81R9296 JAM-D

By: Gallegos S.B. No. 1276

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of service of process; providing criminal and administrative 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 notice, or a subpoena for a trial or for an oral deposition. The term does not include:

(A) service of written interrogatories, garnishments, or protective orders;

(B) service of a writ that requires the actual taking of possession of a person, property, or thing; or

(C) delivery of a notice to vacate under Section 24.005, Property Code.

(3) "Commission" means the Texas Commission of Licensing and Regulation.

(4) "Constable" means a constable, a deputy constable, or a reserve deputy constable described by Article 2.12(2), Code of Criminal Procedure.

(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) "Sheriff" means a sheriff, a deputy sheriff, or a reserve deputy sheriff described by Article 2.12(1), Code of Criminal Procedure.

Sec. 191.002. APPLICABILITY OF CHAPTER. (a) This chapter does not apply to a sheriff or constable who serves civil process in the performance of the person's official duties or other than in the performance of the person's official duties.

(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 REQUIREMENTS

Sec. 191.051. LICENSE REQUIRED. (a) A person may not serve civil process in this state unless the person is licensed under this chapter.

(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.

Sec. 191.052. LICENSE APPLICATION; GRACE PERIOD. (a) An applicant for an initial process server license under this chapter must submit a sworn application on a form prescribed by the commission. To be eligible for a license under this section, an applicant must:

(1) be at least 21 years of age unless the person has:

(A) completed and received credit for at least 60 hours of study at an accredited college or university; or

(B) received an honorable discharge from the United States armed forces after at least two years of service;

(2) not have been convicted of a misdemeanor involving moral turpitude or a felony or have received probation, deferred adjudication, or community supervision under the laws of this or another state or under federal law;

(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 course with specified learning objectives on civil process consisting of at least 12 hours of instruction;

(2) passing a written exam proctored by an independent testing center; and

(3) maintenance of insurance coverage as required by rules adopted by the commission.

(c) A person who has filed a license application under this chapter may serve civil process while the person's application is being considered by the department. This grace period ends immediately when the department issues the person a license under this chapter or disapproves the person's application or when the person withdraws the person's application from consideration. The commission shall take punitive action against any person who continues to serve civil process after the person's license application has been withdrawn or denied. During the grace period, an applicant's failure to comply with the requirements of the application process, the insurance requirements, the standards of qualification for license issuance, and other requirements under this chapter will result in the denial of the person's application.

Sec. 191.053. AGENTS PROHIBITED. A person may not act as the agent of a license holder to execute civil process on behalf of the license holder.

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 or whether the applicant has received deferred adjudication or been placed on community supervision as a result of a misdemeanor involving moral turpitude or a felony.

(b) On receipt of an original application for 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 local, state, or federal law enforcement agencies.

(c) 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.

Sec. 191.055. ISSUANCE OF LICENSES. (a) The department shall issue a process server license 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 department shall issue or deny the license 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. (a) The commission by rule shall prescribe the insurance coverage that a process server license holder must maintain to be eligible for a license under this chapter.

(b) The rules adopted under Subsection (a) shall require:

(1) a license holder to maintain insurance coverage in an amount set by the commission, but not less than a minimum total aggregate of $1 million for all occurrences;

(2) a license holder to annually submit to the commission, in the form and manner specified by the commission, proof of renewal of required insurance coverage; and

(3) the commission to approve insurance policies and policy renewals contracted for by license holders and applicants.

Sec. 191.057. TERM OF LICENSES; RENEWAL. (a) A license issued under this chapter expires on the first anniversary of the date of issuance.

(b) The department shall send a renewal application to each license holder not later than the 45th day before the date of expiration of the license.

(c) A license holder may renew the license 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 the license, each 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 12 hours of instruction in civil process.

[Sections 191.058-191.100 reserved for expansion]

SUBCHAPTER C. PRACTICE BY LICENSE HOLDERS

Sec. 191.101. POWERS AND DUTIES OF LICENSE HOLDERS. (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, including Rule 6, Texas Rules of Civil Procedure.

