PSRB Meeting Report, December 8, 2006
Once again, there were no announcements made concerning the PSRB recommendations.
Months ago, PSRB Chairman Carl Weeks indicated that the Supreme Court Advisory
Committee was still considering the recommendations. However, the SCAC has had two
meetings since and the recommendations have not been discussed. It appears the
recommendations are a dead issue, that is, as far as the SCAC is concerned. Know this, if the
PSRB is given rule making authority you can bet your britches their first order of business will
be to enact the very recommendations the SCAC rejected.
This reality is a very real possibility. The Supreme Court has posted its Legislative
Appropriations Request. In this LAR, the Court is asking the Texas Legislature to designate
funds to place process servers under the same umbrella as are court reporters and guardians
ad litem. This is important because, the PSRB will be made a legitimate regulatory commission
and be given the same rule making authority as the Court Reporter Board. If this happens, the
process service industry will lose the protection of the legislature and some form of the
unnecessary and redundant PSRB recommendations will be implemented.
Even though the PSRB has been conducting itself as a rouge regulatory commission and
even though they have no authority to do many of the things they do, they fared much better at
this most recent meeting. For the first time since their creation, they acted more responsibly
and fairly when considering appeals and complaints. For this, they get a C minus. The reason
they didn't ace this meeting is because they are still handing out reprimands and placing
servers on probation; powers they do not have. Even holding hearings, taking testimony and
examining witnesses are powers that can only be granted by the Texas Legislature. In fact,
they continue to exercise powers they have asked permission to exercise in their own PSRB
recommendations. They still have the cart before the horse.
However, all things considered, the shining star of this meeting was, without a doubt, Judge
Joe Brown of San Antonio. At one point in the meeting, the Board was considering
disciplinary actions against a process server who had broken no laws and had traveled to
Austin, with an attorney in tow, to defend herself against a frivolous complaint. A motion to
discipline her with probation and a letter of reprimand resulted in a tie vote of four to four (with
Chairman Weeks refusing to vote and break the tie.) More discussion ensued, including the
server's attorney who pointed out that it was a subpoena that was being served which does
not require certification and should not fall under the Board's jurisdiction. Judge Tony
Lindsay responded by stating that she felt the Board does have the responsibility of
considering any unprofessional behaviour in making its decisions. She went on to say that if
the server were a rapist, she would be considering that. (Author's opinion: Behaviour that
may be construed as unprofessional is much different than a criminal offense. While any
criminal behaviour would be considered unprofessional, unprofessional behaviour is not
necessarily against the law. I was troubled by Judge Lindsay comparing this server's
situation to the seriousness of rape. In giving Lindsay the benefit of the doubt, maybe it was
just a bad choice of words. However, this and all "regulated" industries deserve board
members who are not so quick to make such inappropriate comparisons about people. Let's
just hope we, as an industry, can prove to her that we are professionals with the same needs,
concerns and rights as any other.) A second vote resulted in a five to three split in favor of not
disciplining the process server only because JUDGE BROWN CHANGED HIS VOTE!!! Thank
you Judge Brown from the entire industry for doing the right thing given the circumstances.
Every process server in Texas could only hope for your fair and just consideration should
they find themselves before the Board in a similar situation.
Next on the agenda was the matter of service on corporate registered agents. Board member
Attorney Mark Blenden announced that the Supreme Court's Judicial Council will present to
the legislature proposed changes to the rules that govern such service; the Texas Business
Organization Code, the Texas Business Corporation Act and the Civil Practices and Remedies
Code. This confirms what we here at Texas Process Watch have been saying, this is not a
process server training issue. It is a procedural issue that has nothing to do with a need for
increased process server training. In fact, TPW will be submitting additional information to
help the Council and the Legislature make the best informed decision.
On the agenda was the "McMichael Letter Regarding Discrepancies." Mr. Dana McMichael of
Assured Civil Process Agency in Austin submitted a letter suggesting the Court should add a
line to the process server application asking what name the server wishes to use to sign
returns of service. After discussion, and testimony from Tod E. Pendergrass of Direct Results
Legal Service in Austin, the Board decided to recommend that such a line be added. As
suggested by Mr. Pendergrass, the Board will also investigate the method used by the Texas
Secretary of State to commission Notaries Public with regard to this issue.
The Supreme Court's proposed Misc. Docket No. 06-9141 was also discussed. Mark Blended
expressed concern about and the inability of process servers to present witnesses and a need
for "live testimony." Constable Ron Hickman felt the proposal as written may create an "unfair
due process." Judge Lindsay indicated that the statement on the process server application
that the server has not been convicted of a felony or misdemeanor involving moral turpitude
should be changed to allow clearly the Board's ability to consider such convictions depending
on things like the amount of time that has passed since the conviction. Chairman Weeks
supported the idea of live testimony by expressing a desire to be able to ask questions during
hearings on complaints. Other issues were discussed that were aimed at the same type of
procedures the Court Reporters Board follows. Although the suggestions were supportive of
a need for fair changes, the overall atmosphere of the discussion on this matter was one that
pointed towards the PSRB being granted a regulatory status. It was obvious that our simple
statewide blanket order is in danger of being turned into full-blown regulation for process
servers. This will include a provision that ANYONE who wishes to serve ANY TYPE of process
will be required to become certified thereby bringing the entire industry under the control of
the PSRB. If the PSRB is turned into a regulatory commission, more and more process
servers like the one mentioned above will find themselves before this Board defending
themselves against frivolous complaints. This will include missing days of work, travel
expenses and the necessity of retaining a costly attorney to protect their rights and ability to
make a living. Just imagine how many frivolous complaints would be filed against honest law
abiding process servers by people who were simply upset that they were lawfully served.
Misc. Docket No. 06-9141 is currently open for public comment. It is strongly suggested that
all process servers and attorneys review this proposal and submit comments.
Please review the proposal and our sample letters.
Instructions on how to comment are at the bottom of that page. There were no public
comments on this proposal at this meeting. Let's not disappoint the Supreme Court Justices
by being silent during this comment period. They need to not only know what we want, they
need to know we are concerned enough about our industry to take part in its direction.
NOTE: Board member Jim Atwater, a private investigator and process server, was more
vocally active in this meeting than any other individual member. The industry needs him to be
present, if possible, at all future meetings as was witnessed how close some votes can be.
Had he not been present, at least one process server would have been unjustly disciplined
without cause. Thank you, Mr. Atwater, for voting with a degree of fairness, taking part in
discussions on almost every topic and asking questions that needed to be asked. Your time
and involvement is greatly appreciated. Thank you, also, to all the Board members for
volunteering your time at your own expense. Attending and voting your conscience is
commendable in itself regardless of whether or not everyone agrees with you.