76R9479 JMM-F
By Thompson, Gutierrez, et al. H.B. No. 1309
Substitute the following for H.B. No. 1309:
By Thompson C.S.H.B. No. 1309
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the 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. Chapter 20, Title 132, Revised Statutes, is
1-6 amended by adding Article 9035 to read as follows:
1-7 Art. 9035. PRIVATE PROCESS SERVERS
1-8 Sec. 1. DEFINITIONS. In this article:
1-9 (1) "Civil court" includes:
1-10 (A) a civil district court;
1-11 (B) a family district court;
1-12 (C) a county court at law;
1-13 (D) a probate court;
1-14 (E) a justice court; and
1-15 (F) a small claims court.
1-16 (2) "Civil process" means a citation, a temporary
1-17 restraining order, a notice, a writ of garnishment, a writ of
1-18 forcible entry and detainer, or a subpoena for a trial or for an
1-19 oral deposition. The term does not include service of written
1-20 interrogatories or a writ that requires the actual taking of
1-21 possession of a person, property, or thing.
1-22 (3) "Commission" means the Texas Commission of
1-23 Licensing and Regulation.
1-24 (4) "Commissioner" means the commissioner of licensing
2-1 and regulation.
2-2 (5) "Constable" means a constable, deputy constable,
2-3 or reserve deputy constable.
2-4 (6) "Department" means the Texas Department of
2-5 Licensing and Regulation.
2-6 (7) "License holder" means an individual who has
2-7 complied with the licensing requirements of this article and has
2-8 been issued a license by the department.
2-9 (8) "Person" means an individual.
2-10 (9) "Public servant" has the meaning assigned by
2-11 Section 1.07, Penal Code.
2-12 (10) "Registered agent" means an individual who has
2-13 complied with the registration requirements adopted under this
2-14 article and has been issued an agent registration by the
2-15 department.
2-16 (11) "Sheriff" means a sheriff, deputy sheriff, or
2-17 reserve deputy sheriff.
2-18 Sec. 2. LICENSE OR REGISTRATION REQUIRED. (a) A person may
2-19 not serve civil process in this state unless the person is licensed
2-20 or registered under this article.
2-21 (b) A person who is not a license holder or registered agent
2-22 and who is not exempt under Section 3 of this article may serve
2-23 outside this state a civil process issued by a civil court of this
2-24 state if the person is:
2-25 (1) authorized by law, rule, or court order in the
2-26 person's jurisdiction to serve process;
2-27 (2) a disinterested person competent to make an oath
3-1 of that fact; and
3-2 (3) has the return of service acknowledged by an
3-3 officer authorized to administer oaths in the jurisdiction in which
3-4 the civil process was served.
3-5 Sec. 3. EXEMPTION. (a) This article does not apply to a
3-6 sheriff or constable engaged in the discharge of that person's
3-7 official duties. A sheriff or constable who serves civil process
3-8 other than in the performance of official duties must be licensed
3-9 or registered under this article.
3-10 (b) This article does not limit or restrict the service of
3-11 process in this state as provided by a court order.
3-12 (c) This article does not apply to a court reporter
3-13 certified under Chapter 52, Government Code.
3-14 Sec. 4. LICENSE APPLICATION; TEMPORARY LICENSE. (a) An
3-15 applicant for an initial process server license under this article
3-16 must submit a sworn application on a form prescribed by the
3-17 commissioner. To be eligible for a license under this section, an
3-18 applicant must:
3-19 (1) be at least 18 years of age;
3-20 (2) not have been convicted of a misdemeanor involving
3-21 moral turpitude or a felony;
3-22 (3) submit the nonrefundable application fee and the
3-23 license fee; and
3-24 (4) comply with the requirements adopted under
3-25 Subsection (b) of this section.
3-26 (b) Each license applicant must provide proof to the
3-27 department in a manner acceptable to the department of:
4-1 (1) completion of a department-approved seminar on
4-2 civil process consisting of at least eight hours of instruction;
4-3 and
4-4 (2) maintenance of insurance coverage as required by
4-5 rules adopted by the commissioner.
4-6 (c) The commissioner shall issue a temporary license not
4-7 later than the 30th day after the date an applicant submits
4-8 evidence satisfactory to the department that the applicant has
4-9 properly completed the application, paid all required fees, and
4-10 meets all of the qualifications established by this article and by
4-11 rule of the commissioner. A temporary license is valid for not
4-12 more than 90 days after the date of issuance. If, on completion of
4-13 the license application process, the commissioner denies an
4-14 application for a license, the applicant shall return the
4-15 applicant's temporary license and immediately stop serving process
4-16 under this article.
4-17 Sec. 5. AGENT REGISTRATION. (a) A person registered under
4-18 this article as the agent of a license holder may execute civil
4-19 process under this article on behalf of the license holder.
