May 5, 2007-
HOW DID WE GET HERE?
Administrative board assumes regulatory roll and seeks funding from a legislature it
successfully circumvented.
In June of 2005, the Supreme Court of Texas adopted a docket order creating statewide certification for private process
servers and a board to administer the OPTIONAL and VOLUNTARY program. The "Texas Process Service Review Board"
a/k/a "Process Server Review Board" (PSRB) was created pursuant to the Texas Constitution and statutes found in Texas
Government Code.
The Texas Constitution, Article 5, Section 31(a) reads, "The Supreme Court is responsible for the efficient administration
of the judicial branch and shall promulgate rules of administration not inconsistent with the laws of the state as may be
necessary for the efficient and uniform administration of justice in the various courts."
Texas Government Code, Chapter 74.007 reads, "COMMITTEES. The chief justice, subject to the approval of the supreme
court, shall name and appoint members to committees necessary or desirable for the efficient administration of justice
or to carry out the provisions of this chapter."
Chapter 74.023 reads, "SUPERVISORY AND ADMINISTRATIVE CONTROL. The supreme court has supervisory and
administrative control over the judicial branch and is responsible for the orderly and efficient administration of justice."
(Other relevant codes can be found in Chapters 22.003, 22.004, 74.021, 74.024; links at bottom of this page.)
Initially, certification was well received by the industry. Finally achieved was the long sought after statewide authority to
serve citations, writs and other notices without having to obtain case-by-case and county-by-county orders. Certification
quickly became an invaluable convenience for those servers who routinely serve process issuing from counties other
than their home county. Certification applies only to a select type of process as most other process can be served by
anyone over eighteen who is not a party to the suit.
The PSRB was charged with four duties. They were to (1) approve or deny applications based on good cause, (2) notify
the applicant of their decision, (3) maintain a list of those approved for certification and (4) create a framework for
approving additional training courses.
However, the PSRB, staffed with mostly pro-licensing members, quickly began violating their authority and assumed a
position as a regulatory agency. Although created as a board to "administer" the program, they began investigating
process servers, holding hearings, trying cases, dishing out discipline and denying and revoking certifications of persons
who had broken no laws damaging and effectively destroying the careers of some. They quickly developed a code of
professional conduct and policies on investigating and disciplining process servers which they implemented without the
approval of the Supreme Court. Several process servers were subjected to ridicule, humiliation, intimidation, revocation,
suspension, probation and reprimands both public and in writing. Due process was denied and no appeal process was in
place. Letters were written to the Court, but no action was taken to oversee or correct the board's rogue actions.
Appeals were made to the Texas Attorney General, the State Commission on Judicial Conduct, the Governor, the Speaker
of the House and the President of the Senate, but, no one seemed to have any authority to correct a regulatory board that
had not been legislatively created. It appeared as though no one but the Texas Supreme Court itself had any ability to take
action and they were completely ignoring the industry's pleas. This disparity continued for 21 months.
On April 2, 2007, the Supreme Court finally gave a measure of legitimacy to the PSRB's actions by enacting Judicial Rule
of Administration 14 (RJA 14.) However, the implementation of this rule actually proves the PSRB had been acting without
authority for nearly two years prior to the rule's enactment. The rule itself does little to protect the industry and supports
the contention that the PSRB has superseded an administrative function. Before implementation, the Court asked for
comments from the public. The results were 100% opposed. Furthermore, the PSRB's own records on complaints
showed only a handful of complaints on which disciplinary action was taken representing less than .002 percent; and
those actions are in question. Despite these facts, the Court enacted this rule anyway at the urging of PSRB members.
In violation of standards set forth by the Texas Sunset Advisory Commission, the PSRB is staffed with at least three
members whose appointments violate accepted conflicts of interest. These three (now 4) members are directly involved
in industry training courses and two are also officers/directors of an industry trade association, the Texas Process
Servers Association (TPSA.) In fact, PSRB Chairman, Mr. Carl Weeks, is President of the TPSA. There are no members
on the PSRB who are public citizens; also an accepted standard for regulatory boards. Member, Constable Ron Hickman,
is also an officer of the Constable and Justice of the Peace Association whose spokesman is on record stating that
private process servers have no right to exist. Surrounding Constable Hickman are questions concerning the common
law doctrine of incompatibility and conflicting loyalties. Despite the accepted requirement that boards be comprised of an
odd number of members, there are currently only eight on the PSRB. Only two members are process servers, both of
whom are officers/directors of the TPSA. The two members on the educational subcommittee are both directly involved
in industry training courses and routinely reject the applications of training courses that would compete with theirs.
