February 5, 2016

Attn:  JBCC
via hand delivery

Re:        Public Comments for JBCC meeting on February 5, 2016

Dear JBCC Members and Staff,

Regarding the proposed process server code of conduct:

Attached is a list of the statutory rule making authorities relating to the JBCC’s function (
A.)  As you can see, there is no statutory authority for the Supreme Court or the JBCC to adopt
rules or policies to license/regulate Process Servers.  Please note the methods of
implementation for each occupation’s section.  The law is clear that the Court may adopt rules
for the regulation of Court Reporters and Guardians.  The law also clearly authorizes the JBCC
to adopt rules for regulating Court Interpreters which must also be approved by the Court.  For
Process Servers, the law does not say.  So, whose statutory responsibility is it?  Should the
Court adopt rules/policies, or does the JBCC, or is the JBCC supposed to recommend
rules/policies for the Court’s approval?  Without rule and policy making authority spelled out by
statute, it’s not possible to know.  Neither the Court nor the JBCC have lawful authority to create
rules or policies for the purpose or regulating process servers.  The proposed process server
code of conduct is not authorized by law and will not be enforceable.

Regarding Statutory Definitions:

The State may license and regulate industries and professions that are defined by law.  The
private process service practice is not defined in law; neither is the practitioner because
process servers are not currently regulated by statute.  How is the JBCC to know who is subject
to their authority?  Without identifying the practitioner in statute, there can be no statutory
power over him/her.  For instance the “Judicial Branch Certification Commission” is defined by

TGC, Title 2, Subt. K, Sec. 151.001(2) "Commission" means the
Judicial Branch Certification
; and, ALL occupations subject to the JBCC are also defined by statute EXCEPT
process servers.

Following is a list of all the relevant terms defined by statute:  
Certification, Commission, Regulated Person, Official Court Reporter, Shorthand Reporter,
Shorthand Reporting, Court Reporting, Shorthand Reporting Firm, Court Reporting Firm,
Affiliate Office, Guardian, Guardianship Program, Private Professional Guardian, Advisory
, Licensed Court Interpreter.

Process Server” and “Process Service” are not defined.  The JBCC has no statutory authority
to license (certify) or regulate process servers, no authority to adopt rules or policies for that
purpose, and certainly no authority to receive, investigate, and adjudicate complaints against
process servers.

For comparison, attached are lists of relevant definitions in statute (
Exhibit B-1) and definitions
found in the JBCC's rules (
Exhibit B-2.)  ALL of the definitions in the rules were copied verbatim
from the statutes EXCEPT for the process server section.  As you can see, the process server
section in statute has only one definition… “Advisory Board.”  However, the JBCC rules don’t
include this definition and, instead, define “Certified Process Server.”  This is the ONLY definition
that is in the rules, but NOT in the statutes.  There is no such thing as a “Certified Process
Server” in statute.  The JBCC has no statutory authority to regulate any occupation not defined
by statute.

Regarding JBCC adjudicative records and open government:

Chpt. 552, TGC, The Public Information Act begins…
552.001. POLICY; CONSTRUCTION. (a) Under the fundamental philosophy of the American
constitutional form of representative government that adheres to the principle that
government is the servant and not the master of the people, it is the policy of this state that each
person is entitled, unless otherwise expressly provided by law, at all times to complete
information about the affairs of government and the official acts of public officials and
employees.  The people, in delegating authority, do not give their public servants the right to
decide what is good for the people to know and what is not good for them to know.  The people
insist on remaining informed so that they may retain control over the instruments they have
created.  The provisions of this chapter shall be liberally construed to implement this policy.  (b)
This chapter shall be liberally construed in favor of granting a request for information.

On the JBCC’s website is posted a form titled “Request for Records” (
Exhibit C.)  The form
reads, "The Judicial Branch Certification Commission is a judicial branch entity. As such, it is
not subject to the Public Information Act (Government Code Chapter 552), but to Rule 12 of the
Rules of Judicial Administration."

Attached is a copy of Per Curiam Rule 12 Decision 15-009 (
Exhibit D.)  This ruling demonstrates
the claim on the JBCC request form is erroneous.  The JBCC’s adjudicative records, including
those relating to the investigation and resolution of complaints, are not subject to Rule 12.  
Neither are they subject to the Public Information Act.  This means those records are not subject
to any open records provision.  This is a violation of the fundamental philosophy of the
American constitutional form of representative government and a violation of open government
in Texas.

