Texas 2009 - 81st Regular

Texas Senate Bill SB1276 Compare Versions

Only one version of the bill is available at this time.

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1	1	81R9296 JAM-D
2	2	By: Gallegos S.B. No. 1276
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the regulation of service of process; providing
8	8	criminal and administrative 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 a citation, a notice, or a
24	24	subpoena for a trial or for an oral deposition. The term does not
25	25	include:
26	26	(A) service of written interrogatories,
27	27	garnishments, or protective orders;
28	28	(B) service of a writ that requires the actual
29	29	taking of possession of a person, property, or thing; or
30	30	(C) delivery of a notice to vacate under Section
31	31	24.005, Property Code.
32	32	(3) "Commission" means the Texas Commission of
33	33	Licensing and Regulation.
34	34	(4) "Constable" means a constable, a deputy constable,
35	35	or a reserve deputy constable described by Article 2.12(2), Code of
36	36	Criminal Procedure.
37	37	(5) "Department" means the Texas Department of
38	38	Licensing and Regulation.
39	39	(6) "Executive director" means the executive director
40	40	of the department.
41	41	(7) "License holder" means an individual who has
42	42	complied with the licensing requirements of this chapter and has
43	43	been issued a license by the department.
44	44	(8) "Person" means an individual.
45	45	(9) "Sheriff" means a sheriff, a deputy sheriff, or a
46	46	reserve deputy sheriff described by Article 2.12(1), Code of
47	47	Criminal Procedure.
48	48	Sec. 191.002. APPLICABILITY OF CHAPTER. (a) This chapter
49	49	does not apply to a sheriff or constable who serves civil process in
50	50	the performance of the person's official duties or other than in the
51	51	performance of the person's official duties.
52	52	(b) This chapter does not limit or restrict the service of
53	53	process in this state as provided by a court order.
54	54	(c) This chapter does not apply to a court reporter
55	55	certified under Chapter 52, Government Code.
56	56	[Sections 191.003-191.050 reserved for expansion]
57	57	SUBCHAPTER B. LICENSE REQUIREMENTS
58	58	Sec. 191.051. LICENSE REQUIRED. (a) A person may not serve
59	59	civil process in this state unless the person is licensed under this
60	60	chapter.
61	61	(b) A person who is not a license holder and who is not
62	62	exempt under Section 191.002 may serve outside this state a civil
63	63	process issued by a civil court of this state if the person:
64	64	(1) is authorized by law, rule, or court order in the
65	65	person's jurisdiction to serve process;
66	66	(2) is a disinterested person competent to make an
67	67	oath of that fact; and
68	68	(3) has the return of service acknowledged by an
69	69	officer authorized to administer oaths in the jurisdiction in which
70	70	the civil process was served.
71	71	Sec. 191.052. LICENSE APPLICATION; GRACE PERIOD. (a) An
72	72	applicant for an initial process server license under this chapter
73	73	must submit a sworn application on a form prescribed by the
74	74	commission. To be eligible for a license under this section, an
75	75	applicant must:
76	76	(1) be at least 21 years of age unless the person has:
77	77	(A) completed and received credit for at least 60
78	78	hours of study at an accredited college or university; or
79	79	(B) received an honorable discharge from the
80	80	United States armed forces after at least two years of service;
81	81	(2) not have been convicted of a misdemeanor involving
82	82	moral turpitude or a felony or have received probation, deferred
83	83	adjudication, or community supervision under the laws of this or
84	84	another state or under federal law;
85	85	(3) submit the nonrefundable application fee and the
86	86	license fee; and
87	87	(4) comply with the requirements adopted under
88	88	Subsection (b).
89	89	(b) Each license applicant must provide proof to the
90	90	department, in a manner acceptable to the department, of:
91	91	(1) completion of a department-approved course with
92	92	specified learning objectives on civil process consisting of at
93	93	least 12 hours of instruction;
94	94	(2) passing a written exam proctored by an independent
95	95	testing center; and
96	96	(3) maintenance of insurance coverage as required by
97	97	rules adopted by the commission.
