78R6469 JMM-D
By: Wentworth S.B. No. 1309
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of private process servers; providing
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The Civil Practice and Remedies Code is amended
by adding Title 8 to read as follows:
TITLE 8. CIVIL PROCESS
Chapter 191. PRIVATE PROCESS SERVERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 191.001. DEFINITIONS. In this chapter:
(1) "Civil court" includes:
(A) a civil district court;
(B) a family district court;
(C) a county court at law;
(D) a probate court;
(E) a justice court; and
(F) a small claims court.
(2) "Civil process" means a citation, a temporary
restraining order, a notice, a writ of garnishment, a writ of
forcible entry and detainer, or a subpoena for a trial or for an
oral deposition. The term does not include service of written
interrogatories or a writ that requires the actual taking of
possession of a person, property, or thing.
(3) "Commission" means the Texas Commission of
Licensing and Regulation.
(4) "Constable" means a constable, deputy constable,
or reserve deputy constable.
(5) "Department" means the Texas Department of
Licensing and Regulation.
(6) "Executive director" means the executive director
of the department.
(7) "License holder" means an individual who has
complied with the licensing requirements of this chapter and has
been issued a license by the department.
(8) "Person" means an individual.
(9) "Public servant" has the meaning assigned by
Section 1.07, Penal Code.
(10) "Registered agent" means an individual who has
complied with the registration requirements adopted under this
chapter and has been issued an agent registration by the
department.
(11) "Sheriff" means a sheriff, deputy sheriff, or
reserve deputy sheriff.
Sec. 191.002. APPLICABILITY OF CHAPTER. (a) This chapter
does not apply to a sheriff or constable engaged in the discharge of
that person's official duties. A sheriff or constable who serves
civil process other than in the performance of official duties must
be licensed or registered under this chapter.
(b) This chapter does not limit or restrict the service of
process in this state as provided by a court order.
(c) This chapter does not apply to a court reporter
certified under Chapter 52, Government Code.
[Sections 191.003-191.050 reserved for expansion]
SUBCHAPTER B. LICENSE AND REGISTRATION REQUIREMENTS
Sec. 191.051. LICENSE OR REGISTRATION REQUIRED. (a) A
person may not serve civil process in this state unless the person
is licensed or registered under this chapter.
(b) A person who is not a license holder or registered agent
and who is not exempt under Section 191.002 may serve outside this
state a civil process issued by a civil court of this state if the
person is:
(1) authorized by law, rule, or court order in the
person's jurisdiction to serve process;
(2) a disinterested person competent to make an oath
of that fact; and
(3) has the return of service acknowledged by an
officer authorized to administer oaths in the jurisdiction in which
the civil process was served.
Sec. 191.052. LICENSE APPLICATION; TEMPORARY LICENSE. (a)
An applicant for an initial process server license under this
chapter must submit a sworn application on a form prescribed by the
executive director. To be eligible for a license under this
section, an applicant must:
(1) be at least 18 years of age;
(2) not have been convicted of a misdemeanor involving
moral turpitude or a felony;
(3) submit the nonrefundable application fee and the
license fee; and
(4) comply with the requirements adopted under
Subsection (b).
(b) Each license applicant must provide proof to the
department in a manner acceptable to the department of:
(1) completion of a department-approved seminar on
civil process consisting of at least eight hours of instruction;
and
(2) maintenance of insurance coverage as required by
rules adopted by the executive director.
(c) The executive director shall issue a temporary license
not later than the 30th day after the date an applicant submits
evidence satisfactory to the department that the applicant has
properly completed the application, has paid all required fees, and
meets all of the qualifications established by this chapter and by
rule of the executive director. A temporary license is valid for
not more than 90 days after the date of issuance. If, on completion
of the license application process, the executive director denies
an application for a license, the applicant shall return the
applicant's temporary license and immediately stop serving process
under this chapter.
Sec. 191.053. AGENT REGISTRATION. (a) A person registered
under this chapter as the agent of a license holder may execute
civil process under this chapter on behalf of the license holder.