Regarding Court Reporters, prior to September 1, 2014, an Attorney General’s opinion
established that records of the (former) Court Reporters Certification Board were subject to both
Rule 12 and the Public Information Act.  When regulatory authority for court reporters was
transferred to the JBCC, that standard disappeared and things have now returned to the former
unlawful and unconstitutional arrangement.  The 15-009 ruling applies to records for ALL
occupations regulated by the JBCC, including adjudicative records relating to Court Reporters.  
This is a problem the JBCC should endeavor to correct by way of recommendations to the Court
and Texas Legislature.

Regarding Vincent Zubras matter, Cause No. CPS-15-06091-025:

At the last meeting, the JBCC heard a complaint matter regarding Mr. Vincent Zubras and an
allegation of trespassing.  Mr. Zubras’ attorney pointed out the fact that no code of conduct
exists with regard to process servers and it would be a violation of due process to discipline Mr.
Zubras.  Even Mr. Scott Gibson, the JBCC’s own General Counsel, agreed.  In defense of her
recommendation to discipline Mr. Zubras anyway, the Assistant Attorney General, Ms. Veena
Mohan stated,

“Across the board, state agencies have standards.  They have general standards of

That fact actually does more to demonstrate the JBCC is powerless to act.  Unlike all other state
agencies across the board, the JBCC has no standards of professionalism for process servers.  
Ms. Mohan continued by comparing the JBCC to the Texas State Board of Plumbing Examiners
(TSBPE.)  But, that comparison only exposes all the statutory authority the JBCC lacks.  
Plumbers are regulated by statute; process servers are not.  The Plumbing Board has a code of
conduct in statute and in rule; process servers have no code of conduct anywhere.  Further, for
plumbers, the practice and the practitioner are both defined by statute; process servers are not.  
The attached list contains all relevant plumbing terms defined by statute (
Exhibit E.)

The trade of plumbing has twelve different definitions in statute for plumbers, including a
definition for the trade itself.  Conversely, there is not a single definition in statute anywhere for
"Process Server,” “Process Service,” “Process Service Firm,” etc.  The JBCC is nothing like the
TSBPE.  The JBCC has no statutory authority to regulate process servers, adjudicate complaints
against them, or administer discipline.

Ms. Mohan also stated that the former Process Server Review Board “operated for years without
a code of ethics” suggesting that such an arrangement is common and acceptable.  The exact
opposite is true.  Attached is a copy of the Senate floor debate on SB 966 (83R) the legislation
that created the JBCC (
Exhibit F.)  The Senate debate confirmed the reality of the situation.  The
PSRB operated without lawful authority and in violation of the Texas Constitution for nine years.  
The JBCC’s actions against process servers are equally unlawful.

Regarding Justice Court Process:

Since September 1, 2014, all process issued by the Justice Civil Courts of Texas and served by
JBCC Certified Process Servers was not authorized by statute or Supreme Court order.  I must
again reiterate the issue of the Supreme Court’s Misc. Docket Order No. 14-9186 and the
implications relating to judgments and challenges to proper service (
Exhibit G.)  It is a
retroactive order with ex post facto application that failed to include the rule relating to Justice
Court process, Rule 501, TRCP.  

The existence of this order proves two important facts.  First, if the statutes had properly
authorized the regulation of process servers, MDO 14-9186 would not have been necessary.  
More importantly, MDO 14-9186 implies that process servers are still being regulated by court
order, not by statute.  By issuing this MDO, the Court has effectively reestablished the very same
unlawful and unconstitutional arrangement that existed with the old PSRB; and the very
violation of the Constitution the author of SB 966 said the bill was intended to abolish.  This
order is nothing short of an acknowledgement by the Court that statutory authority to license
and regulate process servers does not exist.

Most of the foregoing could be corrected by one simple act… The JBCC should cease regulating
process servers.


Tod E. Pendergrass
Texas Supreme Court Judicial Branch Certification Commission Certified Private Process Server
(under T.D.C.)

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Austin, Texas 78704
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