March 5, 2007
SUPREME COURT SET TO ENACT RULE CHANGE DESPITE
INDUSTRY OPPOSITION
New Rule Will Give PSRB Power To End Your Career!
The Supreme Court recently posted its final version of the proposed Rule 14. A total of 35
comments were received by the Court during the public comment period. 32 COMMENTS
ARE OPPOSED TO THE RULE AS WORDED; NOT ONE IN SUPPORT!!! Most comments
state that the entire rule is unnecessary and request that the Court not enact it. (And guess
who the three were who submitted the only comments in support... PSRB members,
Chairman Carl Weeks, Constable Ron Hickman and Judge Tony Lindsay.)
This rule also contains many elements found in the PSRB's recommendations of which the
Supreme Court's Advisory Committee REJECTED ALL. The SCAC viewed the PSRB
recommendations as overly intrusive because our certification was, in the words of one
SCAC member, created to be nothing more than "a blanket order on steroids."
[See the SCAC meeting report] and [See the PSRB meeting report on Dec. 8, 2006]
WHAT'S GOING ON HERE??? Why is the Court ignoring its own Advisory Committee and
the desires of the industry and promoting changes supported by constables and special
interest groups?
As worded, Rule 14 will give the PSRB the power to revoke your certification based on a
frivolous complaint. Before an appeal can be made, a process server who has been
disciplined (including revocation) will be required to request a "reconsideration" which
Texas Process Watch has labeled "A DELAY TACTIC!!!" This requirement will force servers
who have been revoked to wait for up to three months or more for the next PSRB meeting.
For those servers who can't operate without their certification for one single day, THIS IS A
DEATH SENTENCE FOR THEIR CAREERS. Every day a server is prevented from serving
process is the same as a day without a paycheck. This practice would also create a lasting
effect by causing a loss of clientel; if attorneys can't use a server, they will move on to
someone else. And, that's just for the lengthy "reconsideration" process; the server will
then have to wait who knows how long for an appeal before a panel of judges. As
specifically stated in this rule, Section 14.5 (d)6 reads, "...imposition of any disciplinary
action [including revocation] is effective immediately following a majority vote to impose that
action and is not stayed pending appeal." For those successful in getting the PSRB
decision overturned, they won't have any clients left to pick up the pieces.
The PSRB routinely demonstrates a lack of good judgment when considering complaints
and reasons for denials. They have also ignored the legal definition of "good cause" and
treat this unofficial authority as whatever they want it to mean. At the last PSRB meeting,
Judge Tony Lindsay stated that they are not a criminal court and do not have to follow the
same rules. With no official rules in place, they can apparently do whatever they want. This
is exactly why process servers should be concerned. The PSRB routinely considers
complaints and takes actions against process servers who have not been convicted,
arrested or even charged with a crime. Several servers have been subjected to intense
interrogation regarding frivolous complaints filed by people who were simply upset that they
were lawfully served; complaints the proper authorities have refused to act on (and some
that have nothing to do with the service of process). All the while, they have never had the
authority to do so. In the same meeting, Constable Ron Hickman (did I mention he is a
constable?) asked Jody Hughes, the Court's Rules Attorney, if the newly proposed Rule 14
would replace what is in place now. After a brief pause, Mr. Hughes informed Hickman that
Rule 14 would be in addition to the existing rules. In other words, YOU CAN'T REPLACE
WHAT DOESN'T EXIST. Texas Process Watch has been saying this all along. THE PSRB
HAS NEVER HAD THE AUTHORITY TO DO ANYTHING OTHER THAN APPROVE OR REJECT
APPLICATIONS. THEY DO NOT HAVE THE AUTHORITY TO REVOKE CERTIFICATIONS OR
TAKE ANY DISCIPLINARY ACTION. ALL ONE HAS TO DO IS READ THE ORDERS FOR
THEMSELVES.
Let's break this down. In Misc. Docket order 05-9122 (the order that created the certification
program), Section 2. reads,
"Applications will be reviewed and approved or rejected for good cause by the Texas
Process Service Review Board, appointed by the Court. The Board will notify each applicant
of its action, and for each person certified, will post on a list maintained on the Supreme
Court website the person's name and assigned identification number..."
This is the current sum total of the PSRB's authority (only three as underlined).
