy of an electronic record is a true and correct copy of the electronic record; and
( * * *i) Any other acts so authorized by the
laws of this state.
(2) A notarial officer may not perform a notarial act when the officer:
(a) Is a party to the record being notarized;
(b) Is a spouse, child, sibling, parent, grandparent, grandchild, aunt or uncle, or niece or nephew, including a son or daughter-in-law, a mother or father-in-law, a stepchild or stepparent, or a half-sibling, of the person whose signature is being notarized or the person taking a verification on oath or affirmation from the officer; or
(c) Will receive as a direct result any commission, fee, advantage, right, title, beneficial interest, cash, property or other consideration exceeding in value the fees required by rules established by the Secretary of State.
(3) A notarial officer is not disqualified from performing a notarial act by virtue of his or her profession when the officer:
(a) Is an employee performing a notarial act on behalf of, or which benefits, the employer;
(b) Is an attorney who maintains an attorney-client relationship with the person whose signature is the subject of the notarial act; or
(c) Is a shareholder of a corporation or member of a limited liability company which is a party to a record that is the subject of the notarial act.
(4) A notarial act performed in violation of subsection (2) of this section is voidable.
SECTION 5. Section 25-34-9, Mississippi Code of 1972, is amended as follows:
25-34-9. * * * (1) The
Secretary of State may establish by rule the maximum fees that may be charged by
a notarial officer for various notarial services.
(2) A notarial officer need not charge fees for notarial acts.
SECTION 6. Section 25-34-11, Mississippi Code of 1972, is amended as follows:
25-34-11. (1) A notarial officer who takes an acknowledgment of a record, takes a verification of a statement on oath or affirmation (jurat), or witnesses or attests to a signature, must determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing in person before the officer has the identity claimed and that the signature on the record is the signature of the individual.
(2) A notarial officer who makes or notes a protest of a negotiable instrument must determine the matters set forth in Section 75-3-505(b).
(3) A notary public located in this state, may, upon registration with and after providing notification to the Secretary of State pursuant to Section 20 of this act, perform a remote ink-signed notarization or remote online notarization if:
(a) The notary public:
(i) Has personal knowledge under Section 8(1) of this act of the identity of the individual; or
(ii) Has obtained satisfactory evidence of the identity of the remotely located individual by using at least two (2) different types of identity proofing;
(b) The notary public is able to reasonably confirm that a record before the notary public is the same record in which the remotely located individual made the statement on or which the remotely located individual executed the signature;
(c) The notary public, or person acting on behalf of the notary public, creates an audiovisual recording of the performance of the notarial act; and
(d) For an individual located outside the United States:
(i) The individual confirms to the notary public that the record is being filed with or related to a matter before a court, government entity, public official or other entity under the jurisdiction of the United States, or involves property located in the territorial jurisdiction of the United States or a transaction substantially connected with the United States; and
(ii) To the notary public's actual knowledge, the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.
(4) Regardless of the physical location of the individual at the time of the notarial act, the validity of a remote ink-signed notarization or remote online notarization performed by a notary public commissioned in this state shall be determined by applying the laws of the state.
SECTION 7. Section 25-34-13, Mississippi Code of 1972, is brought forward as follows:
25-34-13. (1) A notarial officer has personal knowledge of the identity of an individual appearing before the officer if the individual is known personally to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
(2) A notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual by means of inspecting:
(a) An unexpired passport, an unexpired driver's license or a driver's license that has not been expired for more than five (5) years, a government-issued nondriver identification card, a Mississippi voter ID card or an unexpired photographic identification card issued by a federally recognized Indian tribe or nation; or
(b) Another form of government identification issued to an individual which is not expired, contains the signature and a photograph of the individual, and is satisfactory to the officer.
(3) A notarial officer may require an individual to provide additional information or identification credentials necessary to assure the officer of the identity of the individual.
SECTION 8. Section 25-34-15, Mississippi Code of 1972, is amended as follows:
25-34-15. (1) If a
notarial act relates to a statement made in or a signature executed on a
record, the individual making the statement or executing the signature must
appear * * * personally before the notarial officer * * *.
