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End Judicial Regulation of Process Servers

In June 2005, after the Texas Legislature refused for the 14th time to regulate private process servers by statute, the Supreme Court implemented by Rule, full occupational regulation of process servers without any enabling legislation and in defiance of clear legislative intent.

TX Govt Code, Sec. 318.001 clearly establishes that all occupational regulation is the jurisdiction of the Legislature; and until the Supreme Court created its

"certification program" administered by a "judicial agency" (The Process Server Review Board), no occupation in Texas had ever been regulated without statute. Thus, the Supreme Court's judicial regulation clearly defies the Texas Constitution's separation of powers clause (Art.II. Sec.A.1) (See attached letter by Chief Justice Jefferson stating the Court imposed regulation because the Legislature refused to do so.).

In TX Govt. Code, Sec. 318.001(4), the law states that the only basis for regulating an occupation in Texas is to provide protection to the safety, health or welfare of the residents of this State; yet there has never been a call from the public for the State to provide protection against the practices of private process servers.

The Supreme Court's certification program was also a violation of Texas Constitution, Art. V, Sec. 31a, that states the Court may promulgate rules of administration (not regulation) that are not inconsistent with the laws of the State. There are only seven laws this State has ever passed that relate to private individuals serving civil process, and all seven laws authorize any disinterested adult to serve the specified forms of civil process (without regard to training, experience, knowledge of the court system or criminal history). Thus, a full-blown regulatory program (which is not administrative at all) that oversees strict requirements and disciplinary government oversight is extraordinarily inconsistent with the laws of this State. (See attached file showing these seven laws, as well as other laws and rules authorizing any disinterested adult to serve court papers.)

The process serving occupation in Texas desperately needed statewide authority to serve civil process instead of having to obtain court orders from every court venue in 254 Counties. The Supreme Court had already announced its intention to implement the "notary public provision" which would have authorized notaries public to serve process, thus immediately enabling statewide authority. The Supreme Court rules attorney even testified under oath before a House committee of the 78th Legislature in 2003, that the Court was simply waiting for a body of rules to amend to release the notary public provision as an amendment to TRCP Rule 103.

The Supreme Court's judicial regulation of private process servers should be eliminated as quickly as possible in order to restore legitimacy to the separation of powers and the rule of law in Texas as it affects the private process serving industry. Statewide authority for process servers should be implemented consistent with Federal Rule 4, which provides authority to any disinterested adult to serve civil process. This would be consistent with the seven laws the Legislature has already passed regarding this matter.

Submitted by 2 years ago

Comments (9)

  1. assuredcivilprocessagency Idea Submitter

    On November 2, 2001, the Supreme Court Advisory Committee, with Supreme Court Justice Nathan Hecht in attendance, discussed the prospect of the Supreme Court providing regulation of the process server occupation. Mr. Orsinger stated (at 5247.1-25), "The problem is, first of all, that looks legislative and not rulemaking, even though it is, in fact a rule. And secondly, the Supreme Court doesn't have the authority to create an administrative agency and it doesn't have the money to fund it." His recommendation, consequently, was to create a task force to establish a body of acceptable standards that compliance with would enable any individual to obtain a court order that would authorized him/her to serve process. Unfortunately, that was already the procedure that had been in place since January 1988.

    The fact is, the Supreme Court's own Advisory Committee stated the Court did not have the authority to implement what it subsequently implemented a year and a half later.

    2 years ago
  2. Please everyone, we have been mislead for too long. I am just a small business owner who is tired of paying too many fees and salaries to an Illegal Process Server Review Board. Let's get this Rule overturned this time.

    2 years ago
  3. This challenge requires analysis of two aspects of process server regulation. One, is the regulation currently in place lawful and constitutional; and two, is the regulation necessary to protect the public?

    Regarding the legitimacy of the current regulation… In the purpose to this challenge, the writer states:

    “The Court Administration Act authorizes the Supreme Court to adopt rules for the operation and management of the court system and the efficient administration of justice.”

