July 2, 2007-
CONSTABLES ATTEMPT TO TAKE WRITS AWAY FROM US!
Private Process Servers Prevent Constables' Latest
Attempt To Restrict The Industry.
Earlier this year, Carl Weeks, Chairman of the Process Server Review Board (PSRB), sent a
letter to the Texas Supreme Court citing confusion among process servers, attorneys, and
judges over an apparent conflict between Rule 103 (and its similarly-worded counterpart
applicable to justice courts, Rule 536(a)), and Rule 663, which governs execution and return
of a writ of garnishment.
Based on these concerns, the Supreme Court set the matter before the Court's Rules
Advisory Committee (SCAC) on March 8, 2007. The SCAC sought consultation from
Committee members, members of the PSRB and anyone wishing to comment.
On April 19, 2007, Mr. Frank Gilstrap, an attorney from Arlington, Texas, offered his opinion.
In his letter to SCAC committee member, Hon. Tom Lawrence, Mr. Gilstrap mistakenly
assumes the issue is whether or not to allow private process servers to serve writs of
garnishment. He writes, "...Justice Hecht is asking the full committee to consider a proposal,
originating with Carl Weeks... to allow private process servers to serve writs of
garnishment." He continues, "...the proposal to allow private process servers to serve writs
of garnishment would seem to be in accord with the recent amendment to Rule 103 [in that
all writs not requiring the actual taking of possession of a person, property or thing or other
enforcement action by the person delivering the process may be served by a private
process server]."
The point is, while the committee members and others consulted may have been unaware
that private process servers are already serving these writs and have been for 20 years,
there is no confusion that the rules indicate clearly that private process servers can serve
writs of garnishment and the service of such writs is NOT exclusive to sheriffs and
constables.
In turn, on April 25, 2007, Judge Lawrence sent an email to the SCAC subcommittee
members referencing the opinions of Constable Hickman. He writes, "I just received this
response from Constable Ron Hickman, who is the incoming President of the Justice of the
Peace and Constable Association of Texas [(JPCA)]. He was actually at a constable civil
process school when I contacted him so this represents a wealth of experience. See you in
Austin on Friday."
However, Constable Ron Hickman, who is President of the Justice of the Peace and
Constables Association (JPCA), and also a member of the PSRB, has very different ideas.
He clearly thinks private process servers are not and should not be allowed to serve any
writs.
In the response referred to by Judge Lawrence, Constable Hickman references several rules
from the Texas Rules of Civil Procedure (TRCP.) His first reference is to Rule 15 wherein he
writes, "All writs are to be direct to Sheriff or Constable." When I read this, I remember
thinking to myself how inappropriate it was for Constable Hickman to try such an
underhanded tactic. In actuality, Rule 15 reads, "The style of all writs and process shall be
"The State of Texas;" and unless otherwise specially provided by law or these rules every
such writ and process shall be directed to any sheriff or any constable..." He left this very
important part of the rule out of his comments. This was either a deliberate attempt to trick
the Committee or Constable Hickman has misread Rule 15. “These rules” (Rules 103 & 536)
provide for service of writs of garnishment by private process servers. By Constable
Hickman’s interpretation of Rule 15, private process servers would be excluded from serving
any writ making the Supreme Court’s inclusion of “writs” in Rules 103 & 536 superfluous.
Furthermore, Rule 663 does not exclude service of a writ of garnishment by a private
process server. Rather, it instructs the sheriff or constable on what to do when receiving
such a writ. One should refer to the preceding Rule, 662, which reads, “The writ shall be
dated and tested as other writs, and may be delivered to the sheriff or constable...”
Additionally, Rule 663a stipulates that service of a writ of garnishment "...shall be served in
any manner prescribed for service of citation..." Clearly, any writ not requiring the taking
possession of a person, property or thing or other enforcement, specifically a writ of
garnishment, may be served by a private process server. Nowhere in these rules can it be
considered definitive that a writ of garnishment should be served only by a sheriff or
constable.