(b) A license holder may determine the location of an individual for the purpose of serving civil process.

(c) A license holder may not execute writs, serve forcible entry and detainer citations, or serve any writ or order related to an allegation of or the prevention of family violence under the Family Code.

(d) A license holder may not serve a civil process in any action in which the license holder is an interested party.

(e) A license holder 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 for service of process may be charged as costs in a judicial proceeding. A license holder may charge a fee set by the commissioners court in the county where the process was issued or as prescribed by any other law or statute in this state.

Sec. 191.103. PUBLIC SERVANT. A license holder shall be considered to be a public servant when performing duties related to serving process, but shall not be considered to be a peace officer or an officer of the court based on that license.

Sec. 191.104. IDENTIFICATION NUMBER. (a) The department shall issue to each license holder a unique identification number. The license holder 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 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.

(c) A license holder shall include the person's unique identification number on each valid process return and on each delivery copy of process served.

(d) A license holder shall wear the person's identification card in a visible manner at all times when performing the function of a private process server and shall produce the identification 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 any county or state agency may not be worn or displayed by a license holder. A license holder who violates this subsection commits an offense under Section 37.11 or 37.12, Penal Code. The commission shall pursue prosecution against any person who violates this subsection.

[Sections 191.105-191.150 reserved for expansion]

SUBCHAPTER D. DEPARTMENT ENFORCEMENT

Sec. 191.151. DISQUALIFICATION; DISCIPLINARY ACTIONS. (a) The commission shall deny or revoke a license and the commission may impose 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 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 involving moral turpitude or a felony or has received probation, deferred adjudication, or community supervision under the laws of this or another state or under federal law.

(b) For the purposes of this chapter, a person is considered to have been convicted of a felony if a court enters a conviction or deferred adjudication of guilt against a person on a felony offense regardless of whether:

(1) the person's sentence is subsequently probated and the person is discharged from community supervision;

(2) an accusation, complaint, information, or indictment against the person is dismissed and the person is released from all penalties and disabilities resulting from the offense; or

(3) the person is pardoned for the offense, unless the pardon is granted expressly for subsequent proof of innocence.

(c) The commission, on receipt of a certified copy of a court judgment under Article 42.0111, Code of Criminal Procedure, shall note on the person's license records the conviction, probation, deferred adjudication, or community supervision indicated by the judgment.

(d) Proceedings for the denial, revocation, or suspension of a license, 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 person commits an offense if the person practices as a process server in violation of this chapter or a rule adopted under this chapter or if the person knowingly or intentionally falsifies a return of civil process. An offense under this section is a felony of the third degree.

SECTION 2. Chapter 42, Code of Criminal Procedure, is amended by adding Article 42.0111 to read as follows:

Art. 42.0111. JUDGMENT AFFECTING A PRIVATE PROCESS SERVER. If a person licensed under Chapter 191, Civil Practice and Remedies Code, is charged with the commission of a felony and a court that knows the person is licensed under that chapter convicts the person or places the person on probation, deferred adjudication, or community supervision, the clerk of the court shall send to the Texas Commission of Licensing and Regulation, by mail or electronically, the identification number of the person and a certified copy of the court's judgment reflecting that the person has been convicted or placed on probation, deferred adjudication, or community supervision.

SECTION 3. Sections 86.021(b) and (d), Local Government Code, are amended to read as follows:

(b) A constable may execute any civil or criminal process throughout the state [county in which the constable's precinct is located] and in other locations as provided by the Code of Criminal Procedure or by any other law.

(d) Regardless of the Texas Rules of Civil Procedure, all civil process may be served by a constable anywhere in the state [constable's county or in a county contiguous to the constable's county], except that a constable who is a party to or interested in the outcome of a suit may not serve any process related to the suit.

SECTION 4. Sections 191.051 and 191.201, Civil Practice and Remedies Code, as added by this Act, take effect March 1, 2010.

SECTION 5. This Act takes effect September 1, 2009.