1-1 By: Lucio S.B. No. 117
1-2 (In the Senate - Filed January 4, 1999; January 28, 1999,
1-3 read first time and referred to Committee on State Affairs;
1-4 March 8, 1999, reported favorably, as amended, by the following
1-5 vote: Yeas 7, Nays 0; March 8, 1999, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: Lucio
1-7 Amend S.B. No. 117 as follows:
1-8 (1) On page 2, between lines 3 and 4, insert a new
1-9 Subsection (c) to read as follows:
1-10 (c) This article does not apply to a court reporter
1-11 certified under Chapter 52, Government Code.
1-12 A BILL TO BE ENTITLED
1-13 AN ACT
1-14 relating to the regulation of private process servers; providing
1-15 penalties.
1-16 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-17 SECTION 1. Chapter 20, Title 132, Revised Statutes, is
1-18 amended by adding Article 9035 to read as follows:
1-19 Art. 9035. PRIVATE PROCESS SERVERS
1-20 Sec. 1. DEFINITIONS. In this article:
1-21 (1) "Civil court" includes:
1-22 (A) a civil district court;
1-23 (B) a family district court;
1-24 (C) a county court at law;
1-25 (D) a probate court;
1-26 (E) a justice court; and
1-27 (F) a small claims court.
1-28 (2) "Civil process" means a citation, a temporary
1-29 restraining order, a notice, a writ of garnishment, a writ of
1-30 forcible entry and detainer, or a subpoena for a trial or for an
1-31 oral deposition. The term does not include service of written
1-32 interrogatories.
1-33 (3) "Commission" means the Texas Commission of
1-34 Licensing and Regulation.
1-35 (4) "Commissioner" means the commissioner of licensing
1-36 and regulation.
1-37 (5) "Constable" means a constable, deputy constable,
1-38 or reserve deputy constable.
1-39 (6) "Department" means the Texas Department of
1-40 Licensing and Regulation.
1-41 (7) "License holder" means an individual who has
1-42 complied with the licensing requirements of this article and has
1-43 been issued a license by the department.
1-44 (8) "Person" means an individual.
1-45 (9) "Registered agent" means an individual who has
1-46 complied with the registration requirements adopted under this
1-47 article and has been issued an agent registration by the
1-48 department.
1-49 (10) "Sheriff" means a sheriff, deputy sheriff, or
1-50 reserve deputy sheriff.
1-51 Sec. 2. LICENSE OR REGISTRATION REQUIRED. (a) A person may
1-52 not serve civil process in this state unless the person is licensed
1-53 or registered under this article.
1-54 (b) A person who is not a license holder or registered agent
1-55 and who is not exempt under Section 3 of this article may serve
1-56 outside this state a civil process issued by a civil court of this
1-57 state but must have the return of service acknowledged by an
1-58 officer authorized to administer oaths in the jurisdiction in which
1-59 the civil process was served.
1-60 Sec. 3. EXEMPTION. (a) This article does not apply to a
1-61 sheriff or constable engaged in the discharge of that person's
1-62 official duties. A sheriff or constable who serves civil process
1-63 other than in the performance of official duties must be licensed
2-1 or registered under this article.
2-2 (b) This article does not limit or restrict the service of
2-3 process in this state as provided by a court order.
2-4 Sec. 4. LICENSE APPLICATION. (a) An applicant for an
2-5 initial process server license under this article must submit a
2-6 sworn application on a form prescribed by the department. To be
2-7 eligible for a license under this section, an applicant must:
2-8 (1) be at least 18 years of age;
2-9 (2) disclose any convictions of the applicant for a
2-10 misdemeanor involving moral turpitude or a felony;
2-11 (3) submit the nonrefundable application fee and the
2-12 license fee; and
2-13 (4) comply with the requirements adopted under
2-14 Subsection (b) of this section.
2-15 (b) Each license applicant must provide proof to the
2-16 department in a manner acceptable to the department of:
2-17 (1) completion of a department-approved seminar on
2-18 civil process consisting of at least eight hours of instruction;
2-19 and
2-20 (2) maintenance of insurance coverage as required by
2-21 rules adopted by the commissioner.
