By Lucio S.B. No. 117
76R2372 JMM-D
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.
1-21 (3) "Commission" means the Texas Commission of
1-22 Licensing and Regulation.
1-23 (4) "Commissioner" means the commissioner of licensing
1-24 and regulation.
2-1 (5) "Constable" means a constable, deputy constable,
2-2 or reserve deputy constable.
2-3 (6) "Department" means the Texas Department of
2-4 Licensing and Regulation.
2-5 (7) "License holder" means an individual who has
2-6 complied with the licensing requirements of this article and has
2-7 been issued a license by the department.
2-8 (8) "Person" means an individual.
2-9 (9) "Registered agent" means an individual who has
2-10 complied with the registration requirements adopted under this
2-11 article and has been issued an agent registration by the
2-12 department.
2-13 (10) "Sheriff" means a sheriff, deputy sheriff, or
2-14 reserve deputy sheriff.
2-15 Sec. 2. LICENSE OR REGISTRATION REQUIRED. (a) A person may
2-16 not serve civil process in this state unless the person is licensed
2-17 or registered under this article.
2-18 (b) A person who is not a license holder or registered agent
2-19 and who is not exempt under Section 3 of this article may serve
2-20 outside this state a civil process issued by a civil court of this
2-21 state, but must have the return of service acknowledged by an
2-22 officer authorized to administer oaths in the jurisdiction in which
2-23 the civil process was served.
2-24 Sec. 3. EXEMPTION. (a) This article does not apply to a
2-25 sheriff or constable engaged in the discharge of that person's
2-26 official duties. A sheriff or constable who serves civil process
2-27 other than in the performance of official duties must be licensed
3-1 or registered under this article.
3-2 (b) This article does not limit or restrict the service of
3-3 process in this state as provided by a court order.
3-4 Sec. 4. LICENSE APPLICATION. (a) An applicant for an
3-5 initial process server license under this article must submit a
3-6 sworn application on a form prescribed by the department. To be
3-7 eligible for a license under this section, an applicant must:
3-8 (1) be at least 18 years of age;
3-9 (2) disclose any convictions of the applicant for a
3-10 misdemeanor involving moral turpitude or a felony;
3-11 (3) submit the nonrefundable application fee and the
3-12 license fee; and
3-13 (4) comply with the requirements adopted under
3-14 Subsection (b) of this section.
3-15 (b) Each license applicant must provide proof to the
3-16 department in a manner acceptable to the department of:
3-17 (1) completion of a department-approved seminar on
3-18 civil process consisting of at least eight hours of instruction;
3-19 and
3-20 (2) maintenance of insurance coverage as required by
3-21 rules adopted by the commissioner.
3-22 Sec. 5. AGENT REGISTRATION. (a) A person registered under
3-23 this article as the agent of a license holder may execute civil
3-24 process under this article on behalf of the license holder.
3-25 (b) An applicant for an agent registration shall submit a
3-26 sworn application to the department on a form prescribed by the
3-27 department. To be eligible for registration under this section, an
4-1 applicant must:
4-2 (1) be at least 18 years of age;
4-3 (2) disclose any convictions of the applicant for a
4-4 misdemeanor involving moral turpitude or a felony; and
4-5 (3) submit the nonrefundable application fee and the
4-6 registration fee.
4-7 Sec. 6. CRIMINAL HISTORY RECORD CHECK. (a) Each applicant
4-8 for a process server license or an agent registration under this
4-9 article shall disclose to the department in the manner prescribed
4-10 by the commissioner any conviction of the applicant for a
4-11 misdemeanor involving moral turpitude or a felony.
4-12 (b) On the request of the department, the Department of
4-13 Public Safety shall provide a criminal history record check on each
4-14 applicant for an initial or renewal license or agent registration
4-15 in the manner provided by Subchapter F, Chapter 411, Government
4-16 Code.
4-17 Sec. 7. ISSUANCE OF LICENSES AND REGISTRATIONS. (a) The
4-18 department shall issue a process server license or an agent
4-19 registration to an applicant who complies with the appropriate
4-20 requirements of this article, passes the criminal history record
4-21 check, and pays all required fees.
4-22 (b) Except as provided by Subsection (c) of this section,
4-23 the department shall issue the license or registration not later
4-24 than the 60th day after the date on which the application is
4-25 received by the department.
4-26 (c) If the department is notified by the Department of
4-27 Public Safety that a criminal history record check affecting an
5-1 applicant will not be completed within the 60 days prescribed by
5-2 Subsection (b) of this section, the department shall notify the
5-3 applicant of the delay.
5-4 Sec. 8. INSURANCE REQUIREMENT. The commissioner by rule
5-5 shall prescribe the insurance coverage that a process server
5-6 license holder must maintain to be eligible for a license under
5-7 this article.
5-8 Sec. 9. POWERS AND DUTIES OF LICENSE HOLDERS AND REGISTERED
5-9 AGENTS. (a) A license holder or registered agent may serve civil
5-10 process issued by the courts of this state in the manner provided
5-11 by law for service by sheriffs and constables. The person may
5-12 serve the process on any day of the week anywhere in this state.
5-13 (b) A license holder or registered agent may determine the
5-14 location of an individual for the purpose of serving civil process.
5-15 (c) A license holder or registered agent may serve a writ of
5-16 garnishment, but may not serve a writ of attachment, a writ of
5-17 sequestration, or a distress warrant.
