Texas 2009 - 81st Regular

Texas House Bill HB397 Compare Versions

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1	1	81R1414 JAM-D
2	2	By: Hartnett H.B. No. 397
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the regulation of private process servers; providing
8	8	penalties.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. The Civil Practice and Remedies Code is amended
11	11	by adding Title 8 to read as follows:
12	12	TITLE 8. CIVIL PROCESS
13	13	CHAPTER 191. PRIVATE PROCESS SERVERS
14	14	SUBCHAPTER A. GENERAL PROVISIONS
15	15	Sec. 191.001. DEFINITIONS. In this chapter:
16	16	(1) "Civil court" includes:
17	17	(A) a civil district court;
18	18	(B) a family district court;
19	19	(C) a county court at law;
20	20	(D) a probate court;
21	21	(E) a justice court; and
22	22	(F) a small claims court.
23	23	(2) "Civil process" means all process issued or
24	24	sanctioned by a civil court, except that the term does not include
25	25	service of any writ that requires the actual taking of possession of
26	26	a person, property, or thing or an enforcement action required of or
27	27	directed to a peace officer related to the taking of possession of a
28	28	person, property, or thing.
29	29	(3) "Commission" means the Texas Commission of
30	30	Licensing and Regulation.
31	31	(4) "Constable" means a constable, deputy constable,
32	32	or reserve deputy constable.
33	33	(5) "Department" means the Texas Department of
34	34	Licensing and Regulation.
35	35	(6) "Executive director" means the executive director
36	36	of the department.
37	37	(7) "Person" means an individual.
38	38	(8) "Private process server" means a person who serves
39	39	or offers to serve civil process.
40	40	(9) "Public servant" has the meaning assigned by
41	41	Section 1.07, Penal Code.
42	42	(10) "Sheriff" means a sheriff, deputy sheriff, or
43	43	reserve deputy sheriff.
44	44	Sec. 191.002. APPLICABILITY OF CHAPTER. (a) This chapter
45	45	does not apply to a sheriff or constable engaged in the discharge of
46	46	that person's official duties. A sheriff or constable who serves
47	47	civil process other than in the performance of official duties must
48	48	be licensed under this chapter.
49	49	(b) This chapter does not apply to an investigator who is a
50	50	peace officer employed by a county or district attorney in this
51	51	state engaged in the discharge of that person's official duties or
52	52	in the delivery of nonjudicial notices. An investigator described
53	53	by this subsection who serves civil process other than in the
54	54	performance of official duties must be licensed under this chapter.
55	55	(c) This chapter does not limit or restrict the service of
56	56	process in this state as provided by a court order in a specific
57	57	civil case in which the presiding magistrate or judge has
58	58	determined the credibility of the person designated to serve the
59	59	process. A court may not issue a blanket or standing order
60	60	authorizing service of process.
61	61	(d) This chapter does not apply to service of a subpoena by a
62	62	court reporter certified under Chapter 52, Government Code.
63	63	[Sections 191.003-191.050 reserved for expansion]
64	64	SUBCHAPTER B. LICENSE REQUIREMENTS
65	65	Sec. 191.051. LICENSE REQUIRED. (a) Except as provided
66	66	by Section 191.002, a person may not serve civil process in this
67	67	state unless the person is licensed under this chapter.
68	68	(b) A person who is not a license holder and who is not
69	69	exempt under Section 191.002 may serve outside this state a civil
70	70	process issued by a civil court of this state if the person:
71	71	(1) is authorized by law, rule, or court order in the
72	72	person's jurisdiction to serve process;
73	73	(2) is a disinterested person competent to make an
74	74	oath of that fact; and
75	75	(3) makes a return of service under a declaration of
76	76	penalty of perjury.
77	77	(c) A person may not represent that the person is a licensed
78	78	private process server unless the person is licensed under this
79	79	chapter.
