81R1414 JAM-D
By: Hartnett H.B. No. 397
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, except that the term does not include
service of any writ that requires the actual taking of possession of
a person, property, or thing or an enforcement action required of or
directed to a peace officer related to the 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) "Person" means an individual.
(8) "Private process server" means a person who serves
or offers to serve civil process.
(9) "Public servant" has the meaning assigned by
Section 1.07, Penal Code.
(10) "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 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 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 service of a subpoena by 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) 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.
(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) makes a return of service under a declaration of
penalty of perjury.
(c) A person may not represent that the person is a licensed
private process server unless the person is licensed under this
chapter.
Sec. 191.052. 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 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 consisting
of at least eight hours of instruction on service of process and two
hours of instruction on department regulation and rules.
Sec. 191.053. 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
(3) require denial of an application for renewal of a
license.
(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. 191.054. 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, as applicable, and pays all required
fees.
(b) Except as provided by Subsection (c), the department
shall issue 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. 191.055. TERM OF LICENSE; 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 notice to each
license holder not later than the 90th 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 a license, the license holder must also present
evidence satisfactory to the department of completion, before the
expiration of the license, of department-approved continuing
education consisting of at least four hours of instruction.
[Sections 191.056-191.100 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 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 citation in an action of forcible entry and detainer or a civil
process requiring that an enforcement action be physically enforced
by the person delivering the civil process.
(d) A license holder may not serve a civil process in any
action in which 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 under Rule 176, Texas Rules of
Civil Procedure, in 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.
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. Fees charged by a license holder 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 a unique identification number.
(b) The unique identification number of the private process
server must be included on or attached to each valid process return
and each copy of process served. The license holder is not required
to provide with the service any other department information.
Failure to include the person's unique identification number on
each valid process return or on the copy 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 may not be worn or displayed by a license holder.
Sec. 191.105. RETURN OF SERVICE OF PROCESS. The return of
service completed by the license holder may be attached to a
court-issued return of service. The return of service is not
required to be verified but must be signed by the license holder,
under penalty of perjury, verifying the truthfulness of the return
for any process delivered. The return of service shall be returned
to the party requesting service or, at the party's direction, filed
with the appropriate court.
[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 and the commission may impose
an administrative penalty under Subchapter F, Chapter 51,
Occupations Code, on a finding that the license holder has:
(1) refused to permit an examination by the department
of the records required to be maintained under rules adopted by the
commission;
(2) violated this chapter, a rule implementing this
chapter, or an order of the executive director or commission;
(3) knowingly made a false or fraudulent return of
service; or
(4) 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, 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.
(c) The commission may not suspend or revoke a license or
impose an administrative penalty on the basis of a determination
that the license holder has:
(1) made not more than three unintentionally defective
returns of service in any 12-month period as long as a corrected
return is made to the appropriate recipient within a reasonable
time; or
(2) effected service employing a deceptive or
misleading method as long as the method is legal.
[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 private process server and is
not authorized to do so under this chapter. An offense under this
subsection is a Class C misdemeanor, unless it is shown on the trial
of the offense that the defendant has previously been convicted
under this subsection, in which event the offense is a Class A
misdemeanor.
(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 154.005(d), 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, 2009.
(b) Sections 191.051 and 191.201, Civil Practice and
Remedies Code, as added by this Act, take effect March 1, 2010.
SECTION 4. 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 the department that the person is named or
included, by the terms of standing orders promulgated by any county
of this state that required named persons to have completed process
server training equivalent to that required by Section 191.052,
Civil Practice and Remedies Code, as added by this Act, as one
authorized to serve civil process in this state, is entitled to a
license under this chapter without complying with the requirement
of instruction on service of civil process if the person meets all
other requirements of that section, including the completion of two
hours of instruction on law and rules.
SECTION 5. Except as provided by Section 3 of this Act, this
Act takes effect September 1, 2009.