(2) As used in this section, "appear personally" means:
(a) An individual is in the physical presence of a notarial officer; or
(b) A remotely located individual appears before a notary public by communication technology in compliance with Section 6(3) of this act and the rules adopted pursuant to Section 26 of this act.
(3) Notwithstanding subsection (2) of this section, in performing a remote ink-signed notarization or remote online notarization, a notary public has satisfactory evidence of the identity of an individual appearing personally before the notary public if the notary public can identify the individual through the use of communication technology that meets the requirements of this section, any rules promulgated by the Secretary of State and by the following:
(a) The notary public's personal knowledge of the individual; or
(b) Each of the following:
(i) Remote presentation by the individual of a government-issued identification credential specified in subsection (2) of this section that contains the signature and photograph of the individual;
(ii) Credential analysis of the identification credential described by subparagraph (i) of this paragraph; and
(iii) Identity proofing of the individual; or
(c) A valid public key certificate that complies with the rules promulgated by the Secretary of State.
(4) A notarial officer may require an individual to provide additional information or identification credentials necessary to assure the officer of the identity of the individual.
SECTION 9. Section 25-34-17, Mississippi Code of 1972, is amended as follows:
25-34-17. (1) A notarial officer may refuse to perform a notarial act if the officer knows or suspects the transaction is illegal, false or deceptive, or if the officer is not satisfied that:
(a) The individual executing the record is competent;
(b) The individual executing the record has the capacity to execute the record;
(c) The individual's signature is knowingly and voluntarily made; or
(d) The notarial act is in compliance with this chapter or with rules issued by the Secretary of State to implement this chapter.
(2) A notarial officer may refuse to perform a notarial act unless refusal is prohibited by any law other than this chapter.
(3) A notary may not be required to perform a notarial act outside the notary's regular workplace or business hours.
(4) A notary public shall refuse a request that would require the notary to:
(a) Use an electronic notarization system or a communication technology that the notary does not know how to operate; or
(b) Use an electronic notarization system or communication technology that does not meet the requirements of this act or standards adopted by the laws of the state and/or rules promulgated by the Office of the Secretary of State.
SECTION 10. Section 25-34-19, Mississippi Code of 1972, is brought forward as follows:
25-34-19. If an individual is physically unable to sign a record, the individual may direct an individual other than the notarial officer to sign the individual's name on the record. The notarial officer shall insert "Signature affixed by (name of other individual) at the direction of (name of individual)" or words of similar import.
SECTION 11. Section 25-34-21, Mississippi Code of 1972, is brought forward as follows:
25-34-21. (1) A notarial act may be performed in this state by:
(a) A notary public of this state;
(b) An elected judge, a clerk or deputy clerk of a court of this state; or
(c) The Mississippi Secretary of State or a Mississippi Assistant Secretary of State.
(2) The signature and title of an individual performing a notarial act in this state are prima facie evidence that the signature is genuine and that the individual holds the designated title.
(3) The signature and title of a notarial officer described in subsection (1) conclusively establish the authority of the officer to perform the notarial act.
SECTION 12. Section 25-34-23, Mississippi Code of 1972, is brought forward as follows:
25-34-23. (1) A notarial act performed in another state has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed in that state is performed by:
(a) A notary public of that state;
(b) A judge, a clerk or a deputy clerk of a court of that state; or
(c) Any other individual authorized by the law of that state to perform the notarial act.
(2) The signature and title of an individual performing a notarial act in another state is prima facie evidence that the signature is genuine and that the individual holds the designated title.
(3) The signature and title of a notarial officer described in subsection (1)(a) or (b) conclusively establish the authority of the officer to perform the notarial act.
SECTION 13. Section 25-34-25, Mississippi Code of 1972, is brought forward as follows:
25-34-25. (1) A notarial act performed under the authority and in the jurisdiction of a federally recognized Indian tribe has the same effect under the laws of this state as if performed by a notarial officer of this state, if the act performed in the jurisdiction of the tribe is performed by:
(a) A notary public authorized by the tribe;
(b) A judge, a clerk or a deputy clerk of a court of that tribe; or
(c) Any other individual authorized by the law of the tribe to perform the notarial act.