In early 2007, the Travis County District Attorney's office began investigating the PSRB. The case has been turned over to
their prosecutor. This includes allegations leveled against Constable Ron Hickman regarding misuse of governmental
property and abuse of office.
Just prior to the 80th legislative session, the Supreme Court prepared its Legislative Appropriations Request. Through
this request, the Court seeks funding in House Bill 1 to continue the Office of Court Administration's support of the PSRB.
Curiously, the request for "process servers" was placed in the same line item as the legislatively created Guardianship
Certification Board. Currently, the Court has no authority to collect the fees it is requesting. That's where Senate Bill 1305
(SB 1305) comes in.
SB 1305, a TPSA bill authored by Senator Jeff Wentworth and paid for by TPSA members, will give the Supreme Court the
authority to assess and collect fees from process servers to fund the PSRB, the Office of Court Administration and other
Supreme Court programs.
The author's statement of intent for SB 1305 mistakenly claims, "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." On April 4, 2007, Mr. Tod
Pendergrass, Founding Director of The Certified Civil Process Servers Association of Texas, testified before the Senate
Jurisprudence Committee, chaired by the bill's author, and pointed out this error. Said Pendergrass, "The bill's statement
of intent is wrong. Certification is an option that is absolutely NOT required. Anyone over eighteen years of age who is not
a party to the suit (or interested in the outcome) can still serve 100% of all civil court process WITHOUT being certified.
Certification is only a convenient credential for those private process servers who choose to take advantage of it." When
the committee substitute to SB 1305 was voted out, the erroneous statement of intent remained unchanged. This
deliberate attempt to hoodwink legislators amounts to duplicity and double-dealing by the bill's author. Thinking
certification is "the law of the land," Senate Jurisprudence Committee members unanimously voted for the bill which was
then placed on the Senate Local & Uncontested Calendar. Uncontested, SB 1305 was voted out of the Senate, 31 to 0.
The Texas private process service industry has provided stellar service to the legal community for more than 20 years
and does not meet the accepted criteria for regulation. There are no examples of process servers being convicted of
process service related crimes and the industry does not pose a threat to the health, safety or welfare of the public.
Pervasive fraud (or any amount of measurable fraud) is non-existent and appropriate laws, both civil and criminal, are
already in place which would address any infraction a process server could commit.
Not only is certification not a requirement, it only applies to a very small segment of the overall types of civil court process
routinely served by private process servers. Certification does not apply to state court subpoenas, federal court
summons, federal court subpoenas, and process from other states for service on defendants/witnesses residing in
Texas. Certification does not apply to process being served outside the state which requires only that the server be over
eighteen years of age, not a party and not interested in the outcome of the suit. Certification does not apply to citations,
writs and other notices being served pursuant to case-by-case orders under Rules 103 & 536, T.R.C.P. or blanket orders
maintained by dozens of counties around the state. Certification does not apply to process issued on behalf of the Texas
Attorney General Child Support Enforcement Division and it does not apply to process issued by courts that have removed
the need for a written order by local administrative rule. Certification (or any form of regulation for process servers) goes
against the trend in Texas and the country. The majority of states require that the server be only over eighteen and not a
party to the suit. Some states require registration (the lowest level of regulation) and only two states require licensing.
However, when certification took effect, several larger counties rescinded their blanket orders with some judges refusing
to sign even individual Rule 103/536 orders. Because of this, some servers have come to rely on their certification and
would not be able to efficiently serve their clients without it. To a degree, this represents industry regulation for servers
in those counties. Below is a pie chart that demonstrates the very small segment of civil court process that requires
anything other than the server being over eighteen and not a party to the suit.
The following documents can be viewed:
PIE CHART, This chart displays the very small segment of process covered by OPTIONAL certification.
