May 20, 2008-
OPEN LETTER TO THE TEXAS SUPREME COURT
RULES ADVISORY COMMITTEE
ISSUE NO. 1-
The Process Server Review Board is an unlawful regulatory
agency that was not created by the Texas Legislature.
The Process Server Review Board (PSRB) began exceeding its authority and acting as a non-
legislatively created regulatory agency almost immediately after the Texas Supreme Court enacted the
process server certification program in 2005. Many process servers and would-be applicants have
suffered because of the rogue and unauthorized actions of the PSRB.
FIRST CASE IN POINT:
Mr. Germain Letourneau was a process server in San Antonio, Bexar County, Texas. He had been on
the Bexar County blanket order for about two years before certification was enacted. Because of
Bexar County officials’ decision to rescind the blanket order, he was forced to apply for certification
through the Supreme Court in order to continue working at the same level of competition he had
worked hard to achieve. Mr. Letourneau is a single parent with three children.
Shortly after the certification program took effect, Mr. Letourneau applied to the PSRB. He met all the
application requirements and was fully qualified to become certified. During his application process,
one of his clients, an attorney named Ms. Stephanie Walsh, filed a complaint against Mr. Letourneau
claiming he had signed her name without permission on a T.R.C.P. Rule 103 order. The PSRB
accepted the complaint and set a hearing on the matter.
Fact No. 1:
Rule 103 orders do not require an attorney’s signature and may be made without motion. This fact was
pointed out in Mr. Letourneau’s hearing by PSRB member, attorney Mark Blenden, but ignored by the
Board. Only an affidavit by the process server is required which Mr. Letourneau lawfully prepared
and filed. The only reason Mr. Letourneau had to even obtain a Rule 103 order in this case was
because the Bexar County blanket order had been rescinded before his Supreme Court certification
application was approved. Furthermore, Ms. Walsh had hired Mr. Letourneau to serve the process in
the first place and fully expected him to do so lawfully (pursuant presumably to Rule 103.)
Fact No. 2:
Mr. Letourneau did not sign Ms. Walsh’s name but only hand wrote it on the order in an effort to
inform the court which party was requesting him to serve process in the suit and that he was seeking
authorization to serve the process because he had been officially hired to do so by the party’s
counsel.
Fact No. 3:
Mr. Letourneau was never convicted or even charged with the crime of forgery, tampering with a
government document or filing a fraudulent instrument. In a proper criminal proceeding, a conviction
of forgery must be supported by evidence that the perpetrator harmed or defrauded the party in
question. Mr. Letourneau did neither.
Fact No. 4:
The PSRB held an unlawful mock criminal trial, found Mr. Letourneau guilty of forgery, denied his
application to become certified and informed him that he could not reapply for a period of two years!
Fact No. 5:
At the time, there was no recourse in the Supreme Court Miscellaneous Docket orders for a certified
process server or applicant for certification to appeal a PSRB decision. Therefore, despite being
qualified, Mr. Letourneau was denied the ability to compete in the marketplace on the same level he
had been competing up until that time. The PSRB’s rogue and unauthorized actions severely
damaged Mr. Letourneau’s business and has since caused the loss of many customers and many
thousands of dollars because of process he has had to either turn away or subcontract to an
authorized process server.
But, even more egregious is what happened during Mr. Letourneau’s ordeal that has created the
greatest cause for concern. The hearing on Mr. Letourneau’s complaint was originally set for January
20, 2006. Notice was sent to both Mr. Letourneau and the complainant, Ms. Stephanie Walsh. Mr.
Letourneau appeared as requested with legal counsel (at Mr. Letourneau's expense) and a character
witness in tow. The complainant, Ms. Walsh, did not appear. Because of Ms. Walsh’s failure to
appear, Mr. Letourneau’s counsel requested that the PSRB dismiss the complaint as unsubstantiated
and his application be approved. Instead of dismissing the complaint, the PSRB voted to table his
matter until the next meeting so “Ms. Walsh could be present.”