Section 4. reads,
"Certification may be revoked for good cause including a conviction of a felony or of a
misdemeanor involving moral turpitude. A person suffering such a conviction must
immediately notify the clerk of the Supreme Court and cease to serve process."
This is irrefutable proof that the PSRB has never had any authority over process servers
who have become certified. As noted, a server who becomes convicted of a disqualifying
crime must notify the clerk of the Supreme Court, NOT THE PSRB. Nowhere in Section 4 is
the PSRB given any authority to revoke a certification nor are they given any authority to
place a server on suspension, probation, hand out reprimands or administer any other
discipline. If this were not the case, why would the PSRB recommend to the Court that they
be given the authority to do much of what they have already taken the liberty of doing on
their own? In fact, the implementation of Rule 14, which spells out exactly what actions they
may take, is further proof that they haven't had any such authority all this time. This is why
Mr. Hughes answered Hickman the way he did. (For clarification, Misc. Docket No. 05-9122
was amended with Misc. Docket No. 06-9142, but the only changes were that good cause
must be "stated" and the Court removed the "H" discrepancy. The PSRB still has not been
given any regulatory or disciplinary authority.)
When certification took effect, many counties that were maintaining blanket orders
rescinded them. Because of this, those who were once on blanket orders have now become
reliant on their certification. Should the rogue PSRB make a bad or unfair decision (as they
have already demonstrated on numerous occasions), servers will continue to be damaged
and put out of business unjustly.
Tod E. Pendergrass, Director of the Certified Civil Process Servers Association of Texas
says, "I feel like we've been tricked. We all supported the certification program as worded
(except for the "H" discrepancy) as a near perfect solution to the problems of
county-by-county blanket orders and case-by-case Rule 103 orders. During the public
comment period in 2005 before certification was enacted, everyone supported it as worded.
Even members of the Texas Process Servers Association were urged by its leadership to
comment and support the program "AS WORDED." We trusted the Supreme Court and now
I feel like we're being stabbed in the back!"
For example, in 2006, there were roughly 17 complaints received by the PSRB on process
servers and only two were acted on. Of those two, neither server was convicted of any
crime and at least one was treated unjustly. Additionally, since the program began, not one
single server has alerted the Court (as required) that they have become convicted of a
disqualifying crime. Where is the evidence that process servers need more regulation? All
we are asking for is some evidence supporting this rule change. As the ones who have
been subjected to the rogue nature of the existing PSRB and who will be subjected to the
new rules, we are entitled to it!
We must all submit letters to the Court asking them why they are completely changing our
certification program. Another good question is, Why didn't the Court include these
changes in the initial program? WE MUST DEMAND AN EXPLANATION AND WE MUST
DEMAND AN END TO THE PSRB'S UNAUTHORIZED ACTIONS!!!
The new rule can be viewed at:
www.supreme.courts.state.tx.us/MiscDocket/07/07903200.pdf
Anyone can comment to the Court at any time on any topic. Send your emails to:
jody.hughes@courts.state.tx.us
IT'S IMPERATIVE THAT WE FLOOD THE COURT WITH LETTERS OPPOSING THE
IMPLEMENTATION OF RULE 14. WE MUST INVOLVE OUR CLIENTS AS WELL.
Story by:
TEXAS PROCESS WATCH
P.S. Chairman Weeks (a former Williamson County Deputy Constable), Constable Hickman
and Judge Lindsay all support regulation for private process servers that will benefit the
industry's only competition, the CONSTABLES. Their efforts to regulate private servers, if
successful, would level the playing field for the constables and enable them to regain some
of the market share they have lost over the years through the mechanics of free enterprise.
DO YOU WANT YOUR COMPETITION DICTATING HOW YOU OPERATE AND DECIDING THE
LIFE OR DEATH OF YOUR LIVELIHOOD???
The stance of Texas Process Watch is simple. If a server does not get convicted of any
disqualifying crime, keeps up their training every three years and submits a timely renewal
application, THEY SHOULD BE LEFT ALONE!!! Furthermore, for the record, TPW has been
warning for many months that it is just a matter of time before the rest of the PSRB
recommendations become law. This includes yearly training with more hours of class time
and an unreasonable code of conduct that will be enforced by the PSRB under the new Rule
14. For instance, you could be put out of business if someone you serve claims you
disrespected them, whether true or not. This is just one example of a system that will create
an invitation to file a frivolous complaint.
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