CIVIL PROCEDURE An individual licensed under the provisions of Section 1, Chapter 74, O.S.L. 1976 (12 O.S. 158.1 [12-158.1] (1976)) may not levy an attachment or an execution, but may serve any process designed to compel the appearance before a court of a party to a civil action.
The Attorney General has considered your request for an opinion wherein you ask, in effect, the following question: "May private process servers, licensed under the provisions of Section 1, Chapter 74, O.S.L. 1976 (12 O.S. 158.1 [12-158.1] (1976)), issue a writ of execution, and if they may not, what limitations are placed upon their actions ?" The statute in question, 12 O.S. 158.1 [12-158.1] (1976), provides as follows: "Service and return of process in civil cases filed in counties with a population of three hundred thousand (300,000) or more, as determined by the latest Federal Decennial Census, may be by an authorized licensed private process server.
The presiding judge of the judicial administrative district in which the county is located shall be authorized to issue a license to make service of process in civil cases to a person deemed qualified to so do. The licensee's authority shall be confined to the geographical boundaries of the county wherein the license is issued.
Any person eighteen (18) years of age or older and of good moral character found ethically and mentally fit may obtain such license by filing application therefor with the court clerk on a verified form to be prescribed by the Administrative Director of the Courts. The applicant filing for such license shall pay a license fee of Ten Dollars ($10.00), and the regular docketing, posting and mailing, and filing fees prescribed by law.
At the end of one (1) calendar year from the date of issuance of the initial license, the license shall be renewed for a period of one (1) year. The license shall be renewed each succeeding year. A fee of Five Dollars ($5.00) per year shall be charged for renewal of license. All fees collected pursuant to this act shall be deposited in the court fund. Upon the filing of the application for license, the court clerk shall give five (5) days' notice of hearing by causing the same to be posted in the courthouse.
A copy of said notice shall be mailed to the district attorney, the sheriff and the chief of police or marshal in the county seat. Said notice shall contain the name of the applicant and the time and place the presiding judge will act upon said application.
If, at time of consideration of the application, there are no protests and the applicant appears qualified, the application for said license shall be granted by the presiding judge and, upon executing bond running to the State of Oklahoma in the amount of Three Thousand Dollars ($3,000.00) for faithful performance of his duties and filing said bond with the court clerk, the applicant shall be authorized and licensed to serve civil process within the geographic limits of the county.
Proof of service of process shall be shown by affidavit as provided by 12 O.S. 158 [12-158], Oklahoma Statutes. Provided, if any citizen of the county files a written protest setting forth objections, then the district court clerk shall so advise the presiding judge, who shall set a later date for hearing of application and protest. Said hearing shall be held within thirty (30) days and after notice to all persons known to be interested.
The district attorney of the county wherein a license authorized under this act has been issued may file a petition in the district court to revoke the license of any licensee alleging the violation by the licensee of any of the provisions of the law. Thereafter, following at least ten (10) days' notice by certified mail to the licensee, the chief or presiding judge, sitting without jury, shall hear said petition and enter an order thereon.
If said license is revoked, the licensee shall not be permitted to reapply for another license for a period of one (1) year from date of revocation. Provided, however, notwithstanding any other provisions of this act, any licensee whose license has been revoked one time only shall pay the sum of One Hundred Dollars ($100.00) as a renewal fee and the sum of Two Hundred Dollars ($200.00) for any renewal of license following a second or subsequent revocation.
The district court clerk shall keep posted at all times in his office the list of licensed process servers. Any person in need of a process server's services may designate one from the name on the list, before presenting summons to the court clerk for issuance, without necessity for individual judicial appointment.
The other provisions of the Oklahoma Statutes applicable to the question you have posed are 12 O.S. 731 [12-731] and 12 O.S. 752 [12-752] (1971). 12 O.S. 731 [12-731] provides as follows: "Executions shall be deemed process of the Court, and shall be issued by the clerk, and directed to the sheriff of the county.
They may be directed to different counties at the same time." 12 O.S. 752 [12-752] provides as follows: "It shall be unlawful for anyone to levy an attachment or execution within this State, who is not a bonded officer." As will be noted by an examination of these last two quoted Sections of the Statutes, only a bonded officer, and in particular, the sheriff, may levy an attachment or execution.
Thus, the license issued under the provisions of 12 O.S. 158.1 [12-158.1] (1976) does not empower the individual so licensed to levy attachment or execution. As will be noted from an examination of the first sentence in 12 O.S. 158.1 [12-158.1], the statute is applicable to "service and return of process in civil cases" subject to certain requirements set forth in the statute.
Further, the last sentence of this statute uses the phrase "before presenting summons to the Court Clerk for issuance," which indicates legislative intent that the "process" referred to in the Statute is that which compels a party to an action to appear in Court.
In the case of Emerson v. Emerson,130 Okl. 140, 265 P. 1078 (1928), the Supreme Court of Oklahoma, in construing the word "process," made the following statement which is of benefit in answering the question you have posed: "The legal meaning of the word 'process,' as used in statutes, varies according to the context, subject-matter, and spirit of the statute in which it occurs.
Generally, it means the writ, notice, or other formal writing, issued by authority of law for the purpose of bringing the defendant into a court of law to answer plaintiff's demands in a civil action, although in a more enlarged signification the term is frequently applied to all the proceedings of any court.
It is so denominated because it proceeds or issues forth in order to compel the appearance of the defendant." With this statement of the Supreme Court in mind, an examination and interpretation of 12 O.S. 158.1 [12-158.1] leads to the conclusion that individuals licensed under the provisions of this statute are allowed to serve only those types of process which compel the appearance before a court of a party to a civil action.
It is, therefore, the opinion of the Attorney General that your question be answered as follows: An individual licensed under the provisions of Section 1, Chapter 74, O.S.L. 1976 (12 O.S. 158.1 [12-158.1] (1976)) may not levy an attachment or an execution, but may serve any process designed to compel the appearance before a court of a party to a civil action. (JAMES C. PECK)
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