98	98	(c) A person who has filed a license application under this
99	99	chapter may serve civil process while the person's application is
100	100	being considered by the department. This grace period ends
101	101	immediately when the department issues the person a license under
102	102	this chapter or disapproves the person's application or when the
103	103	person withdraws the person's application from consideration. The
104	104	commission shall take punitive action against any person who
105	105	continues to serve civil process after the person's license
106	106	application has been withdrawn or denied. During the grace period,
107	107	an applicant's failure to comply with the requirements of the
108	108	application process, the insurance requirements, the standards of
109	109	qualification for license issuance, and other requirements under
110	110	this chapter will result in the denial of the person's application.
111	111	Sec. 191.053. AGENTS PROHIBITED. A person may not act as
112	112	the agent of a license holder to execute civil process on behalf of
113	113	the license holder.
114	114	Sec. 191.054. CRIMINAL HISTORY RECORD CHECK. (a) Each
115	115	applicant for a process server license under this chapter shall
116	116	disclose to the department, in the manner prescribed by the
117	117	commission, any conviction of the applicant for a misdemeanor
118	118	involving moral turpitude or a felony or whether the applicant has
119	119	received deferred adjudication or been placed on community
120	120	supervision as a result of a misdemeanor involving moral turpitude
121	121	or a felony.
122	122	(b) On receipt of an original application for a process
123	123	server license, the department shall conduct a thorough background
124	124	investigation of each individual applicant to determine whether the
125	125	applicant is qualified under this chapter. The investigation must
126	126	include:
127	127	(1) the submission of fingerprints by the applicant
128	128	for processing through appropriate local, state, and federal law
129	129	enforcement agencies; and
130	130	(2) the examination by the department of law
131	131	enforcement records maintained by local, state, or federal law
132	132	enforcement agencies.
133	133	(c) A background check under this section and the
134	134	department's consideration of any criminal conviction is governed
135	135	by:
136	136	(1) this chapter;
137	137	(2) Sections 411.093 and 411.122, Government Code; and
138	138	(3) Chapter 53, Occupations Code.
139	139	Sec. 191.055. ISSUANCE OF LICENSES. (a) The department
140	140	shall issue a process server license to an applicant who complies
141	141	with the appropriate requirements of this chapter, passes the
142	142	criminal history record check, and pays all required fees.
143	143	(b) Except as provided by Subsection (c), the department
144	144	shall issue or deny the license not later than the 60th day after
145	145	the date on which the application is received by the department.
146	146	(c) If the department is notified by the Department of
147	147	Public Safety that a criminal history record check affecting an
148	148	applicant will not be completed within the 60 days prescribed by
149	149	Subsection (b), the department shall notify the applicant of the
150	150	delay.
151	151	Sec. 191.056. INSURANCE REQUIREMENT. (a) The commission
152	152	by rule shall prescribe the insurance coverage that a process
153	153	server license holder must maintain to be eligible for a license
154	154	under this chapter.
155	155	(b) The rules adopted under Subsection (a) shall require:
156	156	(1) a license holder to maintain insurance coverage in
157	157	an amount set by the commission, but not less than a minimum total
158	158	aggregate of $1 million for all occurrences;
159	159	(2) a license holder to annually submit to the
160	160	commission, in the form and manner specified by the commission,
161	161	proof of renewal of required insurance coverage; and
162	162	(3) the commission to approve insurance policies and
163	163	policy renewals contracted for by license holders and applicants.
164	164	Sec. 191.057. TERM OF LICENSES; RENEWAL. (a) A license
165	165	issued under this chapter expires on the first anniversary of the
166	166	date of issuance.
167	167	(b) The department shall send a renewal application to each
168	168	license holder not later than the 45th day before the date of
169	169	expiration of the license.
