June 23, 2007-
TPSA LEADERSHIP NEVER CEASES TO AMAZE
Just learning English? Drive a cab? Work as a courier? You can’t serve process!
Note from the editor: This story, as originally written, focused on the opinions expressed by
the TPSA's Membership Director, Mr. Roger Harman. Mr. Harman has since expressed that
his story may have been edited without his permission and the final version, as published in
the TPSA's newsletter, "The Server," may not accurately reflect his position on all the
issues. I have, therefore, revised this story to focus on the opinions expressed rather than
the person from whom they came.
Senate Bill 1305:
Leaders of the Texas Process Servers Association fail to accurately represent the bill they
supported. Most of the beneficial provisions were stripped out of their bill by the very Senator
who filed it for the TPSA; and in its very first hearing. But, TPSA leaders failed to inform the
membership and, instead, continued to ask for their support. Furthermore, the one provision about
which process servers were most concerned was left out; the ability to substitute serve process at
a residence on the first attempt without an order (as with Federal Rule 4 for the service of
summonses.) Though promised as a lure to attract new members and get existing members to
donate money, this provision didn’t even make it into their bill. And, per business as usual for the
TPSA leadership, they offer no explanation.
There are two parts to the SB 1305 story. Part one is the fact that most of the “beneficial
provisions” were removed soon after the bill was filed. TPSA leaders are attempting to pass off the
idea that anti-regulation watchdogs killed the introduced version of SB 1305; they did not. This was
done by the Senate Jurisprudence Committee, chaired by SB 1305’s own author, Senator Jeff
Wentworth. Opponents had little to do with this development. Part two is the fact that industry
watchdogs killed what remained as an intrusive and completely useless piece of legislation.
Senate Bill 1645:
Just like any defeated politician, TPSA leaders attempt to draw attention away from their failures by
attacking the proponents of a different bill, Senate Bill 1645. This bill, supported by free-thinking
process servers who promote free-enterprise and common sense, would have made the
requirements for the service of citations the same as the current rules for the service of all Texas
subpoenas, all Texas Attorney General child support enforcement citations and writs, all federal
court summonses, all federal court subpoenas, all citations and writs pursuant to Rules 103 & 536,
TRCP (over 18, not a party, not interested) and process issued in the majority of other states for
service in Texas. SB 1645 would have done nothing more and nothing less than conform the
service of citations in Texas to the accepted standard for all other types of process and none of us
would have had to obtain 103/536 orders or worry about blanket orders. What TPSA leaders don't
tell you is that constables were openly supportive of their bill and the main opponents to SB 1645.
In fact, the constables were the main reason SB 1645 failed, and the TPSA’s legislative team helped
them. They have aligned themselves with the enemy of the industry.
Opponents of SB 1645 do not agree with the accepted practice in every federal court in the
country. They are opposed to the accepted standard for service of all subpoenas, both state and
federal. And, they use scare tactics and hypotheticals to explain away their illogical and irrational
arguments.
The Server story reads, “SB 1645 filed by Sen. Van de Putte would allow anyone over 18 years of
age and not a party to the suit to deliver civil process and prohibit the Supreme Court certification
program from remaining in effect.”
Let's start with the second part of this statement. They either did not understand the bill or they
never read it. On the issue of certification, they are absolutely incorrect. Nothing in SB 1645 would
have "prohibited" the certification program from remaining in effect. It would have had no power to
affect the Supreme Court’s rule making authority. Certification would have remained in effect for
those servers who chose to take advantage of it. Certification would have continued, as it is now,
as an optional credential. They apparently speak to the one advantage SB 1645 would have had
over Supreme Court certification. For those servers who have had their certification unjustly
denied or revoked, SB 1645 would have prevented the total destruction of their career. SB 1645
would have protected process servers, which is just the opposite of putting them out of business.
Just ask those servers whose careers have been damaged or destroyed by unauthorized actions of
the Process Server Review Board which is empaneled by at least two TPSA officers/directors.
Certification:
The TPSA leader(s) are ignoring the current rules for the service of all Texas subpoenas, all federal
court summonses and all federal court subpoenas; over 18 years of age and not a party to the suit,
(from their story verbatim!) This is the current standard; no order, no training, no background
check and no certification required. Add the words, “disinterested in the outcome of the suit,” and
you have the current Rules 103 & 536, TRCP, for the service of all Texas citations and other writs.
"Anyone" can already serve all subpoenas and all federal process and "anyone" meeting the Rule
103/536 criteria can obtain a court order to serve all citations and other writs without certification.
Their comments make no sense and are actually contradictory.
As usual, the pro-regulators use scare tactics to shock people into believing unrealistic “what ifs.”
The question is not should criminals be allowed to serve process; they already are. Some are even
certified. The PSRB has certified numerous convicted criminals including at least two felons and
several with misdemeanor convictions that involve moral turpitude. The real question is, is there a
problem in the industry with regard to criminals serving process? TPSA leaders have not one
example of anyone, much less a convicted criminal, committing a crime while serving civil court
process. What about the federal courts? I guess they think all federal court judges are incapable
of deciding who serves their process. Federal judges, Texas judges and attorneys everywhere are
unconcerned about criminals serving process because it represents a concern THAT DOES NOT
EXIST!
The “idea” that some criminal might knock on your door is very different than actual examples in
reality of this happening or, more importantly, it being a problem. Don’t fall for this irrational line of
thinking. This attitude has unnecessarily overburdened and over-regulated many industries.