(2) The signature and title of an individual performing a notarial act under the authority of and in the jurisdiction of a federally recognized Indian tribe is prima facie evidence that the signature is genuine and that the individual holds the designated title.
(3) The signature and title of a notarial officer described in subsection (1)(a) or (b) conclusively establish the authority of the officer to perform the notarial act.
SECTION 14. Section 25-34-27, Mississippi Code of 1972, is brought forward as follows:
25-34-27. (1) A notarial act performed under federal law has the same effect under the laws of this state as if performed by a notarial officer of this state, if the act performed under federal law is performed by:
(a) A judge, clerk or deputy clerk of a court;
(b) An individual in military service or performing duties under the authority of military service who is authorized to perform notarial acts under federal law;
(c) An individual designated a notarizing officer by the United States Department of State for performing notarial acts overseas; or
(d) Any other individual authorized by federal law to perform the notarial act.
(2) The signature and title of an individual acting under federal authority and performing a notarial act are prima facie evidence that the signature is genuine and that the individual holds the designated title.
(3) The signature and title of an officer described in subsection (1)(a), (b) or (c) conclusively establish the authority of the officer to perform the notarial act.
SECTION 15. Section 25-34-29, Mississippi Code of 1972, is amended as follows:
25-34-29. (1) In this section, "foreign state" means a government other than the United States, a state of the United States or a federally recognized Indian tribe.
(2) If a notarial act is performed under the authority and in the jurisdiction of a foreign state or constituent unit of the foreign state or is performed under the authority of a multinational or international governmental organization, the act has the same effect under the law of this state as though performed by a notarial officer of this state.
(3) If the title of office and indication of authority to perform notarial acts in a foreign state appears in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is established conclusively.
(4) The signature and official seal of an individual holding an office described in subsection (3) of this section are prima facie evidence that the signature is genuine and the individual holds the designated title.
(5) An apostille in the form prescribed by the Hague Convention of October 5, 1961, and issued by a foreign state party to the Convention conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.
(6) A consular authentication issued by an individual designated by the United States Department of State as a notarizing officer for performing notarial acts overseas and attached to the record with respect to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.
SECTION 16. Section 25-34-31, Mississippi Code of 1972, is amended as follows:
25-34-31. (1) A notarial act must be evidenced by a certificate. The certificate must:
(a) Be executed contemporaneously with the performance of the notarial act;
(b) Be signed and dated by the notarial officer and, if the notarial officer is a notary public, be signed in the same manner as on file with the Secretary of State;
(c) Identify the jurisdiction in which the notarial act is performed;
(d) Contain the title of the office of the notarial officer; and
(e) If the notarial officer is a notary public, indicate the date of expiration of the notary public's commission.
(2) If a notarial act regarding a tangible record is performed by a notary public, the notary public's official seal must be affixed to the certificate. If a notarial act is performed regarding a tangible record by a notarial officer other than a notary public and the certificate contains the information specified in subsection (1)(b), (c) and (d) of this section, the notarial officer's official seal may be affixed to the certificate. If a notarial act regarding an electronic record is performed by a notarial officer and the certificate contains the information specified in subsection (1)(b), (c) and (d) of this section, the notarial officer's official seal may be attached to or logically associated with the certificate.
(3) In addition to the information specified in subsection (1) of this section, a certificate of a remote ink-signed notarization or remote online notarization must indicate that the notarial act was performed using communication technology. A certificate subject to this subsection is sufficient if it:
(a) Is in the form provided in subsection 2(e) or (f) of Section 89-3-7, Mississippi Code of 1972, or otherwise contains a statement substantially as follows: "This notarial act involved the use of communication technology"; or
(b) Complies with rules under Section 26 of this act.
( * * *4) The party drafting a record that is
the subject of a notarial act is responsible for the form of the certificate,
its wording and legal sufficiency. A notary public is not required to draft,
edit or amend a certificate where the record presented does not contain an
acceptable certificate; instead, the notary must refuse to perform the notarial
act with respect to the record.
