By: Thompson, S. H.B. No. 35
73R1320 CAG-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to regulation of private process servers; providing
1-3 penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. DEFINITIONS. In this Act:
1-6 (1) "Person" means an individual.
1-7 (2) "Secretary" means the secretary of state.
1-8 SECTION 2. POWERS OF PRIVATE PROCESS SERVERS. (a) A person
1-9 registered under this Act as a process server may serve civil
1-10 process issued by the courts of this state in the manner provided
1-11 by law for service by sheriffs and constables. Any person serving
1-12 civil process, other than a sheriff or constable, must be
1-13 registered under this Act. A person registered under this Act may
1-14 serve civil process anywhere in the State of Texas.
1-15 (b) A registrant under this Act may serve a writ of
1-16 garnishment but may not serve a writ of attachment, sequestration,
1-17 or execution or other process providing for the seizure and
1-18 detention of property.
1-19 SECTION 3. REGISTRATION APPLICATION. (a) To be registered
1-20 under this Act, a person must:
1-21 (1) be at least 18 years of age;
1-22 (2) be a United States citizen and have had permanent
1-23 residence in this state for at least one year;
1-24 (3) submit to the secretary, on a form prescribed by
2-1 the secretary, a sworn application showing proof of at least two
2-2 years experience in serving civil process or that the applicant was
2-3 in the business of serving civil process before September 1, 1993;
2-4 (4) not have been convicted of:
2-5 (A) a misdemeanor involving moral turpitude; or
2-6 (B) a felony; and
2-7 (5) submit to the secretary, on a form prescribed by
2-8 the secretary, a sworn application accompanied by proof of security
2-9 having been deposited with the secretary as required by this Act, a
2-10 $300 registration fee, and a $25 nonrefundable application fee.
2-11 (b) Each application must include a statement indicating
2-12 compliance with Subsection (a) of this section.
2-13 SECTION 4. SECURITY DEPOSIT. (a) An applicant for
2-14 registration must deposit security with the secretary in one of the
2-15 following forms:
2-16 (1) $5,000 in cash;
2-17 (2) $5,000 in securities approved by the secretary; or
2-18 (3) a $5,000 bond payable to this state executed by an
2-19 individual.
2-20 (b) The aggregate liability of a surety on the bond under
2-21 Subsection (a)(3) of this section may not exceed $5,000.
2-22 (c) The security deposit shall be conditioned on the lawful
2-23 performance of the functions of a process server and payment of any
2-24 fines or penalties levied against the registrant for failure to
2-25 comply with this Act.
2-26 (d) The security deposit shall be retained during the period
2-27 beginning on the date the deposit is received and ending two years
3-1 after the date of termination of the registration. After the
3-2 two-year period has elapsed, the secretary shall refund the
3-3 security deposit on demonstration to the satisfaction of the
3-4 secretary that an action is not pending against the former
3-5 registrant for fines or penalties in connection with the
3-6 performance of the registrant's functions as a process server.
3-7 (e) An action against a registrant for fines, penalties, or
3-8 civil damages may not be commenced later than two years after the
3-9 date of the act, event, or transaction on which the action is
3-10 based.
3-11 SECTION 5. ISSUANCE OF REGISTRATION. (a) Not later than
3-12 the 30th day after the date the application is received, the
3-13 secretary shall issue a process server registration to an applicant
3-14 who complies with Section 3 of this Act.
3-15 (b) The applicant is entitled to a full refund of the
3-16 security deposit and the registration fee if the secretary fails to
3-17 issue the registration during the period prescribed by Subsection
3-18 (a) of this section.
3-19 SECTION 6. TERM OF REGISTRATION; RENEWAL. (a) A
3-20 registration issued under this Act expires one year from the date
3-21 of issuance.
3-22 (b) The secretary shall send a renewal application to a
3-23 registrant at least 30 days before the expiration of the
3-24 registration.
3-25 (c) A registrant may renew the registration by submitting to
3-26 the secretary before the expiration date of the registration, on a
3-27 form prescribed by the secretary, a renewal application accompanied
4-1 by a renewal fee in an amount to be determined by the secretary.
4-2 The secretary shall periodically set renewal fees in an amount
4-3 sufficient to cover the expenses of administering this Act less the
4-4 amount of other revenues provided for in this Act.
4-5 SECTION 7. RECORDS. (a) A registrant shall maintain at the
4-6 registrant's principal place of business records of the
4-7 registrant's activities as a process server. All records regarding
4-8 the receiving and serving of civil process shall be kept in the
4-9 same manner prescribed under the Texas Rules of Civil Procedure for
4-10 constables and sheriffs.
4-11 (b) All returns of service shall be accompanied by the
4-12 registration identification number.
4-13 (c) The secretary may require other records to be maintained
4-14 by a registrant.
4-15 (d) The secretary may examine a registrant's records during
4-16 normal business hours to determine whether the registrant is in
4-17 compliance with this Act.
4-18 (e) On termination of a registration, the registrant shall
4-19 deliver to the secretary, if requested, any records relating to the
4-20 service of civil process. Any unserved process in the registrant's
4-21 custody or control shall be returned to the party who initiated the
4-22 service of process.
4-23 SECTION 8. REVOCATION OR SUSPENSION OF REGISTRATION. (a)
4-24 The secretary shall suspend or revoke a process server
4-25 registration, as appropriate, if the secretary determines that:
4-26 (1) the registrant has violated this Act;
4-27 (2) the registrant has failed to maintain the security
5-1 required by this Act;
5-2 (3) the registrant has failed to maintain the records
5-3 required by this Act;
5-4 (4) the registrant has refused to permit an
5-5 examination by the secretary of the records required to be
5-6 maintained by this Act;
5-7 (5) the registrant has knowingly made a false or
5-8 fraudulent return of service; or
5-9 (6) the registrant has been convicted of a misdemeanor
5-10 involving moral turpitude or a felony.
5-11 (b) A proceeding before the secretary for the revocation or
5-12 suspension of a registration and an appeal from that proceeding are
5-13 governed by the Administrative Procedure and Texas Register Act
5-14 (Article 6252-13a, Vernon's Texas Civil Statutes).
5-15 SECTION 9. FEES. (a) Fees received by the secretary under
5-16 this Act shall be deposited in the state treasury to the credit of
5-17 the general revenue fund.
5-18 (b) Fees charged and collected by a registrant for service
5-19 of process may be charged as costs in a judicial proceeding.
5-20 SECTION 10. APPLICATION OF ACT. (a) This Act does not
5-21 limit or restrict the service of process in the state as provided
5-22 for by a court order.
5-23 (b) A registered process server is not a peace officer by
5-24 virtue of this Act but is an officer of the court.
5-25 SECTION 11. COMPLAINTS. The secretary shall establish a
5-26 procedure for reporting and processing complaints relating to
5-27 regulation of private process servers in this state.
6-1 SECTION 12. PENALTIES. (a) A person commits an offense if
6-2 the person knowingly or intentionally violates this Act.
6-3 (b) A person commits an offense if the person knowingly or
6-4 intentionally falsifies a return of civil process.
6-5 (c) An offense under Subsection (a) of this section is a
6-6 Class A misdemeanor. An offense under Subsection (b) of this
6-7 section is a felony of the third degree.
6-8 SECTION 13. EFFECTIVE DATE. This Act takes effect September
6-9 1, 1993.
6-10 SECTION 14. EMERGENCY. The importance of this legislation
6-11 and the crowded condition of the calendars in both houses create an
6-12 emergency and an imperative public necessity that the
6-13 constitutional rule requiring bills to be read on three several
6-14 days in each house be suspended, and this rule is hereby suspended.