December 8, 2008-
IRATE PROCESS SERVER GIVES PSRB A TONGUE
LASHING
TPSA President Licks Board’s Wounds
On December 5, 2008, the PSRB held its fourteenth quarterly meeting and, man, was it a doozey. If
you weren’t there, you missed a real experience.
Things began as usual as the Board moved through its agenda. During the requests for
reconsideration, the Board heard from Mr. Vogel. Mr. Vogel met all the qualifications for
certification and was fully qualified to become certified. Unfortunately for Mr. Vogel, he was
recently arrested and charged with DWI. Based on his arrest record, the Board denied him even
though he is completely innocent. The Board’s decision to deny Mr. Vogel was a direct violation
of Rules of Judicial Administration Rule 14; the rule that governs the PSRB decision making
process. Following is text from Rule 14:
14.4 Certification
(a)(2) “The application must contain a statement indicating whether the applicant has ever
been convicted of a felony or of a misdemeanor involving moral turpitude. The application must
include a criminal history record obtained within the preceding 90 days from the Texas
Department of Public Safety in Austin, Texas. If an applicant's criminal history reflects legal
proceedings for which a final disposition is not clearly show, the applicant bears the burden of
establishing that he or she has not been convicted of a felony or of a misdemeanor involving
moral turpitude. The Board may deny certification to an applicant convicted of a felony or of a
misdemeanor involving moral turpitude. If an applicant's criminal history reflect that the applicant
was charged with a felony or a misdemeanor involving moral turpitude and the charges resulted
in an outcome other than acquittal or conviction (such as pretrial diversion, probation, deferred
adjudication, community supervision, or similar result), the Board may consider such history in
determining whether the application should be granted.”
A person who has been arrested, but, has yet to have their day in court does NOT have a criminal
history. Arrests CANNOT be used to deny certification. There is a very good reason for this. It is
called the Constitutional right of being treated innocent until proven guilty in a court of law. This
is one more example of why the members of the PSRB find themselves defendants in a federal
lawsuit. They just don’t seem to understand that they are violating the rights of Texans; and
breaking their own rules to do it.
Look closely at Rule 14.4. It explains exactly for what the Board may deny certification. It reads,
“If an applicant's criminal history reflect that the applicant was charged with a felony or a
misdemeanor involving moral turpitude and the charges resulted in an outcome other than
acquittal or conviction (such as pretrial diversion, probation, deferred adjudication, community
supervision, or similar result), the Board may consider such history in determining whether the
application should be granted.”
This DOES NOT include “arrests” for charges that have been dropped or have yet to be heard in a
“legal proceeding.”
Making matters worse, the PSRB abused Mr. Vogel by placing upon him a higher standard than
that which applies to the rest of us. As Supreme Court certified process servers, most of us know
we are required to inform the Court if we become convicted of a felony or misdemeanor involving
moral turpitude and immediately stop serving process (as a certified server.) Rule 14.5(a)(2)
makes this clear:
“A certified process server who, after obtaining statewide certification, is convicted of a felony
offense or of a misdemeanor offense involving moral turpitude shall immediately notify the Clerk
of the Supreme Court and cease to serve process pursuant to his or her statewide certification.”
Again, DWI is not a crime of moral turpitude! Any certified process server who gets convicted of
misdemeanor DWI does NOT have to tell the Court (or the PSRB) and may continue serving
process. Not only has Mr. Vogel not been convicted of any crime, the crime he is accused of is
not a felony or an issue of moral turpitude. So, why would the PSRB think it could deny an
applicant for such a conviction, much less charges that have not been heard by a legitimate court
of law?
I think I just found the keyword "legitimate." The PSRB is not legitimate; they are illegitimate. Mr.
Vogel’s reconsideration, like his original application was denied by the PSRB for reasons that are
baseless and groundless. If he wants to appeal the Board’s reconsideration, he must now ask a
panel of judges to review the PSRB’s original denial and reconsideration. This whole process will
delay Mr. Vogel up to six months or more; completely unreasonable especially in light of the fact
that the PSRB has, in the past, certified at least one individual who has a felony DWI conviction!