80	80	Sec. 191.052. LICENSE APPLICATION. (a) An applicant for a
81	81	process server license under this chapter must submit an
82	82	application on a form prescribed by the commission. To be eligible
83	83	for a license under this section, an applicant must:
84	84	(1) be at least 18 years of age;
85	85	(2) demonstrate honesty, trustworthiness, and
86	86	integrity;
87	87	(3) submit the nonrefundable application fee; and
88	88	(4) comply with the requirements adopted under
89	89	Subsection (b).
90	90	(b) Each license applicant must provide proof to the
91	91	department in a manner acceptable to the department of completion
92	92	of a department-approved 10-hour course on civil process consisting
93	93	of at least eight hours of instruction on service of process and two
94	94	hours of instruction on department regulation and rules.
95	95	Sec. 191.053. CRIMINAL HISTORY RECORD CHECK. (a) Each
96	96	applicant for a process server license under this chapter shall
97	97	disclose to the department in the manner prescribed by the
98	98	commission any conviction of the applicant for a misdemeanor
99	99	involving moral turpitude or a felony.
100	100	(b) On receipt of an original application for issuance of a
101	101	process server license, the department shall conduct a thorough
102	102	background investigation of each individual applicant to determine
103	103	whether the applicant is qualified under this chapter. The
104	104	investigation must include:
105	105	(1) the submission of fingerprints by the applicant
106	106	for processing through appropriate local, state, and federal law
107	107	enforcement agencies; and
108	108	(2) the examination by the department of law
109	109	enforcement records maintained by a local, state, or federal law
110	110	enforcement agency.
111	111	(c) On receipt of an application for renewal of a process
112	112	server license, the department shall conduct a background
113	113	investigation of each individual applicant to determine whether the
114	114	applicant is qualified under this chapter. The investigation must
115	115	include examination by the department of law enforcement records
116	116	maintained by a local, state, or federal law enforcement agency.
117	117	(d) A background check under this section and the
118	118	department's consideration of any criminal conviction is governed
119	119	by:
120	120	(1) this chapter;
121	121	(2) Sections 411.093 and 411.122, Government Code; and
122	122	(3) Chapter 53, Occupations Code.
123	123	(e) The conviction of an applicant of a crime does not
124	124	automatically:
125	125	(1) disqualify the applicant;
126	126	(2) require revocation of a license; or
127	127	(3) require denial of an application for renewal of a
128	128	license.
129	129	(f) An application for issuance or renewal of a license by a
130	130	person who has pled guilty to a crime and been placed on deferred
131	131	adjudication in any jurisdiction shall be considered on the basis
132	132	of the criteria set forth in Subsections (d) and (e).
133	133	Sec. 191.054. ISSUANCE OF LICENSES. (a) The department
134	134	shall issue a process server license to an applicant who complies
135	135	with the appropriate requirements of this chapter, passes the
136	136	criminal history record check, as applicable, and pays all required
137	137	fees.
138	138	(b) Except as provided by Subsection (c), the department
139	139	shall issue the license not later than the 60th day after the date
140	140	on which the application is received by the department.
141	141	(c) If the department is notified by the Department of
142	142	Public Safety that a criminal history record check affecting an
143	143	applicant will not be completed within the 60 days prescribed by
144	144	Subsection (b), the department shall notify the applicant of the
145	145	delay.
146	146	Sec. 191.055. TERM OF LICENSE; RENEWAL. (a) A license
147	147	issued under this chapter expires on the first anniversary of the
148	148	date of issuance.
149	149	(b) The department shall send a renewal notice to each
150	150	license holder not later than the 90th day before the date of
151	151	expiration of the license.
152	152	(c) A license holder may renew the license by submitting to
153	153	the department before the expiration date, on a form prescribed by
154	154	the commission, a renewal application accompanied by the renewal
155	155	fee. To renew a license, the license holder must also present
156	156	evidence satisfactory to the department of completion, before the
157	157	expiration of the license, of department-approved continuing
158	158	education consisting of at least four hours of instruction.
