| CIVIL PROCESS SERVERS ASSOCIATION OF TEXAS |
| FINAL REPORT ON THE 82ND TEXAS LEGISLATURE 2010 - 2011 (Reg. Session) Below is a list of all bills that passed relating to the process service industry in Texas and how each will affect process servers, the Process Server Review Board (PSRB,) the Texas Supreme Court (the Court,) and the Court's Office of Court Administration (OCA.) HB 79- Small Claims Courts to be Abolished 2013 [ADDED 11/07/2011; HB 79 (Special Session)] What this means: Section 5.06(a) of HB 79 repeals Chapter 28 of the Texas Government Code (Small Claims Courts.) This will effectively abolish small claims courts in Texas and transfer the proceedings to the Justice Courts. This will be a positive change for our industry as private process servers have been prohibited by law from serving small claims court process by Ch. 28.013(b), Texas Government Code (TGC.) CPSAT position on HB 79- This very small section of a large bill went undetected. Had its existence been known, CPSAT support of Section 5 of this bill would have been conveyed to the bill's authors. Text of HB 79 [excerpted] SECTION 5.06. (a) Chapter 28, Government Code, is repealed. (b) On the effective date of this section [May 1, 2013] each small claims court under Chapter 28, Government Code, is abolished. Other sections of HB 79 apply to this issue. (CS)SB 652- PSRB SUNSET REVIEW (effective 2016-2017) Places the PSRB under Sunset Review (Texas Sunset Act) by the 85th Texas Legislature. What this means: All occupational regulatory boards/agencies in Texas are subject to the Texas Sunset Act, except the PSRB. This new law makes the PSRB subject to Sunset review beginning in 2016. By that time, the PSRB will be in its twelfth year without being subject to the same standards as are all other occupational regulatory boards/agencies in Texas. Currently, the PSRB is in violation of multiple Sunset standards. What is Sunset? Sunset is the regular assessment of the continuing need for a state agency to exist. While standard legislative oversight is concerned with agency compliance with legislative policies, Sunset asks a more basic question: "Do the agency's functions continue to be needed?" The Sunset process works by setting a date on which an agency will be abolished unless legislation is passed to continue its functions. This creates a unique opportunity for the Legislature to look closely at each agency and make fundamental changes to an agency's mission or operations if needed. For additional information on the Sunset process, review the Guide to the Sunset Process and Sunset Licensing Model at: http://www.sunset.state.tx.us/ CPSAT position on (CS)SB 652- The CPSAT was unopposed to Section 3.03 in this bill. However, the effects of this new law will not be realized for another 5 to 6 years. The concept of Sunset "review" is just that... re-view. The Texas Legislature's Sunset Committee reviews government agencies that the Legislature created in the first place. The PSRB is the only occupational regulatory board/agency in Texas that was not created by the Legislature and represents the first ever judicial agency place under Sunset. If Sunset were to review the PSRB today, it would have reason to recommend the Texas Legislature abolish it. See the "Sunset Licensing Test." Text of (CS)SB 652: SECTION 3.03. PROCESS SERVER REVIEW BOARD. Chapter 72, Government Code, is amended by adding Subchapter F to read as follows: SUBCHAPTER F. PROCESS SERVER REVIEW BOARD; Sec. 72.091. SUNSET REVIEW. The process server review board established by supreme court order is subject to review under Chapter 325 (Texas Sunset Act), as if it were a state agency but may not be abolished under that chapter. The review shall be conducted as if the process server review board were scheduled to be abolished September 1, 2017. HB 1614- FEES (effective September 1, 2011) Gives the PSRB authority to recommend the fees for certification and renewal. Gives the Court the authority to approve fees recommended by the PSRB. Gives the OCA the authority to collect the fees. Stipulates that fees collected may ONLY be used for the certification of process servers. What this means: Process servers will begin paying fees to the State for certification. However, because it stipulates that fees may only be used for process server certification, HB 1614 does not satisfy the contingency rider contained SB 1, (the budget bill,) which required legislation to pass "relating to licensing fees for process servers, and guardians and court reporters." This is where a last minute amendment to SB 1 comes in; see SB 1, Article 7 below. Information relating to certification fees and start dates may be found on the PSRB's webpage at: http://www.courts.state.tx.us/psrb/ CPSAT position on HB 1614- The CPSAT was opposed to this bill. Regulation for private process servers in Texas has not been proven necessary. However, if regulation and fees are inevitable, it must be done fairly, lawfully, and in line with the Texas Constitution. This