April 9, 2007
TPSA LEADERS ACCUSED OF DECEIVING INDUSTRY
TPSA “Smoke & Mirrors” Bill Fails To Fulfill Promises Made to Renewing
and Prospective Members.
On Wednesday, April 4, 2007, Senate Bill 1305 (the “TPSA bill”) had its first public hearing. Despite seemingly beneficial
provisions, the purpose of this bill is to allow the Supreme Court to begin assessing and collecting fees from certified
process servers.
THE BILL’S INTENT:
You would think the author of the bill would have a firm grasp of the issues. Senator, Jeff Wentworth, the author of SB1305
(and SB165 last session), filed it on behalf of the TPSA. In his statement of the bill's intent, he states, “In June of 2005, the
Supreme Court of Texas (supreme court) adopted a docket order requiring the certification of all private process servers in
Texas.” In his testimony, Mr. Tod Pendergrass, Founding Director of the Certified Civil Process Servers Association of
Texas, pointed out the error. “The bill’s intent is wrong. Certification is an option. Anyone over 18 who is not a party (and
not interested in the outcome of the suit) can serve 100% of all process in Texas WITHOUT being certified. They can serve
all the state issued subpoenas they want. They can serve all the federal summons and federal subpoenas they want. They
can serve all process coming in from other states. And, they can still obtain Rule 103 or 536 orders and still get on dozens
of blanket orders around the State. Certification is absolutely not required. It is a convenience for those servers who serve
a lot of process that comes from counties other than their home county.” The committee members made no response.
RULE MAKING AUTHORITY:
At first glance, this section of the author’s statement seems to be a bit of a relief. The “PSRB” is not being given any rule
making authority. But wait, they don’t need it. The Supreme Court, not the PSRB, made the newly enacted Rule 14. The
PSRB doesn’t need rule making authority, but this means nothing when the authority that oversees them can make just
about any rule they want. Rule 14 is one example of the Supreme Court granting the PSRB’s wishes despite overwhelming
opposition from the industry.
WHY WAS THIS BILL FILED?
Since the last session in 2005, TPSA leaders consistently assured its membership that they were happy with the
certification program “as worded” and WOULD NOT file any legislation this session. In an open letter to the National
Association of Professional Process Servers (NAPPS), the then president, Lee Russell, claimed the Texas legislature did us
a favor (meaning TPSA) by killing their own bill (SB165). He claimed it was a "blessing" that the TPSA bill he supported had
failed. Then, at the TPSA conference in 2006, he announced that no bill was being planned and even challenged those in
attendance to prove the existence of such a bill. He was not being honest. While no written bill had been publicized,
extensive discussions regarding planned legislation were being held in nearly every TPSA board meeting since the last
session ended, including the meetings right before and after the conference. This included a plan to keep their bill a secret.
This pattern of behavior is also evidenced by announcements and several email messages to the membership. One urged
the members to support the certification program “as worded.” Others assured members there would be no legislation
filed this session. Members were also routinely told NO FEES would be necessary.
TPSA legislative agenda-
After much pressure from the industry, including the publishing of TPSA board meeting minutes and questions concerning
the TPSA’s lobbyist being kept on the payroll, TPSA leaders eventually confessed to their secret plan and unveiled their
legislative agenda. The agenda is as follows:
TPSA LEGISLATIVE GOALS - 80TH Regular Session, 2007
1. Allow access to gated multi-family communities to Supreme Court Certified process servers while in performance of
their duty of delivering civil process. (Make it an affirmative defense to prosecution for trespassing for certified process
server and limit liability for property manager or security guard granting access.)
2. Remedy service issue on corporate registered agents. (Reed Elsevier Case) Corporate registered agents could
designate attorneys in fact to accept process. (Texas Judicial Council Resolution sent to legislature)
3. Increase penalty for the assault on a process server while in performance of their duties. (Same as assault on public
servant.)
4. Remove requirement for Notary seal on returns, change to a statement of: “ signature under penalty of perjury”.
5. Allow process servers to sub-serve private mail box, when other reasonable and diligent attempts have failed, if it can
be established that the private mail box account is active and person being served has a valid U. S. postal signature card on
file at the private mail box business office. (Same as California rule.)
6. Allow sub-service without a court order on first attempt to a person who is a co-tenant of suitable age (16 and over)
when occupancy of person being served can be confirmed.
