PRIMARY BASIS OF THE LAWSUIT:
The lawsuit is NOT about the fight over licensing. It is about alleged violations of the
Constitutions of the United States and Texas. The plaintiffs’ original complaint alleges that
the Texas Supreme Court has violated the separation of powers by usurping the authority
of the Texas Legislature and legislating from the bench a regulatory agency; and through
that agency, violating the Constitutionally protected rights of Texas citizens.
FACTS:
Only the Texas Legislature can license and/or regulate a free-enterprise industry or
profession. This is the foundation of the lawsuit. Facts that support this are:
(a) The Texas Constitution requires all regulatory boards to be created by law.
(b) The Texas Government Code places the responsibility upon the Texas Legislature
both to determine the public’s need for regulating and industry; and for creating that
regulation, if deemed necessary. (The Texas Sunset Commission has the responsibility of
determining if the form of regulation sought by the Legislature is the minimum necessary
to do the job or if an existing agency can accomplish the necessary goal.)
(c) The PSRB is unique; there is no other regulatory board or agency in Texas that was
not created by enabling legislation.
(d) The PSRB is not subject to the Texas Sunset Act as are all other regulatory boards.
(e) PSRB members are not restricted to two-year terms as are all other regulatory
board members.
(f) The PSRB performs virtually all the same duties performed by the Texas Department
of Licensing and Regulation (a legislatively created agency.)
(g) The Supreme Court cannot fund the PSRB without legislative approval; if the Court
cannot provide regulatory funding, they cannot create regulation.
(h) All courts, including the Texas Supreme Court are charged with the duty of
adjudicating matters that are brought before them. Regulating a free-enterprise industry is
not the duty of any court.
(i) The Texas Supreme Court misapplied its “administrative” rule making authority
when it, (1) created a certification program that required training and the mandatory
submission of private criminal records; (2) created the PSRB to perform regulatory duties,
and; (3) created Rule 14, Rules of Judicial “Administration.”
(j) Rule 14 is clearly a regulatory rule; the Supreme Court can only create
administrative rules.
(k) The Supreme Court claims it created the PSRB to provide administrative assistance
to the Court. However, the Court assigned its Office of Court Administration to provide
administrative support to the PSRB.
(l) The Supreme Court (and the PSRB) must rely on applicants to supply the DPS
criminal background check because it cannot access those records without legislative
approval. If they did, it would be a criminal act; this is why a bill is being planned that will
give the PSRB the authority to access DPS records.
Two of the bills planned for filing by the leadership of the TPSA actually prove the
Supreme Court cannot create regulation. They are the “PSRB Funding Bill” and the
“Access to DPS Records Bill.” If the Court had the power to create regulation, they would
have the power to fund the program and to access DPS records. THEY DON’T!
The fact that the PSRB is a rogue and unlawfully created agency is demonstrated by the
fact that it is empanelled with several members who would be ineligible had the Texas
Legislature created the board. For instance:
(a) Regulatory boards cannot have members who are also officers or directors of a trade
association that the board regulates: The PSRB had three and now has two such
members.
(b) Regulatory boards cannot have members who sell, promote or teach training courses:
The PSRB has four such members.
(c) Regulatory boards should have no members who represent a conflict of loyalty: The
PSRB has two constables, one former president of a constables’ association and a pro-
constable judge. Constables are on record stating that they do not believe private
individuals should be allowed to serve civil court process.
(d) Regulatory boards should have at least one-third members from the public: The
PSRB has no such members.
(e) Members of legitimate regulatory boards undergo training in the areas of conflicts of
interest, Robert’s Rules of Order, the Texas Open Meetings Act, the Texas Sunset Act, and
proper conduct. Members of the PSRB have had no such training.
SECONDARY BASIS OF THE LAWSUIT:
Allegations that the Supreme Court and the PSRB have violated constitutional rights of
individual process servers is the second basis for the lawsuit. These violations include,
the right to be treated as innocent until proven guilty in a court of law, the right to face one’
s accuser, the right to appeal, the right to equal protection under the law, and the right to
due process.
MYTHS:
Myth No. 1: Forces responsible for the lawsuit, in particular, Mr. Tod Pendergrass, only
want to destroy the industry.
Should the merits of the lawsuit be valid and a federal court judge decree that the
certification program and the PSRB are unconstitutional, the statewide authority that
certification provides will die with it. There are two very important issues relating to this
possibility that opponents of the lawsuit are neglecting to mention.
First, statewide authority can be achieved in many ways; most of those ways without
imposing any level of government-imposed regulation upon the industry. Removing
certification does not mean statewide authority must be forfeited. If it is determined that
certification (a form of regulation) is the preferred method, it MUST be done by the
Legislature, not by the Court. The Legislature has demonstrated at least fifteen times that
it does not consider regulation necessary for the private process serving industry.
Procuring statewide authority for process servers, then, can easily be accomplished by
either an act of the Legislature, or a simple amendment to the TRCP by the Court.
Second, no process server should support statewide authority that comes at the cost of
constitutional violations. A violation of the constitutional rights of one citizen is the same
as violating the rights of all citizens. Statewide authority is important to each and every
process server, including Mr. Pendergrass, who relies daily upon his certification. It
makes little sense that he would either support or pursue the destruction of his own career.
