By Thompson H.B. No. 173 74R1609 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. A 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. 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, 1995; 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 the 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 the second 3-9 anniversary of the date of the act, event, or transaction on which 3-10 the action is 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 and a 3-14 registration identification number to an applicant who complies 3-15 with Section 3 of this Act. 3-16 (b) The applicant is entitled to a full refund of the 3-17 security deposit and the registration fee if the secretary fails to 3-18 issue the registration during the period prescribed by Subsection 3-19 (a) of this section. 3-20 SECTION 6. TERM OF REGISTRATION; RENEWAL. (a) A 3-21 registration issued under this Act expires one year from the date 3-22 of issuance. 3-23 (b) The secretary shall send a renewal application to a 3-24 registrant at least 30 days before the expiration of the 3-25 registration. 3-26 (c) A registrant may renew the registration by submitting to 3-27 the secretary before the expiration date of the registration, on a 4-1 form prescribed by the secretary, a renewal application accompanied 4-2 by a renewal fee in an amount to be determined by the secretary. 4-3 The secretary shall periodically set the renewal fee in an amount 4-4 sufficient to cover the expenses of administering this Act less the 4-5 amount of other revenues provided for in this Act. 4-6 SECTION 7. RECORDS. (a) A registrant shall maintain at the 4-7 registrant's principal place of business records of the 4-8 registrant's activities as a process server. All records regarding 4-9 the receiving and serving of civil process shall be kept in the 4-10 same manner prescribed under the Texas Rules of Civil Procedure for 4-11 constables and sheriffs. 4-12 (b) All returns of service shall be accompanied by the 4-13 registration identification number. 4-14 (c) The secretary may require other records to be maintained 4-15 by a registrant. 4-16 (d) The secretary may examine a registrant's records during 4-17 normal business hours to determine whether the registrant is in 4-18 compliance with this Act. 4-19 (e) On termination of a registration, the registrant shall 4-20 deliver to the secretary, if requested, any records relating to the 4-21 service of civil process. Any unserved process in the registrant's 4-22 custody or control shall be returned to the party who initiated the 4-23 service of process. 4-24 SECTION 8. REVOCATION OR SUSPENSION OF REGISTRATION. (a) 4-25 The secretary shall suspend or revoke a process server 4-26 registration, as appropriate, if the secretary determines that the 4-27 registrant: 5-1 (1) has violated this Act; 5-2 (2) has failed to maintain the security required by 5-3 this Act; 5-4 (3) has failed to maintain the records required by 5-5 this Act; 5-6 (4) has refused to permit an examination by the 5-7 secretary of the records required to be maintained by this Act; 5-8 (5) has knowingly made a false or fraudulent return of 5-9 service; or 5-10 (6) has been convicted of a misdemeanor involving 5-11 moral turpitude or a felony. 5-12 (b) A proceeding before the secretary for the revocation or 5-13 suspension of a registration and an appeal from that proceeding are 5-14 governed by Chapter 2001, Government Code. 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 the 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. (a) Except as provided by 6-9 Subsection (b) of this section, this Act takes effect September 1, 6-10 1995. 6-11 (b) Sections 2 and 12 of this Act take effect January 1, 6-12 1996. 6-13 SECTION 14. EMERGENCY. The importance of this legislation 6-14 and the crowded condition of the calendars in both houses create an 6-15 emergency and an imperative public necessity that the 6-16 constitutional rule requiring bills to be read on three several 6-17 days in each house be suspended, and this rule is hereby suspended.