7. Allow Clerk of Supreme Court to collect fees from process servers and appropriate funds back to Office of Court
Administration to administer process server certification program.
Items 1 through 6 were designed for no other reason than to gain support for the bill’s true intent; no. 7. TPSA leaders
tricked existing and prospective members into donating their money and support of their bill for no other reason than for the
creation of fees and furthering their hidden agenda of unnecessary regulation for process servers.
THE FIRST TRICK (PART A):
Item no. 1 was also included in Senate Bill 165 (the TPSA leaders’ last attempt to strictly over-regulate the industry filed last
session. Despite the fact that certification was set to be enacted, TPSA leaders filed SB165 and nearly ruined the
certification program we all now enjoy.) The Texas Apartment Association threatened to kill SB165 if this provision was not
removed. It was. TPSA leaders knew this item would be taken out of the current SB1305 as well, but promised it anyway.
At last Wednesday’s hearing, that is exactly what happened. Although highly anticipated by the industry, members of the
Senate Jurisprudence Committee removed item no. 1 from SB1305 as their first order of business. Interestingly, protection
for security guards and property managers was left in.
THE FIRST TRICK (PART B):
TPSA leaders also promised to make the serving of process a defense to prosecution to a charge of trespassing; not just in
gated communities, but anywhere. This promise was made at TPSA regional meeting(s) and at a Process Server Review
Board meeting by leaders including, Chairman, Carl Weeks, who is also the current TPSA president. When the gated
communities provision was stripped, the defense to prosecution went with it.
THE SECOND TRICK:
At last Wednesday’s hearing, Chairman Weeks testified regarding item no. 2 claiming that there is no recourse when
service on a corporate defendant is made on a registered agent that is also a corporation. Following Mr. Weeks, Tod
Pendergrass testified and set the Committee straight. Pendergrass told the Committee, “[Mr. Weeks] is incorrect.
Pursuant to the Texas Business Corporations Act, Art. 2.11(b), if the registered agent cannot be found, the Texas Secretary
of State becomes the agent for service. If the attorney in the Reed-Elsevier case had simply served the Secretary of State
before taking a default judgment, we would not be addressing this issue now. Millions of papers have been successfully
served on CT Corp. type registered agents; it’s not a problem.” The Jurisprudence Committee will most likely change or
strip this provision altogether.
THE THIRD TRICK:
Assault on process servers is not a problem in our industry. This item was included as fluff to gain support for the bill’s true
intent, FEES! Assault is already against the law.
THE FOURTH TRICK:
Not having to notarize our officer’s returns could be very convenient for most of us. This would be a great idea, but only if it’s
OPTIONAL. SB1305 would make it MANDATORY to sign under a penalty of perjury. Here’s the trick: It is believed that signing
under penalty of perjury AUTOMATICALLY WAIVES THE SERVER’S FIFTH AMENDMENT RIGHTS! Why is this important? With
the PSRB acting as it has been, this is a very dangerous proposition. Currently, an error or omission on your return of
service could cause a bill of review to be filed and the possibility of having your service overturned. It’s unlikely that such an
"honest mistake" would bring a criminal charge. However, the PSRB is denying and revoking certifications based on their
definition of good cause. By a notarized verification, should you make an “honest mistake”, the Fifth Amendment would
protect you. Under a penalty of perjury statement, a server could face revocation and possibly jail time. No server should be
threatened with revocation or jail unless they do something to intentionally harm or defraud someone. Process servers just
need to ask themselves if this change is worth it. Regardless, it has nothing to do with the fee driven goal of this bill. (More
trickery: The Supreme Court could have changed this long ago but neither the PSRB nor TPSA leaders have ever asked.)
THE FIFTH TRICK:
Clerks at most private mailbox locations WILL NOT give out personal information about their box holders. Most times, they
won’t even verify whether or not a person even has a box; hence the term “PRIVATE” mailbox. This useless provision does
not give the server any additional right to obtain information about a private mailbox holder. Furthermore, substituted
service at a private mailbox location is already possible pursuant to Rules 106 & 536, T.R.C.P. This is just another element of
fluff designed to trick process servers into supporting this bill. The Jurisprudence Committee will most likely strip this
provision as well. (This is another provision the Supreme Court could have changed long ago but neither the PSRB nor TPSA
leaders have ever asked.)
