The Certified Civil Process Servers Association of Texas
516 West Annie Street
Austin, Texas 78704
(512) 447-2300 Telephone (512) 447-3303 Facsimile
April 27, 2007
Mr. Jody Hughes
Rules Attorney, Texas Supreme Court
201 W. 14th, Rm. 104
Austin, Tx. 78701
Re: Supreme Court Advisory Committee
Dear Mr. Hughes:
Regarding the Supreme Court Advisory Committee meeting scheduled for Friday, April 27th, I would like to submit
the following three comments for your and the members’ benefit.
1. Concerning the service of writs of garnishment, there is little confusion among process servers, attorneys
and judges. The most recent amendments to Rules 103 & 536, T.R.C.P., clearly state a private process server
may serve “citation, other notices, writs, orders and other papers” that do not require the process server to take an
immediate enforcement action. That should resolve any question regarding writs of garnishment (or any writs for
that matter) which do not compel the server to take an immediate enforcement action. It is a delivery of a
document the same as the delivery of a citation or subpoena.
Constable Ron Hickman states that Rule 15 requires all writs to be directed to a sheriff or constable. Constable
Hickman has misread Rule 15 which begins “unless otherwise specially provided by law or these rules...”. “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 all writs 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...” Nowhere in these rules can it be considered definitive that a writ of garnishment should be served
only by a sheriff or constable.
He continues by claiming situations exist where a defendant is to be served separately from the financial
institution and that the serving of such separate notices routinely involves some type of coordination. But, he
conveniently leaves out Rule 663(a) from his analogy. Rule 663(a) not only stipulates that “The defendant shall be
served in any manner prescribed for service of citation,” it also allows service on the defendant “as provided in
Rule 21(a)... as soon as practicable following the service of the writ.” The reference to “citation” in this rule does
little to support his position that private process servers are excluded from serving process in this situation. It’s
unrealistic to think that serving a bank with a writ that does not require immediate enforcement would necessitate
service by a law enforcement officer. The rule also makes clear that service on the defendant should occur after
the financial institution has been served. Coordination is irrelevant and service on the defendant is routinely
accomplished by certified mail.
Despite the fact that 662 indicates a writ of garnishment may be delivered to a sheriff or constable, the newly
amended Rules 103 and 536 provide for private process service of any writ not requiring immediate enforcement
by the person delivering them.
Constable Hickman is the leader of the Justice of the Peace and Constables Association whose spokesman is
on record as stating they believe private process servers have no right to exist. He, and all constables, are in
direct competition with private process servers. I find it irresponsible and reckless of Constable Hickman to extract
only that information from the Texas Rules of Civil Procedure which would influence decisions on rule changes that
would reduce the forms of civil court process private servers (his competition) can serve.
More importantly, despite what Mr. Carl Weeks claims is taught in his TPSA course, there is no question about
whether or not a writ of garnishment requires an immediate enforcement action. Rule 661, T.R.C.P., “Form of
Writ”, bears no language that would ever require an immediate enforcement action by the person delivering this
type of process. Therefore, there is no need, as stated by Mr. Weeks, for the process server to “read the writ.”
2. I have repeatedly alerted the Supreme Court to the longstanding error in Rule 536 which has yet to be
corrected. Rule 536(c) should read, “...showing that service has been attempted under either (b)(1) or (b)(2) at
the location...” As mentioned in my previous correspondence, all one needs to do is compare the wording (not the
letter designations) of Rule 536 to similar wording found in Rule 106(b). The affidavit supporting motion for
substituted service must show that service has been attempted by delivery in person or by mail. The failure to
correct this rule has exacerbated the probability that all justice court process served by substituted service to date
may be invalid and/or improper. This represents tens of thousands of services. Since Rule 536 is under
consideration, today, I am taking this opportunity to again ask that this correction be made.
3. As a director of a state association of private process servers, it is extremely troubling to see the Court’s
reliance upon Mr. Carl Weeks as the definitive answer for all things “private process.” Every time I have witnessed
Mr. Weeks fielding questions regarding private process service or the Texas Rules of Civil Procedure, whether it be
before the Supreme Court Advisory Committee, the Senate Jurisprudence Committee or the House Judiciary
Committee, he has provided incorrect information.
Please make this information available to the members of the Advisory Committee before Friday’s meeting. Thank
you!
Respectfully,
Tod E. Pendergrass
Director, CCPSAT