2-22 Sec. 5. AGENT REGISTRATION. (a) A person registered under
2-23 this article as the agent of a license holder may execute civil
2-24 process under this article on behalf of the license holder.
2-25 (b) An applicant for an agent registration shall submit a
2-26 sworn application to the department on a form prescribed by the
2-27 department. To be eligible for registration under this section, an
2-28 applicant must:
2-29 (1) be at least 18 years of age;
2-30 (2) disclose any convictions of the applicant for a
2-31 misdemeanor involving moral turpitude or a felony; and
2-32 (3) submit the nonrefundable application fee and the
2-33 registration fee.
2-34 Sec. 6. CRIMINAL HISTORY RECORD CHECK. (a) Each applicant
2-35 for a process server license or an agent registration under this
2-36 article shall disclose to the department in the manner prescribed
2-37 by the commissioner any conviction of the applicant for a
2-38 misdemeanor involving moral turpitude or a felony.
2-39 (b) On the request of the department, the Department of
2-40 Public Safety of the State of Texas shall provide a criminal
2-41 history record check on each applicant for an initial or renewal
2-42 license or agent registration in the manner provided by Subchapter
2-43 F, Chapter 411, Government Code.
2-44 Sec. 7. ISSUANCE OF LICENSES AND REGISTRATIONS. (a) The
2-45 department shall issue a process server license or an agent
2-46 registration to an applicant who complies with the appropriate
2-47 requirements of this article, passes the criminal history record
2-48 check, and pays all required fees.
2-49 (b) Except as provided by Subsection (c) of this section,
2-50 the department shall issue the license or registration not later
2-51 than the 60th day after the date on which the application is
2-52 received by the department.
2-53 (c) If the department is notified by the Department of
2-54 Public Safety that a criminal history record check affecting an
2-55 applicant will not be completed within the 60 days prescribed by
2-56 Subsection (b) of this section, the department shall notify the
2-57 applicant of the delay.
2-58 Sec. 8. INSURANCE REQUIREMENT. The commissioner by rule
2-59 shall prescribe the insurance coverage that a process server
2-60 license holder must maintain to be eligible for a license under
2-61 this article.
2-62 Sec. 9. POWERS AND DUTIES OF LICENSE HOLDERS AND REGISTERED
2-63 AGENTS. (a) A license holder or registered agent may serve civil
2-64 process issued by the courts of this state in the manner provided
2-65 by law for service by sheriffs and constables. The person may
2-66 serve the process on any day of the week anywhere in this state.
2-67 (b) A license holder or registered agent may determine the
2-68 location of an individual for the purpose of serving civil process.
2-69 (c) A license holder or registered agent may serve a writ of
3-1 garnishment but may not serve a writ of attachment, a writ of
3-2 sequestration, or a distress warrant.
3-3 (d) A license holder or registered agent may not serve a
3-4 civil process in any action in which the license holder or
3-5 registered agent is an interested party.
3-6 (e) A license holder or registered agent who is employed by
3-7 an attorney or a law firm may not serve a civil process relating to
3-8 an action in which the employing attorney or law firm is counsel to
3-9 a party.
3-10 Sec. 10. COSTS. A fee charged and collected by a license
3-11 holder or registered agent for service of process may be charged as
3-12 costs in a judicial proceeding.
3-13 Sec. 11. OFFICER OF THE COURT. Each license holder and
3-14 registered agent shall be considered an officer of the civil courts
3-15 of this state but may not be considered a peace officer based on
3-16 that license or registration. An assault on a license holder or
3-17 registered agent shall be treated as if the assault were committed
3-18 on a public servant.
3-19 Sec. 12. IDENTIFICATION NUMBER. The department shall issue
3-20 to each license holder and registered agent a unique identification
3-21 number. The license holder or registered agent shall list that
3-22 unique number on each return of service made by that person that is
3-23 filed with the clerk of the appropriate court.
3-24 Sec. 13. TERM OF LICENSES AND REGISTRATION; RENEWAL. (a) A
3-25 license or an agent registration issued under this article expires
3-26 on the second anniversary of the date of issuance.