WHAT’S MISSING?
THE SIXTH TRICK (AND THIS IS A BIG ONE):
This provision was the most anticipated by process servers and IT DIDN’T EVEN MAKE IT INTO THE BILL! Item No. 6 was just
another EMPTY PROMISE made by TPSA leaders to gain support and trick process servers out of their money; money now
being used to push for fees that will cost process servers even more in the future. (Again, the Supreme Court could have
made this change long ago FOR FREE, but neither the PSRB nor TPSA leaders have ever asked.)
ALSO MISSING (PSRB RECOMMENDATIONS):
TPSA president, Carl Weeks, plans to make many changes to the program like switching the training requirement from
every three years to a YEARLY REQUIREMENT with more hours of class time. He wants as many process servers as
possible to pay for training EVERY YEAR hopefully from his association. CAN YOU SPELL C-O-N-F-L-I-C-T? This issue was not
presented to existing and prospective members when they were being asked to commit money to this bill. This was kept
quiet as TPSA leaders are fully aware that yearly training is not supported by their members or the industry at large.
Why weren’t fees worked into the initial program? Why does the Office of Court Administration need more
employees/money? As written, the certification program was designed to be a simple statewide blanket order. A server
applies, stays out of trouble (no convictions), trains and renews every three years; simple! Through unauthorized actions
and an assumed authority, the PSRB has created a huge bureaucratic nightmare that has taxed the resources of the Office
of Court Administration. If the PSRB would simply administer the program instead of trying to regulate the industry, the OCA
wouldn’t need more employees and money. The PSRB has absolutely created this problem and now they want you to pay for
it! Their agenda to regulate the industry can be found in the PSRB recommendations. By Mr. Weeks’ own admission, these
recommendations are still being considered. Once they get the money they want, they WILL ENACT THEM! And, there’s
nothing stopping the Court from changing Rules 103 & 536 to make certification a REQUIREMENT! Why weren't changes the
Supreme Court could make ever asked for? Why weren't these changes at the top of the PSRB recommendations list?
THE FISCAL NOTE:
The fiscal analysis of SB1305 reads, in part, “The bill would set standards as described for process service and authorize
the Supreme Court to set fees collected from individuals certified to serve process.” Process servers were already sold a
program that set the standards. SB1305 seeks to change and establish new standards. The PSRB and TPSA leaders also
plan to change and establish new standards for process servers. What happened to being satisfied with the program “as
worded?”
The fiscal note further states, “The bill would create the Process Server Review Board…” How can the fiscal note be so
wrong??? The PSRB has been in existence for nearly two years. This may be yet another trick designed to legitimize what
may be an illegally created regulatory agency. The PSRB is the ONLY vocational board in the State that was not legislatively
created. This is significant. This demonstrates that the PSRB was meant to oversee the certification application process,
NOT regulate the industry. Add money to the newly enacted Rule 14 together with the PSRB recommendations and what do
we have? REGULATION! Regulation is exactly what TPSA leaders claim they are glad was prevented by the legislature last
session. Despite what they say, they are NOT pleased with a simple certification program and have not given up on their
goal of FULL-BLOWN INDUSTRY REGULATION. Carl Weeks, in particular, is doing everything possible to completely change
the current certification program. Which brings the question, Why wasn’t Rule 14 a part of the program from the start?
FOLLOW THE MONEY:
Section 3(b) of SB1305 says it all. “Funds in the process server review account may be used only for the support of
programs approved by the supreme court for the certification of process servers.” Don’t let the word “only” fool you. This
section means the Court can use the money for just about anything they want as long as it pertains to process servers.
FOLLOW YOUR NOSE (Something Smells Fishy):
The fiscal note also breaks down the money TPSA leaders are expecting us to pay. Despite being told that money was
needed mainly for reimbursement of PSRB members' travel expenses, the fiscal note indicates otherwise. In fact, IT’S NOT
EVEN CLOSE. It reads, “Expenditures for a process server certification program and reimbursement of Process Server
Board members travel are not expected to be significant.” If SB1305 passes, PSRB members will get a total of $5001.00
over the next three years for travel related expenses; not much, right?
So why are process servers being forced to pay (ARE YOU SITTING DOWN?)
nearly A HALF A MILLION DOLLARS to continue to be certified by a program
that was supposed to be a free statewide blanket order?
