Further Comments:
Certification, as originally proposed, appeared to be one way to achieve statewide authority
without fees and very little government oversight. Unfortunately, we have all been tricked
and our certification program has been corrupted. Originally presented to us as a
statewide blanket order, our simple certification program has been systematically changed
into a form of licensing, something only the Texas Legislature can do. The senators and
representatives who make up our state legislature are professional lawmakers. They have
said “No” to regulation for our industry at least sixteen times in the last 30 years. There are
many good and sound reasons why they have said no. But, the lawsuit we filed is not
about that fight. It is about something bigger and more important.
In the letter, the TPSA President, Mr. Eric Johnson, writes, “The lawsuit alleges that the
Texas Supreme Court has violated the Texas Constitution by creating the TPSRB [PSRB]
and that the TPSRB has acted without proper authority.”
This is absolutely true! Not only that, the suit also alleges FRAUD AND CIVIL CONSPIRACY
in addition to LIBEL AND SLANDER. These allegations are not made lightly. They are
backed up with substantial evidence and relevant case law.
The TPSA leadership also points out that the suit seeks a permanent injunction against the
Court and to dismantle the PSRB. This, too, is true! But, with that ends the truths
contained in the letter.
The TPSA leadership has long relied on scare tactics, psychological manipulation and
deception to keep their members in line and to form public opinion that results in a one-
sided viewpoint. The remainder of their letter displays such tactics. They state, “It is our
belief that this injunctive relief, if granted, would jeopardize the uniformity of governing
rules and regulations we now enjoy. It is also our opinion that the lawsuit, if successful,
would force differing standing orders regarding service of process to be renewed and/or
implemented in each and every Texas court and force process servers to adhere to
numerous standards…varying training…[etc.]”(emphasis added) There are several very
important points to be made regarding these statements.
First, if our lawsuit is successful, it means the Texas Supreme Court has violated the Texas
Constitution and the PSRB is without authority. This is nothing to be winked at. Does Mr.
Johnson suggest that the “uniformity of governing rules and regulation we now enjoy” are
an acceptable compromise for the violation of state law and constitutional rights? He
suggests the end justifies the means. Your CCPSAT leaders do not ascribe to this
ideology. In fact, the CCPSAT was founded on principles that are diametrically opposed to
Mr. Johnson’s rational.
Second, notice how Mr. Johnson openly admits that our certification program is a form of
regulation. This Freudian slip lies at the very core of our lawsuit; regulation can only be
created by the legislature. This is not the first time a TPSA leader has referred to our
certification as a license or the program as “regulation.”
Third, your CCPSAT leaders have never been in support of returning to the old blanket
order, Rule 103 system of being authorized to serve citations and writs. Should our lawsuit
prevail, it will be up to the Texas Supreme Court to come up with a solution to fix the mess
they have created. What Mr. Johnson is not telling you is that there is more than one way to
address statewide authority. Being that all Texas subpoenas may be served by any person
over 18 who is not a party, it makes sense that the service of citations could fall under that
same guideline. Also, all federal court process (a higher court) may be served under that
simple guideline; no criminal background check, no training, and no certification.
Additionally, when we send a citation to a process server in another state, that person does
not need any special court order, training or background check. This is also true for
process that comes to us from other states for service on defendants residing in Texas.
CCPSAT leaders have always pursued statewide authority without unnecessary and
unsubstantiated government intervention.
On more than one occasion, we have proposed several alternatives to government
regulation that would have worked equally well in achieving statewide authority. One was
to simply remove the need to obtain a written order of the court. This would have brought
the service of citations and writs in line with the requirements for the service of all other
forms of civil court process. Another suggestion was called the Notary Public Provision.
This basically said that any notary may serve process. Notaries cannot be criminals, they
are over 18 and they even have a bond to protect the public. When those options were
ignored, in a good faith effort to remain sensitive to the Court’s concerns, many months
ago, we proposed a solution that, had it been accepted, would have prevented the filing of
our lawsuit. We proposed that the Court re-write Rules 103 & 536, TRCP, to reflect the
following current requirements, over 18, not a party and disinterested, plus the following
additional requirements: the server can not have a felony conviction or misdemeanor
conviction involving moral turpitude in the preceding 10 years. This would have answered
all the Court’s concerns except one; the training requirement. We suggested the Court
leave training up to the industry. Unfortunately, the Court declined to accept this proposal
as well. The fact that remains is that the government cannot require training on a free
enterprise industry without enabling legislation. So, now we are at the basis for our
lawsuit; the Court cannot regulate.
The Court has the power to write whatever they want into Rules 103 and 536 as long as it
falls within their administrative rule making authority. Right now, today, the Court could, for
instance, re-write the rules to allow service on Sundays. Or, they could remove the
requirement to have our signatures verified (notarized). They could even amend Rule 106
and allow us to leave citations with a co-resident on the first attempt saving us all
thousands of dollars in gasoline each year. They could make those changes and more
WITHOUT involving the Texas Legislature. They have that power. What they don’t have the
power to do is create regulation and, as clearly pointed out in the TPSA letter, our lawsuit
threatens their UNLAWFULLY created REGULATION. Furthermore, Mr. Johnson is
misleading you when he refers to the “governing rules and regulations we now enjoy;”
they are NOT enjoyed by everyone. Just ask any of the many process servers just like you
and me who have been unjustly punished by the PSRB.