(b) An applicant for an agent registration shall submit a
sworn application to the department on a form prescribed by the
executive director. To be eligible for registration under this
section, an applicant must:
(1) be at least 18 years of age;
(2) not have been convicted of a misdemeanor involving
moral turpitude or a felony; and
(3) submit the nonrefundable application fee and the
registration fee.
Sec. 191.054. CRIMINAL HISTORY RECORD CHECK. (a) Each
applicant for a process server license or an agent registration
under this chapter shall disclose to the department in the manner
prescribed by the executive director any conviction of the
applicant for a misdemeanor involving moral turpitude or a felony.
(b) On receipt of an original application for a process
server license or agent registration, the department shall conduct
a thorough background investigation of each individual applicant to
determine whether the applicant is qualified under this chapter.
The investigation must include:
(1) the submission of fingerprints by the applicant
for processing through appropriate local, state, and federal law
enforcement agencies; and
(2) the examination by the department of law
enforcement records maintained by a local, state, or federal law
enforcement agency.
(c) A background check under this section and the
department's consideration of any criminal conviction is governed
by:
(1) this chapter;
(2) Section 411.122, Government Code; and
(3) Chapter 53, Occupations Code.
(d) The conviction of an applicant of a crime does not
automatically:
(1) disqualify the applicant;
(2) require revocation of a license or registration;
or
(3) require denial of an application for renewal of a
license or registration.
Sec. 191.055. ISSUANCE OF LICENSES AND REGISTRATIONS. (a)
The executive director shall issue a process server license or an
agent registration to an applicant who complies with the
appropriate requirements of this chapter, passes the criminal
history record check, and pays all required fees.
(b) Except as provided by Subsection (c), the executive
director shall issue the license or registration not later than the
60th day after the date on which the application is received by the
department.
(c) If the department is notified by the Department of
Public Safety that a criminal history record check affecting an
applicant will not be completed within the 60 days prescribed by
Subsection (b), the department shall notify the applicant of the
delay.
Sec. 191.056. INSURANCE REQUIREMENT. The executive
director by rule shall prescribe the insurance coverage that a
process server license holder must maintain to be eligible for a
license under this chapter.
Sec. 191.057. TERM OF LICENSES AND REGISTRATION; RENEWAL;
AGENT TERMINATION. (a) A license or an agent registration issued
under this chapter expires on the second anniversary of the date of
issuance.
(b) The department shall send a renewal application to each
license holder or registered agent not later than the 45th day
before the date of expiration of the license or registration.
(c) A license holder or registered agent may renew the
license or registration by submitting to the department before the
expiration date, on a form prescribed by the executive director, a
renewal application accompanied by the renewal fee. To renew the
license or registration, each license holder and registered agent
must also present evidence satisfactory to the department of
completion, before the expiration of the license or registration,
of a department-approved continuing education seminar consisting
of at least eight hours of instruction in civil process.
(d) A license holder shall notify the department in writing
not later than the 14th day after the date on which the employment
of a registered agent by the license holder is terminated.
[Sections 191.058-191.100 reserved for expansion]
SUBCHAPTER C. PRACTICE BY LICENSE HOLDERS AND REGISTERED AGENTS
Sec. 191.101. POWERS AND DUTIES OF LICENSE HOLDERS AND
REGISTERED AGENTS. (a) A license holder or registered agent may
serve civil process issued by the courts of this state in the manner
provided by law for service by sheriffs and constables. The person
may serve the process on any day of the week anywhere in this state.
(b) A license holder or registered agent may determine the
location of an individual for the purpose of serving civil process.
(c) A license holder or registered agent may serve a writ of
garnishment, but may not serve a writ of attachment, a writ of
sequestration, or a distress warrant.
(d) A license holder or registered agent may not serve a
civil process in any action in which the license holder or
registered agent is an interested party.
(e) A license holder or registered agent who is employed by
an attorney or a law firm may not serve a civil process relating to
an action in which the employing attorney or law firm is counsel to
a party.