In an apparent attempt to support his mis-interpretation of Rule 15, Constable Hickman also
misrepresents the meaning of the newly revised Rule 103. He writes, "Persons Who May
Serve restricts service of writs affecting taking of person property of thing or requiring
enforcement action by the person serving the writ." This is not the meaning of Rule 103 (or
of Rule 536.) The correct rendering of Rule 103 with regard to this issue is, as it is written, "...
But no person who is a party to or interested in the outcome of a suit may serve any process
in that suit, and, unless otherwise authorized by a written court order, only a sheriff or
constable may serve a citation in an action of forcible entry and detainer, a writ that requires
the actual taking of possession of a person, property or thing, or process requiring that an
enforcement action be physically enforced by the person delivering the process."
Constable Hickman is wrong in his assessment of these rules. Nowhere in this rule is it
written that private process servers cannot serve a writ that "affects" the taking of a person,
property or thing.
As both a law enforcement officer and a member of the PSRB, Constable Hickman has a
duty to accurately interpret and apply rules relating to his job and position on the PSRB.
Rule 103 (and the corresponding Rule 536 for JP Courts) clearly indicates that as long as the
person serving the process is only making a delivery, they may do so as long as they are
authorized by an individual Rule 103/536 order, a blanket order, or Supreme Court
certification (or other law.)
Constable Hickman is the president of a constables' association that directly competes with
private process servers; an association that is on record stating that THEY THINK PRIVATE
PROCESS SERVERS SHOULD NOT EXIST! This statement was made under oath before the
Senate Jurisprudence Committee by the preceding spokesman for the JPCA, Constable
Bruce Elfant. As president of the JPCA and a member of the PSRB, Constable Hickman
plays a duel role. This is evidence of a conflict of interest and a conflict of loyalty. His
comments reflect exactly why he should be banned from holding both positions. He does
not represent the interests of the private process service industry. His loyalty lies with the
constables and he should be removed from the PSRB.
On June 8, 2007, the SCAC met to hammer out the final details of this issue of who may serve
writs of garnishments. I was present for this meeting representing the private process
servers of Texas. Also present were four constables. They were Constable Ron Hickman
(PSRB member, JPCA President, and current Constable of Pct. 4, Harris Co.), Constable
Bruce Elfant (former JPCA spokesman and current constable of Pct. 5, Travis Co.),
Constable Zane Hilger (current constable of Pct. 3, Tarrant Co.) and PSRB Chairman, Carl
Weeks (former deputy constable, Williamson Co.).
The real issue at hand was not whether or not private process servers should be allowed to
serve writs of garnishment. It was whether or not the rules relating to the service of writs of
garnishment should be changed to reflect the intent of the newly revised Rules 103 & 536, or
whether Rules 103 & 536 should be changed to prevent us from serving such writs. Once
the SCAC understood just exactly what they had been charged with and heard all the
testimony, they voted. Fortunately for us, by a vote of 20 to 5, they voted to recommend the
Supreme Court change the garnishment rules. However, in reviewing the documentation
referenced below and the transcript from that meeting, one can see just how close process
servers came to losing a very profitable form of the process they routinely serve. If I had not
been there to represent our interests and refute the constables, the constables may just
have succeeded in tricking the Committee. Read the meeting transcript for yourself and see
if you don't agree. Note: ironically, I was alerted to this issue by a heads up process server
who was unjustly denied certification by the PSRB. Thanks to him, I was able to show up
with only a moment's notice and defend the entire industry from the constables' hanky
panky.
This is the third time the poor leadership of the TPSA and the constable controlled PSRB
have nearly cost our industry hundreds of thousands of dollars (if not millions.) The PSRB,
in particular, Chairman Weeks and Constable Hickman, were not assigned to scrutinize the
rules of civil procedure. This is an agenda they have assumed on their own and their
meddling is seriously threatening the livelihoods of private process servers in Texas. They
have refused to do what they were appointed to do and they repeatedly do things that were
never requested and for which they have no authority. When will the Court reign in this
rogue Board???
Reference:
The "Gilstrap Letter"
The "Hickman Memo"
The "Pendergrass Letter"
The "SCAC Transcript" from the June 8, 2007, meeting. (Click on the June 8 transcript and
scroll down to page 16095 a/k/a page 115 of 177 pages)
Story By:
Tod E. Pendergrass
Director, Texas Process Watch