170	170	(c) A license holder may renew the license by submitting to
171	171	the department before the expiration date, on a form prescribed by
172	172	the commission, a renewal application accompanied by the renewal
173	173	fee. To renew the license, each license holder must also present
174	174	evidence satisfactory to the department of completion, before the
175	175	expiration of the license, of a department-approved continuing
176	176	education seminar consisting of at least 12 hours of instruction in
177	177	civil process.
178	178	[Sections 191.058-191.100 reserved for expansion]
179	179	SUBCHAPTER C. PRACTICE BY LICENSE HOLDERS
180	180	Sec. 191.101. POWERS AND DUTIES OF LICENSE HOLDERS. (a) A
181	181	license holder or registered agent may serve civil process issued
182	182	by the courts of this state in the manner provided by law for
183	183	service by sheriffs and constables, including Rule 6, Texas Rules
184	184	of Civil Procedure.
185	185	(b) A license holder may determine the location of an
186	186	individual for the purpose of serving civil process.
187	187	(c) A license holder may not execute writs, serve forcible
188	188	entry and detainer citations, or serve any writ or order related to
189	189	an allegation of or the prevention of family violence under the
190	190	Family Code.
191	191	(d) A license holder may not serve a civil process in any
192	192	action in which the license holder is an interested party.
193	193	(e) A license holder who is employed by an attorney or a law
194	194	firm may not serve a civil process relating to an action in which
195	195	the employing attorney or law firm is counsel to a party.
196	196	Sec. 191.102. COSTS. A fee charged and collected by a
197	197	license holder for service of process may be charged as costs in a
198	198	judicial proceeding. A license holder may charge a fee set by the
199	199	commissioners court in the county where the process was issued or as
200	200	prescribed by any other law or statute in this state.
201	201	Sec. 191.103. PUBLIC SERVANT. A license holder shall be
202	202	considered to be a public servant when performing duties related to
203	203	serving process, but shall not be considered to be a peace officer
204	204	or an officer of the court based on that license.
205	205	Sec. 191.104. IDENTIFICATION NUMBER. (a) The department
206	206	shall issue to each license holder a unique identification number.
207	207	The license holder shall list that unique number on each return of
208	208	service made by that person that is filed with the clerk of the
209	209	appropriate court.
210	210	(b) The department shall issue to each license holder a
211	211	photo identification card with the person's unique identification
212	212	number on the card. The department shall determine the size,
213	213	design, and content of the identification card. The card remains
214	214	the property of the state and must be returned on demand by the
215	215	department.
216	216	(c) A license holder shall include the person's unique
217	217	identification number on each valid process return and on each
218	218	delivery copy of process served.
219	219	(d) A license holder shall wear the person's identification
220	220	card in a visible manner at all times when performing the function
221	221	of a private process server and shall produce the identification to
222	222	any person requesting it during the performance of service of
223	223	process.
224	224	(e) An identification card, badge, insignia, seal, patch,
225	225	or other form of identification that may be construed to be that of
226	226	a peace officer or employee of any county or state agency may not be
227	227	worn or displayed by a license holder. A license holder who
228	228	violates this subsection commits an offense under Section 37.11 or
229	229	37.12, Penal Code. The commission shall pursue prosecution against
230	230	any person who violates this subsection.