bill serves to ensure the ability of training course instructors to continue profiting from selling the same course over and over. Additionally, the lure of easy money has resulted in a training drop out rate of 33 to 50 percent. This may seem like a lot, but, the other 50 to 66 percent who follow through represent what has become an enormous influx of inexperienced and often inadequately trained new competition. Pro-regulators have displayed total indifference to the industry's concerns about the flood of new servers, redundant training and red tape, and the overall decline in industry quality. The CPSAT concurs with the analysis contained in the HB 1614 Floor Report by the Texas Conservative Coalition. Text of HB 1614: SECTION 1. Subchapter A, Chapter 51, Government Code, is amended by adding Section 51.008 to read as follows: Sec. 51.008. FEES FOR PROCESS SERVER CERTIFICATION. (a) The process server review board established by supreme court order may recommend to the supreme court the fees to be charged for process server certification and renewal of certification. The supreme court must approve the fees recommended by the process server review board before the fees may be collected. (b) If a certification is issued or renewed for a term that is less than the certification period provided by supreme court rule, the fee for the certification shall be prorated so that the process server pays only that portion of the fee that is allocable to the period during which the certification is valid. On renewal of the certification on the new expiration date, the process server must pay the entire certification renewal fee. (c) The Office of Court Administration of the Texas Judicial System may collect the fees recommended by the process server review board and approved by the supreme court. Fees collected under this section shall be sent to the comptroller for deposit to the credit of the general revenue fund and may be appropriated only to the office for purposes of this section. SECTION 2. (a) The fees recommended and approved under Section 51.008, Government Code, as added by this Act, apply to: (1) each person who holds a process server certification on the effective date of this Act; and (2) each person who applies for process server certification on or after the effective date of this Act. (b) The Office of Court Administration of the Texas Judicial System shall prorate the process server certification fee so that a person who holds a process server certification on the effective date of this Act pays only that portion of the fee that is allocable to the period during which the certification is valid. On renewal of the certification on the new expiration date, the entire certification renewal fee is payable. SECTION 3. This Act takes effect September 1, 2011. SB 1, Article 7- FEES (effective September 1, 2011) Because HB 1614 (above) does not satisfy the contingency rider in SB 1, a last minute amendment was made stipulating that fees process servers pay will also be used for regulating guardians and court reporters. What this means: According to staff at the Texas Legislative Budget Board, the agency responsible for the contingency rider in SB 1, fees paid by process servers will also be used to regulate guardians and court reporters and to "help them get some of their money back." Not only will we be paying for regulating these other two unrelated occupations, we will be paying for their regulation in the past. As reported on this site during the session, this was a concerted effort by pro-regulators to deal with the fact that the PSRB is the only occupational regulatory agency/board in Texas that is not funded. It is not funded for the very reason that it was not created by the Texas Legislature. Pro-regulators have successfully "piggy-backed" the non-statutory PSRB onto two other occupations that already exist in statutes. CPSAT position on SB 1, Article 7- The CPSAT was opposed to Article 7 in this bill. Regulation for private process servers in Texas has not been proven necessary. However, if regulation and fees are inevitable, it must be done fairly, lawfully and in line with the Texas Constitution. The purpose of Article 7 in this bill was to satisfy the funding contingency requirement that HB 1614 failed to cover. This patchwork of legislation was a concerted effort designed to circumvent the normal regulatory creation process in order to obtain the authority to assess and collect fees from process servers. Even with funding, the PSRB's creation still does not exist in statute as do all other regulated occupations in Texas. The PSRB remains the only occupational regulatory board/agency in Texas that was not created by enabling legislation and the only one ever created by the judicial branch. It remains the only one not subject to the Texas Public Information Act and, despite the designation, much of the PSRB's records are not subject to any open record policy. Text of SB 1, Article 7: ARTICLE 7. PROCESS SERVER CERTIFICATION FEES