( * * *5) A certificate of a notarial act is
sufficient if it meets the requirements of subsections (1) and (2) of this section
and:
(a) Is in a form otherwise permitted by the law of this state;
(b) Is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed; or
(c) Sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the notarial act as provided in Sections 25-34-7, 25-34-9, 25-34-11 and 25-34-15 or any law of this state other than this chapter.
( * * *6) By executing a certificate of a
notarial act, a notarial officer certifies that the officer has complied with
the requirements and made the determinations specified in Sections 25-34-7, 25-34-9,
25-34-11 and 25-34-15.
( * * *7) A notarial officer may not affix
the officer's signature to, or logically associate it with, a certificate until
the notarial act has been performed.
( * * *8
If a notarial act is performed regarding a tangible record, a certificate must
be part of, or securely attached to, the record. If a notarial act is
performed regarding an electronic record, the certificate must be affixed to,
or logically associated with, the electronic record. If the Secretary of State
has established standards under Section 25-34-39 for attaching, affixing or
logically associating the certificate, the process must conform to those standards.
( * * *9) The signature of a notarial officer
certifying a notarial act may not be deemed evidence to show that the notarial
officer had knowledge of the contents of the record so signed, other than those
specific contents which constitute the signature, execution, acknowledgment,
oath, affirmation, affidavit, verification or other act which the signature of
that notarial officer chronicles.
SECTION 17. Section 25-34-33, Mississippi Code of 1972, is amended as follows:
25-34-33. (1) Every notary public appointed and commissioned must procure, at his or her own expense, a suitable official seal. The official seal of a notary public must:
(a) Include the notary public's name, jurisdiction, commission expiration date and other information required by the Secretary of State; and
(b) Be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated.
(2) The board of supervisors of every county must provide an official seal, with the inscription "notary public" around the margin and the image of an eagle in the center, which official seal must be kept in the office of the clerk of the circuit court. A judge, chancellor, clerk or deputy clerk of a court of this state, the Mississippi Secretary of State or an Assistant Secretary of State of this state may use the official seal to perform a notarial act under Section 25-34-21(1)(b) or (c).
(3) On the death or adjudication of incompetency of a current or former notary public, the notary public's personal representative or guardian or any other person knowingly in possession of the official seal shall destroy or deface, as soon as reasonably practicable, all official seals of the notary public so that they may not be misused.
SECTION 18. Section 25-34-35, Mississippi Code of 1972, is brought forward as follows:
25-34-35. (1) A notary public is responsible for the security of the notary public's stamping device and may not allow another individual to use the device to perform a notarial act. On resignation from, or the revocation or expiration of, the notary public's commission, or on the expiration of the date set forth in the stamping device, if any, the notary public must disable the stamping device by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable. On the death or adjudication of incompetency of a notary public, the notary public's personal representative or guardian or any other person knowingly in possession of the stamping device must render it unusable by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable.
(2) If a notary public's stamping device is lost or stolen, the notary public or the notary public's personal representative or guardian must notify promptly the Secretary of State upon discovery that the device is lost or stolen.
SECTION 19. Section 25-34-37, Mississippi Code of 1972, is amended as follows:
25-34-37. (1) A notary public must maintain a journal in which the notary public chronicles all notarial acts that the notary public performs. If a notary public performs a remote ink-signed notarization or remote online notarization, the notary public, or a person acting on behalf of the notary public, shall make an audiovisual recording of the performance of the notarial act.
(2) A journal must be
created on a tangible or electronic medium. A notary public shall maintain
only one (1) journal at a time to chronicle all notarial acts * * * performed * * *. If
the journal is tangible, it must be a permanent, bound register with numbered
pages. An electronic journal must conform to specifications set forth in rules
by the Secretary of State.
