HBA-KMH C.S.H.B. 1309 76(R)    BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 1309
By: Thompson
Judicial Affairs
3/26/1999
Committee Report (Substituted)
BACKGROUND AND PURPOSE 

In 1978, the Texas Supreme Court gave private process servers the authority
to deliver and serve subpoenas.  The Texas Supreme Court further extended
the authority of the servers by giving them the authority to deliver and
serve all citations under Rule 103 of the Texas Rules of Civil Procedure.
As a result, numerous private process-serving companies have been started
throughout Texas.  Many counties do not require background checks or
liability insurance to protect the public against fraudulent servers.
C.S.H.B. 1309 provides regulation of private process servers through
licensing and registration under the Texas Commission of Licensing and
Regulation. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the commissioner of licensing and
regulation of the Texas Commission of Licensing and Regulation in SECTION 1
(Section 8, Article 9035, V.T.C.S.) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Title 132, Chapter 20, V.T.C.S., by adding Article 9035,
as follows: 

Art.  9035. PRIVATE PROCESS SERVERS

Sec. 1.  DEFINITIONS.  Defines "civil court," "civil process,"
"commission," "commissioner," "constable," "department," "license holder,"
"person," "registered agent," "public servant," and "sheriff." 

Sec.  2.  LICENSE OR REGISTRATION REQUIRED.  Prohibits a person from
serving a civil process in this state without being licensed or registered
under this article.  Authorizes an unlicensed and nonexempt person to serve
outside this state a civil process issued by a civil court, if the person
is authorized by law, rule, or court order; is disinterested and competent
to make an oath of that fact; and has notarized the return of service. 

Sec.  3.  EXEMPTION.  Exempts sheriffs and constables engaged in official
duties from this article.  Provides that this article does not limit the
service of process as provided by a court order or apply to a court
reporter certified under Chapter 52 (Court Reporters), Government Code. 

Sec.  4.  LICENSE APPLICATION; TEMPORARY LICENSE.  Provides that an
applicant for a license or registration under this article must submit a
sworn application on a Commissioner of Licensing and Regulation
(commissioner) approved form.  Sets forth eligibility requirements which
include age and conviction restrictions, fee submission, completion of
seminar, and compliance with insurance coverage.  Requires the commissioner
to issue a temporary license not later than 30 days after the applicant
meets all of the requirements.  Provides that a temporary license is not
valid for more than 90 days after the date of issuance.  Requires the
applicant to return the temporary license and stop serving civil process if
the license is ultimately denied. 

Sec.  5.  AGENT REGISTRATION.  Authorizes a person registered as the agent
of a license holder to serve a civil process on behalf of the license
holder.  Requires the applicant for an agent registration to submit a sworn
statement on a commissioner approved form, to be of a certain age, to be
free of convictions for offenses of moral turpitude and felonies, and to
submit a fee. 

Sec.  6.  CRIMINAL HISTORY RECORD CHECK.  Requires an applicant  to
disclose to the Texas Department of Licensing and Regulation (department)
any conviction for moral turpitude or a felony in a manner prescribed by
the commissioner.  Requires the department, on receipt of an original
application, to conduct a criminal history record check of the applicant
including the submission of fingerprints and an examination of federal,
state, and local law enforcement records.  Sets forth statutes which govern
the investigation.  Provides that a conviction does not automatically
disqualify an applicant, require revocation of a license or registration,
or require the denial of an application for renewal of a license or
registration. 

Sec.  7.  ISSUANCE OF LICENSES AND REGISTRATIONS.  Requires the
commissioner to issue a server license or registration to an applicant
satisfying certain requirements. Requires the license to be made within 60
days of application, except for permitted delays. 

Sec.  8.  INSURANCE REQUIREMENT.  Requires the commissioner, by rule, to
prescribe insurance requirements for applicants. 

Sec.  9.  POWERS AND DUTIES OF LICENSE HOLDER AND REGISTERED AGENTS.
Authorizes a license holder or registered agent (process server) to serve
civil process in the manner provided by law for service by sheriffs and
constables.  Authorizes a process server to serve the process on any day of
the week anywhere in this state.   Authorizes a process server to determine
the location of an individual for the purpose of serving civil process.
Authorizes a process server to serve a writ of garnishment, but prohibits a
process server or registered agent from serving a writ of attachment, a
writ of sequestration, or a distress warrant.  Prohibits service by a
license holder or agent who is an interested party or has certain legal
interests in an action. 

Sec. 10.  COSTS.  Authorizes service charges to be added to court costs.

Sec. 11.  PUBLIC SERVANT; OFFICER OF THE COURT.  Requires each process
server to be considered a public servant and an officer of the state's
civil courts, but may not be considered a peace officer based on the
license or registration.  Requires that an assault on a process server be
treated as an assault on a public servant. 

Sec. 12.  IDENTIFICATION NUMBER.  Requires the department to issue a unique
identification number to each license holder and agent.  Requires the
process server to list the unique number on each return of service filed
with the court.  Requires the department to issue to each license holder
and registered agent a photo identification card with the person's unique
identification number on the card.  Requires the department to determine
the size, design, and content of the identification card.  Provides that
the card remains the property of the state and must be returned on demand
by the department. 

Sec.  13.  TERM OF LICENSES AND REGISTRATION; RENEWAL; AGENT TERMINATION.
Provides that the expiration date for licenses and registrations under this
article is on the second anniversary of the date of issuance.  Requires the
department to send a renewal application to each process server no later
than 45 days prior to the expiration date. Authorizes a person to renew a
license or registration by submitting a renewal application, prescribed by
the commissioner, and fee.  Requires a process server to provide evidence
of completion of a continuing education seminar in order to renew the
license or registration. Requires a license holder to notify the department
in writing not later than the 14th day after termination of a registered
agent. 

