Chapter 23-4 Pleading Method of Service

• Jurisdiction: United States

23-4 Pleading Method of Service

Multiple methods exist under the Texas rules and statutes for service of original process, including service by personal delivery or mail to Texas residents⁴² or non-residents,⁴³ service on nonresidents through various long-arm statutes,⁴⁴ substituted service when normal methods of service have not been effective,⁴⁵ and service by publication when the defendant cannot be located.⁴⁶

As a general rule, there is not a necessity to plead in the original petition the desired method of service of citation. (As discussed in the preceding sections, an exception exists when a nonresident defendant is served via substituted service on the secretary of state through a long-arm statute or because a filing entity has failed to maintain a registered agent; a statutory method of substituted service must be supported by a record of all facts necessary to support that method of service.)⁴⁷ Instead, the plaintiff is expected to continue to pursue whichever methods of service are likely to be successful.⁴⁸ The duty of plaintiff's counsel is to monitor the efforts directed toward service of process and take all steps reasonably necessary to accomplish service with due diligence.⁴⁹

In pursuing the completion of service of process, plaintiff's counsel can demonstrate diligence by seeking an order for substituted service under Tex. R. Civ. P. 106(b) if multiple attempts by other methods of service have been unsuccessful.⁵⁰ To obtain this order, a verified motion must be filed detailing the prior attempts at service and explaining why the requested form of substituted service is anticipated to be successful at providing actual notice of suit to the defendant.⁵¹

Once service of process has been obtained, if the defendant fails to answer and a default judgment becomes necessary, the officer's return of service of citation should be reviewed for completeness and accuracy⁵² and filed with the clerk of the court,⁵³ to be sure the facts of service are part of the record.

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Notes:

^[42] Tex. R. Civ. P. 106(a).

^[43] Tex. R. Civ. P. 108 (service in another state); Tex. R. Civ. P. 108a (service in foreign countries).

^[44] See, e.g., Tex. Civ. Prac. & Rem. Code Ann. §§ 17.026, 17.041-17.045, 17.061-17.069.

^[45] Tex. R. Civ. P. 106(b).

^[46] Tex. R. Civ. P. 109.

^[47] Redwood Grp., L.L.C. v. Louiseau, 113 S.W.3d 866, 868-70 (Tex. App.—Austin 2003, no pet.).

^[48] Taylor v. State, 293 S.W.3d 913, 915-16 (Tex. App.—Austin 2009, no pet.) (methods of service...