By: Wentworth S.B. No. 1305 (ANALYSIS IN RED)
A BILL TO BE ENTITLED; AN ACT, relating to service of process; creating a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 17, Civil Practice and Remedies Code, is amended by adding Sections 17.028, 17.029,
and 17.030 to read as follows:
Sec. 17.028. RETURN OF SERVICE. A person who serves process shall complete a return of service that is endorsed on or
attached to the original process issued and must:
(1) state when process was served;
(2) state on whom process was served; and
(3) be signed under penalty of perjury by the person making the service.
While the proposal in section (3) would make life easier on some of us, this change could have been made long ago by the
Supreme Court. Furthermore, this issue is already being addressed in another bill, House Bill 728. An argument could be
made that this change would enable more competition because it could make it easier for anyone thinking about becoming a
private process server. Also, signing under a penalty of perjury instead of before a notary removes the server's fifth
amendment rights.
Sec. 17.029. SUBSTITUTED SERVICE ON PRIVATE MAIL BOX. Service of process may be made on the private mail box of a
person named in the citation if:
(1) it can be established:
(A) that the private mail box account is active; and
(B) a valid United States postal signature card is on file at the private mail box business office; and
(2) reasonable efforts have been made to obtain service of the person in another manner prescribed by law.
This is another change the Supreme Court could have made long ago. This provision is useless as most private mailbox
locations will not release information about boxholders, hence the word "PRIVATE." Sub. service at a private mailbox is
already possible pursuant to Rules 106 & 536, T.R.C.P.
Sec. 17.030. SERVICE AT GATED COMMUNITY. (a) In this section:
(1) "Civil process" means all process issued or sanctioned by a civil court, except that the term does not include service of
any writ that requires the actual taking of possession of a person, property, or thing or an enforcement action required of or
directed to a peace officer related to the taking of possession of a person, property, or thing.
(2) "Gated community" means a residential subdivision or housing development that contains two or more dwellings not
under common ownership and that has a vehicular or pedestrian gate.
(3) "Process server" means a person certified by the supreme court who serves civil process.
(b) A process server engaged in the discharge of official duties shall be admitted to a gated community for the purpose of
delivering civil process.
(c) It is an affirmative defense to a cause of action for trespass that at the time the cause of action arose the process
server was engaged in the discharge of official duties.
(d) A property manager or security guard who in good faith grants access to a gated community as provided by Subsection
(b) is not liable for any damages that may arise as a result of that act.
This provision WILL NOT remain in this bill. The Texas Apartment Association will kill this bill if it's left in. Furthermore, this
section only applies to process servers who are "certified" denying other lawful servers including sheriffs and constables
thereby creating two classes of process servers.
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 by the party making the service.
See the first analysis comment above. The Supreme Court could have made this change long ago but neither TPSA leaders
nor the PSRB asked for it. This is simply an effort to gain support for the true intention of this bill, collecting fees from
process servers.
SECTION 3. Subchapter A, Chapter 51, Government Code, is amended by adding Section 51.008 to read as follows:
Sec. 51.008. COLLECTION OF FEES; PROCESS SERVER REVIEW ACCOUNT. (a) The clerk of the supreme court may collect
reasonable fees fixed by the order or rule of the supreme court from a person certified by the supreme court to serve
process. Fees collected under this section shall be deposited in the judicial fund for the process server review account.
(b) Funds in the process server review account may be used only for the support of programs approved by the supreme
court for the certification of process servers.
SECTION 4. Subchapter B, Chapter 72, Government Code, is amended by adding Section 72.013 to read as follows:
Sec. 72.013. PROCESS SERVER REVIEW BOARD. A person appointed to the process server review board is entitled to
reimbursement for travel expenses incurred in attending process server review board meetings. Reimbursement may be
made from the process server review account in the judicial fund.
THIS IS WHAT THIS BILL IS REALLY ALL ABOUT! The proponents of licensing our industry have been unsuccessful for the
last 19 years. They are still trying to achieve this goal by changing our simple certification program into regulation. This bill
is about allowing the Supreme Court to assess and collect fees from process servers that will enable further unnecessary
regulation of the industry. Take a closer look at part (b)"Funds in the process server review account may be used only for
the support of programs approved by the supreme court for the certification of process servers." This is the heart of the
bill. This wording gives the Supreme Court authority to do whatever they wish with the money they collect pertaining to
process servers and there is nothing that says what the "programs" will be, how much the fees will be and nothing
preventing those fees from going up.