5-18 (d) A license holder or registered agent may not serve a
5-19 civil process in any action in which the license holder or
5-20 registered agent is an interested party.
5-21 (e) A license holder or registered agent who is employed by
5-22 an attorney or a law firm may not serve a civil process relating to
5-23 an action in which the employing attorney or law firm is counsel to
5-24 a party.
5-25 Sec. 10. COSTS. A fee charged and collected by a license
5-26 holder or registered agent for service of process may be charged as
5-27 costs in a judicial proceeding.
6-1 Sec. 11. OFFICER OF THE COURT. Each license holder and
6-2 registered agent shall be considered an officer of the civil courts
6-3 of this state, but may not be considered a peace officer based on
6-4 that license or registration. An assault on a license holder or
6-5 registered agent shall be treated as if the assault were committed
6-6 on a public servant.
6-7 Sec. 12. IDENTIFICATION NUMBER. The department shall issue
6-8 to each license holder and registered agent a unique identification
6-9 number. The license holder or registered agent shall list that
6-10 unique number on each return of service made by that person that is
6-11 filed with the clerk of the appropriate court.
6-12 Sec. 13. TERM OF LICENSES AND REGISTRATION; RENEWAL. (a) A
6-13 license or an agent registration issued under this article expires
6-14 on the second anniversary of the date of issuance.
6-15 (b) The department shall send a renewal application to each
6-16 license holder or registered agent not later than the 45th day
6-17 before the date of expiration of the license or registration.
6-18 (c) A license holder or registered agent may renew the
6-19 license or registration by submitting to the department before the
6-20 expiration date, on a form prescribed by the department, a renewal
6-21 application accompanied by the renewal fee. To renew the license
6-22 or registration, each license holder and registered agent must also
6-23 present evidence satisfactory to the department of completion,
6-24 before the expiration of the license or registration, of a
6-25 department-approved continuing education seminar consisting of at
6-26 least eight hours of instruction in civil process.
6-27 Sec. 14. DISCIPLINARY ACTIONS. (a) The commissioner may
7-1 deny, suspend, or revoke a license or registration, as appropriate,
7-2 and the commission may assess an administrative penalty under
7-3 Section 17, Article 9100, Revised Statutes, on a finding that:
7-4 (1) a license holder has:
7-5 (A) failed to maintain the insurance coverage
7-6 required by this article;
7-7 (B) refused to permit an examination by the
7-8 department of the records required to be maintained by a license
7-9 holder under rules adopted under this article; or
7-10 (C) allowed a person to serve process who the
7-11 license holder knows is not a registered agent under this article;
7-12 or
7-13 (2) a license holder or registered agent has:
7-14 (A) violated this article, a rule adopted under
7-15 this article, or an order of the commissioner or commission;
7-16 (B) knowingly made a false or fraudulent return
7-17 of service;
7-18 (C) been convicted of a felony or misdemeanor
7-19 that directly relates to the duties and responsibilities involved
7-20 in performing the duties of a process server; or
7-21 (D) had revoked:
7-22 (i) a probation for a felony offense;
7-23 (ii) a parole; or
7-24 (iii) a mandatory supervision.
7-25 (b) Proceedings for the denial, revocation, or suspension of
7-26 a license or registration, for the imposition of an administrative
7-27 penalty, and for an appeal from the proceeding are governed by
8-1 Article 9100, Revised Statutes, and by Chapter 2001, Government
8-2 Code.
8-3 Sec. 15. CRIMINAL PENALTIES. (a) A person commits an
8-4 offense if the person practices as a process server or registered
8-5 agent in violation of this article or a rule adopted under this
8-6 article. An offense under this subsection is a Class A
8-7 misdemeanor.
8-8 (b) A person commits an offense if the person knowingly or
8-9 intentionally falsifies a return of civil process. An offense
8-10 under this subsection is a felony of the third degree.
8-11 SECTION 2. Section 411.093(a), Government Code, is amended
8-12 to read as follows:
8-13 (a) The Texas Department of Licensing and Regulation is
8-14 entitled to obtain from the department criminal history record
8-15 information maintained by the department that relates to a person
8-16 who is:
8-17 (1) an applicant for a license or the holder of a
8-18 license under the Texas Boxing and Wrestling Act (Article 8501-1,
8-19 Vernon's Texas Civil Statutes); or
8-20 (2) an applicant for a license or registration or the
8-21 holder of a license or registration under Article 9035, Revised
8-22 Statutes [that Act].
8-23 SECTION 3. Notwithstanding Section 4, Article 9035, Revised
8-24 Statutes, as added by this Act, a person who provides proof to the
8-25 Texas Department of Licensing and Regulation in a manner
8-26 satisfactory to that department of at least two years' experience
8-27 in serving civil process before the effective date of this Act is
9-1 entitled to a license without complying with the educational
9-2 requirement if the person meets all other requirements under that
9-3 section.
9-4 SECTION 4. (a) Except as provided by Subsection (b) of this
9-5 section, Article 9035, Revised Statutes, as added by this Act,
9-6 takes effect September 1, 1999.
9-7 (b) Sections 2 and 15, Article 9035, Revised Statutes, as
9-8 added by this Act, take effect March 1, 2000.
9-9 SECTION 5. The importance of this legislation and the
9-10 crowded condition of the calendars in both houses create an
9-11 emergency and an imperative public necessity that the
9-12 constitutional rule requiring bills to be read on three several
9-13 days in each house be suspended, and this rule is hereby suspended.