Myth No. 2: A lawsuit was filed using the names of members of the Certified Civil Process
Servers Association of Texas.
The lawsuit was filed by Mr. Pendergrass as an individual plaintiff and as a director of the
CCPSAT. It does not contain the names of any CCPSAT members. The association is a
plaintiff because the careers and constitutional rights of all process servers are in
jeopardy. Just being a CCPSAT member does not mean each member is in support of the
lawsuit. One can be a member but oppose all or part of the suit.
Myth No. 3: CCPSAT members are vulnerable to a counter-suit.
Defendants in the suit can in no way sue CCPSAT members. This is not just a myth, it is
an outright lie.
Myth No. 4: CCPSAT leaders are felons themselves.
This is another lie that has been the basis for ongoing attacks for years. No CCPSAT
leader has any felony convictions or convictions of misdemeanors involving moral
turpitude. All CCPSAT leaders hold other licenses, certificates or commissions that would
be precluded by such convictions. The persons who started these rumors are corrupt and
dishonest individuals who, because they have no valid merit to their own arguments, have
created this slander to undermine the character, integrity and influence of those who
oppose them. Those who have repeated these rumors without seeing an order of
conviction with their own eyes have been unwittingly manipulated to do exactly what the
perpetrators want them to do; spread the lies for them, and become their fall guys should
lawsuits be filed to oppose the slander.
Myth No. 5: Mr. Pendergrass is in favor of felons and “any Joe off the street” being able to
serve process.
This myth is perpetuated as a scare tactic designed to create irrational fear. Felons can
already serve process and the PSRB has certified several. Any Joe off the street already
can get certified. The questions these pro-regulators can’t answer are, “Are felons
causing a problem in our industry?” (and if so, why has the PSRB certified convicted
felons?) and “Why has certification attracted so many new servers to the industry?” If
they claim felons are causing a problem or others are breaking laws related to the service
of process, just ask them to provide their evidence. They can’t do it. Out of the millions of
papers served by thousands of private process servers over the last 20 years, proponents
of licensing and regulation cannot produce more than one or two examples of complaints
related to process servers who have any criminal history. Our industry is SQUEAKY
CLEAN.
This myth also ignores the current standards. Long before Mr. Pendergrass served his
first paper, standards existed that allow the service of process by virtually anyone not less
than 18 years of age. Not only is there no evidence to support regulation, compared to the
standards below, regulation isn't even in the same ballpark. Here is the truth:
THE UNITED STATES SUPREME COURT-
The US 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. The contract for what
represents over one million dollars worth of service fees annually is currently held by a
COURIER COMPANY! 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 20years 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 5 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.
ALL THESE PEOPLE, THE POWERS THAT BE, SUPPORT THE SERVICE
OF CIVIL AND CRIMINAL COURT PROCESS BY VIRTUALLY ANY
PERSON OVER 18. THEY ARE UNCONCERNED ABOUT THE SERVER'S
TRAINING AND THEY ARE UNCONCERNED ABOUT THE SERVER'S
BACKGROUND. THE PROPONENTS OF LICENSING AND REGULATION
JUST CAN'T PRODUCE ANY CONVINCING EVIDENCE THAT PROVES
ALL THESE PEOPLE ARE WRONG.
SUMMARY:
The above provisions allow virtually anyone to serve process. Mr. Pendergrass is not
responsible for any of these current and long standing standards. He simply points out
how these standards stand in stark contrast to the Texas Supreme Court’s certification
program and the concept of regulation generally. These standards are one reason the
Texas Legislature has REFUSED to regulate Texas process servers some 15 TIMES!
Another reason is because process service in Texas does not meet the accepted
standards for regulating an occupation in Texas. Regulation is only appropriate when one
or more of the following are met:
(a) the occupation represents a threat of harm to the public;
(b) the occupation requires highly technical training, and/or;
(c) the occupation is fraught with pervasive fraud that cannot be controlled without
regulation.
NONE OF THESE CRITERIA APPLY TO THE SERVICE OF CIVIL COURT PROCESS BY
PRIVATE INDIVIDUALS IN TEXAS.
THE SOLUTION:
Remove the need to acquire a written order from the court. This would make the service of
citations, writs and injunctions the same as subpoenas and federal process. It would
remove the double standard that exists between the service of AG child support process
and all other process. It would remove the double standard that exists between the
overwhelming current standards of federal and other states’ process and the service of
Texas process. IT WOULD PROVIDE A REMEDY TO THE MESS CREATED BY THE
PROCESS SERVER REVIEW BOARD. It would also leave the policing of our industry up
to the real police and to the criminal courts. The bottom line that relates to both the lawsuit
and the fight over licensing/regulation is this:
IF THE PRIVATE PROCESS SERVICE INDUSTRY IN TEXAS IS TO BE REGULATED, IT
MUST BE DONE CORRECTLY. IT MUST BE DONE FAIRLY. IT MUST BE DONE
LAWFULLY; AND IT CAN ONLY BE DONE BY THE TEXAS LEGISLATURE.
Story by:
Tod E. Pendergrass
800-205-3007
Facts and Myths about Regulation and the Federal Lawsuit
filed against the Texas Supreme Court and the Process
Server Review Board
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