TPSA leaders expect us to pay approximately $400,000.00 to remain certified!!! OH…. MY… GOSH!!! Process servers were
told the main reason for item no. 7 on the TPSA’s legislative agenda was for PSRB travel reimbursement! WHAT A LIE THIS
HAS TURNED OUT TO BE!!!
THE WITNESS LIST:
Below are all the witnesses that signed up to testify regarding SB1305 last Wednesday:
Against:
Tod E. Pendergrass, Director, The Certified Civil Process Servers Association of Texas
On:
Lindsay, Tony Judge, 280th District Court (Service of Process Committee, Harris County District Courts),
Houston, TX (PSRB Member FOR this bill and supporter of regulation that would benefit constables)
Roach, Nelson (Texas Trial Lawyers Assn.), Austin, TX
Weeks, Carl Chair (Process Server Review Board), Austin, TX (TPSA President FOR this bill and supporter of
regulation that would benefit constables)
For:
Campos Jr., Commander Charlie Commander (Pct. 2, Constables Office, Bexar County), San Antonio, TX
Campos, Jr (Ret.), Constable Charlie Founder/ Charter President (South Texas Justices of The Peace &
Constables Association), San Antonio, TX
Conroy, Wes TPSA Legislative Committee Chairman (Texas Process Servers Association), Austin, TX
Dalgliesh, Michael P. Process Server (Prof. Civil Processing), Cedar Park, TX
Dovalina, Roger (Self), Helotes, TX (NOT ON THE CERTIFIED PROCESS SERVER LIST! POSSIBLE CONSTABLE?)
Gallo, Mike Private Process Server St. Lic. # SCH-1630 (Professional Civil Process), Spicewood, TX
Hickman, Ron Constable (Justice of the Peace & Constables Assoc.), Spring, TX (Also a PSRB Member)
Hurt, Joey Process Server (Self), San Antonio, TX
Keeney, Amy Clerk (Professional Civil Process), Austin, TX
Pizzurro, Robert J. Owner/ Manager (Pizzurro Investigations), San Antonio, TX
Sehon, Jeffrey Process Server (Professional Civil Process), Austin, TX
Watson, Andrew (Self), San Antonio, TX (TPSA Vice-President)
Notice anything strange about those who are “FOR” SB1305? Nearly every one is a constable, a PSRB member, a TPSA
officer or associated with the TPSA leadership. (Several servers are representatives of Professional Civil Process whose
leader is a former TPSA director and major supporter of last session's strict licensing bill.) Why are there so many
constables in support? Why do they care? SB1305 contains no provisions that would benefit the constables. For months,
Texas Process Watch has warned that the constables have infiltrated the industry. Their support of SB1305 proves that this
bill is meant as a stepping-stone to regulating the industry and restricting their competition. Because private servers do a
better job, the industry has caused a loss of government jobs. The constables will do whatever it takes to restrict their
competition and regain some (if not all) of the market share they have lost in the last 20 years through the natural
mechanisms of free enterprise. Constable Ron Hickman, also a PSRB member, is/was spokesman for the Justice of the
Peace and Constables Association. The JPCA openly states that they think private process servers should not exist! The
industry should be very concerned about any private process server legislation that is supported by constables. It's no
accident and they are unconcerned about the industry's welfare. TPSA members should be very concerned about the
relationship that exists between their leaders and the constables. Last session, this same relationship nearly caused us all
to be subjected to strict licensing and over-regulation which would have PREVENTED the certification program we all now
enjoy. They are again trying to destroy certification with this bill.
WHAT CAN BE DONE?
All process servers need to contact the members of the House Civil Practices Committee.
Put it in your own words, but the message is:
"Senate Bill 1305 is a smokescreen bill designed solely for granting the Supreme Court the authority to assess and collect
fees from process servers which will enable the non-legislatively created Process Server Review Board to continue to act
as an unauthorized regulatory agency."
House Civil Practices Committee members can be found at www.capitol.state.tx.us.
Reference information can be found on the Legislature’s website at www.capitol.state.tx.us/BillLookup/Text.aspx?
LegSess=80R&Bill=SB1305
The PSRB recommendations can be view by clicking [HERE].
Story by:
Tod E. Pendergrass
Director, Texas Process Watch