Sec.  14.  DISCIPLINARY ACTIONS.  Authorizes the commissioner to deny,
suspend, or revoke a license or registration.  Authorizes the commission to
assess an administrative penalty under certain conditions.  Provides that
proceedings for a license or registration denial, revocation, suspension,
or imposition of an administrative penalty, and for an appeal from the
proceeding are governed by Article 9100, V.T.C.S., and Chapter 2001
(Administrative Procedure), Government Code.  Provides the findings for
which a disciplinary actions may be invoked against a license holder. 

Sec.  15.  CRIMINAL PENALTIES.  Provides that a person commits a felony of
the third degree if a person practices as a process server in violation of
this article or a rule adopted under this article.  Provides that a person
commits a Class A misdemeanor if the person knowingly or intentionally
falsifies a return of civil process.  Provides that a person commits a
state jail felony if the person knowingly or intentionally falsifies a
return of civil process with the intent to defraud or harm another. 

SECTION 2.  Amends Section 411.093(a), Government Code, to make conforming
changes. 

SECTION 3.  Exempts those who can prove two years of experience or more in
serving a civil processes from the education requirement of this Act, if
all other requirements are met. 

SECTION 4.  (a) Effective date: September 1, 1999, except as provided by
Subsection (b). 
                       (b) Effective date for Sections 2 and 15, Article
9035, V.T.C.S.: March 1, 2000. 

SECTION 5.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

SECTION 1:  C.S.H.B. 1309 modifies the original in proposed Section 1 by
narrowing the definition of "civil process" to exclude serving a writ that
requires the actual taking of possession of a person, property, or thing.
Defines "public servant." Redesignates Subdivisions (9)-(10) to (10)-(11). 

C.S.H.B. 1309 modifies the original in proposed Section 2 by expanding the
list of requirement for persons who are authorized to serve process outside
the state without being a license holder, registered agent, or exempt under
Section 3, to specify that such person be authorized by law, rule, or court
order in the person's jurisdiction to serve process, and a person
disinterested in the proceedings; and competent to make an oath of that
fact. 

C.S.H.B. 1309 modifies the original in proposed Section 3 by providing that
the proposed article does not apply to a court reporter certified under
Chapter 52 (Court Reporters), Government Code. 

C.S.H.B. 1309 modifies the original in proposed Section 4 by changing the
proposed title to "LICENSE APPLICATION; TEMPORARY LICENSE," rather than
"LICENSE APPLICATION." Provides that the form used in the application
process must be prescribed by the commissioner, rather than the department.
Prohibits a person convicted of a misdemeanor involving moral turpitude or
a felony from being eligible for a license.  Adds a new Subsection (c) to
require the commissioner to issue a temporary license not later than 30
days after the applicant meets all of the requirements. Provides that a
temporary license is not valid for more than 90 days after the date of
issuance. Requires the applicant to return the temporary license and stop
serving civil process if the license is ultimately denied. 

C.S.H.B. 1309 modifies the original in proposed Section 5 by providing that
the form used in the application process for an agent registration must be
prescribed by the commissioner, rather than the department.  Prohibits a
person convicted of a misdemeanor involving moral turpitude or a felony
from being eligible to be a registered agent. 

C.S.H.B. 1309 modifies the original in proposed Section 6 by replacing
Subsection (b) with a new Subsection (b) requiring the department, on
receipt of an original application, to conduct a background check of the
applicant including the submission of fingerprints and an examination of
federal, state, and local law enforcement records.  Adds new Subsection (c)
to set forth statutes which govern the investigation.  Adds Subsection (d)
to provides that a conviction does not automatically disqualify an
applicant, require revocation of a license or registration, or require the
denial of an application for renewal of a license or registration. 

C.S.H.B. 1309 modifies the original in proposed Section 11 by changing the
proposed title to  "PUBLIC SERVANT; OFFICER OF COURT," from "OFFICER OF
COURT."  Requires each license holder or registered agent to be considered
a public servant when performing duties related to serving process. 

C.S.H.B. 1309 modifies the original in proposed Section 12 by adding new
Subsection (b) to require the department to issue to each license holder
and registered agent a photo identification card with the person's unique
identification number on the card.  Requires the department to determine
the size, design, and content of the identification card.  Provides that
the card remains the property of the state and must be returned on demand
by the department. 

C.S.H.B. 1309 modifies the original in proposed Section 13 by changing the
proposed title to "TERM OF LICENSES AND REGISTRATION; RENEWAL; AGENT
TERMINATION," rather than "TERM OF LICENSES AND REGISTRATION; RENEWAL."
Requires the commissioner, rather than the department, to prescribe the
renewal form. Adds new Subsection (d) to require a license holder to notify
the department in writing not later than the 14th day after termination of
a registered agent. 

C.S.H.B. 1309 modifies the original in proposed Section 14 by not including
in the list of findings by the commissioner which authorize disciplinary
action that the license holder has had revoked a probation for a felony
offense, a parole, or a mandatory supervision. 

C.S.H.B. 1309 modifies the original in proposed Section 15 by providing
that a person commits a felony of the third degree, rather than a Class A
misdemeanor, if a person practices as a process server in violation of this
article or a rule adopted under this article.  Provides that a person
commits a Class A misdemeanor, rather than a felony of the third degree, if
the person knowingly or intentionally falsifies a return of civil process.
Provides that a person commits a state jail felony if the person knowingly
or intentionally falsifies a return of civil process with the intent to
defraud or harm another.