By: Wentworth S.B. No. 165
(In the Senate - Filed January 10, 2005; February 1, 2005,
read first time and referred to Committee on Jurisprudence;
April 11, 2005, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 1; April 11, 2005,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 165 By: Wentworth
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 all process issued or
sanctioned by a civil court.
(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) "Person" means an individual.
(8) "Private process server" means a person who, on
behalf of a private process service business, serves or offers to
serve civil process.
(9) "Private process service business" means a person
or business entity registered with the department as a business
that serves or offers to serve civil process.
(10) "Public servant" has the meaning assigned by
Section 1.07, Penal Code.
(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 apply to an investigator who is a
peace officer employed by a county or district attorney in this
state engaged in the discharge of that person's official duties or
in the delivery of nonjudicial notices. An investigator described
by this subsection who serves civil process other than in the
performance of official duties must be licensed or registered under
this chapter.
(c) This chapter does not limit or restrict the service of
process in this state as provided by a court order in a specific
civil case in which the presiding magistrate or judge has
determined the credibility of the person designated to serve the
process. A court may not issue a blanket or standing order
authorizing service of process.
(d) 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)
Except as provided by Section 191.002, a person may not serve civil
process in this state unless the person is licensed under this
chapter and serves the process through a private process service
business.
(b) A person who is not a license holder 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:
(1) is authorized by law, rule, or court order in the
person's jurisdiction to serve process;
(2) is 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.
(c) A person or business entity may not represent that the
person or business entity is a private process server or private
process service business unless the person is licensed, or the
business entity is registered, under this chapter.
Sec. 191.052. PRIVATE PROCESS SERVICE BUSINESS
APPLICATION. An applicant for registration as a private process
service business must submit an application on a form prescribed by
the commission. To be eligible to register under this section, the
applicant must:
(1) submit the nonrefundable application fee; and
(2) have a person licensed under this chapter assigned
as the responsible party for the business.
Sec. 191.053. LICENSE APPLICATION. (a) An applicant for a
process server license under this chapter must submit an
application on a form prescribed by the commission. To be eligible
for a license under this section, an applicant must:
(1) be at least 18 years of age;
(2) demonstrate the applicant's honesty,
trustworthiness, and integrity;
(3) submit the nonrefundable application 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 completion
of a department-approved 10-hour course on civil process and
regulation and rules consisting of at least eight hours of
instruction on service of process and two hours of instruction on
department regulation and rules.
Sec. 191.054. CRIMINAL HISTORY RECORD CHECK. (a) Each
applicant for a process server license under this chapter shall
disclose to the department in the manner prescribed by the
commission any conviction of the applicant for a misdemeanor
involving moral turpitude or a felony.
(b) On receipt of an original application for issuance of a
process server license, 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) On receipt of an application for renewal of a process
server license, the department shall conduct a background
investigation of each individual applicant to determine whether the
applicant is qualified under this chapter. The investigation must
include examination by the department of law enforcement records
maintained by a local, state, or federal law enforcement agency.
(d) A background check under this section and the
department's consideration of any criminal conviction is governed
by:
(1) this chapter;
(2) Sections 411.093 and 411.122, Government Code; and
(3) Chapter 53, Occupations Code.
(e) 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.
(f) An application for issuance or renewal of a license by a
person who has pled guilty to a crime and been placed on deferred
adjudication in any jurisdiction shall be considered on the basis
of the criteria set forth in Subsections (d) and (e).
Sec. 191.055. ISSUANCE OF LICENSES AND REGISTRATIONS.
(a) The department shall issue a business registration or process
server license to an applicant who complies with the appropriate
requirements of this chapter, passes the criminal history record
check, as applicable, and pays all required fees.
(b) Except as provided by Subsection (c), the department
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. TERM OF LICENSE AND REGISTRATION; RENEWAL;
RESPONSIBLE PARTY TERMINATION. (a) A license or business
registration issued under this chapter expires on the first
anniversary of the date of issuance.
(b) The department shall send a renewal notice to each
license holder and registered business not later than the 90th day
before the date of expiration of the license or registration.
(c) A license holder or registered business may renew the
license or registration by submitting to the department before the
expiration date, on a form prescribed by the commission, a renewal
application accompanied by the renewal fee. To renew a license, the
license holder must also present evidence satisfactory to the
department of completion, before the expiration of the license, of
a department-approved continuing education seminar consisting of
at least four hours of instruction in civil process and two hours of
instruction in department rules.
(d) A registered business shall notify the department in
writing not later than the 14th day after the date on which the
employment of a private process server designated as a responsible
party is terminated.
[Sections 191.057-191.100 reserved for expansion]
SUBCHAPTER C. PRACTICE BY LICENSE HOLDERS
Sec. 191.101. POWERS AND DUTIES OF LICENSE HOLDERS. (a) A
license holder 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 anywhere in this
state.
(b) A license holder may determine the location of an
individual for the purpose of serving civil process.
(c) A license holder may serve all civil process, except for
a writ of attachment, writ of sequestration, distress warrant, writ
of forcible entry and detainer, temporary ex parte protective
order, protective order, writ of habeas corpus, writ of mandamus,
trial of right of property, turnover order, or writ of certiorari.
(d) A license holder may not serve a civil process in any
action in which the license holder or the registered business that
employs the license holder is an interested party.
(e) An employee of an attorney or a law firm may not serve a
civil process, except a subpoena for a trial or for an oral
deposition, relating to an action in which the employing attorney
or law firm is counsel to a party.