4-20 (b) An applicant for an agent registration shall submit a
4-21 sworn application to the department on a form prescribed by the
4-22 commissioner. To be eligible for registration under this section,
4-23 an applicant must:
4-24 (1) be at least 18 years of age;
4-25 (2) not have been convicted of a misdemeanor involving
4-26 moral turpitude or a felony; and
4-27 (3) submit the nonrefundable application fee and the
5-1 registration fee.
5-2 Sec. 6. CRIMINAL HISTORY RECORD CHECK. (a) Each applicant
5-3 for a process server license or an agent registration under this
5-4 article shall disclose to the department in the manner prescribed
5-5 by the commissioner any conviction of the applicant for a
5-6 misdemeanor involving moral turpitude or a felony.
5-7 (b) On receipt of an original application for a process
5-8 server license or agent registration, the department shall conduct
5-9 a thorough background investigation of each individual applicant to
5-10 determine whether the applicant is qualified under this article.
5-11 The investigation must include:
5-12 (1) the submission of fingerprints by the applicant
5-13 for processing through appropriate local, state, and federal law
5-14 enforcement agencies; and
5-15 (2) the examination by the department of law
5-16 enforcement records maintained by a local, state, or federal law
5-17 enforcement agency.
5-18 (c) A background check under this section and the
5-19 department's consideration of any criminal conviction is governed
5-20 by:
5-21 (1) this article;
5-22 (2) Section 411.122, Government Code;
5-23 (3) Article 6252-13c, Revised Statutes; and
5-24 (4) Sections 2-5, Chapter 267, Acts of the 67th
5-25 Legislature, Regular Session, 1981 (Article 6252-13d, Vernon's
5-26 Texas Civil Statutes).
5-27 (d) The conviction of an applicant of a crime does not
6-1 automatically:
6-2 (1) disqualify the applicant;
6-3 (2) require revocation of a license or registration;
6-4 or
6-5 (3) required denial of an application for renewal of a
6-6 license or registration.
6-7 Sec. 7. ISSUANCE OF LICENSES AND REGISTRATIONS. (a) The
6-8 commissioner shall issue a process server license or an agent
6-9 registration to an applicant who complies with the appropriate
6-10 requirements of this article, passes the criminal history record
6-11 check, and pays all required fees.
6-12 (b) Except as provided by Subsection (c) of this section,
6-13 the commissioner shall issue the license or registration not later
6-14 than the 60th day after the date on which the application is
6-15 received by the department.
6-16 (c) If the department is notified by the Department of
6-17 Public Safety that a criminal history record check affecting an
6-18 applicant will not be completed within the 60 days prescribed by
6-19 Subsection (b) of this section, the department shall notify the
6-20 applicant of the delay.
6-21 Sec. 8. INSURANCE REQUIREMENT. The commissioner by rule
6-22 shall prescribe the insurance coverage that a process server
6-23 license holder must maintain to be eligible for a license under
6-24 this article.
6-25 Sec. 9. POWERS AND DUTIES OF LICENSE HOLDERS AND REGISTERED
6-26 AGENTS. (a) A license holder or registered agent may serve civil
6-27 process issued by the courts of this state in the manner provided
7-1 by law for service by sheriffs and constables. The person may
7-2 serve the process on any day of the week anywhere in this state.
7-3 (b) A license holder or registered agent may determine the
7-4 location of an individual for the purpose of serving civil process.
7-5 (c) A license holder or registered agent may serve a writ of
7-6 garnishment, but may not serve a writ of attachment, a writ of
7-7 sequestration, or a distress warrant.
7-8 (d) A license holder or registered agent may not serve a
7-9 civil process in any action in which the license holder or
7-10 registered agent is an interested party.
7-11 (e) A license holder or registered agent who is employed by
7-12 an attorney or a law firm may not serve a civil process relating to
7-13 an action in which the employing attorney or law firm is counsel to
7-14 a party.
7-15 Sec. 10. COSTS. A fee charged and collected by a license
7-16 holder or registered agent for service of process may be charged as
7-17 costs in a judicial proceeding.
7-18 Sec. 11. PUBLIC SERVANT; OFFICER OF COURT. Each license
7-19 holder and registered agent shall be considered a public servant
7-20 when performing duties related to serving process and considered an
7-21 officer of the civil courts of this state, but may not be
7-22 considered a peace officer based on that license or registration.
7-23 An assault on a license holder or registered agent shall be treated
7-24 as an assault on a public servant.
7-25 Sec. 12. IDENTIFICATION NUMBER. (a) The department shall
7-26 issue to each license holder and registered agent a unique
7-27 identification number. The license holder or registered agent
8-1 shall list that unique number on each return of service made by
8-2 that person that is filed with the clerk of the appropriate court.
