JANUARY 16, 2009-
TPSA's FAVORITE REPRESENTATIVE FILES ANOTHER
UNNECESSARY LICENSING BILL
House Bill 397 Set To Address Problems That Don’t Exist
On December 12, 2008, Representative Will Hartnett filed a bill designed to license and regulate the
private process service industry. House Bill 397 would create a license under the Texas Department of
Licensing and Regulation.
The Texas Legislature has refused to license our industry some 15 times. Four years ago, at the 79th
legislative session, a very similar bill filed on behalf of the TPSA, Senate Bill 165, also failed to become
law. Time and time again, the professional lawmakers of Texas have determined it inappropriate to
regulate our industry. Nothing has changed and this bill is no different. Private process servers in
Texas do not warrant government regulation.
A bill purports to solve a problem. HB 397, however, incorrectly identifies the real problem; thus the
solution it offers is irrelevant.
HB 397 offers government regulation to the private process service industry. This suggests that the
problem can be identified by the statutory prerequisites for regulating an occupation or profession in
Texas. Those prerequisites are:
1. The public is at risk by practitioners of the occupation or profession and regulation is needed to
protect the public.
2. The occupation or profession requires specialized training in order to perform the function of the
occupation or profession.
3. There is pervasive fraud within the occupation or profession.
None of these prerequisites exist within the private process service industry. Thus, regulation is NOT
the solution; because the statutory prerequisites for regulating an industry are NOT the problem.
What is the problem? Private process servers need a single source of authority to serve civil court
process issued by all Texas courts.
What is the solution? Get the government out of the way so the private process server can do his/her
job. The current hindrance to this is the requirement that a process server must obtain a written order
from the court to serve a civil court paper. Overwhelmingly, judges around the State have
demonstrated that this written order requirement is an undesired nuisance. This requirement should
be removed. The result will be statewide authority for private process servers to serve civil process
issued by all Texas courts.
What HB 397 will do?
Require yearly renewal
Require yearly training
Create yearly application and training fees
Require yearly criminal background check through fingerprints
Increase the penalty for assault on a private process server
Require the process server to put their license number on process served and the return
Provide process servers with a government issued identification card
Require process servers to show their Id. card to anyone who asks
Require process servers to sign returns under penalty of perjury
Allow government to inspect company records
Allow revocation of a license for a conviction of a misdemeanor that directly relates to the duties and
responsibilities involved in serving process or of any felony
Make it a crime to serve process without a license
Make it a crime to falsify a return
Cause process servers to begin assessing and collecting sales tax
HB 397 also will…
Prohibit process servers to carry a firearm, even those who hold a CHL
Prohibit process servers from charging more than the constables. (Any fees above what constables
charge will not be allowed as a cost of court unless approved by the judge.)
Prohibit process servers from using a badge, seal, patch or other insignia that resembles law
enforcement
Prohibit courts from issuing blanket orders
Prohibit private investigators and holders of a CHL to forego the criminal background check
HB 397 would do several things that are completely unnecessary. For instance:
HB 397 increases the penalty for assault on a process server. However, assault is already against the
law. Furthermore, there are no known instances of process servers in Texas being assaulted
suggesting a lack of a problem that requires fixing.
HB 397 also makes it a crime to falsify a return, but, filing a fraudulent document is already a crime, both
state and federal!
HB 397 will also cause the service of process by private individuals to become a taxable service. This
provision will not apply to our main competition, the sheriffs and constables of Texas. It will add another
unnecessary burden to our industry.
HB 397 will require yearly training despite the fact that statutes and rules relating to the service of
process have changed only 2 or 3 times in the last 30 years.
HB 397 will amend Rule 176, TRCP, for the service of subpoenas. Currently, any non-party over 18 may
serve all forms of subpoenas. There is absolutely no evidence whatsoever suggesting this needs to be
changed. This change will unduly burden court reporter agencies and records procurement companies.
Even with these few exceptions, HB 397 might be a good start to a proper way to lawfully regulate the
industry. The problem is, the service of civil court process by private individuals in Texas does not
meet the necessary criteria for regulating an industry. This is why the Legislature has refused to pass a
licensing bill some 15 times.