231	231	[Sections 191.105-191.150 reserved for expansion]
232	232	SUBCHAPTER D. DEPARTMENT ENFORCEMENT
233	233	Sec. 191.151. DISQUALIFICATION; DISCIPLINARY ACTIONS. (a)
234	234	The commission shall deny or revoke a license and the commission may
235	235	impose an administrative penalty under Subchapter F, Chapter 51,
236	236	Occupations Code, on a finding that:
237	237	(1) a license holder has:
238	238	(A) failed to maintain the insurance coverage
239	239	required by this chapter;
240	240	(B) refused to permit an examination by the
241	241	department of the records required to be maintained by a license
242	242	holder under rules adopted under this chapter; or
243	243	(C) allowed a person to serve process who the
244	244	license holder knows is not legally authorized to do so; or
245	245	(2) a license holder has:
246	246	(A) violated this chapter, a rule adopted under
247	247	this chapter, or an order of the executive director or commission;
248	248	(B) knowingly made a false or fraudulent return
249	249	of service; or
250	250	(C) been convicted of a misdemeanor involving
251	251	moral turpitude or a felony or has received probation, deferred
252	252	adjudication, or community supervision under the laws of this or
253	253	another state or under federal law.
254	254	(b) For the purposes of this chapter, a person is considered
255	255	to have been convicted of a felony if a court enters a conviction or
256	256	deferred adjudication of guilt against a person on a felony offense
257	257	regardless of whether:
258	258	(1) the person's sentence is subsequently probated and
259	259	the person is discharged from community supervision;
260	260	(2) an accusation, complaint, information, or
261	261	indictment against the person is dismissed and the person is
262	262	released from all penalties and disabilities resulting from the
263	263	offense; or
264	264	(3) the person is pardoned for the offense, unless the
265	265	pardon is granted expressly for subsequent proof of innocence.
266	266	(c) The commission, on receipt of a certified copy of a
267	267	court judgment under Article 42.0111, Code of Criminal Procedure,
268	268	shall note on the person's license records the conviction,
269	269	probation, deferred adjudication, or community supervision
270	270	indicated by the judgment.
271	271	(d) Proceedings for the denial, revocation, or suspension
272	272	of a license, for the imposition of an administrative penalty, and
273	273	for an appeal from the proceeding are governed by Chapter 51,
274	274	Occupations Code, and Chapter 2001, Government Code.
275	275	[Sections 191.152-191.200 reserved for expansion]
276	276	SUBCHAPTER E. PENALTIES
277	277	Sec. 191.201. CRIMINAL PENALTIES. A person commits an
278	278	offense if the person practices as a process server in violation of
279	279	this chapter or a rule adopted under this chapter or if the person
280	280	knowingly or intentionally falsifies a return of civil process. An
281	281	offense under this section is a felony of the third degree.
282	282	SECTION 2. Chapter 42, Code of Criminal Procedure, is
283	283	amended by adding Article 42.0111 to read as follows:
284	284	Art. 42.0111. JUDGMENT AFFECTING A PRIVATE PROCESS SERVER.
285	285	If a person licensed under Chapter 191, Civil Practice and Remedies
286	286	Code, is charged with the commission of a felony and a court that
287	287	knows the person is licensed under that chapter convicts the person
288	288	or places the person on probation, deferred adjudication, or
289	289	community supervision, the clerk of the court shall send to the
290	290	Texas Commission of Licensing and Regulation, by mail or
291	291	electronically, the identification number of the person and a
292	292	certified copy of the court's judgment reflecting that the person
293	293	has been convicted or placed on probation, deferred adjudication,
294	294	or community supervision.
295	295	SECTION 3. Sections 86.021(b) and (d), Local Government
296	296	Code, are amended to read as follows:
297	297	(b) A constable may execute any civil or criminal process
298	298	throughout the state [county in which the constable's precinct is
299	299	located] and in other locations as provided by the Code of Criminal
300	300	Procedure or by any other law.
301	301	(d) Regardless of the Texas Rules of Civil Procedure, all
302	302	civil process may be served by a constable anywhere in the state
303	303	[constable's county or in a county contiguous to the constable's
304	304	county], except that a constable who is a party to or interested in
305	305	the outcome of a suit may not serve any process related to the suit.
306	306	SECTION 4. Sections 191.051 and 191.201, Civil Practice and
307	307	Remedies Code, as added by this Act, take effect March 1, 2010.
308	308	SECTION 5. This Act takes effect September 1, 2009.