Service of Process – The Regular Way
The term “service of process,” or “service” refers to the Defendant in a suit being given proper notice of the case. Typically, service is performed by (1) constable, (2) a private process server, or, (3) via certified mail sent by the court’s clerk. TRCP 106a. Each one of these methods has their benefits and drawbacks.
It is important to note that out of state Defendants may also be served this way in their home state. TRCP 108.
Avoidance of Service – Substitute Service
It is not unusual for a Defendant or Respondent to either avoid service. But without service, it is impossible to proceed with the lawsuit. A mechanism exists to overcome this. Pursuant to TRCP 106(b), upon an affidavit confirming that the Defendant can probably be found at a certain location (and normally, the Court would want some kind of additional proof rather than just one’s word), and after reasonable attempts at service at that location (the standard of which at time of this publication is three to four attempts, with at least one in morning, one during day, and one in evening), one can petition the Court to allow substituted service by leaving process with anyone over sixteen years of age at that location, or, “in any other manner, including electronically by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice of the suit.” TRCP 106b.
It is important to note that out of state Defendants may also be served this substituted way in their home state. TRCP 108.
This substituted service is a powerful mechanism, as it essentially allows service unto any person sixteen or older at that property, or, via email, social media, or even text message. The key here is that attempts in good faith have to be first tried before the Court will allow substitute service.
Defendant Living Abroad – Multiple Options
If the Defendant lives in another country, then they can be served via (1) method of that country’s laws, (2) as the foreign court directs via letters rogatory, (3) via method outlined in TRC 106a, (4) pursuant to any international agreement (normally Hague Convention), (5) by a diplomatic official, or, (6) how your court authorizes otherwise provided it does not run afoul of international law. TRCP 108a. Typically, our office either sends service to the equivalent of a process server in the target country to serve the Defendant, or, uses the designated “national organ” of the County for the Hague Convention for service.
Defendant’s Residence is Unknown – Service by Publication
If a party simply does not know the Defendant’s residence and cannot even begin to make attempts at service at a location, or if Defendant is transient, or if Defendant is out of state and serving them out of state has not been successful, then Texas provides a mechanism as well. Under TRCP 109, a Defendant may be served by publication. Publication in this case means online with the Public Information Internet Website maintained by the Office of Court Administration, and a newspaper (with the latter not being required if there is a waiver for fees, the cost is greater than $200/week, or, there is no circulated newspaper in the Texas county). TRCP 116; TCPRC Sec. 17.032.
It is important to note that an unknown heir, stockholder of a corporation, or an unknown claimant to land or property may also be served by publication. TRCP 111 – 113.
If the case is a family matter (divorce, custody, etc.), the above is also echoed in TFC Sec. 102.010. An important addition to a family case where no minor children are involved is that publication may be effected by posting on the courthouse door for seven days, without the need of digital or newspaper publication. TFC Sec. 6.409(d). Finally, if the Petitioner swears an oath that aside from no minor children being born during the marriage, no significant amount of property was accumulated during the marriage, the Court may (at its discretion) waive the otherwise mandatory appointment of an attorney ad litem to represent the Respondent. TFC Sec. 6.409(e).
Justice of the Peace Courts – Alternative Service
A related version of this is called “Alternative Service,” which is utilized in Justice of the Peace Courts in Texas, and use a slightly modified version of Substituted Service. Upon showing that a Defendant cannot be served, the Court may authorize Alternative Service by means of (1) mailing a copy of the service to the Defendant at their suspected address and also leaving it with anyone over sixteen at that address, or, (2) mailing a copy of the service to the Defendant at their suspected address and by any other method the Court believes would give Defendant notice (normally, email, posting on the door, text message, and/or social media). TRCP 501.2(e).
Service Unto Secretary of State
In some cases when a corporate entity cannot be served, service unto the Texas Secretary of State is also authorized. A Texas filing entity may be served through the Secretary of State if (1) the entity fails to appoint or maintain a registered agent, or, (2) the entity’s registered agent cannot with reasonable diligence be found at the registered office.
A foreign filing entity may be served through the Secretary of State if: (1) the entity fails to appoint or maintain a registered agent, (2) the entity’s registered agent cannot with reasonable diligence be found at the registered office, (3) the entity’s registration is revoked, or, (4) the entity transacts business in Texas without being registered as required by Chapter 9 of the Texas Business Organizations Code.
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