Sec. 191.102. COSTS. A fee charged and collected by a
license holder or registered agent for service of process may be
charged as costs in a judicial proceeding.
Sec. 191.103. PUBLIC SERVANT; OFFICER OF COURT. Each
license holder and registered agent shall be considered to be a
public servant when performing duties related to serving process
and considered to be an officer of the civil courts of this state,
but may not be considered to be a peace officer based on that
license or registration. An assault on a license holder or
registered agent shall be treated as an assault on a public servant.
Sec. 191.104. IDENTIFICATION NUMBER. (a) The department
shall issue to each license holder and registered agent a unique
identification number. The license holder or registered agent
shall list that unique number on each return of service made by that
person that is filed with the clerk of the appropriate court.
(b) The department shall issue to each license holder and
registered agent a photo identification card with the person's
unique identification number on the card. The department shall
determine the size, design, and content of the identification card.
The card remains the property of the state and must be returned on
demand by the department.
[Sections 191.105-191.150 reserved for expansion]
SUBCHAPTER D. DEPARTMENT ENFORCEMENT
Sec. 191.151. DISCIPLINARY ACTIONS. (a) The executive
director may deny, suspend, or revoke a license or registration, as
appropriate, and the commission may assess an administrative
penalty under Subchapter F, Chapter 51, Occupations Code, on a
finding that:
(1) a license holder has:
(A) failed to maintain the insurance coverage
required by this chapter;
(B) refused to permit an examination by the
department of the records required to be maintained by a license
holder under rules adopted under this chapter; or
(C) allowed a person to serve process who the
license holder knows is not legally authorized to do so; or
(2) a license holder or registered agent has:
(A) violated this chapter, a rule adopted under
this chapter, or an order of the executive director or commission;
(B) knowingly made a false or fraudulent return
of service; or
(C) been convicted of a felony or misdemeanor
that directly relates to the duties and responsibilities involved
in performing the duties of a process server.
(b) Proceedings for the denial, revocation, or suspension
of a license or registration, for the imposition of an
administrative penalty, and for an appeal from the proceeding are
governed by Chapter 51, Occupations Code, and Chapter 2001,
Government Code.
[Sections 191.152-191.200 reserved for expansion]
SUBCHAPTER E. PENALTIES
Sec. 191.201. CRIMINAL PENALTIES. (a) A person commits an
offense if the person practices as a process server or registered
agent in violation of this chapter or a rule adopted under this
chapter. An offense under this subsection is a felony of the third
degree.
(b) A person commits an offense if the person knowingly or
intentionally falsifies a return of civil process. An offense
under this subsection is a Class A misdemeanor unless the person's
intent is to defraud or harm another, in which event the offense is
a state jail felony.
SECTION 2. Section 411.093(a), Government Code, is amended
to read as follows:
(a) The Texas Department of Licensing and Regulation is
entitled to obtain from the department criminal history record
information maintained by the department that relates to a person
who is:
(1) an applicant for a license or the holder of a
license under Chapter 2052, Occupations Code [the Texas Boxing and
Wrestling Act (Article 8501-1, Vernon's Texas Civil Statutes)]; or
(2) an applicant for a license or registration or the
holder of a license or registration under Chapter 191, Civil
Practice and Remedies Code [that Act].
SECTION 3. Notwithstanding Section 191.052, Civil Practice
and Remedies Code, as added by this Act, a person who provides proof
to the Texas Department of Licensing and Regulation in a manner
satisfactory to that department of at least two years' experience
in serving civil process before the effective date of this Act is
entitled to a license without complying with the educational
requirement if the person meets all other requirements under that
section.
SECTION 4. (a) Except as provided by Subsection (b) of this
section, Chapter 191, Civil Practice and Remedies Code, as added by
this Act, takes effect September 1, 2003.
(b) Sections 191.051 and 191.201, Civil Practice and
Remedies Code, as added by this Act, take effect March 1, 2004.
SECTION 5. Except as provided by Section 4 of this Act, this
Act takes effect September 1, 2003.