SECTION 5. Section 5.201, Business Organizations Code, is amended by amending Subsection (c) and adding Subsection (d)
to read as follows:
(c) The registered office:
(1) must be located at a street address where process may be personally served on the entity's registered agent or the
entity's agent or clerk;
(2) is not required to be a place of business of the filing entity or foreign filing entity; and
(3) may not be solely a mailbox service or a telephone answering service.
(d) A filing entity or foreign filing entity may be served with process by serving an agent or clerk at the registered office of
the filing entity or foreign filing entity.
SECTION 6. Section A, Article 2.07, Texas Non-Profit Corporation Act (Article 1396-2.07, Vernon's Texas Civil Statutes), is
amended to read as follows:
A. The president and all vice-presidents of the corporation and the registered agent of the corporation shall be agents of
such corporation upon whom any process, notice, or demand required or permitted by law to be served upon the
corporation may be served. Where the chief executive function of a corporation is authorized to be performed by a
committee, service on any member of such committee shall be deemed to be service on the president. A corporation may
be served with process by serving an agent or clerk at the registered office of the corporation.
SECTION 7. Section A, Article 8.09, Texas Non-Profit Corporation Act (Article 1396-8.09, Vernon's Texas Civil Statutes), is
amended to read as follows:
A. The president and all vice-presidents of a foreign corporation authorized to conduct affairs in this State and the
registered agent so appointed by a foreign corporation shall be agents of such corporation upon whom any process, notice,
or demand required or permitted by law to be served upon the corporation may be served. Where the chief executive
function is performed by a committee, service may be had on any member thereof. A foreign corporation may be served
with process by serving an agent or clerk at the registered office of the foreign corporation.
SECTION 8. Section A, Article 2.08, Texas Limited Liability Company Act (Article 1528n, Vernon's Texas Civil Statutes), is
amended to read as follows:
A. The managers, if any, and the registered agent shall be agents of a limited liability company or foreign limited liability
company upon whom any process, notice, or demand required or permitted by law to be served upon the limited liability
company or foreign limited liability company may be served. A limited liability company or foreign limited liability company
may be served with process by serving an agent or clerk at the registered office of the limited liability company or foreign
limited liability company.
SECTION 9. Section 1.08(a), Texas Revised Limited Partnership Act (Article 6132a-1, Vernon's Texas Civil Statutes), is
amended to read as follows:
(a) Each general partner and the registered agent of a limited partnership are agents of the limited partnership on whom
may be served any process, notice, or demand required or permitted by law to be served on the limited partnership. A
limited partnership may be served with process by serving an agent or clerk at the registered office of the limited
partnership.
SECTION 10. Section 10.05(j), Texas Revised Partnership Act (Article 6132b-10.05, Vernon's Texas Civil Statutes), is
amended to read as follows:
(j) Each partner and the registered agent of a foreign limited liability partnership registered in Texas are agents of the
foreign limited liability partnership on whom may be served any process, notice, or demand required or permitted by law to
be served on the foreign limited liability partnership. A foreign limited liability partnership may be served with process by
serving an agent or clerk at the registered office of the foreign limited liability partnership.
SECTION 11. Section 5.20(A), Texas Real Estate Investment Trust Act (Article 6138A, Vernon's Texas Civil Statutes), is
amended to read as follows:
(A) The president, all vice presidents, and the registered agent of the real estate investment trust are agents of the real
estate investment trust on whom any process, notice, or demand required or permitted by law to be served on the real
estate investment trust may be served. A real estate investment trust may be served with process by serving an agent or
clerk at the registered office of the real estate investment trust.
SECTION 12. Section A, Article 2.11, Texas Business Corporation Act, is amended to read as follows:
A. The president and all vice presidents of the corporation and the registered agent of the corporation shall be agents of
such corporation upon whom any process, notice, or demand required or permitted by law to be served upon the
corporation may be served. A corporation may be served with process by serving an agent or clerk at the registered office
of the corporation.
SECTION 13. Section A, Article 8.10, Texas Business Corporation Act, is amended to read as follows:
A. The president and all vice presidents of a foreign corporation authorized to transact business in this State and the
registered agent so appointed by a foreign corporation shall be agents of such corporation upon whom any process, notice,
or demand required or permitted by law to be served upon the corporation may be served. A foreign corporation may be
served with process by serving an agent or clerk at the registered office of the foreign corporation.
