Thursday, July 15, 2010

Process Server Certification

In 2005, shortly after I came into this role, the Supreme Court of Texas advised me that they had approved amendments to Rules 103 and 536(a) of the Texas Rules of Civil Procedure, effective July 1, 2005, governing statewide certification of process servers. The Court also issued a companion order to establish the framework for certification of those approved to serve process under the revised rules, creating a Process Server Review Board, and ordering my office to provide "clerical support" to the new board.  Later the Court adopted Rule 14, Rules of Judicial Administration, to formalize the governance of this program.

Recent reports of systemic problems of service of process in New York and elsewhere have reinforced to me the value of having some regulation around the statewide service of process.  The Federal Trade Commission just released a new report entitled "Repairing a Broken System: Protecting Consumers in Debt Collection Litigation and Arbitration," which highlights the anecdotal information available (pp. 8-9, footnotes omitted):
Although no empirical data were presented or submitted, panelists from throughout the country estimated that sixty percent to ninety-five percent of consumer debt collection lawsuits result in defaults, with most panelists indicating that the rate in their jurisdictions was close to ninety percent. . . .
Roundtable participants differed as to whether inadequate or improper service is prevalent. Many consumer advocates and judges who adjudicate debt collection cases stated that inadequate or improper service occurs frequently. One local official reported that her agency’s comprehensive investigation of process servers in New York City revealed that “many are not performing service. They are filling out false affidavits of service. They are not going to the addresses. They are not sufficiently checking the addresses." A Chicago judge explained similarly that one of his colleagues had conducted a “spot audit” of one process server and found that he “claimed to be in areas thirty miles apart in the Chicago-land area within minutes . . . . And we [asked,] ‘Is he Superman?’”
So I think the Supreme Court of Texas was prescient in taking on some minimal qualifications check for people who will be permitted to serve process for courts throughout Texas.  But not all are fans; there seems to be one or two citizens out there in particular who have complained to the legislature, filed a federal lawsuit (which was dismissed), complained to the State Auditor, and who knows what else, about the very existence of the PSRB.  Meanwhile, the number of process servers in the program has gone from 1,200 grandfathered in 2005, to 5,300 this month.  Clearly there are people who want to do this work, and equally clear, we need to know and approve of who they are. 


  1. Carl, who are the "we" who need to know and approve who "they" (Texas private process servers) are? It apparently isn'the attorneys and paralegals within the 5,000 law firms that make up my client database. They have never asked about my qualifications, or the qualifications of any process server I use. Surely , it isn't the citizens of Texas; because there have been no complaints brought to the Texas Legislature from the general public citing reasons to regulate process servers. Of course it couldn't be anyone within the federal judicial system, Every federal court in the nation permits anyone over 18 to serve their summonses, restraining orders, subpoenas, etc. It can't be over half of the States in the USA whose process servers enjoy the same standard as the federal courts. Any disinterested adult may serve process in 26 States.

    It also can't be the judiciary; and not even the Office of Court Administration. How do I know this? Take a look at State law, Carl. TX Govt. Code, Sec. 318 is profoundly clear that it is the sole responsibility of the Texas Legislature to determine if the operations of any occupation or profession in Texas subjects the health, safety or welfare of the residents of Texas to any risk; and only then may the Legislature decide upon the least amount of regulation necessary to protect the public. The Texas Legislature has been asked seventeen (17) times to regulate private process servers, not by the general public, but by special interest groups. The Legislature has said, "NO!" seventeen times. The only "we" who need to know and approve said, "NO!."

    The Legislature is now very much aware that the Court has usurped its jurisdiction; and the Legislature is angry. I can hardly wait for January.

    Dana McMichael
    Citizen #2 or #1, however you have us numbered

  2. Mr. Reynolds,

    ISSUE NO. 1-
    Carl Reynolds wrote: “Later the Court adopted Rule 14, Rules of Judicial Administration to formalize the governance of this program.”

    The certification program began July 1, 2005. Rule 14, TRJA, was not implemented until much later, in April of 2007. From the very beginning, and without authority, the PSRB was investigating complaints, holding hearings, summoning witnesses, dishing out discipline and performing other duties that were not a part of any order, law or rule until Rule 14, TRJA, came along 21 months later. For goodness sakes, there wasn’t even a method for an appeal. I have never heard of occupational regulation that is without an appeal process.

    There was no formalizing of anything. The Court was forced to adopt Rule 14, TRJA, because the PSRB was already doing everyhting the rule finally, "officially" authorized. All actions of the PSRB before Rule 14, TRJA, were absolutely “unofficial.” In my book, that makes them unlawful.

    If you disagree, please post on your blog anything in writing from the Court that says the PSRB had the authority to investigate complaints and administer discipline prior to April of 2007.

    Tod E. Pendergrass
    Texas Supreme Court certified process server

  3. Mr. Reynolds,

    ISSUE NO. 2-
    "If the Texas Legislature finds out what we are doing, we will have bigger problems than SB 1305."
    Statement made by former Texas Supreme Court Rules Attorney, Lisa Hobbs to Lobbyist, Keith Oakley.

    When the certification program was implemented, the Supreme Court rules attorney was Ms. Lisa Hobbs. You worked with her on many projects including the process server certification program. Do you have any comments about why she would make such a statement?

    SB 1305, a bill filed with the 80th Texas Legislature, would have provided funding for the operation of the certification program and the PSRB. That bill did not pass, yet the program and the PSRB continued. Funding was again requested and denied a second time during the 81st session. Please explain how a government agency that performs occupational regulation on a free-enterprise private industry can exist without funding, especially when the legislature has twice denied a direct request for that funding?