3-27 (b) The department shall send a renewal application to each
3-28 license holder or registered agent not later than the 45th day
3-29 before the date of expiration of the license or registration.
3-30 (c) A license holder or registered agent may renew the
3-31 license or registration by submitting to the department before the
3-32 expiration date, on a form prescribed by the department, a renewal
3-33 application accompanied by the renewal fee. To renew the license
3-34 or registration, each license holder and registered agent must also
3-35 present evidence satisfactory to the department of completion,
3-36 before the expiration of the license or registration, of a
3-37 department-approved continuing education seminar consisting of at
3-38 least eight hours of instruction in civil process.
3-39 Sec. 14. DISCIPLINARY ACTIONS. (a) The commissioner may
3-40 deny, suspend, or revoke a license or registration, as appropriate,
3-41 and the commission may assess an administrative penalty under
3-42 Section 17, Article 9100, Revised Statutes, on a finding that:
3-43 (1) a license holder has:
3-44 (A) failed to maintain the insurance coverage
3-45 required by this article;
3-46 (B) refused to permit an examination by the
3-47 department of the records required to be maintained by a license
3-48 holder under rules adopted under this article; or
3-49 (C) allowed a person to serve process who the
3-50 license holder knows is not a registered agent under this article;
3-51 or
3-52 (2) a license holder or registered agent has:
3-53 (A) violated this article, a rule adopted under
3-54 this article, or an order of the commissioner or commission;
3-55 (B) knowingly made a false or fraudulent return
3-56 of service;
3-57 (C) been convicted of a felony or misdemeanor
3-58 that directly relates to the duties and responsibilities involved
3-59 in performing the duties of a process server; or
3-60 (D) had revoked:
3-61 (i) a probation for a felony offense;
3-62 (ii) a parole; or
3-63 (iii) a mandatory supervision.
3-64 (b) Proceedings for the denial, revocation, or suspension of
3-65 a license or registration, for the imposition of an administrative
3-66 penalty, and for an appeal from the proceeding are governed by
3-67 Article 9100, Revised Statutes, and by Chapter 2001, Government
3-68 Code.
3-69 Sec. 15. CRIMINAL PENALTIES. (a) A person commits an
4-1 offense if the person practices as a process server or registered
4-2 agent in violation of this article or a rule adopted under this
4-3 article. An offense under this subsection is a Class A
4-4 misdemeanor.
4-5 (b) A person commits an offense if the person knowingly or
4-6 intentionally falsifies a return of civil process. An offense
4-7 under this subsection is a felony of the third degree.
4-8 SECTION 2. Subsection (a), Section 411.093, Government Code,
4-9 is amended to read as follows:
4-10 (a) The Texas Department of Licensing and Regulation is
4-11 entitled to obtain from the department criminal history record
4-12 information maintained by the department that relates to a person
4-13 who is:
4-14 (1) an applicant for a license or the holder of a
4-15 license under the Texas Boxing and Wrestling Act (Article 8501-1,
4-16 Vernon's Texas Civil Statutes); or
4-17 (2) an applicant for a license or registration or the
4-18 holder of a license or registration under Article 9035, Revised
4-19 Statutes [that Act].
4-20 SECTION 3. Notwithstanding Section 4, Article 9035, Revised
4-21 Statutes, as added by this Act, a person who provides proof to the
4-22 Texas Department of Licensing and Regulation in a manner
4-23 satisfactory to that department of at least two years' experience
4-24 in serving civil process before the effective date of this Act is
4-25 entitled to a license without complying with the educational
4-26 requirement if the person meets all other requirements under that
4-27 section.
4-28 SECTION 4. (a) Except as provided by Subsection (b) of this
4-29 section, Article 9035, Revised Statutes, as added by this Act,
4-30 takes effect September 1, 1999.
4-31 (b) Sections 2 and 15, Article 9035, Revised Statutes, as
4-32 added by this Act, take effect March 1, 2000.
4-33 SECTION 5. The importance of this legislation and the
4-34 crowded condition of the calendars in both houses create an
4-35 emergency and an imperative public necessity that the
4-36 constitutional rule requiring bills to be read on three several
4-37 days in each house be suspended, and this rule is hereby suspended.
4-38 * * * * *