SECTION 7.01. Section 51.008, Government Code, as effective September 1, 2011, is amended by amending Subsection (c) and adding Subsection (d) to read as follows: (c) The Office of Court Administration of the Texas Judicial System may collect the fees recommended by the process server review board and approved by the supreme court. Fees collected under this section shall be sent to the comptroller for deposit to the credit of the general revenue fund [and may be appropriated only to the office for purposes of this section]. (d) Fees collected under this section may be appropriated to the Office of Court Administration of the Texas Judicial System for the support of regulatory programs for process servers, guardians, and court reporters. HB 962- RETURNS OF SERVICE (effective January 1, 2012) Relates to the return of service. What this means [see also NOTE below:] HB 962 allows the Court to adopt rules of civil procedure that will accomplish the following: allow all returns of service to be electronically filed, remove the requirement that the return be on or attached to the original process, and allow certified and out-of-state servers (only) to sign under penalty of perjury instead of having their returns verified (notarized.) Non-certified process servers in Texas who serve process pursuant to a court order, blanket order, or other law can, notwithstanding any future Supreme Court rules, continue to have their returns notarized or utilize an unsworn declaration pursuant to 132.001, CRPC. NOTE: Pursuant to this new law, the Court must establish new rules or amend existing ones in the Texas Rules of Civil Procedure. Any such rules and other provisions should be consulted in addition to information contained in this report. SEE SUPPLEMENTAL REPORT Re: Texas Supreme Court's amendments to Rules 107 & 536, TRCP, pursuant to the new law [effective Jan. 1, 2012.] (Interesting Note: HB 962 also amends Section 17.065 of the Texas Civil Practice and Remedies Code which relates to service of process on the Chairman of the Texas Transportation Commission (TCC.) Pursuant to 17.065(c), CPRC, process on the TCC Chairman may be served "by any disinterested person competent to make oath;" certification, 103/blanket order are not required. This is one of at least seven laws that allow any disinterested adult to serve the exact same process certified servers can serve. The Texas Legislature has established repeatedly that there is no need for regulation and the Court's program is diametrically opposed to long established legislative intent.) CPSAT position on HB 962- The CPSAT was unopposed to the benefits this bill would bring to our industry. However, by differentiating between certified and non-certified process servers, HB 962 will create new rules and law that will widen the current disparity that exists with regard to "who may serve." If a "certified" server can benefit from this bill's provisions, then so should any process server authorized to serve process pursuant to a court order and/or Texas law. Despite our urging the bill's author, Representative Hartnett refused to make the perjury requirement optional to verification. While the CPSAT disagrees with furthering this disparity, it supports the administrative benefits the bill brings. Text of HB 962- SECTION 1. Subchapter B, Chapter 17, Civil Practice and Remedies Code, is amended by adding Section 17.030 to read as follows: Sec. 17.030. RETURN OF SERVICE. (a) The supreme court shall adopt rules of civil procedure requiring a person who serves process to complete a return of service. (b) The rules: (1) must provide that the return of service: (A) is not required to be endorsed or attached to the original process issued; and (B) may be electronically filed; and (2) may require that the following information be included in the return of service: (A) the cause number and case name; (B) the court in which the case has been filed; (C) the date and time process was received for service; (D) the person or entity served; (E) the address served; (F) the date of service; (G) the manner of delivery of service; (H) a description of process served; (I) the name of the person serving process; and (J) if the process server is certified as a process server by the supreme court, the process server's identification number. (c) A person certified by the supreme court as a process server or a person authorized outside of Texas to serve process shall sign the return of service under penalty of perjury. The return of service is not required to be verified. (d) A person who knowingly or intentionally falsifies a return of service may be prosecuted for tampering with a governmental record as provided by Chapter 37, Penal Code. SECTION 2. Section 17.065(b), Civil Practice and Remedies Code, is amended to read as follows: (b) The return of service under this section [shall be endorsed on or attached to the original process issued and] must: (1) state when it was served; (2) state on whom it was served; and (3) be signed under