Miscellaneous Docket Order No. 05-9122, creates the certification program and the Texas Process Service Review Board
Miscellaneous Docket Order No. 05-9123, appoints the initial PSRB members to the Process Server Review Board
Miscellaneous Docket Order No. 06-9142, amends Misc. Docket Order #05-9122
Miscellaneous Docket Order No. 07-9036, Texas Rule of Judicial Administration 14
Convicted Criminals Granted Certification Despite Industry Opposition
In their very first meeting, the PSRB began executing their plan to turn certification into regulation. Despite not being
approved by the Texas Supreme Court, the following recommendations were created (and most utilized) by the PSRB:
Recommendation #1- Yearly Training. The training requirement of every three years to be changed to a yearly
requirement despite only 3 or 4 rule changes relating to process service in the last 20 years.
Recommendation #2- Guidelines. "Process Server Review Board Education Curriculum Guidelines".
Recommendation #3- Conduct Policy. "Policy on Conduct Affecting Certification to Serve Process".
Recommendation #4- Investigation Policy. "Policy on Investigating Process Server Complaints".
Recommendation #5- Code. "Code of Professional Conduct" (Refers to certification as a "license" in two places; a
Freudian slip?)
Recommendation #6- Id. Card. Add an id. card to the above recommendations and "certification" becomes "licensing."
The above recommendations are clear evidence of the PSRB's intention to regulate the private process service industry.
Items 1 through 5 are "enforcement" recommendations the PSRB plans to (and has been) fully enforce with discipline.
The following two stories relate to the ability of felons and other criminals to obtain and use id. cards to gain access to
person and property by creating a "perceived authority."
ID CARD COULD GET YOU ARRESTED AND MEMBERSHIP DIRECTOR MAKES AN EXAMPLE OF HIMSELF
Following are PSRB meeting minutes which further evidence how the board has assumed a regulatory role and acted
without authority as an illegal, non-legislatively created regulatory agency:
Minutes of PSRB meetings-
August 12, 2005
October 28, 2005
January 20, 2006
April 28, 2006
September 8, 2006
December 8, 2006
March 2, 2007 (minutes not approved or posted yet. Meeting agenda.)
Accepted standards for regulatory boards and agencies:
Texas Sunset Advisory Commission Occupational Licensing Model
Texas Sunset Advisory Commission Guide To The Process
Agencies Created By Legislation Subject To Review By The Texas Sunset Advisory Commission
Links to the Texas Constitution and Government Codes:
Texas Constitution, Article 5, Sections 31
Texas Government Code relating to accepted criteria for regulating an industry.
Texas Government Codes (Other), see Title 2, Chapters 22.003, 22.004, 74.007, 74.021, 74.024
FINAL ANALYSIS:
It's not disputed that the Supreme Court has multiple authorities to provide for the efficient administration of the judicial
system. The Court does NOT, however, have the authority to create a regulatory agency or board. Only legislation can do
that. In none of the Court's orders was the PSRB given the authority to regulate a private industry. JRA 14, just enacted in
April of 2007, was the first, and only time the PSRB was allowed to do anything other than rubber stamp applications or
make recommendations to the Court.
For example, the Court Reporters Certification Board and the Guardianship Certification Board are overseen by the Texas
Supreme Court. These boards, both of which were created by legislation, have no more to do with "the orderly and
efficient administration of justice" than does the service of civil court process by private process servers. However, the
legislature has refused to license and regulate the private process service industry for the last 19 years because such
licensing does not meet accepted standards for the regulation of an industry. Creating a board designed to serve an
administrative function may not be beyond the authority of the Texas Supreme Court, but, failing to monitor that board,
allowing them to supersede their authority and assume a regulatory position and then failing to correct rogue behavior
falls squarely on the shoulders of the Supreme Court Justices.
Certification was so well received by the industry because it was initially sold as a common ground compromise that
provided statewide authority based on a concept that as long as a certified process server stayed out of trouble (no
convictions), kept up their training every three years, and submitted a timely renewal application, they would be able to
remain certified. The PSRB has apparently pulled the old "bait and switch" scam on the industry. It appears the Texas
Supreme Court has aided them by allowing the board to get away with murder and then rewarding them with the
implementation of RJA 14.
In our three-branched system of government, the will of the people is expressed through duly elected legislators in
Congress and enforced by an elected executive; the Constitution finds its voice in the judicial branch. What are the
people to do when the laws that are meant to ensure their freedom are abused in a manner that erodes the very
foundation of law?
This report brought to you by leaders of:
The Certified Civil Process Servers Association of Texas
Email: ccpsat@yahoo.com