The issue of training is also one which TPSA leaders address. Not only is training a great idea, it is
imperative for established process service companies when hiring a new server. Any person just
starting in this business should definitely seek out training if unable to work with an already
established and knowledgeable process server. This is a very different concept from “lawfully
required” training for everyone. There are many experienced process servers who are opposed to
lawfully required training. Lawfully required training is an open invitation for "anyone" to jump into
this business and begin competing with established companies. The lack of lawfully required
training is what, for 19 years, protected the industry from a flood of new servers. Worse, the TPSA
leadership supports a change to lawfully required yearly training despite the fact that the large
majority of TPSA members oppose it. Training every three years regardless of experience is one
reason the initial certification program was considered a “compromise.” However, while claiming
satisfaction with certification as initially written, the TPSA leadership immediately moved to make
this and many other changes without polling their members. The purpose of leadership for any
association is so the interests of the members can be represented. The TPSA has no such
leadership.
The story continues, “This Bill would have allowed cab drivers, carriers, couriers, delivery
companies, criminals or anyone looking to make an easy buck, to go out and deliver civil process
with absolutely no training and no oversight by anyone, They would have had ZERO accountability.
No criminal history background check at all !” Despite the apparent lack of an editor for “The
Server” newsletter, these people can, right now, today, serve 100% of all process without being
certified, without taking a training class and without a criminal background check. They can, and
they do. And, they do it better than most constables!
TPSA leaders also fail to recognize the accountability that DOES exist and has always existed, even
before certification. That is, the requirement that officer’s returns be verified by a Notary Public or
signed under a penalty of perjury. Falsifying an officer’s return and filing a fraudulent document
with the court are both state and federal criminal violations. The claim of “ZERO accountability” is
as uninformed as the rest of the views in the story. When was the last time an auto mechanic,
appliance repairman or computer technician swore under oath that they completed your job?
Additionally, where was the logjam in the judicial system for the last 20 years of, "all the suits filed
against errant and untrained process servers?" This is just one more hypothetical scare tactic of a
non-existent issue.
Process servers are little more than glorified messengers who have no business looking down
their noses at other occupations that exist on an equal level. In fact, a messenger delivery
company currently holds the Texas Attorney General child support enforcement contract and
routinely serves “dead-beat dad” citations and writs in the state (without any requirement to be
certified!) The Texas Legislature, at the urging of the Texas Attorney General, changed that law in
1999. Legislators are professional lawmakers, but TPSA leaders apparently believe they are wrong,
too. This company is not required to have its servers certified by the Supreme Court. They don't
even need a Rule 103 order!
For eighteen years, private process servers needed only be over 18 and not a party (and not
interested in the outcome) to serve process. This arrangement did not cause a flood of servers to
the market nor did it cause the industry to crumble. Quite the opposite, the industry has absolutely
flourished with these free-market standards and, I might add, long before certification or the
current TPSA leadership came on the scene. They are forgetting that certification was sold to the
industry as a compromise solution to case-by-case 103 orders and county-by-county blanket orders,
not regulation! They are also forgetting that those standards allowed every process server who
existed before certification to be in business. Where in the world do they think the majority of
private process servers came from, Ivy League colleges? Speaking English, having a high school
diploma or even being a U.S. citizen are not a requirements to become a process server. In fact,
even certification does not require those things. How easily they forget.
Finally, the story reads, “This Bill would have essentially driven the cost you charge your client from
$65.00 or more, down to $20.00-$30.00 per paper.” This is yet another hypothetical scare tactic.
TPSA members should ask their President, Mr. Carl Weeks, how many new servers the certification
program has added to the industry. If he claims not to know, he should! It’s estimated that roughly
one-third of all certified process servers are brand new servers who, until certification was
created, had never served a paper! This represents approximately 1000 new servers in Texas that
did not exist two short years ago and new novice servers are applying for certification all the time.
The bottom line is, certification attracts new people to this industry and TPSA leaders are right there
to take their money and sell them a training course. Simple economics tells us that more servers
means lower service rates. Unfortunately, economics is not a course offered by the TPSA
leadership.
So let’s recap. TPSA leaders believe all federal court judges are wrong. They believe State court
judges are wrong. They believe the Texas Legislature, the Texas Attorney General and the litigating
attorneys of Texas are wrong. They believe that Federal Rules 4 and 45 are wrong. They believe
the current Rule 176 for the service of Texas subpoenas is wrong. And, being that the majority of
U.S. states have a Federal Rule 4 equivalent for the service of their state issued process, they
believe they’re wrong too. Who do you believe?
Story by:
Tod Pendergrass
Director, Texas Process Watch
Reference:
SB 1305 (Four Versions, Click On Bill Text)
SB 1645 (Introduced Version Killed By Constables)
SB 368 (Tx. Attorney General Bill Passed In 1999, See Section 231.118(b) of the Enrolled Version)
Rule 176, Texas Rules of Civil Procedure
Rule 4, Federal Rules of Civil Procedure
Rule 45, Federal Rules of Civil Procedure
PSRB Recommendations (Including Yearly Training Proposed By TPSA President, Carl Weeks)
"The Server" newsletter is not available because it has not been published on the TPSA's website.
Feel free to contact the TPSA at admin@texasprocessservers.org and ask why.
Texas Process Watch invites comments to this story. Please send any comments by email.