HBA-KMH H.B. 1309 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1309 By: Thompson Judicial Affairs 3/5/1999 Introduced BACKGROUND AND PURPOSE In 1978, the Texas Supreme Court gave private process servers the authority to deliver and serve subpoenas. The Texas Supreme Court further extended the authority of the servers by giving them the authority to deliver and serve all citations under Rule 103 of the Texas Rules of Civil Procedure. As a result, numerous private process-serving companies have been started throughout Texas. Many counties do not require background checks or liability insurance to protect the public against fraudulent servers. H.B. 1309 provides regulation of private process servers through licensing and registration under the Texas Commission of Licensing and Regulation. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill expressly delegates rulemaking authority to the commissioner of licensing and regulation of the Texas Commission of Licensing and Regulation in SECTION 1 (Section 8, Article 9035, V.T.C.S.) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Title 132, Chapter 20, V.T.C.S., by adding Article 9035, as follows: Art. 9035. PRIVATE PROCESS SERVERS Sec. 1. DEFINITIONS. Defines "civil court," "civil process," "commission," "commissioner," "constable," "department," "license holder," "person," "registered agent," and "sheriff." Sec. 2. LICENSE OR REGISTRATION REQUIRED. Prohibits a person from serving a civil process in this state without being licensed or registered under this article. Authorizes an unlicensed and nonexempt person to serve outside this state a civil process issued by a civil court, if specific conditions are met. Sec. 3. EXEMPTION. Exempts sheriffs and constables engaged in official duties from this article. Provides that this article does not limit the service of process as provided by a court order. Sec. 4. LICENSE APPLICATION. Provides that an applicant for a license or registration under this article must submit a sworn application on a department approved form. Sets forth eligibility requirements which include age restrictions, conviction disclosure, fee submission, completion of seminar, and compliance with insurance coverage. Sec. 5. AGENT REGISTRATION. Authorizes a person registered as the agent of a license holder to serve a civil process on behalf of the license holder. Requires the applicant for an agent registration to submit a sworn statement, be of a certain age, disclose convictions regarding moral turpitude, and submit a fee. Sec. 6. CRIMINAL HISTORY RECORD CHECK. Requires an applicant to disclose to the department any conviction for moral turpitude or a felony in a manner prescribed by the commissioner of licensing and regulation (commissioner). Requires the Department of Public Safety to provide a criminal history record check for applicants on request of the department in a manner provided by Subchapter F (Criminal History Record Information), Chapter 411, Government Code. Sec. 7. ISSUANCE OF LICENSES AND REGISTRATIONS. Requires the Texas Department of Licensing and Regulation (department) to issue a server license or registration to an applicant satisfying certain requirements. Requires the license to be made within 60 days of application, except for permitted delays. Sec. 8. INSURANCE REQUIREMENT. Requires the commissioner, by rule, to prescribe insurance requirements for applicants. Sec. 9. POWERS AND DUTIES OF LICENSE HOLDER AND REGISTERED AGENTS. Authorizes a license holder or registered agent (process server) to serve civil process in the manner provided by law for service by sheriffs and constables. Authorizes a process server to serve the process on any day of the week anywhere in this state. Authorizes a process server to determine the location of an individual for the purpose of serving civil process. Authorizes a process server to serve a writ of garnishment, but prohibits a process server or registered agent from serving a writ of attachment, a writ of sequestration, or a distress warrant. Prohibits service by a license holder or agent who is an interested party or has certain legal interests in an action. Sec. 10. COSTS. Authorizes service charges to be added to court costs. Sec. 11. OFFICER OF THE COURT. Requires each process server to be considered officers of the state's civil courts, but may not be considered peace officers based on the license or registration. Requires that an assault on a process server be treated as an assault on a public servant. Sec. 12. IDENTIFICATION NUMBER. Requires the department to issue a unique identification number to each license holder and agent. Requires the process server to list the unique number on each return of service filed with the court. Sec. 13. TERM OF LICENSES AND REGISTRATION; RENEWAL. Provides that the expiration date for licenses and registrations under this article is on the second anniversary of the date of issuance. Requires the department to send a renewal application to each process server no later than 45 days prior to the expiration date. Authorizes a person to renew a license or registration by submitting a renewal application and fee. Requires a process server to provide evidence of completion of a continuing education seminar in order to renew the license or registration. Sec. 14. DISCIPLINARY ACTIONS. Authorizes the commissioner to deny, suspend, or revoke a license or registration. Authorizes the commission to assess an administrative penalty under certain conditions. Provides that proceedings for a license or registration denial, revocation, suspension, or imposition of an administrative penalty are governed by Section 17 (Sanctions, Administrative Penalty), Article 9100, V.T.C.S., and Chapter 2001 (Administrative Procedure), Government Code. Sec. 15. CRIMINAL PENALTIES. Provides that a person commits a Class A misdemeanor if a person practices as a process server in violation of this article or a rule adopted under this article. Provides that a person commits a felony of the third degree if the person knowingly or intentionally falsifies a return of civil process. SECTION 2. Amends Section 411.093(a), Government Code, to make conforming changes. SECTION 3. Exempts those who can prove two years of experience or more in serving a civil processes from the education requirement of this Act, if all other requirements are met. SECTION 4. (a) Effective date: September 1, 1999, except as provided by Subsection (b). (b) Effective date for Sections 2 and 15, Article 9035, V.T.C.S.: March 1, 2000. SECTION 5. Emergency clause.