159	159	[Sections 191.056-191.100 reserved for expansion]
160	160	SUBCHAPTER C. PRACTICE BY LICENSE HOLDERS
161	161	Sec. 191.101. POWERS AND DUTIES OF LICENSE HOLDERS. (a) A
162	162	license holder may serve civil process in the manner provided by law
163	163	for service by sheriffs and constables. The person may serve the
164	164	process anywhere in this state.
165	165	(b) A license holder may determine the location of an
166	166	individual for the purpose of serving civil process.
167	167	(c) A license holder may serve all civil process, except for
168	168	a citation in an action of forcible entry and detainer or a civil
169	169	process requiring that an enforcement action be physically enforced
170	170	by the person delivering the civil process.
171	171	(d) A license holder may not serve a civil process in any
172	172	action in which the license holder is an interested party.
173	173	(e) An employee of an attorney or a law firm may not serve a
174	174	civil process, except a subpoena under Rule 176, Texas Rules of
175	175	Civil Procedure, in an action in which the employing attorney or law
176	176	firm is counsel to a party.
177	177	(f) A license holder may not have a firearm on the license
178	178	holder's person when in the act of serving civil process, unless the
179	179	license holder is also a peace officer or an honorably retired peace
180	180	officer authorized to carry a firearm. A weapon may not be visible
181	181	during the delivery of civil process.
182	182	Sec. 191.102. COSTS. A fee charged and collected by a
183	183	license holder for service of process may be charged as costs in a
184	184	judicial proceeding. Fees charged by a license holder for service
185	185	of process exceeding the service of process fees set by the
186	186	commissioners court in the county in which the case is pending may
187	187	not be charged as costs in a judicial proceeding unless otherwise
188	188	approved by the judge presiding over the case.
189	189	Sec. 191.103. PUBLIC SERVANT. An assault on a license
190	190	holder during the delivery of civil process shall be treated as an
191	191	assault on a public servant. A county is not liable for the actions
192	192	of a license holder unless the license holder is an employee of the
193	193	county.
194	194	Sec. 191.104. IDENTIFICATION NUMBER. (a) The department
195	195	shall issue to each license holder a unique identification number.
196	196	(b) The unique identification number of the private process
197	197	server must be included on or attached to each valid process return
198	198	and each copy of process served. The license holder is not required
199	199	to provide with the service any other department information.
200	200	Failure to include the person's unique identification number on
201	201	each valid process return or on the copy does not render the service
202	202	of process invalid.
203	203	(c) The department shall issue to each license holder a
204	204	photo identification card with the person's unique identification
205	205	number on the card. The department shall determine the size,
206	206	design, and content of the identification card. The card remains
207	207	the property of the state and must be returned on demand by the
208	208	department.
209	209	(d) A license holder shall produce the license holder's
210	210	identification card to any person requesting it during the
211	211	performance of service of process.
212	212	(e) An identification card, badge, insignia, seal, patch,
213	213	or other form of identification that may be construed to be that of
214	214	a peace officer may not be worn or displayed by a license holder.
215	215	Sec. 191.105. RETURN OF SERVICE OF PROCESS. The return of
216	216	service completed by the license holder may be attached to a
217	217	court-issued return of service. The return of service is not
218	218	required to be verified but must be signed by the license holder,
219	219	under penalty of perjury, verifying the truthfulness of the return
220	220	for any process delivered. The return of service shall be returned
221	221	to the party requesting service or, at the party's direction, filed
222	222	with the appropriate court.