    The Court Administration Act (Tx. Gov. Code, Sec. 74) does, in fact, give broad powers to the Texas Supreme Court. However, broad does not mean all-inclusive; they are broad, BUT LIMITED. The Court Administration Act does NOT give the Court the power to create occupational regulation for any private industry or occupation. For example, Court Reporters are regulated by the Court, but, only because of a law (statute) passed by the Legislature, TGC 52. Guardians Ad Litem are regulated by the Court, but, by law, TGC 111. There is no such statute for process server regulation and Ch. 74 simply does not give that authority to the Court. The Court’s own rules establish this fact, to wit:

    Process server certification and Process Server Review Board actions are governed by Rule 14, Tx. Rules of Judicial Administration (TRJA.) The Court’s authority to promulgate these rules is established in Rule 1 which reads:

    "TRJA 1, AUTHORITY- These rules are promulgated pursuant to Section 74.024 of the Texas Government Code."

    Point #1: All one has to do is look at TGC, Sec. 74.024 to see that it does not give the Court authority to regulate private citizens (see TGC 74.024 at http://www.statutes.legis.state.tx.us).

    Point #2: Both the Court and the PSRB have made it abundantly clear that all process servers, whether certified or not, are disinterested third-parties, not agents or employees of the court. PSRB Rules of Professional Conduct (proposed) read:

    "(8) Exaggerating Authority- A process server shall not exaggerate his authority, nor his position or affiliation with a court, or official agency or their authority to serve process, or to gain access in order to serve process."

    This well known industry fact is taught in the training courses and members of the PSRB have made numerous announcements in their public meetings that certification does not give a certified process server any authority above a non-certified process server (which happens to include every disinterested adult in the state.) The only authority certification conveys is permission to make the delivery. I find it an irrefutable fact that TGC 74.024 (including section (c)(9), the only section that could remotely be misconstrued as an authority to regulate) does not include certified private process servers. If a certified process server were to identify him/herself as “court personnel,” he/she would find themselves in danger of having their certification revoked by the PSRB (at least one person has been revoked for identifying himself as court personnel.) This is not my opinion, but PSRB policy. The definition of “personnel” reads:

    "Personnel, noun. 1. a body of persons employed in an organization or place of work."

    Clearly, certified process servers are not court personnel and clearly, the Court does not have authority to administer (much less create) occupational regulation without an enabling statute.

    Point #3: These are issues we all learned in junior high… the separation of powers and the system of checks and balances. Whether you are pro or con on process server regulation makes no difference. If we, the people, don't act to protect these principles, government can, and will, go awry. As unbelievable as it may seem, the Texas Supreme Court is violating the separation of powers doctrine; and Sec. (d) of TGC 74.024 is the check and balance. Even for those who favor the Court’s regulation, the end does not justify the means. What needs to be done is a demand by the people which will translate into action by lawmakers. The battle over regulation can, and likely will, continue to be fought where it should… at the Capitol, not the Court. We need to ask our State Senators and Representatives to act under TGC 74.024(d) and object to TRJA 14 for the purpose of repairing this breach of powers. Public comments to TRJA 14 were 100% opposed. Still, the Court implemented the rule anyway. Neither the public we serve nor the attorneys who hire us asked for this regulation. There are no process servers in jail for job related crimes; and there is no record of consumer complaints filed with the AG. The fact is, private process service has flourished in this state for one simple reason… attorneys choose us because we offer more efficient and reliable service than the constables, and certification is never a factor in their choice. Process server regulation is one area of Texas red tape that should be abolished, not so much because it has not been proven necessary to protect the public, but because, in its current form, it is unconstitutional and an affront to core principles of our government.

    Next comment… is the regulation necessary to protect the public?

    Tod E. Pendergrass

    Texas Certified Process Server

    2 years ago
  4. Can we please adopt the Federal Rules?

