May 14, 2007- URGENT!
HOUSE CIVIL PRACTICES COMMITTEE NEEDS
TO HEAR FROM YOU!
WE MUST ALL IMMEDIATELY CONTACT THE HOUSE CIVIL PRACTICES COMMITTEE.
Read the story below then contact the committee members. It’s best to send a fax as there are too
many emails being sent to the Capitol this late in the session. We want our voices to be heard. If
you can’t send a fax, please send an email and follow it up with a phone call. We don’t want to
overwhelm the members’ staff so avoid calling and send a fax if at all possible. You should include
your name on company letterhead and your reason(s) for opposing Senate Bill 1305. You should
definitely indicate any associations to which you belong. More importantly, we must all urge our
clients to contact this committee as well.
Vice Chair: Mark Strama; FAX: (512) 463-1199
EMAIL: karla.buitrago@house.state.tx.us
PHONE: (512) 463-0821
Members: Phil S. King FAX: (512) 463-1957
EMAIL: tim.kuhl@house.state.tx.us
PHONE: (512) 463-0738
Jerry Madden FAX: (512) 463-9974
EMAIL: mark.hey@house.state.tx.us
PHONE: (512) 463-0544
Trey Martinez Fischer FAX: (512) 463-4873
EMAIL: martin.golando@house.state.tx.us
PHONE: (512) 463-0616
Sid Miller FAX: (512) 463-3644
EMAIL: karen.kolb@house.state.tx.us
PHONE: (512) 463-0628
Richard Pena Raymond FAX: (512) 463-6296
EMAIL: jesus.gonzalez@house.state.tx.us
PHONE: (512) 463-0558
Robert E. Talton FAX: (512) 463-1049
EMAIL: marcia.manor@house.state.tx.us
PHONE: (512) 463-0460
Beverly Woolley FAX: (512) 463-9333
EMAIL: wendi.lojo@house.state.tx.us
PHONE: (512) 463-0696
PLEASE DO NOT CONTACT THE COMMITTEE CHAIRMAN OR THE COMMITTEE CLERK. The clerk,
Sherri Walker, has indicated that both she and Chairman Cook have heard enough from the
opposition.
Senate Bill 1305 has been changed drastically and currently sits in the House Civil Practices
Committee. Nearly all the promised “beneficial” provisions in this bill have been removed or were
never included. Below is the legislative agenda promoted by leaders of the Texas Process Servers
Association (TPSA), namely its President, Carl Weeks, who is also Chairman of the Process Server
Review Board (PSRB). This agenda was also promoted by other TPSA leaders like Director, Justiss
Raspberry who is also a PSRB member.
1. Access to gated communities. (REMOVED)
2. Defense to prosecution for trespassing. (REMOVED)
3. Substitute service at a private mailbox without an order. (REMOVED)
4. Substitute service at a residence on the first attempt without an order.
(THEY NEVER EVEN PUT THIS ONE INTO THE BILL!)
5. Requires returns to be signed under a penalty of perjury instead of before a Notary Public.
(THIS REQUIREMENT WAIVES THE SERVER’S FIFTH AMENDMENT RIGHTS. EVEN AS AN OPTION,
THIS IS HARDLY WORTH A HALF MILLION DOLLARS.)
6. Assault on a process server same as assault on a public servant.
(INCONSEQUENTIAL, THIS PROVISION OFFERS NO ADDITIONAL PROTECTION FOR PROCESS
SERVERS. ALSO HARDLY WORTH A HALF MILLION DOLLARS.)
7. Allow the Texas Supreme Court to assess and collect fees.
The industry was told no. 7 was necessary for reimbursement of PSRB members’ travel expenses.
The PSRB is only requesting $5001.00 for “reimbursement” but SB 1305 will force us to pay
approximately $400,000.00! So, just exactly what are process servers getting for their money?
This bill was paid for and sponsored by membership dues and training class profits from the TPSA.
Why are members from the industry, namely TPSA members, paying for legislation that will benefit
the PSRB and the Texas Supreme Court?
Let’s rewind:
When certification was proposed, it was understood that anyone could apply as long as they met the
following criteria:
1. They have no felony convictions or misdemeanors involving moral turpitude like theft, etc.,
2. They took an approved training course every three years, and
3. They submitted an initial application and a timely renewal application.
It was also understood that if a certified process server stayed out of trouble (no convictions), kept
up their training and renewed every three years, they could remain certified. Simple.
Before certification took effect, the Court asked for public comments. The industry submitted many
supporting the program based on this understanding of how it would work. However, the PSRB
immediately began violating the rules and acting as a regulatory board.
We were never told the PSRB would be acting as judge, jury and executioner. We were never told
that anything other than “good cause” would be used to determine if someone could become
certified or remain certified. We were never told the PSRB had any authority to revoke or otherwise
discipline process servers. They have done many things the orders did not authorize them to do
and they failed to do some that were required. They violated their own orders by allowing people
with convictions to be certified, while at the same time, they denied and revoked servers who have
never been charged with a crime.