(3) An entry in a journal must be made contemporaneously with performance of the notarial act and contain the following information:
(a) The date and time of the notarial act;
(b) A description of the record, if any, and type of notarial act;
(c) The full name and address of each individual for whom the notarial act is performed;
(d) If the identity of the individual is based on personal knowledge, a statement to that effect;
(e) If the identity of the individual is based on satisfactory evidence, a brief description of the method of identification and the identification credential presented, if any, including the date of issuance and expiration of any identification credential;
(f) The address where
the notarial act was performed if not at the notary's business address; * * *
(g) If the notarial act is performed using an electronic notarization system or communication technology, or both, a notation identifying the system or technology, or both that was used; and
( * * *h) The fee, if any, charged by the
notary public.
(4) If the journal of a notary public is lost or stolen, the notary public must notify promptly the Secretary of State upon discovery that the journal is lost or stolen.
(5) On resignation from, or the revocation or suspension of, a notary public's commission, the notary public must deposit all journal records with the circuit clerk of the county of residence of the notary public.
(6) Upon the death or adjudication of incompetency of a current or former notary public, the notary public's personal representative or guardian or any other person knowingly in possession of the journal shall:
(a) Notify the
Secretary of State of the death or adjudication in writing; * * *
(b) Within thirty (30)
days of death or adjudication of incompetency, transmit all journal records to
the circuit clerk of the county of residence of the notary public * * *; and
(c) Within thirty (30) days of death or adjudication of incompetency, transmit all audiovisual recordings required under subsection (1) of this section and Section 6(3)(c) of this act to the Secretary of State or a repository designated by the Secretary of State for retention. Unless a different period is required by the rules adopted under Section 26 of this act, the recording must be retained for at least seven (7) years after the audiovisual recording is made.
SECTION 20. Section 25-34-39, Mississippi Code of 1972, is brought forward as follows:
25-34-39. (1) A notary public may perform a notarial act with respect to electronic records pursuant to this chapter.
(2) The Secretary of State has the sole power to determine the methods by which notarial acts with respect to electronic records may be implemented in this state. Those methods must be set forth in rules promulgated by the Secretary of State.
(3) A notary public seeking to perform notarial acts with respect to electronic records must file an additional registration with the Secretary of State subsequent to being granted a notary commission.
SECTION 21. Section 25-34-41, Mississippi Code of 1972, is brought forward as follows:
25-34-41. (1) An individual qualified under subsection (2) may apply to the Secretary of State for a commission as a notary public. The applicant must comply with and provide the information required by rules established by the Secretary of State and pay any application fee.
(2) An applicant for a commission as a notary public must:
(a) Be at least eighteen (18) years of age;
(b) Be a citizen or permanent legal resident of the United States;
(c) Be a resident of Mississippi for not less than thirty (30) days immediately preceding the date of the application;
(d) Be able to read and write English;
(e) Not be disqualified to receive a commission under Section 25-34-43; and
(f) Meet such other requirements as the Secretary of State may establish by rule.
(3) Before issuance of a commission as a notary public, an applicant for the commission must execute the oath of office prescribed by Section 268 of the Constitution and submit it to the Secretary of State.
(4) Before issuance of a commission as a notary public, the applicant for a commission must submit to the Secretary of State an assurance in the form of a surety bond or its functional equivalent in the amount of Five Thousand Dollars ($5,000.00) pursuant to the rules set forth by the Secretary of State. The assurance must be issued by a surety or other entity licensed by the Mississippi Department of Insurance. The assurance must cover acts performed during the term of the notary public's commission and must be in the form prescribed by the Secretary of State. If a notary public violates a law with respect to notaries public in this state, the surety or issuing entity is liable under the assurance. The surety or issuing entity must give thirty (30) days' notice to the Secretary of State before canceling the assurance. The surety or issuing entity must notify the Secretary of State not later than thirty (30) days after making a payment to a claimant under the assurance. A notary public may perform notarial acts in this state only during the period that a valid assurance is on file with the Secretary of State.
(5) On compliance with this section, the Secretary of State shall issue a commission as a notary public to an applicant for a term of four (4) years.
(6) A commission to act as a notary public authorizes the notary public to perform notarial acts. The commission does not provide the notary public any immunity or benefit conferred by the laws of this state on public officials or employees.
