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.