What happened next was not only unauthorized, it is on par with a criminal violation. The Chairman of
the PSRB, Mr. Carl Weeks, issued a document than can only be described as a subpoena compelling
the appearance of Ms. Walsh and the production of documents. Only law can grant subpoena power;
the PSRB has no such power. It should be noted here that Mr. Weeks is also President of the Texas
Process Servers Association, an association that Mr. Letourneau is not a member. This subpoena
was then forwarded to the Vice President of the TPSA, Mr. Andrew J. Watson, who is also a process
server in San Antonio competing directly with Mr. Letourneau. Mr. Watson promptly “served” the
document on Ms. Walsh and, on April 28, 2006, the day of the hearing, brought her to Austin in his
personal vehicle. It is also worth noting that Ms. Walsh was a former client of Mr. Watson’s before she
began using Mr. Letourneau to serve her process. The foregoing might give a reasonable person
concern that a crime of collusion has been perpetrated against Mr. Letourneau in an effort to destroy
his ability to compete in the industry; collusion that may involve other criminal violations relating to
government abuse, official oppression and abuse of color of office.
Then there are the constitutional concerns. Some of Mr. Letourneau's constitutional rights may have
been violated such as the rights to due process, to face one's accuser, equal protection under the
law, and to be treated as innocent until found guilty.
SECOND CASE IN POINT:
The PSRB is a voluntary board empanelled with several public servants. Constable, Ron Hickman,
Harris County Pct. 4, serves as the chairman of the Complaint Sub-Committee. Constable Hickman
conducts himself as if he is the "policeman of the industry." He routinely used official Harris County
Constable letterhead, postage, facsimile machine (presumably,) email address and other government
office supplies to conduct his voluntary PSRB business. According to the Texas Penal Code, Abuse
of Office, Chapter 39.02(a)(2), "misuse[s] of government property, services, personnel, or any other
thing of value belonging to the government..." could be construed as an abuse of official capacity.
Additionally, when Constable Hickman contacted process servers regarding complaints, he often used
his official constable letterhead and made response to his correspondence mandatory. This created
an impression that a law enforcement officer, not a member of a voluntary administrative board, was
investigating them. He routinely interviews witnesses and interrogates those on who complaints
have been filed. According to Chapter 39.03(b), "...a public servant acts under color of his office or
employment if he acts or purports to act in an official capacity or takes advantage of such actual or
purported capacity." This could be construed as official oppression. Evidence of Constable
Hickman's activity is posted on the Supreme Court's website and can be viewed by clicking the link
found at the end of this article. (Note: For some reason, after October of 2005, the Court stopped
posting copies of Constable Hickman's letters, faxes and emails on its website. It is possible this
practice continues today and probable that more evidence exists.)
The PSRB consists of nine members. If it had been created by the legislature, subsequently being
subject to Sunset, as many as six of its members would be ineligible from serving because of conflicts
of interest and loyalty. The Chairman is a former Williamson County deputy constable and remains a
fully commissioned peace officer. The current president of the Justice of the Peace and Constables
Association (JPCA) serves on the PSRB as does a past president. The JPCA is on record before the
Texas Legislature holding a position that service of civil process by private citizens should not exist.
Three members are also officers/directors of a trade association regulated by the Board. At least
three members are involved in training, some sitting in judgment of the approval of additional training
courses that would compete with their own. No members of the public serve on the PSRB. There is
no training for PSRB members, no complaint procedure and no method to remove a board member.
There is a measurable amount of mistrust of the PSRB by the industry.
ISSUE NO. 2-
The Texas Supreme Court legislated a regulatory program
from the bench.
Pursuant to Miscellaneous Docket Order No. 05-9122, at the time of Mr. Letourneau’s ordeal, the
PSRB had been charged initially with only four "administrative" duties: (1)review applications, (2)
approve or reject applications, (3)notify each applicant of its action, and (4)post the name and
certification number of each approved applicant on a list maintained on the Supreme court website.