    2 years ago
    1. assuredcivilprocessagency Idea Submitter

      The Federal Rule equivalent has already been adopted seven times by the Legislature. Full blown regulation of the remainder of civil process service is nonsensical; and it is inconsistent with the laws of this State, making the rules creating such regulation a violation of the Court's rulemaking authority.

      The only logical course of action is to complete the standard of a Federal Rule 4 equivalency to the service of all Texas civil process not requiring immediate enforcement action.

      2 years ago
  5. Issue No. 2, is the regulation necessary?

    “Necessary” being the key, here’s what the LAW says:

    “The interests of the residents of the state are served by the regulation of certain professions and other occupations. State government actions have produced a substantial increase in the number of regulatory programs. The legislature should review proposed regulatory programs to better evaluate the need for the programs and regulation should not be imposed on any profession or other occupation unless required for the protection of the health, safety, or welfare of the residents of the state.”

    [Texas Government Code 318.001]

    The current certification program and the Process Server Review Board are in direct violation of this law. It is the Legislature’s job to determine if occupational regulation is necessary. The Court violated this law when it created an occupational license without enabling statute. But, for the purposes of a red tape challenge and despite how it was created, is the regulation actually “necessary?”

    Private process servers pose little or no threat to the public. Current law, both civil and criminal, covers any infraction a private process server might commit. Any question a private process server may have about their job can be answered by the licensed attorney who hires them. There are no known private process servers convicted of job related crimes in Texas and no known consumer complaints filed with the AG. The “public” (the group the LAW says needs to be protected) is not demanding regulation, which includes the licensed attorneys who choose service by private server. Legislative intent on this issue has been established in at least 7 “any disinterested adult” laws and a refusal to pass many licensing bills. So, who is this group demanding regulation? It is those who have pocketed hundreds of thousands of dollars selling the same unnecessary and “government mandated” training course over and over again.

    Clearly, there is little or no evidence indicating the public is being harmed by untrained process servers. Training courses were available to anyone who wanted to take them long before the Court’s program began in 2005. According to the LAW, “government mandated” training should only be required if the Legislature determines it necessary to protect the public. That has not happened.

    After July 1, 2005, thousands of new inexperienced people became spellbound by the illusion that taking a training course meant one could step into a new, exciting, and lucrative career. The courses now exist only to tantalize today’s job seekers with empty promises of an easy buck. Roughly three-quarters of process server trainees never go on to establish a career, many never serve a single paper and others don’t even complete the application process. The training course instructors are happy to pocket the proceeds and advertise to their next class of unsuspecting students. Many long-time servers like myself will be forced to take that same course a fourth time. The PSRB is the only regulatory agency that has members who also teach, sell and/or promote training courses. They won’t allow or recommend on-line training because they know it will cut their profits. This is a huge Sunset violation for very good reasons. One being the PSRB often disciplines process servers by forcing them to re-take (and pay for) training; a course they are happy to sell them.

    What about the PSRB’s complaint record? It speaks for itself. Taking into account the fact that there is NO CODE OF CONDUCT for process servers, and PSRB members have received no board member training in regulatory or administrative law, the so-called “actionable” complaints totaled 27 in six years. That translates into a million dollars PER YEAR for the PSRB to resolve less than 5 complaints per year, none of which stemmed from or led to a criminal conviction. The program requires the revocation of any certified server who becomes convicted of a felony or misd. involving moral turpitude. To date… NONE have been revoked for that reason.

    Whether you believe process server regulation is or is not necessary, please consider the current laws in place and these questions:

    If regulation were NECESSARY, why does the Court’s TRCP Rule 176 give statewide authority to any disinterested adult to serve all subpoenas?

    If regulation were NECESSARY, why do several Texas LAWS give statewide authority to any disinterested adult to serve the EXACT SAME DOCUMENTS covered by certification?