    Tod Pendergrass a/k/a Citizen number 1 or 2

  4. Mr. Reynolds,

    ISSUE NO. 3-

    You are misinformed about what has become known as “The NY Matter.” The small group of individuals who were caught and convicted of “gutter service” were not process servers. They were not members of the national process servers association and they were not members of the New York association. They were part of the debt collections industry; an industry that has a very lengthy record of fraud, unethical practices and criminal misconduct. If you listen to the NY Attorney General’s own words in the press conference, the bad actors were being paid between “$2.00 and $10.00 for each service.” Process servers do not work for those low rates, especially in Texas. The average rate for service in Texas among both private servers and sheriffs/constables is $70.00. The bad actors were quickly brought to justice and there was no domino effect on the true private process service industry in that state proving it was not an “industry-wide” problem.

    For eighteen years, our industry in Texas flourished and grew WITHOUT any government oversight. The amount of business that has shifted from the constabulary to the private sector continues to steadily increase. I resent your efforts to try and tarnish my industry, one that has for more than two decades become a superior alternative to service by the constabulary. The PSRB is not saving anyone from anything. In fact, they are doing much more damage than they could ever prevent. But, I do not blame them. It is the Texas Supreme Court that has breached the separation of powers. The PSRB’s misdeeds are only a manifestation of what can go wrong when the Court does the legislature’s job.

    Please tell us how many private process servers in Texas have been convicted of process service related crimes.

    Tod E. Pendergrass
    Texas Supreme Court certified process server

  5. P.S.
    Rule 14, RJA, was opposed by 100% of the public citizens who commented.


  6. And there you have it. Their search engines ever-ready, the aforementioned one or two have detected my post and spoken. And spoken.

  7. Mr. Reynolds,

    Will you address any of my allegations?

    Tod Pendergrass

  8. Mr. Reynolds,

    On April 1, 2010, you posted an article on your blog titled “Office of Capital Writs.” In it, you state:
    Carl Wrote: “SB 1091 established the Office of Capital Writs to provide legal representation for indigent capital murder defendants who are sentenced to death. The bill also created a Capital Writs Committee appointed by the State Bar of Texas president to recommend candidates for director of the capital writs office.”


    Carl Wrote: “The funding for the office of capital writs begins in FY2011 and was included in the Office of Court Administration’s portion of the state budget. Our staff has met to begin planning the startup of the office, including finding office space to house the expected staff of 9.5 FTEs when it is fully implemented. We are also beginning to look at how to submit a Legislative Appropriations Request in August of this year, on behalf of an office that will not yet exist at that time.”

    Your own words on OCW make my point on process server certification. YOU asked the legislature for funds to operate the program and the PSRB in “the Office of Court Administration’s portion of the state budget.” The legislature denied that funding… twice. So, where are you getting the money to pay the 2 FTEs that run the program and the PSRB?

    You understand obviously how government is supposed to work. Government programs are created and FUNDED by the legislature. I am sorry, but, it is embarrassing that a person of your knowledge and intellect would try and defend the Court’s usurpation of the legislature when you should be distancing yourself from the whole mess. YOU started this blog, and YOU chose to post your story and ask for comments. You have failed the citizens of Texas. As executive director of the OCA, you have allowed staff and equipment to be “borrowed” from your office and from at least one other legislatively created program, the Court Reporter Certification Board. That was your opportunity to exercise your authority by preventing the redirection of those resources. You chose loyalty to your employer over serving the public.

    Will you answer to my allegations, any of them?

    Tod Pendergrass

  9. Dear Dana & Tod:
    I don't want to get into a sustained debate and reserve the right to not respond to whatever rebuttal you have. But, you obviously desire and arguably deserve some response to your "allegations," so I will try, realizing that I may need to develop these points further as we move into legislative session, and that none of what I have to say will be news to you.

    To the heart of the matter, I agree that in general it is the legislature's job to set up new regulatory agencies; Ch. 318 does not actually say any such thing, but I understand how you are reading that in. I also believe that the Supreme Court of Texas has inherent authority, and their authority to adjust the rules of procedure to make private service of process possible should be construed to allow them to place some constraints on the conduct of that activity. So yes, I support my employer's authority to act as it has acted, in spite of the fact that it has created additional staff burdens on my office.

    I do agree that Rule 14 formalized processes that the PSRB had put in place prior to the rule, but would suggest that those processes developed in good faith pursuit of the charge originally placed on the PSRB by the Court, which would explain why the Court was willing to adopt Rule 14.

    Relying on the fact that the legislature has failed to act in a given area of the law is not a particularly credible legal posture, for the simple reason that you are claiming omniscience about the reason for that inaction. I have no idea where you got the number 17. And, I have not seen any indications that "the legislature is very angry" about the PSRB. I trust there are a few members sympathetic to your position, or you would not say that, but there are 181 members in all.

    As for the failure of SB 1305 and the lack of funding to my office (compared with the Office of Capital Writs): I do not believe that I am forbidden from excercising discretion in the work of my office by the legislature's failure to specifically fund some intiative. Last session I also asked for funding for a new position to work on disaster planning; I did not get the funding, and instead directed existing staff to focus more time on this objective. By your logic, that refocusing is illegitimate, which is patently silly.

    I have no response to your hearsay allegation about Lisa Hobbs, I wasn't there, didn't hear it.

    Hope this satisfies your need for responses for now.
    Carl Reynolds