Originally published by The Law Office of Bryan Fagan, PLLC Blog.
Service of process is important because it puts a party on notice that a lawsuit is being brought against them. It is also critical to establish subject matter jurisdiction over the type of case and personal jurisdiction over the defendant, without these an impending case cannot be heard. Service of process can get tricky, and it is important to understand what needs to be served, the methods of service, and who can serve.
First and foremost, what needs to be served on a party to a lawsuit is the citation and a copy of the petition. If there are other motions that have been filed with the original petition, they too must be served on the defendant. The most common method of service is personal service, where a complaint is served on the defendant in person. Personal service can be executed by a few authorized individuals laid out in the Texas Rules of Civil Procedure Rule 103 and includes (1) any sheriff, constable, or person authorized by law; (2) any person authorized by law or by written order of the court over the age of 18; and (3) any person certified under order of the Supreme Court of the United States. Service can be affected also by registered mail, certified mail, and citation by publication but must be made by the clerk of the court where the case is pending. Parties to the suit or people who have an interest in its outcome cannot serve the process.
When service of process seems unachievable there are alternative methods of service designated by the court to effectively achieve service of process. There may often be defendants who are hard to locate, especially if they have acted with ill motive to avoid the lawsuit. For defendants who are non-residents, absent, transient, or their address may be unknown to the petitioner, these alternative methods ensure your case can continue to move through the legal process. However, it is also required for a party to search diligently for the other party. A diligent search must show that you have made a serious effort to locate or gather information about the defendant and their whereabouts. Only after a diligent search will a motion for alternative or substitute service be considered.
Now we have learned just who may service the process on a party and the diligent search that must be conducted to find a defendant, it’s important to understand how substituted service can be achieved.
Rule 106 Alternative Service
The first remedy you must exercise is the Rule 106 Motion for Alternative Service. A party must exercise all possible remedies to put the opposing party on notice, and the alternative motion is important before you can proceed with a Rule 109 Citation by Publication. In this alternative method anyone authorized by the TRCP Rule 103 can personally deliver to the defendant a copy of the citation and petition, or a copy of the citation, petition, and request for return receipt by registered or certified mail. If service cannot be achieved through the methods stated above, a motion for alternative service must be filed with the court, and have an affidavit attached with it stating that service has been ineffective at the defendant’s usual place of business, usual place of abode, or any other place where the defendant may probably be found. This affidavit must specifically state the facts showing service was attempted at the location named in it. Thereafter, the court may authorize service by leaving (1) a true copy of the citation and petition with anyone over sixteen years old at the location specified in the affidavit that was filed with the petition; or (2) any manner that shows will be reasonably effect to give the defendant notice of the suit. The alternative method stated above in option (1) is commonly referred to as service by “Nail and Mail.”
Rule 109 Citation by Publication
If a rule 106 alternative method proves to be unsuccessful, the fallback method that is commonly used in both state and federal courts is citation by publication, sometimes referred to as constructive service. In this method of service, an advertisement will be published in a local newspaper effective enough to give notice to the defendant that a lawsuit is being brought against them. This is considered the fallback method because courts are persistent in serving a defendant in a manner than is most likely to bring notice to the defendant that a lawsuit has been brought against them. This can pose some of a problem since the use of newspapers has seen a rapid decline with the advancement and easy access to technology. Nonetheless, it will hold up court if you have previously attempted all other methods.
As mentioned before there are required steps that must be taken before a Court will grant substituted service. This includes having a process server attempt multiple times to execute service on the defendant at the usual place of business, usual place of abode, or other places where they can be found. When this cannot be achieved the process server will draft an Affidavit stating that they have personally attempted to execute service and documented each attempt that was given to execute service. After all of this it is required an attorney file a Motion with court to be granted authorization to use a substituted service. This most often can require an oral hearing before the judge, which can take some time to be set on a Court’s docket depending on how booked the Court’s dates are. These tedious, but required steps, will delay your case but will help keep moving your case along to get you over the beginning process.
Lastly, after exercising all alternative methods of service the opposing party will have enough notice about the lawsuit being brought against them. If an opposing party does not respond they will face having a default judgement granted against them. This will grant the relief the party bringing the suit is seeking.
If you believe someone is refusing service, it is important to remember that there are alternative methods granted by the court to ensure one party cannot hold the case back. It is important to understand the process that must be followed before an attorney can just jump into citation by publication. Understanding the process as well is important for the party bringing the suit to understand that it can require a bit of patience on their end, and that most attorneys are not acting in ill-motive with their case. Having a case move smoothly throughout the legal process is an attorney’s goal but can be backtracked when one party is unresponsive to the suit.
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