    If regulation were NECESSARY, why did the Legislature give statewide authority to any disinterested adult to serve all criminal and grand jury subpoenas?

    If regulation were NECESSARY, why does the United States Supreme Court give nationwide authority to any disinterested adult to serve federal summons and subpoenas in all 50 states, including all criminal and grand jury subpoenas?

    IF REGULATION WERE NECESSARY WHY ISN’T CERTIFICATION MANDATORY? Why can any disinterested adult still serve by case-by-case or by county-wide blanket order? Why ISN’T the public considered in danger of those untrained, non-certified servers?

    The real crux of certification is the “statewide authority” it provides. If the public is not in danger of local process servers, then they are not in danger of those having statewide authority. But, more importantly, if “statewide authority” can be conveyed by court rule, e.g. TRCP Rule 176, it can be conveyed by rule for service of citations and other writs. The Court’s own rules establish the fact that “statewide authority” for any disinterested adult does not even need the Legislature’s involvement.

    The rules and laws currently in place represent a major discrepancy and inconsistency of the most extreme. Within one rule, the Court allows service by any disinterested adult on one hand and, on the other, the equivalent of full-blown licensing standards that rival the major professions (TRCP Rule 103.) Are process servers more like doctors, lawyers and policemen? Or, are they more like messengers? It’s time to quit pretending this regulation is necessary.

    So, why would the Legislature pass a law funding the program? To answer that would take a whole other post. But, the evidence is right there in the record and it reveals a somewhat elaborate scheme to force the Legislature’s hand last session; not to mention some of that training course money being returned to key legislators by way of campaign contributions; all legal, of course, but true nonetheless. Haven’t even thought to look at the SC Justices campaign contributions yet.

    Sincerely,

    Tod E. Pendergrass

    “Never be afraid to raise your voice for honesty and truth and compassion against injustice and lying and greed. If people all over the world, in thousands of rooms like this one, would do this, it would change the earth.” William Faulkner - Author

    2 years ago
  6. assuredcivilprocessagency Idea Submitter

    The PSRB has been guilty of a multitude of civil and criminal violations since its creation in 2005. It is mindboggling that the Supreme Court is willing to jeopardize its dignitary, and the Justices, their careers, by allowing this rogue government agency to continue to operate under the Court's authority and watch.

    As for process server regulation being necessary, the Court has NEVER published verbally, written or online any rationale for regulation being necessary. They haven't because this regulation is not about being necessary to protect the public. It is about generating a lot of money to a special interest group.

    In my 30+ years as a citizen of this State, I have never been more ashamed of any element of Texas government than with the Supreme Court's operation of this blatant violation of the Constitution and State law. I don't know how the Legislature permits them to continue doing what the Legislature has 17 times refused to do; being the only branch of government with the authority to do it.

    2 years ago
  7. I'm a former law enforcement officer who served civil process, a 20 law office veteran who's managed having process served for my employers, and 7 year business owner of a PI & process service company. As someone who is very familiar from working with legitimate state agencies with legitimate authority from our state legislature, this Process Review Board's existence is unneeded and I might add illegitimate. The people of Texas through their elected representatives are authorized to established regulatory agencies, not the Texas Supreme Court! I was so disgusted with the majority party membership in both the Texas House and Senate in the last legislative session, who know better, but went along with giving the PSRB & the high court the authority to act like they had lawful right to do what they're doing!

    2 years ago
  8. assuredcivilprocessagency Idea Submitter

    The Legislature was coopted into providing the Court the authority to fund their unlawful regulation of process servers. The Court Reporters and Guardians Ad Litem certification programs created by statute were dependant upon the PSRB receiving funding in order to be funded themselves.

    As it passed and was signed into law, SB1 of the Special Session now has the fees collected from process servers paying for all three occupational programs. This is beyond disgusting and unfair. It is just plain bad government.

    2 years ago

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    2 years ago

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