8-3 (b) The department shall issue to each license holder and
8-4 registered agent a photo identification card with the person's
8-5 unique identification number on the card. The department shall
8-6 determine the size, design, and content of the identification card.
8-7 The card remains the property of the state and must be returned on
8-8 demand by the department.
8-9 Sec. 13. TERM OF LICENSES AND REGISTRATION; RENEWAL; AGENT
8-10 TERMINATION. (a) A license or an agent registration issued under
8-11 this article expires on the second anniversary of the date of
8-12 issuance.
8-13 (b) The department shall send a renewal application to each
8-14 license holder or registered agent not later than the 45th day
8-15 before the date of expiration of the license or registration.
8-16 (c) A license holder or registered agent may renew the
8-17 license or registration by submitting to the department before the
8-18 expiration date, on a form prescribed by the commissioner, a
8-19 renewal application accompanied by the renewal fee. To renew the
8-20 license or registration, each license holder and registered agent
8-21 must also present evidence satisfactory to the department of
8-22 completion, before the expiration of the license or registration,
8-23 of a department-approved continuing education seminar consisting of
8-24 at least eight hours of instruction in civil process.
8-25 (d) A license holder shall notify the department in writing
8-26 not later than the 14th day after the date on which the employment
8-27 of a registered agent by the license holder is terminated.
9-1 Sec. 14. DISCIPLINARY ACTIONS. (a) The commissioner may
9-2 deny, suspend, or revoke a license or registration, as appropriate,
9-3 and the commission may assess an administrative penalty under
9-4 Section 17, Article 9100, Revised Statutes, on a finding that:
9-5 (1) a license holder has:
9-6 (A) failed to maintain the insurance coverage
9-7 required by this article;
9-8 (B) refused to permit an examination by the
9-9 department of the records required to be maintained by a license
9-10 holder under rules adopted under this article; or
9-11 (C) allowed a person to serve process who the
9-12 license holder knows is not legally authorized to do so; or
9-13 (2) a license holder or registered agent has:
9-14 (A) violated this article, a rule adopted under
9-15 this article, or an order of the commissioner or commission;
9-16 (B) knowingly made a false or fraudulent return
9-17 of service; or
9-18 (C) been convicted of a felony or misdemeanor
9-19 that directly relates to the duties and responsibilities involved
9-20 in performing the duties of a process server.
9-21 (b) Proceedings for the denial, revocation, or suspension of
9-22 a license or registration, for the imposition of an administrative
9-23 penalty, and for an appeal from the proceeding are governed by
9-24 Article 9100, Revised Statutes, and by Chapter 2001, Government
9-25 Code.
9-26 Sec. 15. CRIMINAL PENALTIES. (a) A person commits an
9-27 offense if the person practices as a process server or registered
10-1 agent in violation of this article or a rule adopted under this
10-2 article. An offense under this subsection is a felony of the third
10-3 degree.
10-4 (b) A person commits an offense if the person knowingly or
10-5 intentionally falsifies a return of civil process. An offense
10-6 under this subsection is a Class A misdemeanor unless the person's
10-7 intent is to defraud or harm another, in which event the offense is
10-8 a state jail felony.
10-9 SECTION 2. Section 411.093(a), Government Code, is amended
10-10 to read as follows:
10-11 (a) The Texas Department of Licensing and Regulation is
10-12 entitled to obtain from the department criminal history record
10-13 information maintained by the department that relates to a person
10-14 who is:
10-15 (1) an applicant for a license or the holder of a
10-16 license under the Texas Boxing and Wrestling Act (Article 8501-1,
10-17 Vernon's Texas Civil Statutes); or
10-18 (2) an applicant for a license or registration or the
10-19 holder of a license or registration under Article 9035, Revised
10-20 Statutes [that Act].
10-21 SECTION 3. Notwithstanding Section 4, Article 9035, Revised
10-22 Statutes, as added by this Act, a person who provides proof to the
10-23 Texas Department of Licensing and Regulation in a manner
10-24 satisfactory to that department of at least two years' experience
10-25 in serving civil process before the effective date of this Act is
10-26 entitled to a license without complying with the educational
10-27 requirement if the person meets all other requirements under that
11-1 section.
11-2 SECTION 4. (a) Except as provided by Subsection (b) of this
11-3 section, Article 9035, Revised Statutes, as added by this Act,
11-4 takes effect September 1, 1999.
11-5 (b) Sections 2 and 15, Article 9035, Revised Statutes, as
11-6 added by this Act, take effect March 1, 2000.
11-7 SECTION 5. The importance of this legislation and the
11-8 crowded condition of the calendars in both houses create an
11-9 emergency and an imperative public necessity that the
11-10 constitutional rule requiring bills to be read on three several
11-11 days in each house be suspended, and this rule is hereby suspended.