I must also report in addition to the above reasons, the Board was concerned about Mr. Vogel’s
drivers license. He testified that he remains a licensed driver and his license has not been
suspended. Despite this, the Board cited as one of its reasons for denial the "possible"
suspension of Mr. Vogel’s drivers license at some point in the future. There is no requirement for
persons seeking Supreme Court certification to have a valid drivers license. This is just one
more violation by the PSRB.
The PSRB completely ignores the rules laid down by the Supreme Court and operates pursuant to
their own laws; and the Court refuses to correct the Board. Again, the keyword “law” says it all.
The PSRB is not lawful, they are lawless. This is exactly what I have been warning about for more
than three years now. The PSRB is answerable to no one, the Court has not once corrected the
Board’s conduct, and the entire industry is vulnerable to the Board’s rogue behavior.
The next process server was not as passive as Mr. Vogel. Mr. Jerry Carlisle let the Board have it
with both barrels and gave them more than a piece of his mind. As with Mr. Vogel, the Board
violated Rule 14 to deny Mr. Carlisle’s renewal application.
Mr. Carlisle began his speech calmly and laid out the reasons why he felt the Board was wrong for
denying his renewal application. He used very concisely the Board’s own rules and legal
definitions against them. He read aloud the definitions of “criminal history” from Black’s Law
Dictionary and expressed his displeasure in being labeled a criminal by the Board. He explained
the difference between a “criminal” history and an “arrest” record. As he continued, his voice
rose as he explained how much time, money and lost business the Board had cost him. By the
end of his speech he was yelling at the Board and let them know in no uncertain terms that he
would not be abused and mistreated by the PSRB. At one point, PSRB member, Judge Tony
Lindsay, asked Mr. Carlisle if he would discuss the circumstances surrounding charges that had
been filed against him, but were later dropped. Without missing a beat he put her in her place and
let her know it was irrelevant to the proceedings and none of the Board’s business. The room
was silent. People were shocked, speechless and electrified. Mr. Carlisle's berating of the Board
was a long time coming.
Finally, Board member, Mark Blended, broke the silence and made a motion to approve Mr.
Carlisle’s renewal application. Before a second could be made, Mr. Carlisle’s attorney, Mr. David
Rogers, jumped in and had a go at them. He ran through Mr. Carlisle’s credentials and the more
than 1100 hours of training Mr. Carlisle had received during his decades long career as a Texas
law man. He pointed out that Mr. Carlisle is also a licensed private investigator and holds a
concealed handgun license. He also made sure the Board knew Mr. Carlisle is a 90% disabled
Vietnam veteran that relies on process service as one of the few jobs he can perform. Again, the
Board sat silently like a herd of deer caught in the headlights.
Finally, the Board was allowed to speak. A motion to approve Mr. Carlisle was made, seconded
and quickly (and unanimously) passed. Mr. Carlisle asked when he would receive word of his
renewal. Chairman, Carl Weeks, told him he was good to go that minute. Mr. Carlisle asked which
board member would be cutting him a check to repay him for all his lost money, time and
customers; the Board was silent. Mr. Carlisle then demanded an apology; again, the Board was
silent. He again asked for one member, any member to apologize. All he got was a send-off from
Mr. Weeks telling him he had been approved. Mr. Carlisle pounded his fist on the podium and
took one last departing shot at the Board warning them all that they had better be careful when
throwing rocks because “glass breaks,” an obvious reference to a well known Scriptural
passage. This upstanding citizen had made his point. He had successfully defended an attack on
his career and his character. After serving his country and serving his community, he left the
meeting with his dignity, and his certification in tow.
The next server of note to address the Board was Mr. Earl Rasco. The PSRB denied Mr. Rasco’s
renewal application because of his criminal history. Mr. Rasco admitted that he had violently
beaten his wife. He had been arrested and charged, but, had since met the terms of his deferred
adjudication and completed an anger management class. Mr. Rasco explained that he had made a
terrible mistake and expressed remorse for his actions. Appearing with Mr. Rasco as a character
witness was the president of the Texas Process Servers Association, Mr. Eric Johnson. Mr.