SECTION 22. Section 25-34-43, Mississippi Code of 1972, is brought forward as follows:
25-34-43. (1) The Secretary of State may deny, refuse to renew, revoke, suspend or impose a condition on a commission as notary public for any act or omission that demonstrates the individual lacks the honesty, integrity, competence or reliability to act as a notary public, including:
(a) Failure to comply with this chapter;
(b) A fraudulent, dishonest or deceitful misstatement or omission in the application for a commission as a notary public submitted to the Secretary of State;
(c) A conviction of any felony, including a plea of nolo contendere, of the applicant or notary public, unless released from incarceration more than ten (10) years before the commission is to take effect or, if no incarceration is ordered, more than ten (10) years from the conviction date have passed;
(d) A conviction, including a plea of nolo contendere, of the applicant or notary public for any crime determined by the Secretary of State to be of a nature incompatible with the duties of a notary public;
(e) Failure by the notary public to discharge any duty required of a notary public, whether required by this chapter, rules of the Secretary of State or any federal or state law;
(f) Use of false or misleading advertising or representation by the notary public representing that the notary has a duty, right or privilege that the notary does not have;
(g) Violation by the notary public of a rule of the Secretary of State regarding a notary public;
(h) Denial, refusal to renew, revocation, suspension or conditioning of a notary public commission in another state;
(i) Failure of the notary public to maintain an assurance as provided in Section 25-34-41(4); or
(j) Failure to maintain and protect the notary's journal as required by this chapter and any rules promulgated by the Secretary of State under this chapter.
(2) If the Secretary of State denies, refuses to renew, revokes, suspends or imposes conditions on a commission as a notary public, the applicant or notary public is entitled to file an appeal in proper form with the Secretary of State within forty-five (45) days after the Secretary of State's action, except that an applicant may not appeal when the Secretary of State, within five (5) years preceding the application, has:
(a) Denied or revoked for disciplinary reasons any previous application, commission or license of the applicant; or
(b) Made a finding under this chapter that the grounds for revocation of the applicant's commission existed.
(3) The authority of the Secretary of State to deny, refuse to renew, suspend, revoke or impose conditions on a commission as a notary public does not prevent a person from seeking and obtaining other criminal or civil remedies provided by law.
SECTION 23. Section 25-34-45, Mississippi Code of 1972, is brought forward as follows:
25-34-45. The Secretary of State must maintain an electronic database of notaries public:
(a) Through which a person may verify the authority of a notary public to perform notarial acts; and
(b) Which indicates whether a notary public has notified the Secretary of State that the notary public will be performing notarial acts on electronic records.
SECTION 24. Section 25-34-47, Mississippi Code of 1972, is brought forward as follows:
25-34-47. (1) A commission as a notary public does not authorize an individual to:
(a) Assist persons in drafting legal records, give legal advice or otherwise practice law;
(b) Act as an immigration consultant or an expert on immigration matters;
(c) Represent a person in a judicial or administrative proceeding relating to immigration to the United States, United States citizenship or related matters; or
(d) Receive compensation for performing any of the activities listed in this subsection.
(2) A notary public may not engage in false or deceptive advertising.
(3) A notary public who is not an attorney licensed to practice law in this state may not use the term "notario" or "notario publico."
(4) A notary public who is not an attorney licensed to practice law in this state may not advertise or represent that the notary public may assist persons in drafting legal records, give legal advice or otherwise practice law. If a notary public who is not an attorney licensed to practice law in this state in any manner advertises or represents that the notary public offers notarial services, whether orally or in a record, including broadcast media, print media and the Internet, the notary public must include the following statement, or an alternate statement authorized or required by the Secretary of State, in the advertisement or representation, prominently and in each language used in the advertisement or representation: "I am not an attorney licensed to practice law in this state. I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities." If the form of advertisement or representation is not broadcast media, print media or the Internet and does not permit inclusion of the statement required by this subsection because of size, it must be displayed prominently or provided at the place of performance of the notarial act before the notarial act is performed.