Theses sections have nothing to do with process servers. It pertains to the rules regarding how process is served, not who
may serve. This matter should be addressed in a bill of its own, not a process servers' bill.
SECTION 14. Sections 36.06(a) and (b), Penal Code, are amended to read as follows:
(a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:
(1) in retaliation for or on account of the service or status of another as a:
(A) public servant, process server, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or
(2) to prevent or delay the service of another as a:
(A) public servant, process server, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime.
(b) In this section:
(1) "Civil process" means all process issued or sanctioned by a civil court, except that the term does not include service of
any writ that requires the actual taking of possession of a person, property, or thing or an enforcement action required of or
directed to a peace officer related to the taking of possession of a person, property, or thing.
(2) "Honorably retired peace officer" means a peace officer who:
(A) did not retire in lieu of any disciplinary action;
(B) was eligible to retire from a law enforcement agency or was ineligible to retire only as a result of an injury received in
the course of the officer's employment with the agency; and
(C) is entitled to receive a pension or annuity for service as a law enforcement officer or is not entitled to receive a pension
or annuity only because the law enforcement agency that employed the officer does not offer a pension or annuity to its
employees.
(3) [(2)] "Informant" means a person who has communicated information to the government in connection with any
governmental function.
(4) "Process server" means a person who serves civil process.
(5) [(3)] "Public servant" includes an honorably retired peace officer.
SECTION 15. (a) The change in law made by Section 14 of this Act applies only to an offense committed on or after the
effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any
element of the offense occurs before the effective date.
(b) An offense committed before the effective date of this Act is governed by the law in effect when the offense was
committed, and the former law is continued in effect for that purpose.
SECTION 16. 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.
Assault is already against the law. Assault on process servers is not a problem in our industry. This is just one more
example of fluff being added to a "FEES" bill to gain support. It is unrealistic to think that someone who is considering
assaulting a process server would stop short because of this increase in the level of such a violation.
SECTION 17. This Act takes effect September 1, 2007.
FINAL ANALYSIS:
Why didn't the Court set up this system of fees from the onset? Why didn't the Court make the newly adopted Rule 14 part of
the initial program? In fact, if the program is working so wonderfully, as the PSRB Chairman claims, why do we need this
bill? Why do we need the new Rule 14? WHY WEREN'T MOST OF THESE CHANGES ALREADY MADE BY THE COURT?
Remember, Mr. Carl Weeks is both TPSA President AND Process Server Review Board Chairman. He could have asked the
Court to make these changes when he spearheaded the PSRB recommendations when the program first began.
THE SCAM!
Once again, the special interest group is using trickery to achieve their goal of industry regulation. It is impossible for them
to achieve anything without it because, standing alone, their goals have no merit. This bill is endorsed by leaders of the
Texas Process Servers Association. They assured their members and the industry that they were happy with the
certification program; that was a lie. They assured they WOULD NOT file any legislation this session; that too was a lie.
After the last session, they claimed the legislature did them a favor by killing their own bill; that was a lie. They promised to
address certain issues in this current bill (the bill they said they wouldn't file); that was an empty promise. When TPSA
leaders were selling this legislation to existing and prospective members, they made several promises they couldn't
possibly keep. They knew the Texas Apartment Association prevented their last attempt to grant process servers
unfettered access to gated communities, but, they promoted it anyway. They promised to include sub. service at a
residence on the first attempt (one issue process servers were most interested in), but, that didn't make it into this bill.
They promised to make the service of process a defense to prosecution, not just in gated communities, but everywhere and
that didn't make it into their bill either. And, when the Texas Apartment Association has the "gated community" provision
removed (and it will be removed) the defense to prosecution will go out with it. Despite all these shortcomings, they still took
everyone's money; money now being used to push for legislation that will only cost those very members even more money in
the future; money that will enable even further regulation. Furthermore, while promoting this legislation, they didn't once
mention the OTHER changes being pursued by the association's leadership. Click here to see the real reasons for this bill
and exactly why TPSA leaders need your money. CAN YOU REALLY TRUST THEM??? Regardless whether or not this bill, or
any part of it, would be beneficial, until the "FEES" section is removed, no process server should consider supporting it.
This analysis is brought to you by the process servers behind the Certified Civil Process Servers Association of Texas who
fight tirelessly for your rights and freedoms. We will continue to uncover and expose the lies, greed and deception of those
who would have you put out of business to satisfy their ulterior motives and hidden agendas.
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