ASSURED CIVIL PROCESS AGENCY
5926 Balcones Dr., Ste. 290
Austin, TX 78731
(512) 477-2681 (vox)
(512) 477-6526 (fax)
September 8, 2014
Judicial Branch Certification Commission
Attn: Members
Re: Process Server Regulation
Dear Chairman and Members:
The JBCC is comprised of five judges, three attorneys and a court reporter. That means that at
least eight of you have the legal training to understand the issues that will be discussed in this
letter; and it also means you will be accountable for lawful action upon the information provided
herein.
On June 30, 2005, after the Texas Legislature had refused for the 14th time over 8 sessions to
pass legislation to regulate the occupation of the private process server, the Texas Supreme
Court adopted a Miscellaneous Docket Order that created the judicial regulation of the process
server occupation; a blatant abuse of power and violation of both the Texas Constitution’s
separation of powers clause, and Texas Govt. Code, Sec. 318, which assigns the exclusive
authority to the Legislature to regulate occupations in Texas.
The Supreme Court also created the Process Server Review Board under its TRJA Rule 12
authority to create a judicial agency; but rather than charging it with an administrative function
as required by TRJA Rule 12, the Court charged the PSRB with the duty of regulating the
process server occupation; assigning the Office of Court Administration to provide the PSRB
with administrative support.
The PSRB immediately began to receive complaints, investigate complaints, hold hearings, and
issue disciplinary actions without a shred of statutory authority. Without a code of ethics or a
code of conduct either in rule or in statute to guide the behavior of process servers or to guide
the PSRB in its disciplinary actions, the PSRB using arbitrary opinions destroyed the careers of
several Texas citizens who had violated no laws or rules in this State, forced numerous citizens
to retake the process server training course, a course that several members of the PSRB
taught, and denied certification to process servers who were competitors or competitors of
colleagues of the PSRB members.
Thousands of Texas citizens are lawfully engaged in an occupation not regulated by the State;
and yet, the Supreme Court has forced regulation upon them against their will and in violation of
the Texas Constitution and State law. You were made aware by Mr. Tod Pendergrass in your
first formal meeting last week that the author of SB 966, the bill that created the JBCC, stated
on the Senate floor that the Supreme Court had neither the Constitutional nor statutory authority
either to create or to fund the process server certification program. SB 966 did nothing to
change that.
SB 966 was filed on behalf of the Supreme Court and the Office of Court Administration in an
effort to conceal nine years of civil and criminal wrongdoing. The JBCC was created to provide
the appearance of legitimacy to process server regulation by placing an unlawfully created
program under the management of a statutorily created board. This purpose for the bill was
openly declared by David Slaton, OCA Director. There was no compelling need to consolidate
the three lawfully created programs under central management. They were used to mask the
illegitimacy of the fourth program…process server certification.
The JBCC has no authority to regulate process servers, not just because the program was not
lawfully created; but because SB 966 did not transfer any authority to the JBCC to regulate
process servers. It only transferred the improper duties of a judicial agency, the PSRB, to the
JBCC. There is no lawful regulatory program upon which the JBCC may engage those duties.
(See the attached analysis of SB 966).
Finally, Miscellaneous Docket Order 14-9168, adopted on August 19, 2014, and effective on
September 1, 2014, rescinded TRJA Rule 14, the rule the Supreme Court adopted to define the
provisions of its unlawful certification of process servers. This means that the process server
certification program created by the Supreme Court now no longer exists; and no process
server certification program was transferred to the JBCC. Consequently, there are no certified
process servers that are delivering court process with viable authority unless they are also on a
standing order under Rule 103 with the courts of venue for the process they are serving. This
represents a crisis for the litigating attorneys of the State of Texas, as defense attorneys could
easily overthrow every service and/or every default judgment obtained on the service of process
by individuals relying on their certification for the authority to serve civil process.
An instant remedy is needed; and the only logical remedy, given the approximately thirty years
of extraordinary success of the process server occupation, is to remove the unnecessary
restriction to Statewide authority, the need for a written order of the court, as a requirement in
TRCP Rule 103. This is the solution provided in law in 1999, by the Texas Legislature for the
service of all process issued by the Attorney General’s Child Support Enforcement Division, and
for several other forms of civil process. It is the standard for service of all subpoenas and all
Federal Court process. (You should also be aware that the Supreme Court approved a Grayson
County Court Local Rule in 2003 that removed the need for a written order of the court for
disinterested adults to serve their citations and notices; and it did not rescind that Order after it
created the certification program in 2005. In other words, process server certification has never
been about regulating an industry to protect the safety, health or welfare of the residents of this
State, as is the required basis in law for all regulation in Texas.)
The JBCC should immediately recommend that the Supreme Court amend TRCP Rule 103 to
remove the requirement of the written order of the court. This will instantly free the process
server occupation from every vestige of the unlawful regulation that has constrained it for nearly
a decade, and will legitimize their service of civil process.
Please be aware that the Supreme Court and the OCA are fully aware that they have been
operating a rogue regulatory agency and program for the past nine years; and they are now
passing the liability for doing the same to the JBCC. Thank you for your consideration of these
matters.
Sincerely,
Dana McMichael
SB 966
SUBCHAPTER B. COMMISSION
Sec. 152.051. ESTABLISHMENT OF COMMISSION.
The Judicial Branch Certification Commission is
established to oversee the regulatory programs assigned to it by state law or by the supreme court.
The only regulatory programs the Supreme Court may assign to the JBCC are lawfully created
programs created by statute and placed under the Supreme Court, like Court Reporter
certification and Guardians ad Litem certification. This provision cannot have any other possible
lawful meaning. Should this purport to apply to the process server certification program it would
render the entire bill and the resulting law unconstitutional as it would violate the separation
clause of the Constitution and TX Govt. Code, Sec. 318.
SB 966
SUBCHAPTER C. ADMINISTRATION
Sec. 152.101. RULES. The supreme court may adopt rules consistent with this subtitle, including rules
governing the certification, registration, licensing, and conduct of persons regulated under this subtitle. The
supreme court may authorize the commission to adopt rules as the supreme court considers appropriate or as
otherwise specified under this subtitle.
The Supreme Court may adopt rules of regulation for persons regulated under this title. There
is no provision within this title that regulates private process servers; thus the JBCC has no
authority to regulate private process servers.
SB 966
CHAPTER 156. PROCESS SERVER CERTIFICATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 156.001. DEFINITION.
In this chapter, "advisory board" means the Process Server Certification
Advisory Board.
SUBCHAPTER B. PROCESS SERVER CERTIFICATION ADVISORY BOARD
The Process Server Certification section of SB966 only deals with the Process Server
Certification Advisory Board, and the transfer of statutes pertaining to process server
certification fees to the JBCC. The entire section devoted to process server certification in SB
966 has absolutely nothing to do with process server certification (because there was no
statutory program transferred to the JBCC). Also, the JBCC cannot now collect fees from
process servers because there is no longer a certification program in effect upon which to
charge those fees.