penalty of perjury [and sworn to] by the party making the service [before a person authorized by law to make an affidavit under his hand and seal]. SECTION 3. Section 17.030, Civil Practice and Remedies Code, as added by this Act, and Section 17.065, Civil Practice and Remedies Code, as amended by this Act, apply to all process served on or after January 1, 2012, without regard to whether the process was issued before, on, or after that date. SECTION 4. This Act takes effect January 1, 2012. HB 1381- SERVICE ON INMATES (effective September 1, 2011) Relates to service on inmates in the Texas Dept. of Criminal Justice. What this means: HB 1381 allows prison wardens to designate a receiver of process for all inmates. Instead of having to come face-to-face with the inmate, process will be delivered to a designated prison staff member. CPSAT position on HB 1381- Unopposed. Unlike HB 962 above, this bill affords this industry benefit to any and all authorized process servers, not just those "certified" by the Texas Supreme Court. Text of HB 1381- SECTION 1. Subchapter B, Chapter 17, Civil Practice and Remedies Code, is amended by adding Section 17.029 to read as follows: Sec. 17.029. SERVICE ON INMATE OF TEXAS DEPARTMENT OF CRIMINAL JUSTICE. (a) In this section, "inmate" means a person confined in a facility operated by or under contract with the Texas Department of Criminal Justice. (b) In a civil action against an inmate, citation or other civil process may be served on the inmate by serving a person designated under Subsection (c) as an agent for service of civil process. (c) The warden of each facility operated by or under contract with the Texas Department of Criminal Justice shall designate an employee at the facility to serve as an agent for service of civil process on inmates confined in the facility. (d) An employee designated under Subsection (c) as an agent for service of civil process shall promptly deliver any civil process served on the employee to the appropriate inmate. SECTION 2. Not later than December 1, 2011, the warden of each facility operated by or under contract with the Texas Department of Criminal Justice shall designate an employee at the facility to serve as an agent for service of civil process as required by Section 17.029, Civil Practice and Remedies Code, as added by this Act. SECTION 3. This Act takes effect September 1, 2011. HB 2047- REGISTERED AGENTS (effective September 1, 2011) Service on a registered agent that is an organization may be delivered to any employee of the registered agent organization. What this means: This bill works to rectify problems associated with serving a corporate type entity whose registered agent is also a corporate type entity. This is best explained by considering process served on agencies such as CT Corporation System, National Registered Agent, and Corporation Service Company, etc. Technically, service on these companies should go to their RA, Pres. or VP. HB 2047 will make service on the receptionist or other employee valid. This will apply to any registered agent that is not a live human. CPSAT position on HB 2047- Unopposed, testified in favor. Text of HB 2047- SECTION 1. Section 5.201, Business Organizations Code, is amended by adding Subsection (d) to read as follows: (d) A registered agent that is an organization must have an employee available at the registered office during normal business hours to receive service of process, notice, or demand. Any employee of the organization may receive service at the registered office. SECTION 2. Section 5.201(d), Business Organizations Code, as added by this Act, applies to all process served on or after the effective date of this Act, without regard to whether the process was issued before, on, or after that date. SECTION 3. This Act takes effect September 1, 2011. Report Summary: The new laws and rule changes apply to citations and other notices issued by the District, County and Justice civil courts of Texas. The following are not directly affected: Civil and criminal subpoenas Summons and subpoenas issuing from the U.S. District Courts (federal) Process issuing from other states or countries for service in Texas The funding of the PSRB does not address the validity of its existence. The disparity of having no statewide authority has been replaced with another disparity; the unnecessary and burdensome process of attaining that authority. That funding and Sunset have been applied six years after-the-fact is just more evidence that the PSRB was not created properly and remains delinquent in its existence. All bills and actions can be viewed at the Texas Legislature's Website. Nothing in this report is intended as legal advice. All laws, rules and other provisions should be reassessed after their implementation dates. Legal questions should be directed to the attorney client, the Texas Supreme Court or other person licensed to practice law in Texas. This report originally posted on August 26, 2011. HOME SUPPLEMENTAL REPORT LEGISLATIVE NEWS |