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.
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