Lastly, Mr. Johnson claims, “We represent over 450 members…[and] have fought for many
years to win statewide certification for process servers…” They may have almost as many
members as does the CCPSAT, but it is an absolute untruth that they have fought to win
certification. (It is possible that Mr. Johnson does not understand the difference between
being licensed and being certified. There is a major difference and if Mr. Johnson knew
anything about the Texas Sunset Act, he would know this.) TPSA leaders have filed many
licensing bills and when certification was proposed in January of 2005, the TPSA
leadership, without polling their members, backed the filing of yet another. Senate Bill 165,
a full-blown licensing bill, would have overburdened our industry, caused in increase in
fees and taxes and would have created new crimes for process servers. It was the
CCPSAT leaders that fought to kill that TPSA licensing bill thereby “win[ing] statewide
certification for process servers…” After SB 165 died, a TPSA leader actually thanked the
legislature for killing it presumably in order to save face among his members. Since we had
killed their bill, they were actually thanking us.
Mr. Johnson is trying to blur the lines between statewide authority and regulation. They are
not one in the same. Statewide authority is what we all wanted and thought we were getting
with the original certification program. Regulation is what the TPSA leadership has
pursued for years and what the PSRB began doing immediately without authority. We all
understood that the only way we could lose our certification is if we became convicted of a
felony or misdemeanor involving moral turpitude; and the responsibility of reporting such a
conviction was placed on us. The original program made no mention of complaints,
discipline, investigations, suspension, probation, reprimands, etc. These are all actions the
PSRB took upon themselves to do; actions that were later condoned by the Court when it
implemented Rule 14, RJA. This is why they are now asking the legislature to fund them.
This is why they are now asking the legislature to grant them access to DPS criminal
records. These issues will be addressed by the filing of two bills by the TPSA leadership.
TPSA members should be asking their leaders why their association is footing the bill for
the pursuit of these legislative changes. More importantly, the existence of these bills
prove the Court does not have the authority to regulate. If they did, they could fund the
program and give access to DPS records to the board without bothering the legislature. In
fact, they can’t even collect application fees from process servers without the legislature’s
permission.
More questions TPSA members should be asking their leaders are:
Why did TPSA leaders try to prevent certification by filing SB 165 just days before
certification was to take effect?
CCPSAT LEADERS KILLED THAT BILL! Thereby enabling the certification program to be
implemented.
Why did TPSA leaders thank the Texas Legislature for killing a bill they worked so hard to
pass?
Why would TPSA leaders express thanks when thousands of their members' dollars had
been spent on that bill?
Why have TPSA leaders who also serve on the PSRB failed to protect the program as
originally presented?
Why did they promise they would NEVER file a "fees" bill and turn right around and do so?
CCPSAT LEADERS KILLED THAT BILL TOO!
Why are they again filing another "fees" bill for a program that was created, presented and
implemented as a free program?
Why are TPSA members being forced to fund legislation that would incur more costs and
restrictions on the industry down the line?
Why are they trying to change the current 3 year training & renewal requirement to a yearly
process with more hours of class time?
Why haven't they polled the membership on any of these issues?
This brings me to the very reason I am a plaintiff in this lawsuit. I have attended 12 of the 13
PSRB meetings. I have personally witnessed server after server having to appear before
that board to defend their careers and the ability to feed their families. I have personally
been the subject of the PSRB’s actions and the allegations in virtually every single
complaint could have applied to any one of us. Most of the worst examples happened
before the Court gave the PSRB the authority to even receive and act upon complaints.
There have been numerous occasions that I remember thinking, “wow, that could have
been me.” The situation finally reached a level that became inexcusable. So, despite what
TPSA leaders claim, this suit was filed to protect ALL PROCESS SERVERS, regardless of
their affiliation with any particular association and regardless of their being certified.
Mr. Johnson is asking you to ignore the merits of the lawsuit in exchange for the benefits of
the PSRB’s unlawful existence and he is dangling the coveted STATEWIDE AUTHORITY
over your heads as a scare tactic. We are asking that you allow the suit to stand on its
merits until a federal court judge can render a verdict. If the allegations are true, then the
PSRB needs to be dismantled. But, statewide authority is something that can be salvaged
and it will be up to the Court or possibly the Texas Legislature to give some finality to this
fight over regulation.
If the certification program is ruled unconstitutional, this could mean that every lawsuit
served by a certified process server is in jeopardy. If not the suit itself, default judgments
may come into question. This is something to consider.
There are many reasons this lawsuit had to be filed. The main reason is because the other
two branches of government, for whatever reasons, were unwilling to act to correct the
judicial branch’s misconduct. Often, the people must take matters into their own hands
when government officials who have the power to act fail to do so. We ask that you stand
firm with your association and ignore the attempts to manipulate with misinformation and
irrational fear.
Please feel free to call or email me with any questions.
Sincerely,
Tod E. Pendergrass
Founding Director, CCPSAT
800-205-3007
Please go to www.TexasProcessWatch.com for more industry information.
Please email me with any questions at ccpsat@yahoo.com