Posted by BrendaTx on 2/25/10 7:21pm
Msg #324299

Thumbprints in Texas - answer from Tx SoS

In order to clarify this issue for myself, I asked:
Does the Secretary of State of Texas discourage the practice of a Texas notary asking for a thumbprint to be placed in their journal even if it is not "required" by the notary as a condition of the notary performing the act?

They answered:
"Yes, as reinforced by HB 3186, our office discourages notaries from collecting thumbprints."

The SoS disclaimer included with their answer: This correspondence provides general information only. It does not provide legal advice for any particular situation. No attorney-client relationship exists between any employee of the Secretary of State and any recipient of this email. Please consult your private attorney for legal advice.

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Bottom line: It's not a good idea to collect thumbprints.

Reply by BrendaTx on 2/25/10 9:20pm
Msg #324317

Re: Thumbprints in Texas - answer from Tx SoS LINK

http://tinyurl.com/yamqtmv

In a PM another notary was looking for the right link.

The bill's text is below:

H.B. No. 3186
AN ACT
relating to the collection and use of biometric identifiers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 503.001, Business & Commerce Code, is amended by amending Subsection (c) and adding Subsections (c-1) and (c-2) to read as follows:
(c) A person who possesses a biometric identifier of an individual that is captured for a commercial purpose:
(1) may not sell, lease, or otherwise disclose the biometric identifier to another person unless:
(A) the individual consents to the disclosure for identification purposes in the event of the individual's disappearance or death;
(B) the disclosure completes a financial transaction that the individual requested or authorized;
(C) the disclosure is required or permitted by a federal statute or by a state statute other than Chapter 552, Government Code; or
(D) the disclosure is made by or to a law enforcement agency for a law enforcement purpose in response to a warrant; [and]
(2) shall store, transmit, and protect from disclosure the biometric identifier using reasonable care and in a manner that is the same as or more protective than the manner in which the person stores, transmits, and protects any other confidential information the person possesses; and
(3) shall destroy the biometric identifier within a reasonable time, but not later than the first anniversary of the date the purpose for collecting the identifier expires, except as provided by Subsection (c-1).
(c-1) If a biometric identifier of an individual captured for a commercial purpose is used in connection with an instrument or document that is required by another law to be maintained for a period longer than the period prescribed by Subsection (c)(3), the person who possesses the biometric identifier shall destroy the biometric identifier within a reasonable time, but not later than the first anniversary of the date the instrument or document is no longer required to be maintained by law.
(c-2) If a biometric identifier captured for a commercial purpose has been collected for security purposes by an employer, the purpose for collecting the identifier under Subsection (c)(3) is presumed to expire on termination of the employment relationship.
SECTION 2. (a) The changes in law made by this Act apply to a biometric identifier possessed by a person:
(1) on or after the effective date of this Act; or
(2) before the effective date of this Act, subject to Subsection (b) of this section.
(b) A person who before the effective date of this Act possesses a biometric identifier that is required to be destroyed because of the changes in law made by this Act shall destroy the biometric identifier on or before October 1, 2009.
SECTION 3. This Act takes effect September 1, 2009.

Reply by GOLDGIRL/CA on 2/25/10 11:20pm
Msg #324325

Yet another difference between Texas and CA

The CA SOS handbook says:

"A notary public who fails to obtain a thumbprint as required by Section 8206 from a party signing a document shall be subject to a civil penalty not exceeding $2,500."

8206 requires t-prints for all real estate deeds and PoAs.

(Actually, I think it's only a matter of time before CA requires DNA samples....)

Reply by BrendaTx on 2/26/10 5:35am
Msg #324334

To me, thumbprints are not "bad" but

it was brought to my attention by my own attorney that
(1) Notaries should only do what is required of them by their rules and limit their liability by not taking it upon themselves to do more than required; and
(2) HB 3186 had very strict rules about biometric identifiers, which is what a fingerprint is. (For this purpose, thumbprint = fingerprint).

From what I read, the purpose of this law is to limit access to fraudulent duplication of biometric identifiers. It is a far stretch to me that a bad someone will
(1) go to the trouble of getting a notary journal for the purpose of copying a thumbprint;
(2) go undercover and to the expense and trouble to have a copy of a thumbprint made into silicone or other synthetic material impression that would not be detected as fraud;
(3) apply it to their own thumb, appear before a notary with fake ID;
(4) use the thumbprint, do a land transaction; and
(5) not get caught while being ballsy enough to take possession of the property and make it pay for their own purposes.

I think this law is overkill and is part of the Chicken Little Falling Sky syndrome...but it is the law...and it appears to apply to notaries...and the SoS agrees that it does...so I honor it.

Reply by PAW on 2/26/10 7:00am
Msg #324340

Re: To me, thumbprints are not "bad" but

I think the statute is directed more to financial institutions, like banks, that require thumbprints/fingerprints to execute a financial transaction. But the statute doesn't limit the practice, so it paints a very broad stroke. It may seem overkill from a notarial perspective, but seeing how banks handle biometric identifiers makes me shudder.

Reply by MW/VA on 2/26/10 8:49am
Msg #324354

Thanks, Brenda. An important note for those who think more is better.