We were told criminals could not participate, but the PSRB immediately began certifying felons and
those convicted of misdemeanors involving moral turpitude. Earlier this year, the Court made this
practice official by changing the rules despite 100% opposition from the industry. Now, felons and
other criminals can officially be certified (Before this change, the PSRB was already doing this
unofficially.) Since 1988 (and some before then) these criminals have been able to serve ALL types
of process including Texas citations, writs, subpoenas and Federal Court summons and
subpoenas. They have always been able to obtain Rule 103 orders. So, what good is certification if
it allows these same persons to become certified? The real question is are criminals in the private
process service industry creating a problem? The answer is, NO. This is evidenced by the fact that
Texas judges across the state are unconcerned about the backgrounds of persons who serve
subpoenas (Rule 176, Texas Rules of Civil Procedure.) Federal court judges across the country are
unconcerned about the background of private process servers (Rules 4 & 45, Federal Rules of Civil
Procedure.) Proponents of licensing/regulation can't even produce 5 examples of persons
convicted of process service related crimes out of the millions of papers served in the last 20 years.
The PSRB has abused their “good cause” authority. The “good cause” standard is clear and must
meet the same requirements as that of any criminal proceeding. It must be a “legally sufficient
reason for a ruling or other action” and it must meet the criminal court standard “beyond a
reasonable doubt.” It is also defined as, “a substantial reason put forth in good faith that is not
unreasonable, arbitrary, or irrational and that is sufficient to create an excuse for an act under the
law.”
Case in point: Mr. Germain LeTourneau.
Mr. LeTourneau is a hard working process server just like any other. While waiting for his
certification to be approved, he was accused of forgery. He denies this claim and has always
maintained his innocence. He has never been convicted, charged or even arrested for this or any
crime. Despite these facts, the PSRB held an illegal trial, found him guilty and denied his
certification. They acted as judge, jury and executioner and labeled him a criminal. Mr. LeTourneau
had no protection from the State and no option to appeal. He, like many others, was absolutely
railroaded by the PSRB. He now struggles to make ends meet for himself and his family. As a single
parent of three children, he has been forced to run around the Bexar County courthouse every day
to get individual Rule 103 orders signed on a case-by-case basis. Ironically, Bexar County District
Court Judge, Joe Brown, (who is a current PSRB member) routinely signs Mr. LeTourneau’s orders.
Meanwhile, Mr. LeTourneau has been forced to turned down and pass off thousands of dollars
worth of work from other counties because the PSRB, in its infinite wisdom, has deemed him unfit to
serve. THIS COULD HAPPEN TO ANY OF US. There are many other examples of illegal and
unconstitutional actions like this, too numerous to list here.
Now, the PSRB wants the same industry it has harmed to pay hundreds of thousands of dollars to
support them. How insulting!
The way to fix this situation is simple. Keep the certification program, but, GET RID OF THE PSRB!
We don’t need them. In fact, the Court should change “certification” to “registration” and utilize
three process servers from the industry to simply rubber-stamp applications (and no, I don't want to
be one of them.) The first step to achieving this goal is to make sure SB 1305 does not become law.
The private process service industry belongs to US, not the PSRB. Our private businesses are and
should be under OUR control, not theirs. The TPSA itself belongs to the members, not the
leadership. Private process servers have been doing just fine for 20 years without the help or
interference of the government. Our companies are our personal, private property; they are our
livelihoods. And, until our industry begins representing harm to the public or becomes plagued
with fraud or other criminal acts, it should remain a free enterprise. All we ever wanted was
statewide authorization, not regulation.
The industry and the Court had a deal, so to speak. Certification is like a contract. We agreed to
certain understood requirements and, in return, we received what we had been asking for;
statewide authority and an option to case-by-case and county-by-county orders. When we signed
the application to become certified we did so with the understanding that what we were receiving
was defined in Misc. Docket Order 05-9122. We were not volunteering to submit our livelihoods to
a rogue regulatory board. This is no different than a contract and that contract has been breached!
It has not only been breached, it has been modified despite 100% opposition from one of the
parties, the industry (see Court enacts rule change despite opposition.) As with any contract, major
changes should be agreed to by BOTH parties. Unless we stop it, SB 1305 will empower the PSRB
(and provide the means to empower them) to make even more changes without our approval. If SB
1305 passes, the Court WILL enact the PSRB’s recommendations.
This is why we must all voice our opinions and let the legislature know the industry does not
support SB 1305, despite what they have been told. Right now, TPSA leaders are leading the
legislature to believe that each and every TPSA member (and the entire industry for that matter)
supports SB 1305. Because of the liberty being taken in YOUR name, not speaking up is the same
as letting THEM speak for you. If we can stop SB 1305, we can stop the PSRB. And, if we can stop
the PSRB, process servers will be protected instead of railroaded.
Story by:
Tod Pendergrass
Director, Texas Process Watch
P.S. TPSA leaders are once again trying to distort my good intentions. They say I am opposed to
certification and call me names like “anti-government,” “idiot” and “screaming zealot.” In my
defense, I am anti-regulation, and pro-statewide authority. I have come to rely on my certification
and the statewide authority it provides. Our forefathers founded this county on a bill of rights and a
constitution based on freedoms meant to protect its citizens from government oppression. My
response to them is that anyone who tries to force unwarranted regulation on any free-enterprise
industry without the support of legitimate and necessary reasons is ANTI-AMERICAN! Officials who
abuse their authority are unethical and, in some instances, criminal. If we are expected to play by
the rules then so should they.