Opinion No. (2003) ( 2003 )

Dear District Attorney Eddie Wyant,

¶ 0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:

Pursuant to 12 O.S. 2001, § 158.1[12-158.1]¹ and 28 O.S. 2001, § 152.4, may a court clerk collect only fifteen dollars ($15.00) total for the renewal of a statewide private process server license, or must the court clerk collect a fifteen-dollar license fee as well as additional monies for court costs?

I. Introduction ¶ 1 In civil cases, service of process may be made by an authorized licensed private process server. 12 O.S. 2001, §158.1[12-158.1](A). A private process server may be authorized to make service of process in a particular county or on a statewide basis. Id. § 158.1(C)(1), (2). To be licensed a private process server must be eighteen (18) years of age or older, found to be ethically and mentally fit, and of good moral character. Id. § 158.1(B).

¶ 2 In addition to the substantive age and fitness requirements, there are certain procedural requirements involved at the district court level before a person will be licensed to be a private process server. First, the person must file an application with the court clerk on a verified form. Id. § 158.1(B). Following the filing of an application the court clerk posts notice of a hearing in the courthouse. Id. § 158.1(D). A copy of the notice is mailed to certain county officials. Id. At the hearing the judge will grant the license if the applicant is qualified, files a bond with the court clerk, and no protests are lodged against the applicant. Id. § 158.1(E).

¶ 3 The license issued by the district court is not valid for an indefinite period of time. Id. § 158.1(C)(1), (2). At the end of one year from the date the license was granted, the private process server must apply for a renewal of the license.Id. An applicant must pay a license fee both for the initial license and the renewed license. Id. When a person files an application to be licensed to make service of process, Section 158.1 expressly provides that in addition to the license fee the court clerk is to charge and collect "the regular docketing,posting, mailing, and filing fees prescribed by law." Id. § 158.1(C)(1) (emphasis added).

¶ 4 You ask, in addition to the renewal license fee, whether a court clerk is authorized to collect these court costs in addition to the license fee when an application to renew a statewide private process server license is filed.

II. Renewal Of A Statewide Private Process Server Licenses ¶ 5 The application for a statewide private process server license is governed, in part, by 12 O.S. 2001, § 158.1[12-158.1](C)(2). Section 158.1(C)(2) states that an applicant filing for a license shall:

Pay a license fee of One Hundred Fifty Dollars ($150.00), and the regular docketing, posting, mailing, and filing fees prescribed by law. The license shall contain the name, address, a brief description of the licensee, and, at the discretion of the district court clerk, a recent photograph of the licensee. The license shall state that the licensee is an officer of the court only for the purpose of service of process. The authority of the licensee shall be statewide. The license shall be carried by the licensee while on duty as a private process server. 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 three (3) years. . . . A fee of Fifteen Dollars ($15.00) per renewal shall be charged for each license renewal.

Id. (emphasis added).

¶ 6 The notice required to be given after the filing of a license application is specified at 12 O.S. 2001, § 158.1[12-158.1](D):

Upon the filing of an application for a license, the court clerk shall give five (5) days' notice of hearing by causing the notice to be posted in the courthouse. A copy of the notice shall be mailed to the district attorney, the sheriff, and the chief of police or marshal in the county seat and shall contain the name of the applicant and the time and place the presiding judge or the associate district judge or district judge designated by the presiding judge, will act upon the application.

Id. (emphasis added).

¶ 7 Section 158.1(E), which specifically deals with the renewal process, makes it clear that the hearing, notice, protest and court adjudication provisions apply to renewal applications:

If, at the time of consideration of the application or renewal, there are no protests and the applicant appears qualified, the application for the license shall be granted by the [judge] . . . and, upon executing bond running to the State of Oklahoma . . . the applicant shall be authorized and licensed to serve civil process statewide.

Id. (emphasis added).

¶ 8 The process for obtaining either an original or renewal statewide private process server license includes filing an application for the license and judicial approval. The license is renewed first after one year from the time the licensee received his or her license, and then again every three years. Like the initial application for the license, each time the licensee seeks to renew his or her license, notice of a hearing and judicial consideration of the application is required. Id. § 158.1(E). The same "docketing, posting, mailing, and filing" procedures are thus used for both renewal and initial license applications, and consequently apply in both initial and renewal application proceedings. See id. § 158.1(C)(1).

III. Title 28, Section 152.4 Of The Oklahoma Statutes Requires The Court Clerk To Collect Court Costs in Addition To The License Fee For The Renewal Of A Statewide Private Process Server License. ¶ 9 Section 158.1(C)(2) requires a fifteen-dollar license fee to be paid for the renewal of a statewide private process server license. Another statutory section requires collection of additional fees by the court clerks. That section provides:

In any proceeding for issuance of a license other than a marriage license, the court clerk shall collect at the time of filing the application for said license, court costs in the same amounts as required in civil cases in addition to other fees prescribed by law.

28 O.S. 2001, § 152.4[28-152.4] (emphasis added).

¶ 10 Section 152.4 requires court clerks to collect court costs in addition to the license fees prescribed by law. The provisions of 12 O.S. 2001, § 158.1[12-158.1](C)(1) specify that in addition to the private process server license fee, "the regular docketing, posting, mailing, and filing fees prescribed by law," are to be paid by applicants for process server licenses. Subsection E of Section 158.1, dealing with renewal applications for private process server licenses, makes it clear that the same judicial processes used in the case of an initial license application are used in the case of renewal applications as well. Thus, the same process, including "docketing, posting, mailing, and filing fees," is used in both original and renewal application situations. Id. § 158.1(C)(1). Accordingly, the same "docketing, posting, mailing, and filing fees" apply in both renewal and initial application cases. Id. Subsection C of Section 158.1 requires applicants to pay those fees in addition to the applicable license fee, and 28 O.S. 2001, § 152.4[28-152.4] requires the court clerk to collect those fees in addition to the applicable license fee.

¶ 11 It is, therefore, the official Opinion of the AttorneyGeneral that:

Under the provisions of 12 O.S. 2001, § 158.1, when an applicant files an application to renew a private process server license, the applicant, in addition to paying the applicable license fee, is also required to pay the "regular docketing, posting, mailing, and filing fees prescribed by law," (id. § 158.1(C)), and by virtue of 28 O.S. 2001, § 152.4, the court clerk is required to collect these additional fees.²

W.A. DREW EDMONDSON Attorney General of Oklahoma

GRETCHEN ZUMWALT-SMITH Assistant Attorney General

¹ An amendment was made in the 2003 First Regular Session of the Forty-Ninth Legislature; however, it is not germane here.See 2003 Okla. Sess. Laws ch. 440, § 1(C)(1) (amending 12 O.S.2001, 158.1(C)(1)).

² Under the Oklahoma Supreme Court Administrative Directive Number 2003-03, Uniform Fee Schedule, SCAD 2003-61, which became effective August 29, 2003, the regular fees to be charged in addition to applicable license fees are specified as follows:

Licenses

In addition to specific license fees listed below, the following fees are to be collected:

Filing Costs (Except Marriage Licenses)            $83    28 O.S. § 152.4[28-152.4], 19 O.S. § 220[19-220]
Mailing Notice for each person                     $10    28 O.S. § 152.4[28-152.4]
Posting of Notice                                  $31    28 O.S. § 152.4[28-152.4], 19 O.S. § 220[19-220]
Dispute Resolution Fee (Except Marriage Licenses)  $2     12 O.S. § 1809[12-1809]

Id. at 8 (emphasis added).