The PSRB had been given no authority to create a procedure for the filing of complaints against
certified process servers. The PSRB had been given no authority to create a downloadable complaint
form which had been posted on the Supreme Court website. The PSRB had been given no authority
to accept, process, investigate or act upon complaints filed on process servers. And, the PSRB had
been given no authority to hold hearings on complaints and discipline process servers.
Some months after the PSRB began its unauthorized practices, it submitted a list of several
recommendations to the Supreme Court. This list was placed on the agenda of the Supreme Court
Rules Advisory Committee (SCAC) for its April 14, 2006 meeting. In that SCAC meeting, testimony from
process servers revealed the PSRB had already enacted autonomously the recommendations on its
own, without Supreme Court approval. The SCAC forwarded none of the PSRB’s recommendations to
the Court. It was also uncovered in this meeting that the PSRB had investigated at least one process
server who was not certified.
Some of the more shocking actions of the PSRB include the certification of several individuals (prior
to Rule 14) who have criminal convictions of felonies and misdemeanors involving moral turpitude
despite such convictions being an immediate disqualifier to certification. This includes one individual
who had been convicted of $40,000.00 in hot checks and at least two felons, one being none other
than a director of the TPSA.
In March of 2007, without consulting apparently the SCAC, the Court enacted Rule of Judicial
Administration 14 by way of Miscellaneous Docket Order No. 07-9036. Since the PSRB was created
under the guise of an “administrative” board, this clearly regulatory rule was placed in the only body
of rules available to the Court, rules of judicial administration. However, all one need do is read Rule
14 to see that it enables the PSRB to supersede an administrative function and empowers it to
regulate and perform essentially the same as other lawfully created regulatory agencies like the Texas
Department of Licensing and Regulation. The implementation of Rule 14 proves the PSRB had no
authority to do what it did to Mr. Letourneau and other innocent citizens prior to the rule's existence.
Also in 2007, during the 80th Texas Legislative Session, the Supreme Court in its Legislative
Appropriations Request sought funding for the PSRB and the certification program in conjunction
with a TPSA bill, Senate Bill 1305. The Court’s LAR quickly became contingent on the passage of SB
1305. However, this bill died, it is believed, because it was successfully argued that the legislature
could not and/or should not fund a regulatory program it did not create to begin with. An interesting
side note: since the certification program did not exist legislatively, the Court was forced to squeeze
"process servers" into the same line item with the legislatively created Guardianship Board in its
LAR. This created the illusion of a legitimate request for funds.
Since certification began, the PSRB has acted as a regulatory agency; both before and after Rule 14
was enacted and in contradiction to the Texas Constitution, Texas Government Code and the spirit of
the separation of powers. It lies beyond the reach of the Texas Sunset Commission and the
protections Sunset provides. The composition of its membership violates many accepted standards
found in the Sunset Commission’s publications, Guide to the Texas Sunset Process and The Sunset
Occupational Licensing Model. Texas Government Code in many places makes clear that regulation
of private enterprise is a legislative function, i.e. Tx. Gov. Code, Chapter 318, among others.
Many letters and emails have been sent to the Supreme Court asking that the PSRB be restrained
from violating the Court’s orders and that the program be administered as it was originally presented,
a statewide blanket order. Not only has the Court refused to monitor, oversee and correct the PSRB
(in itself an issue of the Court's oath of office,) the Court legitimized the Board's rogue actions by
enacting Rule 14. Furthermore, a letter from Chief Justice, Wallace B. Jefferson, openly admits that
since the Texas Legislature time and time again refused to license and regulate the private process
serving industry, the Court took the liberty of doing so.
In keeping with this goal, the Court has for many years toyed with the idea of standardizing the service
of process in Texas beginning with what many in the industry believed was a final and impending
decision; the Notary Public Provision (NPP.) This concept was considered and recommended by the
SCAC sometime around 2002. Implementation of the NPP was expected by the industry and welcomed
even by sheriffs and constables. Further, testimony was presented to the 78th Texas Legislature by
the then Supreme Court Rules Attorney, Chris Griesel, that implementation of the NPP was pending.