Johnson stated that he was shocked when he heard about Mr. Rasco’s attack on his wife.
Nevertheless, Mr. Johnson pleaded with the Board to renew Mr. Rasco’s certification. Making
motion to approve Mr. Rasco’s application was former TPSA president, Mr. Lee Russell. The
motion was seconded and the vote resulted in the approval of Mr. Rasco’s application.
In retrospect of the day’s activity, the PSRB had denied a police officer who had never been
convicted of a crime and then approved him only after he read them the riot act. They denied
another who has charges pending against him for crimes that are not disqualifying and who has
yet to be proven guilty. Then they approved an admitted wife beater; a person with a history of
violence, approved to go to the doors of Texas citizens to deliver what could be contentious bad
news. Does any of this seem strange to anyone else?
Finally, towards the end of the day, the TPSA president, Eric Johnson, again took the podium
during the public comments portion of the meeting. He offered to the Board a mentoring program
designed by TPSA leaders to help newcomers to the industry learn the ropes. He mentioned the
pending lawsuit and told the Board that he had spoken with many in the industry and there were
few who supported it. He went on to express to the Board what a great job he felt they are doing.
Mr. Johnson is a hypocrite. Out of one side of his mouth, he tells the industry that the PSRB is
necessary to regulate us and keep undesirables out of the business. Then, out of the opposite
side, he testifies on behalf of an admitted wife beater. He claims process servers are obligated to
pay for the operation of the PSRB and, like a faithful lap dog, obsequiously tells the PSRB what a
great job they are doing. Of the 3000 plus process servers and thousands of attorneys, judges
and legal professionals around the State, he claims to know who is and who is not in support of
the federal lawsuit filed against the PSRB. Mr. Johnson hasn’t a clue.
The truth is, the original certification orders were simple and straightforward. As originally
written, felons and those having convictions of any misdemeanor involving moral turpitude were
ineligible for certification. TPSA leaders tried to prevent certification in lieu of a strict and
burdensome license. When that failed, they urged members to submit letters to the Supreme
Court to implement the original certification program “as written.” Despite these rules, the PSRB
took it upon themselves to defy the Court’s orders and certified several individuals who had
felony and other disqualifying convictions. The Court stood by and let it happen.
If the PSRB had followed the rules (or if the Court had properly monitored and corrected the
Board) the original certification orders would have addressed adequately the issues surrounding
the applications of all three aforementioned process servers. Mr. Vogel would have been
immediately certified without being forced to wait months for a hearing and, until such time that he
became convicted of a disqualifying crime, he could have served all the process he wanted. Mr.
Carlisle would NEVER have been denied to begin with. His renewal would have been seamless
and he would not have incurred thousands of dollars in lost time, expenses, attorney’s fees and
lost clientel. Mr. Rasco, too, would have been seamlessly renewed because, pursuant to section
(a)(2) of Rule 14.5, RJA, he has not been convicted of a disqualifying crime. This provision was
included in the original orders that created certification.
All this proves positively the following: The PSRB is totally unnecessary. They are a complete
waste of beauracratic red tape and a danger to the careers of all process servers. Despite 100%
opposition from the public, Rule 14 was created and implemented for one reason, and one reason
only; to cover up the PSRB’s indiscretions. What the industry needs is statewide authority.
Current civil and criminal law already address completely any violation a process server could
possibly commit.
If you are outraged by this story, join the fight by joining the Certified Civil Process Servers
Association of Texas FOR FREE! We stand for integrity, accountability and fairness. We don't want
your money and are OPPOSED TO THE TPSA LEADERS' FEES BILL. TPSA members need to hold
their leaders' feet to the fire and demand they keep their promises of never filing a fees bill.
Story by:
Tod Pendergrass
Director, CCPSAT
Director, Texas Process Watch