JUNE 12, 2008-
OPEN LETTER TO THE TEXAS JUDICIAL COUNCIL
Dear Texas Judicial Council Members:
A request has been made upon your council to issue resolutions in support of certain
legislative objectives. The Process Server Review Board (PSRB) and the Office of Court
Administration seeks funding, among other legislative goals, at the upcoming 81st Texas
Legislature.
Before you issue any resolutions, please consider the following:
THE PSRB IS AN UNLAWFULLY CREATED REGULATORY AGENCY. As evidenced in its
2007 Annual Report, even the TJC recognizes the PSRB as a regulatory agency and
regulation should be created by the Texas Legislature. (See Tx. Gov. Code, Chpts. 318 &
325.)
In 2005, the Texas Supreme Court was in favor of licensing and regulation for the private
process serving industry by way of Senate Bill 165. Time and time again, the Texas
Legislature has refused to regulate the private process serving industry because the
profession does not meet accepted standards for regulating a private enterprise.
Specifically, private process servers pose no risk of harm to the public’s health, safety or
welfare. As with many licensing bills before, Senate Bill 165 did not pass. The Texas
Supreme Court then decided to take matters into their own hands and legislated from the
bench a form of regulation on private process servers.
Process server certification, designed initially as a statewide blanket order, has been
transformed into an unlawful regulatory program. The PSRB, created initially to rubber-
stamp applications for certification, has been transformed into an unlawful regulatory
agency. The PSRB performs essentially the same function as the Texas Department of
Licensing and Regulation (an agency properly created by the Texas Legislature). The
PSRB is loaded with multiple conflicts of interest. There are no members of the public on
the PSRB, no term limits and more than half of the nine members would be ineligible were
the board lawfully created. There is no training for board members, no vehicle by which
to file a complaint against a board member, and no method to remove a board member.
In 2007, the Court further exacerbated the situation by again misapplying its
“administrative” rule making authority to implement Rule 14, Rules of Judicial
Administration. Rule 14 is an obvious “regulatory” rule and is clearly out of place in the
RJA’s body of administrative rules. All one has to do is compare Rule 14 to other similar
rules found in most other legislatively created regulatory agencies. In fact, there is no
other example of a board, commission or agency that is comparable to the PSRB or to
Rule 14 that was NOT created by enabling legislation.
The PSRB’s Chairman is Mr. Carl Weeks. Mr. Weeks is also President of the Texas
Process Servers Association (TPSA). Each session, using membership dues and other
profits, TPSA leaders promote and fund legislative initiatives that would benefit the
regulatory board Mr. Weeks chairs. This in itself is a huge conflict of interest. But, it is
allowed for the simple reason that the unlawful PSRB is a non-legislatively created
regulatory agency. It is not answerable to the Legislature. It is not answerable to the
executive branch of government and it is not answerable to the citizens of Texas. It is not
subject to the Texas Open Records Act, Texas Open Meetings Act or the Texas Sunset
Act. Numerous examples of conflicts of interest have been manifested because of this
unlawful board. It is truly rogue in nature.
During the last Texas legislative session, the Supreme Court placed a request for PSRB
funding in its LAR which became contingent on the passage of another TPSA bill, Senate
Bill 1305. That bill did not pass either. It was successfully argued that the Legislature
should not fund a regulatory program it did not create and over which it could not
exercise any authority.
The main objective for a TJC resolution request is for the support of a bill that would
procure funding for the Process Server Review Board and the private process server
certification program. The Supreme Court’s intention is to create a “certification division”
under the jurisdiction of the Court that will include the PSRB, the Court Reporters
Certification Board (CRCB) and the Guardianship Certification Board (GCB.) The CRCB
and the GCB are already under the purview of the Supreme Court, but with one major
difference; they are both legitimate regulatory agencies that were lawfully created by the
Texas Legislature and placed by the Legislature under the Court. The PSRB was not
created by enabling legislation and currently operates as an unlawful regulatory agency.
The PSRB does not exist in Texas Government Code as do the CRCB and the GCB.
Because the PSRB is not subject to the Texas Sunset Act, its existence violates many
established and accepted standards set out by that Act for the creation, consideration
and implementation of a regulatory agency. These standards can be found in the Texas
Sunset publications, Guide to the Texas Sunset Process and The Sunset Occupational
Licensing Model.
The Texas Supreme Court claims it has the authority to create regulation. In its
miscellaneous docket orders, it cites the Texas Constitution, article V, section 31(a), and
Texas Government Code § 74.024. However, these two provisions both refer to efficient
“administration” of justice and relate to the day-to-day operation and management of the
court system. The Court has misapplied these provisions to create a form of free-
enterprise “regulation” that it legislated from the bench.
In stark contrast, the following codes demonstrate that “regulation” is the job of the
Legislature:
Texas Government Code, Title 3, Chapter 318.001 – 318.003, “Review of Regulatory
Programs”
Texas Government Code, Title 3, Chapter 325 “Sunset Law”; specifically Chapter 325.022,
“Review of Proposed Legislation Creating an Agency.”
See also,
Texas Government Code, Title 2, Chapter 52, “Court Reporters…”
Texas Government Code, Title 2, Chapter 111, “Guardianship Certification Board”
Texas Government Code, Title 2, Chapter 74, “Office of Court Administration”
Both the CRCB and the GCB (and even the OCA) were created by the Texas Legislature
and placed under the Judicial Branch in Government Code.
Even the Texas Judicial Council was created by the 41st Texas Legislature, see Texas
Government Code, Title 2, Chapter 71
The most important aspect is that all the above referenced agencies are subject to the
Texas Sunset Act and enjoy protections afforded by Sunset. Process servers are
currently unprotected and are being manipulated by a board that routinely violates
constitutional rights, Robert's Rules of Order, the Texas Open Meetings Act, the Texas
Penal Code, Rule 14, RJA, and even the very misc. docket orders that created the board.
Finally, in a letter from the Court’s Chief Justice, Wallace B. Jefferson, he admits two very
important facts. (A) process server certification is a form of regulation, and (B) that
“comprehensive industry regulation would fall more appropriately within the Legislature’s
province.”
The following will demonstrate that a significant number of private process servers in
Texas must be certified to participate in the profession:
When certification took effect, counties across the State began rescinding their county-
wide Rule 103 blanket orders. Many judges who routinely signed case-by-case Rule 103
orders began telling process servers to “go get certified.” In Harris and surrounding
counties, there are virtually no judges who will authorize non-certified process servers.
There are over 1000 certified process servers in the Houston area. This represents
approximately one-third of the industry. For those servers, certification is not an option. It
has been made to be essential for them to remain in business. Other larger metropolitan
areas such as Dallas-Ft. Worth, San Antonio and Austin are also experiencing a deference
to certification. For any private process server who wishes to serve citations issuing from
courts other than those in his or her home county, certification has been made to be
essential. This truly is “comprehensive industry regulation.”
The solution is not to further burden the industry with unnecessary and unwarranted
regulation; the industry has not demonstrated a need for any government regulation. The
Legislature has made that point. The solution is to conform the last remaining segment of
process to the current standards for the majority of all other civil court process. The link
below, “THE SOLUTION,” will demonstrate clearly that regulation is out of place and
creates a double standard on both a state and national level.
Below are links to referenced information:
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 § 318.001-.003, relating to accepted criteria for regulating an industry
Texas Government Code § 325.022, review of proposed legislation creating a regulatory agency
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
Related Story:
Open Letter to The Supreme Court Rules Advisory Committee
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.