Licensing is an extreme measure that completely contradicts the accepted requirements for nearly all
other types of process in nearly all other jurisdictions. Below is what other jurisdiction accept:
THE UNITED STATES SUPREME COURT-
The U.S. Supreme Court wrote Rules 4 & 45, Federal Rules of Civil Procedure. Rule 4 allows anyone not
less than 18 who is not a party to the suit to serve federal court summonses in all 50 states. Rule 45
provides the same for the service of all forms of civil court subpoenas. Any non-party over 18 can also
serve all CRIMINAL SUBPOENAS. The HIGHEST court in the land is unconcerned with the training and
background of people who serve federal court process.
THE UNITED STATES JUDICIARY-
The federal judicial system relies upon Rules 4 & 45, FRCivP, for the service of civil court process and
Rule 17(d), FRCrimP, for the service of criminal court subpoenas. Literally hundreds of federal court
judges are unconcerned with the training and background of people who serve federal court process.
THE TEXAS SUPREME COURT-
The Texas Supreme Court wrote Rule 176, Texas Rules of Civil Procedure. Just like the federal rules,
Rule 176, TRCP, allows anyone not less than 18 who is not a party to the suit to serve all types of
subpoenas including, subpoenas for trial, hearing, oral deposition, written deposition, State Office of
Administrative Hearings, administrative law subpoenas,
mediation subpoenas and subpoenas for records or the inspection of property. Even Grand Jury
subpoenas and CRIMINAL SUBPOENAS may be served by any non-party not less than 18 years of age.
The Texas Supreme Court was unconcerned with the training and background of people who serve all
types of subpoenas.
THE TEXAS ATTORNEY GENERAL-
In 1999, the Texas Attorney General sponsored Senate Bill 368 which would allow anyone not less than
18, who is not a party to or interested in the suit, without a written order of the court, to serve all of their
Child Support Enforcement civil process. These are some of the most difficult papers to serve in
Texas. This includes all “dead-beat dad” process including citations, TROs, Show Cause Writs,
Injunctions, Protective Orders, Writs of
Garnishment, etc. The top lawyer of the State was unconcerned with the training and background of
people who would serve this process.
THE TEXAS LEGISLATURE and GOVERNOR GEORGE W. BUSH-
In response to the AG’s filing of SB 368, the Texas Legislature unanimously voted to pass this bill and
then Texas Governor, George W. Bush signed it into law. On September 1, 1999, the law went into effect
without one single voice of opposition. This arrangement has worked flawlessly for nearly 10 years. The
Texas Legislature and GEORGE W. BUSH were unconcerned with the training and background of people
who would serve this process.
TEXAS JUDGES-
A large majority of judges in Texas continue to sign Rule 103 orders and blanket orders; a practice that
began 20 years ago. There remain many jurisdictions where judges allow blanket orders that cover
entire companies allowing any employee or agent of the authorized company to serve process issuing
from their courts. Some judges in Texas, frustrated with keeping up with Rule 103 and blanket orders,
have written their own local administrative rule effectively removing the written order of the court from
their county. For example, in 2003 (before certification took effect), the County Court at Law Judges of
Grayson County wrote a local administrative rule allowing anyone not less than eighteen who is not a
party to or interested in the outcome of the suit to serve all process issuing from the Grayson County
Courts at Law. No affidavit, no Rule 103 order, no blanket order and no certification are required. This
arrangement has worked and continues to work flawlessly in Grayson County for over five years. These
and other judges around the State are unconcerned about the training and background of people who
would serve this process.
PROCESS SERVED IN THE OTHER STATES- (Approved by the Tx. Supreme Court) The Texas Supreme
Court wrote Rule 108, TRCP, which states that Texas process for service on defendants who reside
outside Texas may be served “by any disinterested person competent to make oath of [service]…”
Again, the Texas Supreme Court is unconcerned with the training and background of people who would
serve Texas process
in other states.
JUDGES IN THE MAJORITY OF OTHER STATES-
Process issued in nearly all other states may be served within Texas under the same guidelines found
in Rule 108, TRCP. The server does not need a court order, or Supreme Court certification. The judges
in a majority of other states are unconcerned with the training and background of Texans who would
serve their process.
TEXAS ATTORNEYS-
Our clients have never been concerned about our training or background. It is the legal community that
justifies the existence of the private process service industry; and the only thing they want to know is if
we are authorized to serve their papers. The attorneys of Texas are unconcerned with the training and
background of their process servers.
THE PROPONENTS OF LICENSING AND REGULATION JUST CANNOT PRODUCE ANY CONVINCING EVIDENCE
THAT PROVES ALL THESE PEOPLE ARE WRONG.