223	223	[Sections 191.106-191.150 reserved for expansion]
224	224	SUBCHAPTER D. DEPARTMENT ENFORCEMENT
225	225	Sec. 191.151. DISCIPLINARY ACTIONS. (a) The commission
226	226	may deny, suspend, or revoke a license and the commission may impose
227	227	an administrative penalty under Subchapter F, Chapter 51,
228	228	Occupations Code, on a finding that the license holder has:
229	229	(1) refused to permit an examination by the department
230	230	of the records required to be maintained under rules adopted by the
231	231	commission;
232	232	(2) violated this chapter, a rule implementing this
233	233	chapter, or an order of the executive director or commission;
234	234	(3) knowingly made a false or fraudulent return of
235	235	service; or
236	236	(4) been convicted of a misdemeanor that directly
237	237	relates to the duties and responsibilities involved in performing
238	238	the duties of a process server or of any felony.
239	239	(b) Proceedings for the denial, revocation, or suspension
240	240	of a license, for the imposition of an administrative penalty, and
241	241	for an appeal from the proceeding are governed by Chapter 51,
242	242	Occupations Code, and Chapter 2001, Government Code.
243	243	(c) The commission may not suspend or revoke a license or
244	244	impose an administrative penalty on the basis of a determination
245	245	that the license holder has:
246	246	(1) made not more than three unintentionally defective
247	247	returns of service in any 12-month period as long as a corrected
248	248	return is made to the appropriate recipient within a reasonable
249	249	time; or
250	250	(2) effected service employing a deceptive or
251	251	misleading method as long as the method is legal.
252	252	[Sections 191.152-191.200 reserved for expansion]
253	253	SUBCHAPTER E. PENALTIES
254	254	Sec. 191.201. CRIMINAL PENALTIES. (a) A person commits an
255	255	offense if the person practices as a private process server and is
256	256	not authorized to do so under this chapter. An offense under this
257	257	subsection is a Class C misdemeanor, unless it is shown on the trial
258	258	of the offense that the defendant has previously been convicted
259	259	under this subsection, in which event the offense is a Class A
260	260	misdemeanor.
261	261	(b) A person commits an offense if the person knowingly or
262	262	intentionally falsifies a return of civil process. An offense
263	263	under this subsection is a Class A misdemeanor unless the person's
264	264	intent is to defraud or harm another, in which event the offense is
265	265	a state jail felony.
266	266	SECTION 2. Section 154.005(d), Local Government Code, is
267	267	amended to read as follows:
268	268	(d) A constable may receive, in addition to Subsection (c),
269	269	all fees, commissions, or payments for delivering notices required
270	270	by Section 24.005, Property Code, relating to eviction actions.
271	271	Notices may only be delivered when not in conflict with the official
272	272	duties and responsibilities of the constable. A constable
273	273	delivering said notices must not be wearing upon his or her person a
274	274	uniform or any insignia which would usually be associated with the
275	275	position of constable nor may the constable use a county vehicle or
276	276	county equipment while delivering said notices. [For purposes of
277	277	collecting fees for serving said notices, a constable is considered
278	278	a private process server.]
279	279	SECTION 3. (a) Except as provided by Subsection (b) of
280	280	this section, Chapter 191, Civil Practice and Remedies Code, as
281	281	added by this Act, takes effect September 1, 2009.
282	282	(b) Sections 191.051 and 191.201, Civil Practice and
283	283	Remedies Code, as added by this Act, take effect March 1, 2010.
284	284	SECTION 4. Notwithstanding Section 191.052, Civil Practice
285	285	and Remedies Code, as added by this Act, a person who provides proof
286	286	to the Texas Department of Licensing and Regulation in a manner
287	287	satisfactory to the department that the person is named or
288	288	included, by the terms of standing orders promulgated by any county
289	289	of this state that required named persons to have completed process
290	290	server training equivalent to that required by Section 191.052,
291	291	Civil Practice and Remedies Code, as added by this Act, as one
292	292	authorized to serve civil process in this state, is entitled to a
293	293	license under this chapter without complying with the requirement
294	294	of instruction on service of civil process if the person meets all
295	295	other requirements of that section, including the completion of two
296	296	hours of instruction on law and rules.
297	297	SECTION 5. Except as provided by Section 3 of this Act, this
298	298	Act takes effect September 1, 2009.