However, between the time of Mr. Griesel's testimony and following session, something not yet fully
understood took place and the NPP became overshadowed by an unexpected pursuit of full-blown
industry regulation.
It is believed that the special interest group who opposed the NPP was able to convince the Texas
Supreme Court of two things. One, that the industry was opposed to the NPP and wanted licensing;
an absolute untruth as the only concern process servers ever had or cared about was the ability to
serve citations and writs on a statewide level as is the case with all other forms of process. Two, that
the Court should abandon the NPP and pursue licensing for the industry. This is why, in 2004, it came
as such an unexpected shock when the Court proposed a certification program that bore no
resemblance to the NPP. Both the industry and constables questioned the Court about what had
happened to the NPP. No adequate answer was ever given and, for unknown reasons, the Court
presented the certification program in such a way that sheriffs and constables had no choice but to
also abandon the NPP and, for the first time in legislative history, support licensing for the industry.
This is exactly what happened and a full-blown licensing bill, SB 165, was filed at the 79th Texas
Legislature with the constables' blessing. An enlightening email from Constable Ron Hickman that
alludes to a plan to coerce the constables can be found by clicking the link below.
Lastly, we are finding more and more judges reluctant to sign individual Rule 103/536 orders. Many
jurisdictions have rescinded their blanket orders in favor of Supreme Court certification; for the main
reason that maintaining a blanket order can be burdensome. We also uncovered a misleading letter
being sent out to judges by some members of the TPSA urging them to stop signing Rule 103/536
orders based on a gross misinterpretation of those rules. The letter instructs judges not to grant 103
or 536 orders unless the process server is certified. That concept alone proves the
misinterpretation; if a server is certified, he/she would not need a Rule 103 or 536 order and would
never seek such an order. For instance, in Harris County, there is no longer a blanket order and it
has become virtually impossible to obtain a Rule 103/536 order making certification mandatory for
process servers in that county or any process server in Texas who is requested to serve process
issued by a Harris County Court. The certification program has become a perversion of the judicial
branch.
Reference:
Letter from Texas Supreme Court Chief Justice, Wallace B. Jefferson
Unlawful subpoena issued by the PSRB
Evidence suggesting abuse of office, (click on attachments D, H, & I)
T.R.C.P., Rule 103, section relating to making motion and fee
Texas Supreme Court Misc. Docket Order 05-9121, Final approval of amendments to Rule 103
Texas Supreme Court Misc. Docket Order 05-9122, Process server certification program
Texas Supreme Court Misc. Docket Order 05-9123, Appointments to the PSRB
Texas Supreme Court Misc. Docket Order 05-9137, Carl Weeks appointed as Chair
Texas Supreme Court Misc. Docket Order 05-9195, Attorney Mark Blended appointed to PSRB
Rule 14, Rules of Judicial Administration (Misc. Docket No. 07-9036)
Texas Constitution, article V, section 31(a)
Texas Government Code § 74.024
Texas Government Code § 318, 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
Texas Sunset Commission publication Guide to the Texas Sunset Process
Texas Sunset Commission publication The Sunset Occupational Licensing Model
Email from Constable, Ron Hickman (current PSRB member) suggesting coercion
PSRB meeting minutes, January 20, 2006
PSRB meeting minutes, April 28, 2006
All PSRB meeting minutes and agendas posted to date
Additional PSRB Improprieties
www.supreme.courts.state.tx.us/rules/rja-home.asp (see how out of place Rule 14 seems in the Table
of Contents)
THE SOLUTION
COMPARISON GRAPH
PIE CHART
This report prepared and presented by the Founding Directors of
The Certified Civil Process Servers Association of Texas who each have twenty or more years of
experience as private process servers:
Dana McMichael; 512-477-2681; assuredcivilprocessagency@yahoo.com
Tod E. Pendergrass; 512-447-2300; directresultslegal@yahoo.com
Billy D. Deel; 361-887-9595; bddeel.tcp@interconnect.net
To discuss any of these issues in more detail, we encourage you to contact us at your earliest
convenience.