(f) A license holder may not have a firearm on the license
holder's person when in the act of serving civil process, unless the
license holder is also a peace officer or an honorably retired peace
officer authorized to carry a firearm. A weapon may not be visible
during the delivery of civil process.
(g) A license holder may not be assigned as the responsible
party for more than one registered business in which the person does
not have an ownership interest of more than 50 percent of the
business.
Sec. 191.102. COSTS. A fee charged and collected by a
license holder or registered business for service of process may be
charged as costs in a judicial proceeding. Fees charged by a
license holder or registered business for service of process
exceeding the service of process fees set by the commissioners
court in the county in which the case is pending, may not be charged
as costs in a judicial proceeding unless otherwise approved by the
judge presiding over the case.
Sec. 191.103. PUBLIC SERVANT. An assault on a license
holder during the delivery of civil process shall be treated as an
assault on a public servant. A county is not liable for the actions
of a license holder unless the license holder is an employee of the
county.
Sec. 191.104. IDENTIFICATION NUMBER. (a) The department
shall issue to each license holder and registered business a unique
identification number. The license holder and registered business
shall provide that unique number with each return of service made by
that person for the registered business that is filed with the clerk
of the appropriate court.
(b) The unique number of the private process server and the
registered business on behalf of which the server is working must be
provided to each person served. A license holder shall include the
license holder's unique identification number on each valid process
return and on each delivery copy of process served. Failure to
include the registered business's or person's unique identification
number on each valid process return does not render the service of
process invalid.
(c) The department shall issue to each license holder 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.
(d) A license holder shall produce the license holder's
identification card to any person requesting it during the
performance of service of process.
(e) An identification card, badge, insignia, seal, patch,
or other form of identification that may be construed to be that of
a peace officer or employee of a county or state agency may not be
worn or displayed by a license holder.
Sec. 191.105. RETURN OF SERVICE OF PROCESS. A registered
business or license holder shall return to the issuing court a sworn
return of service verifying the truthfulness of the return for any
process served in this state. The return of service must be
returned to the issuing court not later than the fifth business day
after the date service is completed.
[Sections 191.106-191.150 reserved for expansion]
SUBCHAPTER D. DEPARTMENT ENFORCEMENT
Sec. 191.151. DISCIPLINARY ACTIONS. (a) The commission
may deny, suspend, or revoke a license or registration, as
appropriate, and the commission may impose an administrative
penalty under Subchapter F, Chapter 51, Occupations Code, on a
finding that:
(1) a registered business has:
(A) refused to permit an examination by the
department of the records required to be maintained by a registered
business under rules adopted under this chapter; or
(B) allowed a person to serve process on the
registered business's behalf while knowing that the person is not
legally authorized to do so; or
(2) a license holder 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 misdemeanor that directly
relates to the duties and responsibilities involved in performing
the duties of a process server or of any felony.
(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.
Sec. 191.152. SUMMARY SUSPENSION. (a) On receiving
written notice from the Department of Public Safety of the State of
Texas or another law enforcement agency that a person licensed
under this chapter has been arrested for or charged with an offense
constituting a Class B misdemeanor or a greater offense, the
department may summarily suspend the person's license.
(b) To initiate a proceeding under Subsection (a), the
department must serve notice to the person and to any registered
business that has assigned the person as a responsible party. The
notice must:
(1) inform the person of the right to a hearing on the
summary suspension;
(2) state the alleged violations that constitute the
grounds for the summary suspension;
(3) indicate the date and place of the hearing on the
summary suspension, which must be not earlier than the fifth day and
not later than the 14th day after the date notice is issued;
(4) be personally served on the person or mailed to the
person by certified or registered mail, return receipt requested,
to the individual's mailing address as it appears on department
records; and
(5) be sent by registered or certified mail, return
receipt requested, to any registered business required to be
notified.
(c) The suspension is effective at the time the notice is
served.
(d) At the summary suspension hearing, the individual may
show cause why, pending final hearing on the suspension, the
suspension should not continue.
(e) A final hearing may be scheduled at a time after the
final disposition of the charges that resulted in the summary
suspension.
(f) Chapter 2001, Government Code, does not apply to a
proceeding under this section, except for the final administrative
hearing.
(g) The dismissal of a complaint, information, or
indictment, or an acquittal, releases the person from the automatic
grounds for summary suspension under this section.
[Sections 191.153-191.200 reserved for expansion]
SUBCHAPTER E. PENALTIES
Sec. 191.201. CRIMINAL PENALTIES. (a) A person commits an
offense if the person practices as a private process server and is
not authorized to do so under this chapter. An offense under this
subsection is a Class A misdemeanor.
(b) A person commits an offense if the person knowingly or
intentionally falsifies a return of civil process or fails to
produce the identification card to a person requesting it during
the service of 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. Subsection (d), Section 154.005, Local
Government Code, is amended to read as follows:
(d) A constable may receive, in addition to Subsection (c),
all fees, commissions, or payments for delivering notices required
by Section 24.005, Property Code, relating to eviction actions.
Notices may only be delivered when not in conflict with the official
duties and responsibilities of the constable. A constable
delivering said notices must not be wearing upon his or her person a
uniform or any insignia which would usually be associated with the
position of constable nor may the constable use a county vehicle or
county equipment while delivering said notices. [For purposes of
collecting fees for serving said notices, a constable is considered
a private process server.]
SECTION 3. (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, 2005.
(b) Sections 191.051 and 191.201, Civil Practice and
Remedies Code, as added by this Act, take effect March 1, 2006.
SECTION 4. Except as provided by Section 3 of this Act, this
Act takes effect September 1, 2005.
* * * * *