(5) Except as otherwise allowed by law, a notary public may not withhold access to or possession of an original record provided by a person that seeks performance of a notarial act by the notary public.
(6) Failure to comply with subsections (1) through (5) constitutes an unfair or deceptive act under Section 75-24-5.
(7) A person who knowingly and willfully violates subsections (1) through (5) is guilty of a misdemeanor, and upon conviction, shall be fined in an amount not to exceed One Thousand Dollars ($1,000.00).
(8) Upon a second conviction of any person under subsections (1) through (5), the offenses being committed within a period of five (5) years, the person is guilty of a misdemeanor, and upon conviction, shall be punished by imprisonment in the county jail for a period not to exceed one (1) year or a fine in an amount not to exceed One Thousand Dollars ($1,000.00), or both.
(9) Upon a third or subsequent conviction of any person for violation of subsections (1) through (5), the offenses being committed within a period of five (5) years, the person is guilty of a felony, and upon conviction, shall be punished by confinement in the custody of the Mississippi Department of Corrections for a period not to exceed five (5) years or a fine in an amount not to exceed Five Thousand Dollars ($5,000.00), or both.
(10) Criminal convictions in other jurisdictions for violations of substantially similar provisions to those contained in subsections (1) through (5) are counted in computing whether a violation under subsections (1) through (5) is a first, second, third or subsequent offense.
SECTION 25. Section 25-34-49, Mississippi Code of 1972, is brought forward as follows:
25-34-49. Except as otherwise provided in Section 25-34-7(2), the failure of a notarial officer to perform a duty or meet a requirement specified in this chapter does not invalidate a notarial act performed by the notarial officer. The validity of a notarial act under this chapter does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based on the laws of this state other than this chapter or the laws of the United States. This section does not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts.
SECTION 26. Section 25-34-51, Mississippi Code of 1972, is amended as follows:
25-34-51. (1) The
Secretary of State may adopt any rules necessary to implement this chapter after
complying with the Mississippi Administrative Procedures Law * * *, including, but not limited to, rules that:
(a) Prescribe the manner of performing notarial acts regarding tangible and electronic records;
(b) Establish standards for communication technology and identity proofing, including the use of credential analysis, dynamic knowledge-based authentication, biometrics, or other means of identification;
(c) Establish requirements or procedures to approve providers of communication technology and the process of identity proofing; and
(d) Establish standards and periods for the retention of an audiovisual recording created under Section 6(3)(c) of this act and Section 19(1) of this act of the performance of a notarial act.
(2) Before adopting, amending or repealing rules about the performance of a notarial act, with respect to a remotely located individual, the Secretary of State shall consider, if consistent:
(a) The most recent standards regarding the performance of a notarial act with respect to remotely located individuals promulgated by national standard-setting organizations, including the National Association of Secretaries of State; and
(b) Standards, practices and customs of other jurisdictions that enact a statute substantially similar to this section.
(3) Rules adopted regarding the performance of notarial acts with respect to electronic records, electronic notarization systems or communication technology may not require or accord legal status or effect to the implementation or application of a specific system, technology or technical specification.
SECTION 27. Section 25-34-53, Mississippi Code of 1972, is amended as follows:
25-34-53. A commission as a
notary public in effect on July 1, * * * 2024, continues until its date of
expiration. A notary public who applies to renew a commission as a notary
public on or after July 1, * * * 2024, is subject to and must
comply with this chapter. A notary public, in performing notarial acts after
July 1, * * *
2024, must comply with this chapter.
SECTION 28. Section 25-34-55, Mississippi Code of 1972, is amended as follows:
25-34-55. This chapter does
not affect the validity or effect of a notarial act performed before July 1, * * * 2024.
SECTION 29. Section 25-34-57, Mississippi Code of 1972, is brought forward as follows:
25-34-57. This chapter modifies, limits and supersedes the Electronic Signatures in Global and National Commerce Act, 15 USC Section 7001 et seq., but does not modify, limit or supersede Section 101(c) of that act, 15 USC Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 USC Section 7003(b).
SECTION 30. This act shall take effect and be in force from and after July 1, 2024.
